Union Trust Co. v. Toretta, No. 104557 (Sep. 3, 1993) , 1993 Conn. Super. Ct. 8104 ( 1993 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION This court previously denied summary judgment to the plaintiffs, after misreading the file and erroneously concluding that the court (Parker, J.) had already acted on the motion. In fact, Judge Parker granted summary judgment against the defendants Paul and Eileen Toretta only, but no such motion against the defendant Mario DiRienzo, III was then pending.

The court has now carefully reviewed the plaintiff's Motion for Summary Judgment as to the defendant Mario DiRienzo, III, and supporting papers and the defendants' opposition papers.

The defendant is quite right that foreclosure is an equitable proceeding and that the court can use its discretion to withhold foreclosure in appropriate circumstances. Hamm v. Taylor,180 Conn. 491, 197 (1980). This does not excuse the defendant from filing sufficient documentation to alert the court of the material issues of fact in dispute that are necessary to be tried. The defendant's affidavit raises material issues of fact which relate CT Page 8105 to the amount of any deficiency judgment that may be requested, but not as to liability for foreclosure. There must be "an appropriate foundation of fact" from which the court can conclude that foreclosure is inequitable, Lettieri v. American Savings Bank,182 Conn. 1, 12 (1980), and no such foundation has been presented on the issue of liability by the defendant to oppose that established by the plaintiff in its Exhibits.

As to the issue of liability for foreclosure only, there is no material issue of fact and the plaintiff is entitled to foreclosure as a matter of law. The previous denial is vacated, and the plaintiff's Motion for Summary Judgment against Mario DiRienzo, III is granted.

/s/ Patty Jenkins Pittman, J. PATTY JENKINS PITTMAN