Month: January 2019

Connecticut General Statutes Section 42-150bb provides

Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, “commercial party” means the seller, creditor, lessor or assignee of any of them, and “consumer” means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.

The contract must have a provision for attorney’s fees to be awarded to a commercial party. As defined by statute, a commercial party is a “seller, creditor, lessor or assignee of any of them.”

A consumer party is a “buyer, debtor, lessee or personal representative of any of them.”

Furthermore, the statute only applies to contracts or leases in which “the money, property or service which is the subject of the transaction which is primarily for personal, family or household purposes.” There can be situations in which a transaction is for most personal and business purposes, so the issue then becomes when the transaction is primarily for personal purposes.

Common situations in which these occur are debt collection, and household leases.

The provision applies to a situation in which a contract ” provides for the attorney’s fee of the commercial party to be paid by the consumer.” It makes no difference if the commercial party is actually seeking the attorney’s fees.

For an award of attorney’s fees, the consumer must “successfully prosecute(s) or defend(s) an action or a counterclaim based upon the contract or lease.” A withdrawal may be treated like a successful defense, but not in all cases. See Connecticut Housing Finance Authority v. Asdrubal Alfaro 163 Conn. App. 587 (2016). In situations in which a plaintiff files a withdrawal of action , a consumer/defendant should immediately move for attorney’s fees, and claim that a withdrawal should be treated as a successful defense, warranting attorney’s fees.

If you have any questions, concerning a claim for attorney’s fees, in a consumer contract, please feel free to contact

Attorney Robert M. Singer

2572 Whitney Avenue

Hamden, CT 06518

203-248-8278

rsingerct@yahoo.com

A plaintiff who obtains a court judgment against a defendant will want to place a judgment lien on a defendant’s residence, in the amount of the judgment.

Connecticut has a homestead exemption law, found at Conn. General Statutes 52-352b (t)

The exemption applies to

(t) The homestead of the exemptioner to the value of seventy-five thousand dollars, or, in the case of a money judgment arising out of services provided at a hospital, to the value of one hundred twenty-five thousand dollars, provided value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it.

The exemptioner must be a natural person. The homestead must be “owner occupied real property used as a primary residence.” (Presumably, if the residence is owned by a trust, the trust cannot exempt the real property).

Conn. General Statutes 52-352f provides
A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d or 52-361a or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorney’s fees allowed pursuant to section 52-400c.

Therefore, the $75,000 exemption effectively protects $75,000 in equity of a residence, from foreclosure, by a judgment lienor.

“Once a foreclosure sale is confirmed and reduced to proceeds, the homeowner’s exemption rights attach to the proceeds of the sale. ” Spears v. Elder, 156 Conn. App. 778 at 787 (2015). Therefore, if a judgment lien holder would seek to foreclose, a judgment debtor would be entitled to $75,000 proceeds from the foreclosure sale, before the judgment lienholder gets paid.

Example – Foreclosure sale by lien holder

Proceeds – $180,000

1st Mortgage – $120,000

Balance due – $60,000 – paid to judgment debtor – as exempt proceeds of sale

Judgment Lienholder gets nothing

Interestingly, it appears that there is no exemption in a situation in which a judgment debtor sells his or her property at a private sale. Assuming the same situation above, the lienholder would seem to be entitled to payment of the $60,000, rather than the judgment debtor.

Similarly, it is not clear if a judgment lienholder would get paid, before a judgment debtor, in the case of a foreclosure by a mortgagee.

Example, Foreclosure by mortgagee/Bank

1st Mortgage $120,000

Balance due $60,000 – since the statute prevents the lienholder from enforcing the lien, and the lienholder is not “enforcing the lien,” it appears that the lienholder should be able to collect the $60,000 balance.

If you have any questions, concerning judgment lien enforcement in Connecticut, please feel free to contact

Attorney Robert M. Singer

2572 Whitney Avenue

Hamden, CT 06518

203-248-8278

rsingerct@yahoo.com