Act concerning Mobile Manufactured Homes: Does It Trash Trailer

Transcription

Note
AN ACT CONCERNING MOBILE MANUFACTURED HOMES:
DOES IT TRASH TRAILER PARKS?
I.
INTRODUCTION
The Connecticut State Legislature passed an act in May of 1999,
which significantly altered the existing law governing a summary
process eviction action initiated by a mobile home park owner ("park
owner") against a tenant.' With the enactment of Public Act No. 99-57
("Act"), the State Legislature placed owners of mobile manufactured
homes ("mobile home owners") in the precarious position of being
subject to what essentially constitutes a taking of their mobile home by
the park owner. 2 The Act also has the effect of threatening the security
interests of any mortgage holder or lien holder of a subject mobile home
because the method of taking a mobile home by a park owner, as
stipulated in the Act, lacks fundamental procedural due process
protections .3
Numerous Connecticut citizens own and occupy mobile homes,
and many lending institutions have security interests in the owners'
investments in these mobile homes. This Act infringes on property
interests of mobile home owners and security interests of their
creditors.4 It does not provide sufficient due process protection of these
1. See Act Concerning Mobile Manufactured Homes, 1999 Conn. Acts 99-57
(Reg. Sess.) (codified at CONN. GEN. STAT. § 21-80(e) (providing procedure for sale by
park owner of "abandoned" mobile manufactured homes)).
2. See CONN. GEN. STAT. § 21-80 (2001).
3.
4.
See id.
See id.
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interests,5 which are protected by both 6the Connecticut State
Constitution and the United States Constitution.
In Part II, this Note examines the background of summary process
actions against mobile home owners in Connecticut.7 It also provides
the procedural due process analysis and sets out the guidelines for
evaluating the statute.8 Part III sets out the legislative history of the
passage of Public Act 99-57 and the procedure, or lack thereof,
embodied in the Act.9 This Note determines a property classification
and the required standard of procedural due process protection for
mobile manufactured homes in Part IV. 10 Part V contains the due
Part VI compares the
process analysis of Public Act 99-57.11
procedures found in Connecticut's statutes on foreclosure by sale with
those found in Public Act 99-57.12 Part VII examines the problems
created by the Act's lack of procedural safeguards. 13 Finally, this Note
concludes, in Part
VIII, that the new law should be declared
14
unconstitutional.
II. BACKGROUND
Public Act 99-57 creates a new summary process action for mobile
home park owners against mobile home owners. Procedural due
process safeguards are required for a summary process action statute to
be constitutional. The following sections examine the summary process
action of Public Act 99-57 and the safeguards required by the
procedural due process standard.
5. See id.
6. See U.S. CONST. amend. XIV, § 1 ("No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of
law .... ); CONN. CONST. art. I, § 8 ("No person shall be... deprived of life, liberty or
property without due process of law .. "); CONN. CONST. art. I, § 10 ("All courts shall
be open, and every person, for injury done to him in his person, property or reputation,
shall have remedy by due course of law, and right and justice administered without sale,
denial or delay.").
7. See infra Part II.A.
8. See infra Part II.B.
9. See infra Part III.
10. See infra Part IV.
11. See infra Part V.
12. See infra Part VI.
13. See infra Part VII.
14. See infra Part VIII.
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ACT CONCERNING MOBILE MANUFACTURED HOMES
A. The Summary Process Statute and How It Works
A summary process action is a non-jury proceeding, which
disposes of cases in a prompt and simple manner. 15 It is a statutory
remedy that provides landlords with an expedited process to recover
possession of leased premises.' 6 An owner of a mobile home park may
bring a summary process action or may terminate a rental agreement
under title 21, section 80 of the Connecticut General Statutes. 17 A park
owner may maintain a summary process action against a park resident
who owns his/her mobile home only for specific reasons, and only after
an issuance of proper written notice. 18 The primary reason summary
process actions are initiated is because of the lack of rental payments. 19
After entry of judgment in the summary process action in favor of
the plaintiff, the park owner may seek to recover possession of the
mobile home pursuant to title 47a, section 26d of the Connecticut
General Statutes.20 The mobile home owner, however, has the right to
an automatic stay of execution of five days, pursuant to title 47a, section
35.21 Also, title 21, section 80 of the Connecticut General Statutes
provides up to a 12 month stay of execution when the mobile home
15. Urban v. Prims, 35 Conn. Supp. 233, 235-36, 406 A.2d 11, 12-13 (1979);
BLACK'S LAW DICTIONARY 1222 (7th ed. 1999); see also RICHARD R. POWELL, POWELL
ON REAL PROPERTY § 17.02[3], 17.37 to 17.38 (1999).
16. Prevedini v. Mobil Oil Corp., 164 Conn. 287, 292, 320 A.2d 797, 800 (1973);
Urban, 35 Conn. Supp. at 235-36, 409 A.2d at 12-13.
17.
CONN. GEN. STAT. § 21-80(e) (2001).
18. Id. The statute provides, in pertinent part:
[A]n owner may terminate a rental agreement or maintain a summary process
action against a resident who owns his own mobile manufactured home only
for one or more of the following reasons: (A) Nonpayment of rent, utility
charges or reasonable incidental service charges; (B) Material noncompliance
by the resident with any statute or regulation materially affecting the health
and safety of other residents or materially affecting the physical condition of
the park; (C) Material noncompliance by the resident with the rental
agreement or with rules or regulations adopted under section 21-70; (D)
Failure by the resident to agree to a proposed rent increase, provided the
owner has complied with all provisions of subdivision (5) of this subsection;
or (E) A change in the use of the land on which such mobile manufactured
home is located, provided all of the affected residents receive written notice at
least three hundred sixty-five days before the time specified in the notice for
the resident to quit possession of the mobile manufactured home or occupancy
of the lot.
Id. § 21-80(b)(1).
19. See id. § 21-80(b).
20.
See CONN. GEN. STAT. § 47a-26d.
21.
Id. §47a-35.
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owner attempts, in good faith, to sell the mobile home located at the
mobile home park.22 If, at the expiration of all applicable stays of
execution, the mobile home owner has not sold or removed the mobile
home from the park, the park owner may obtain an execution upon the
summary process judgment.2 3 The park owner may have a sheriff or
deputy sheriff remove the mobile home from the park.24
Historically, the park owner had the right to regain possession of
only the land upon which a mobile home, owned by a party other than
the park owner, was located.25 Pursuant to an execution of judgment,
the park owner could have the mobile home removed from the park.26
The municipality of the mobile home park then became responsible for
the mobile home. 27 Public Act No. 99-57 amends title 21, section 80 of
the Connecticut General Statutes by adding a new subsection. 28 The
new subsection allows the park owner to petition the court in a
proceeding supplementary to a previously initiated summary process
29
action.
22. Id. § 21-80(d).
23. Id. § 47a-42.
24. CONN. GEN. STAT. § 47a-42.
25. See id.
26. See id.
27. See id. The statute provides, in pertinent part:
Whenever the possessions and personal effects of a defendant are set out on
the sidewalk, street or highway, and are not immediately removed by the
defendant, the chief executive officer of the town shall remove and store the
same. Such removal and storage shall be at the expense of the defendant. If
such possessions and effects are not called for by the defendant and the
expense of such removal and storage is not paid to the chief executive officer
within fifteen days after such eviction, the chief executive officer shall sell the
same at public auction, after using reasonable efforts to locate and notify the
defendant of such sale and after posting notice of such sale for one week on
the public signpost nearest to the place where eviction was made, if any, or at
some exterior place near the office of the town clerk. The chief executive
officer shall deliver to the defendant the net proceeds of such sale if any, after
deducting a reasonable charge for removal and storage of such possessions
and effects. If the defendant does not demand the net proceeds within thirty
days after such sale, the chief executive officer shall turn over the net proceeds
of the sale to the town treasury.
CONN. GEN. STAT. § 47a-42(c).
28. Id. § 21-80(e).
29. Id. The new subsection provides, in pertinent part:
If (A) a judgment for possession has been entered against the resident and all
occupants of a mobile manufactured home pursuant to chapter 832 and section
21-80; (B) no rent or other payment has been received for the use and
occupancy of the lot upon which the mobile manufactured home is situated for
at least four months; (C) at least sixty days have passed since the expiration of
2001]
A hearing on the petition is held and the park owner must show
30
proof of reasonable efforts made to locate the mobile home owner.
The park owner must also show that the mobile home owner failed to
remove the mobile home from the park, and that he/she sent notice of
the hearing to the mobile home owner, the municipality, and any lien
holders of the mobile home. 31 The court shall then deem the mobile
home abandoned and order the park owner to sell the mobile home at
public auction.3 2 The sale of the mobile home extinguishes any claim
the mobile home owner has to the property.33 Also, any lien holders of
the mobile home are paid on their security interests only if there are
sufficient proceeds remaining after the costs of the sale are covered.34
Following the sale and issuance of clear title by the court to the
purchaser, the judgment of the original summary process action is not
executed.35 This leaves the mobile home on the lot in the park under
new ownership.36 The new subsection of title 21, section 80, as enacted
by Public Act 99-57, significantly increases a park owner's ability to
gain possession of not only the land upon which a mobile home is
the last stay of execution pursuant to chapter 832 and section 21-80; and (D)
notwithstanding the provisions of section 47a-42, the mobile manufactured
home remains on the lot, the owner of the mobile manufactured park may
initiate a petition to the Superior Court pursuant to this section. Such petition
may be brought as a supplemental proceeding in the summary process action,
in which case no additional entry fee shall be required.
Id.
30. CONN. GEN. STAT. § 21-80(e)(2).
31. Id. § 21-80(e)(3).
32. Id. ("If such requirements have been satisfied and such home has been
abandoned, the court shall order the owner of the mobile manufactured home park to
conduct a public sale of the home.").
33. Id. The statute provides, in pertinent part:
The order directing sale shall require notice which include a conspicuous
statement that the sale will extinguish all previous ownership and lien
rights .... The proceeds of such sale shall be applied first to the costs of the
sale and then to the payment of lien holders in order of the priority of their
liens. If proceeds remain thereafter they shall be paid over to the owner of the
mobile manufactured home .... The court upon finding compliance with its
order, shall issue a conveyance of title and release of liens, if any, to the
purchaser for filing in the land records, which shall constitute good title to the
home ....
CONN. GEN. STAT. § 21-80(e)(4).
34. Id. § 21-80.
35. Id.
36. See id.
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situated, but also the mobile home itself. 37 The mobile home owner has
no recourse once this action is complete.38
B. ProceduralDue Process Standard
The supplementary proceeding created by Public Act No. 99-57
should contain the procedural due process guarantees that protect
property interests.39 Procedural due process of law is a restraint on the
enforcement of any legislative or governmental dictate by any judicial,
executive, or administrative body. 40 The process of law due is not a
specifically mandated form of procedure. 4 1 Rather, procedural due
process requires that certain safeguards exist in the determination of
legal rights and obligations.42 Such safeguards include the right to
reasonable notice and a fair opportunity to be heard.4 3 The safeguards
enacted for the protection of a person's rights are determined by the
type of right in jeopardy. 44 The Supreme Court holds that certain rights
are fundamental and that these rights require a much higher level of
procedural due process protection than non-fundamental rights.4a
According to the Supreme Court, property is a fundamental right of
which a person cannot be deprived except by due process of law.46 The
Court decided that due process means constitutionally adequate
37. See CONN. GEN. STAT. § 21-80.
38. See id.
39. See id.; see also U.S. CONST. amend. XIV, § 1; CONN. CONST. art. I, §§ 8, 10.
40. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 10-7, at 664 (2d ed.
1988).
41. See Northeast Sav., F.A. v. Hintlian, 241 Conn. 269, 273, 696 A.2d 315, 317
(1997) (quoting Iowa Cent. Ry. Co. v. Iowa, 160 U.S. 389, 393 (1896)); Fermont Div.,
Dynamics Corp. of America, Inc. v. Smith, 178 Conn. 393, 397, 423 A.2d 80, 83 (1979).
42. Hintlian, 241 Conn. at 273, 696 A.2d at 317; Fermont, 178 Conn. at 397, 423
A.2d at 83.
43. See Hintlian, 241 Conn. at 273, 696 A.2d at 317; Fermont, 178 Conn. at 397,
423 A.2d at 83 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); Mary
Catherine Dev. Co. v. Town of Glastonbury, 42 Conn. App. 318, 323, 679 A.2d 52, 55
(1996) (quoting Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857, 859 (1979)); Szot
v. Szot, 41 Conn. App. 238, 241-42, 674 A.2d 1384, 1386-87 (1996); TRIBE, supra note
40, § 10-7, at 664.
44. Proctor v. Sachner, 143 Conn. 9, 17, 118 A.2d 621, 625 (1955).
45. See TRIBE, supra note 40, § 10-7, at 664.
46. See Fermont, 178 Conn. at 397, 423 A.2d at 83 (quoting Roundhouse Constr.
Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 376, 362 A.2d 778, 781 (1975));
TRIBE, supra note 40, § 10-12, at 709 (quoting Arnett v. Kennedy, 416 U.S. 134, 154
(1974) (Powell, J., concurring)).
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procedures. 47 In proceedings for taking property, the due process
required varies depending on the facts and circumstances of the
situation. 8 "[T]he formality and procedural requisites for [a] hearing
can vary, depending on the importance of the interests involved and the
nature of the subsequent proceedings. '49
To determine whether the procedures provided are constitutionally
adequate, a court must analyze the governmental and private interests
involved in a particular case, or class of cases. 50 In doing so, a court
will examine the private interest that is affected by governmental action,
and the risk of deprivation of such interest through the procedures
used.5 ' It must also evaluate the value of alternative procedures and the
fiscal and administrative interests of the government including any
additional burdens imposed by alternative procedures.5 2
Since mobile homes should be classified as real property, a court
must apply a high standard of procedural due process.53 Once the
appropriate level of due process is established, a court must determine
what interests are involved and whether the governmental interest is
sufficient to overcome the private property interest: 4 Itmay be helpful
to understand the reasons the Connecticut State Legislature passed
Public Act 99-57 to determine whether its procedural provisions satisfy
the requirements of constitutional adequacy.55
47.
See TRIBE, supra note 40, § 10-12, at 709.
48. Matthews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972)); see also Tedesco v. City of Stamford, 222 Conn. 233, 242,
610 A.2d 574, 578 (1992); Bartlett v. Krause, 209 Conn. 352, 369, 551 A.2d 710, 719
(1988).
49.
Boddie v. Connecticut, 401 U.S. 371, 378 (1971).
50. Arnett v. Kennedy, 416 U.S. 134, 167-68 (1974) (Powell, J.,concurring in
part); see also Tedesco, 222 Conn. at 242, 610 A.2d at 578.
51.
52.
Boddie, 401 U.S. at 378.
Matthews, 424 U.S. at 334-35; see also Tedesco, 222 Conn. at 243, 610 A.2d
at 578.
53.
54.
55.
See discussion infra Part IV.
See discussion infra Part V.
See discussion infra Part III.
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III. Public Act No. 99-57: LEGISLATIVE HISTORY AND STATUTORY
PROCEDURE FOR SALE BY AUCTION
A. Legislative History
Public Act No. 99-57 was introduced to the Connecticut State
Legislature through the Committee on General Law during the January
legislative session of 1999.56 The Act was raised in compliance with
title 2, section 18 of the Connecticut General Statutes.57 The entire body
of the bill, now Public Act No. 99-57, is an amendment to title 21,
58
(e). 59
section 80 of the Connecticut General Statutes; it adds subsection
This new subsection provides for a supplemental proceeding to a
summary process action against a mobile home owner.60
On March 25, 1999, the Joint Committee on General Law held a
public hearing. 6' Four speakers from the Connecticut Manufactured
Housing Association ("CMHA"), two of whom own mobile home parks
in Connecticut, and one speaker from the Legal Assistance Resource
Center addressed the joint committee in favor of passage of Public Act
No. 99-57.62 According to one speaker, the Mobile Manufactured
Housing Advisory Council ("MMHAC") of Connecticut appointed a
subcommittee to draft the proposed legislation (Public Act 99-57).63
Three of the speakers at the hearing were on that subcommittee. 64 The
first speaker stated that the problem, which the proposed legislation
intended to address, was the trouble park owners face when they want to
remove or take possession of abandoned mobile homes.6 5 The mobile
homes are owned by another party, but remain on the park lot
unoccupied.66 It appears, by the rather convoluted explanation of the
first speaker that the subcommittee intended to create a process for the
56.
See S.B. 1163, 1999 Leg., 1st Reg. Sess. (Conn. 1999).
57.
58.
59.
60.
See id.; CONN. GEN. STAT. § 2-18 (2001).
CONN. GEN. STAT. § 21-80(e); 1999 Conn. Acts 99-57 (Reg. Sess.).
See id.
1999 Conn. Acts 99-57 (Reg. Sess.).
61. An Act Concerning Mobile Manufactured Homes: Hearing on S.B. 1163
Before the Joint Comm. on Gen. Law, 1999 Leg., 1st Reg. Sess. 880, 905-87 (Conn.
1999) [hereinafter Hearing on S.B. 1163].
62. Id.
63. Id. at 905-06 (statement of Joe Mike, Executive Director, CMHA).
64. Id.
65. Hearing on S.B. 1163, supra note 61, 905-06.
66. Id.
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park owner to establish title to a mobile home left vacant on its lot with
the rent unpaid.67
The second speaker, a representative of the manufactured housing
industry on the MMHAC, clearly outlined the problem the proposed
legislation intended to address. 68 He also explained the solution the
subcommittee proposed in the form of the raised bill. 69 The driving
force behind the proposed legislation was the fact that once an execution
of judgment on the summary process action is sought, the municipality
in which the mobile home park is located becomes responsible for
removing the mobile home.7 ° Many municipalities, however, simply
refuse to allow a park owner to act on an execution of judgment.71
Clearly, the concern of park owners is to regain possession and use of
their land, and if possible, payment of rents and fees due them from the
mobile home owner.72 The park owners have not only lost receipt of
rent from the occupying mobile home, but they also suffer lost profits
67. Id. at 906 (statement of Joe Mike, Executive Director, CMHA). The speaker
stated:
What we are looking for is an opportunity to either purchase the home, clear
the title, or remove the home. If its [sic] purchased it can be refurbished or
just removed so that we can bring another home in. Someone could occupy it.
But to create a process by which we can establish ownership of the home has
been abandoned. Fair and simple. Today there seems to be no process where
you cannot find either someone willing to establish in the state or someone
who is willing to take possession of the home, no process by which we can get
that out and that's what we're trying to address in this bill.
Id.
68. Hearingon S.B. 1163, supra note 61, at 906.
69. Id. at 906-07 (statement of Jeffery Ossen, Member, CMHA and MMHAC).
Mr. Ossen stated:
This bill does provide a way, that instead of having to evict a home for
nonpayment of rent, that creates a problem for the municipalities, which may
have an obligation to dispose of it. It creates a problem for the neighbors,
other consumers, who have to look at an ugly abandoned home. It creates an
opportunity... to recycle the home....
[T]his bill provides for an
opportunity for the superior court, to declare, to make a finding that the home
has been abandoned. That's a prerequisite to protect the consumer. But once
that finding has been made by the superior court, an auction may be held and
anybody, but certainly the park owner might also buy that home if there's
salvage value in it, the park owner might very well refurbish it....
Id.
70. See CONN. GEN. STAT. § 47a-42 (2001); Hearing on S.B. 1163, supra note 61,
at 919-20, 982 (statement of Marcia Stemm, Member, CMHA and MMHAC).
71. Hearing on S.B. 1163, supra note 61, at 919-20, 982 (statement of Marcia
Stemm, Member, CMHA and MMHAC).
72. See id. at 920-23, 982-85 (statements of Robert W. Bums, Member, CMHA;
Marcia Stemm, Member, CMHA and MMHAC).
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by being unable to lease the lot to a new occupant.7 3 74In addition, they
incur legal expenses in their attempts to recover the lot.
One speaker, the representative from the Legal Assistance
Resource Center, stated that the park owner industry had introduced the
issue to the MMHAC, and that the advisory council attempted to
balance the needs and concerns of the park owners with those of the
mobile home owners and park residents." The industry indicated to the
advisory council that the situation, with which the proposed legislation
deals, usually occurs when the mobile home owner has died and the
estate does nothing with the mobile home, or when the owner has
vacated and moved to unknown whereabouts.76 According to five
speakers, the bill presented to the General Law Committee addressed
the concerns of the park owners, park residents, municipalities, and
mobile home owners.77 Interestingly, all testimony presented at the
public hearing was in favor of the bill; not one speaker voiced a
negative opinion on the topic, and all but one speaker were members of
the mobile home park or manufacturing industry.78 Not one speaker
was a representative of mobile home owners or of the banking/financing
industry. 79 These are the two main groups whose property interests are
threatened by the passage of Public Act No. 99-57. 80
73. See id.
74. See id.
75. Hearing on S.B. 1163, supra note 61, at 912-13 (statement of Raphael
Podolosky, Legal Assistance Resource Center). The speaker stated:
This was an issue that was brought to the advisory council by the park owner
industry. What we attempted to do was try to find some way to balance the
needs that they had in order to have finality and the ability to do something
with the home short of just discarding it .... By the same token, a mobile
home has a great deal of value and we were concerned on behalf of residents
to make sure that all efforts have been explored to have alternatives to that
happening. According to the industry, a lot of times this comes up when a
resident had died and people who are handling the estate may or may not be
all that interested in dealing with the mobile home park. So what we've tried
to do is balance those things out and I think that what we've done works.
Id.
76. Id. at 912-13, 981.
77. Id. at 905-87.
78. See Hearing on S.B. 1163, supra note 61, at 905-87.
79. See id. at 905-87.
80. See CONN. GEN. STAT. § 21-80(e) (2001); Hearing on S.B. 1163, supra note
61, at 905-87.
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The Connecticut Conference of Municipalities provided written
testimony at the hearing in support of the bill. 8' The Conference
indicated that the bill relieved municipalities of all responsibility for
evicted mobile homes. 82 According to the Conference, municipalities
are burdened by the responsibility of evicted mobile homes, 83 because a
municipality would incur great costs if it had to remove an evicted
mobile home.84 A municipality must hire a private company to remove
the home, and it must pay additional costs to store the mobile home.85
This exhausts the resources of municipalities, and the Conference
the problems
testified that the proposed bill would alleviate
86
municipalities face, absent the new sale procedure.
The Joint Committee received written testimony from
Representative Melody A. Currey, Tenth District.8 7 Her testimony
supported the proposed bill.88 Representative Currey represents the
district of East Hartford, which is the residence of one of the speakers at
the public hearing who favored the bill and owned at least two mobile
home parks in Connecticut. 89 Her letter of testimony strongly favored
the rights of park owners while only giving lip service to the rights of
81. Hearing on S.B. 1163, supra note 61, at 980 (written statement by Connecticut
Conference of Municipalities).
82. Id.
83. Id.
84. Id.
85. Hearing on S.B. 1163, supra note 61, at 980 (written statement by Connecticut
Conference of Municipalities).
86. Id.
87. Id. at 986-87 (written statement by Melody A. Currey, Representative Tenth
District, Connecticut State Legislature).
88. Id. Representative Currey wrote:
When owners of mobile manufactured homes sometimes abandon their
homes, they are left on lots in mobile manufactured home parks and become a
burden to the mobile park owner. The rent from that lot can no longer be
collected which causes quite a problem for a park owner. The rights of the
homeowner, the town, which may have a lien for taxes, and the creditors who
may have issued loans secured by the home, all must be respected by park
owners. In the meantime park owners are not receiving rent or other payment
for the use and occupancy of the lot on which the home is situated. This is
clearly unfair to the park owner who is simply trying to earn the money she or
he deserves.
Hearing on S.B. 1163, supra note 61, at 986-87 (written statement by Melody A.
Currey, Representative Tenth District, Connecticut State Legislature).
89. Id. at 921, 983, 986 (statements of Robert W. Bums, Member, CMHA; Melody
A. Currey, Representative Tenth District, Connecticut State Legislature).
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the mobile home owners. 90 She simply recited the provision of the bill
with no thought or comment about the rights of any lien holders who
may have interests in a subject mobile home. 91
Although the testimony presented to the General Law Committee
during the public hearing addressed the concerns of the mobile home
park owners and the municipalities in some detail, it did not address,
adequately, the interests of mobile home owners or of parties holding
security interests in the mobile homes.92 Most notably, there is no
indication that anyone considered what would happen when there is a
federal tax lien on a subject mobile home.93 No state court has the
authority to release such a lien, and yet the new procedure calls for clear
title to be issued to the purchaser of the mobile home with a release of
all liens.94
Upon questioning by the Committee, the speakers attempted to
clarify the purpose of the bill, which was described as "adress[ing] the
problem of mobile manufactured homes which have been abandoned in
mobile manufactured home parks. 95 The record indicated that the most
preferable action when a mobile home is abandoned, or when it is
unoccupied and the owner has not paid rent for the lot, is for a bank or
financing institution, with an interest in the mobile home, to initiate a
foreclosure or repossession proceeding.96 Of course, that occurs only
when mortgage or loan payments are not met.97 A creditor action would
alleviate the park owner from any responsibility with regard to
removing the mobile home, and the park owner should receive back rent
from the bank.98 The testimony stipulated that the new procedure would
reduce the time it takes for a park owner to recover possession and use
of land when no foreclosure action is initiated by a creditor. 99 The Joint
90. Id. at 986-87 (written statement by Melody A. Currey, Representative Tenth
District, Connecticut State Legislature).
91. Id.
92. See Hearingon S.B. 1163, supra note 61, at 905-87.
93. See id.
94. CONN. GEN. STAT. § 21-80(e)(4) (2001).
95. S.B. 1163, 1999 Leg., 1st Reg. Sess. (Conn. 1999); see Hearing on S.B. 1163,
supra note 61, at 905-87.
96. See Hearing on S.B. 1163, supra note 61, at 908 (statement of Jeffery Ossen,
Member, CHMA and MMHAC). "If the bank does that, that's great. Because it's
generally the bank that now wants to protect it's security interest and the money that it
advanced it then will pay us the back rent. It will refurbish and resell the unit. That's
great when that happens." Id.
97. See id.
98. See id. at 908.
99. Hearingon S.B. 1163, supra note 61, at 908.
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Committee, however, did not address the fact that the proposed bill
provides little or no procedures for a court to follow, and in that respect,
no procedural due process safeguards.'0 The Joint Committee did raise
the question of how sufficient notice would be accomplished when the
owner of a subject mobile home could not be located.' 1 Nonetheless,
the Committee did not receive an answer, and although a Committee
member requested
further information, there is no record of receipt of
10 2
that information.
Testimony at the hearing regarding lien holders' rights addressed
the fact that, if enacted into law, the bill would extinguish all lien
interests in a subject mobile home. 10 3 One speaker stated that any
interested lien holders must bid for the mobile home in order to retain
their interest, though this contradicted an earlier statement that the lien
holders would be paid after the auction took place. 1°4 Although
Committee members questioned this aspect of the bill, no resolution or
explanation is found in the record of the legislative history. 105 Also,
there was, again, no mention of the priority of a federal tax lien on a
subject mobile home, which should presumably be paid off as the first
priority. 106
Following the public hearing, the Senate of the Connecticut
General Assembly passed the proposed legislation on May 5, 1999,
without comment or objection.10 7 On May 12, 1999, the House of
Representatives of the Connecticut General Assembly placed the bill on
the Consent Calendar for action the next day. 10 8 The House of
Representatives passed the bill without comment or objection on May
13, 1999,1°9 and the Governor signed the bill into law as Public Act No.
99-57 on May 27, 1999.110
100. See id. at 905-87.
101. Id. at 918-19.
102. See id. at 905-87.
103. Hearing on S.B. 1163, supra note 61, at 911 (statement of Jeffery Ossen,
Member, CHMA and MMHAC). "The lien holder's rights will be extinguished if they
don't bid in themselves." Id.
104. Id. at 910 "The proceeds of the auction would pay off the lien holders in the
order of their priority. Presumably, the municipality would come first with its property
tax and that will protect the municipality which otherwise may end up without
(inaudible-two speaking at once)." Id.
105. See Hearing on S.B. 1163, supra note 61, at 905-87.
106. See id.
107. S.B. 1163, 1999 Leg., 1st Reg. Sess. 1459, 1530 (Conn. 1999).
108. H.R. 1163, 1999 Leg., 1st Reg. Sess. 2171-73 (Conn. 1999).
109. Id. at 2209-11.
110. CONN. GEN. STAT. § 21-80 (2001).
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B. Statutory Procedurefor Sale
The statutory provisions of procedures for the sale by auction of a
mobile home that a court should follow are troubling. 1 There is a
severe lack of court supervision over park owners when they initiate the
sale process and when they conduct the sale itself.1 2 The statute has
basic provisions for initiating the petition for a sale auction: (1)
initiating a summary process action; (2) entering a judgment in a
summary process action entered against resident, mobile home owner;
(3) establishing non-payment of rent for at least four months; (4)
allowing passage of at least sixty days since the expiration of the last
stay of execution; and (5) retaining the mobile
home on the lot
13
regardless of eviction under summary process.
The park owner must allege in the petition that the above specifics
have occurred and offer supporting facts, which show that the mobile
home owner failed or refused to make any reasonable effort to either
remove or sell the mobile home.114 Alternatively, the park owner may
show reasonable, yet failed, attempts to locate the mobile home owner
or his/her legal representative.1 15 This is an odd provision because the
other prerequisite to initiating the sale of a subject mobile home is proof
of, and judicial declaration of, abandonment of the mobile home by its
owner.11 6 The language of the statute could allow a park owner to use
this petition to sell a mobile home that is not, in fact, abandoned. 1 7 if
the petition alleges all the required specifics,
a hearing is scheduled and
11 8
notice is given of the petition and hearing.
Notice must be sent by certified mail to any lien holders who have
recorded an interest in the subject mobile home or of whom the park
111. See id.
112. See id.
113. Id.
114. CONN. GEN. STAT. § 21-80. The section provides, in pertinent part:
The petition shall allege supporting facts which demonstrate that the owner of
the mobile manufactured home has failed or refused to make reasonable
efforts to remove the home from the lot or to sell the home in place or that, in
spite of reasonable efforts to locate the owner of the mobile manufactured
home or such owner's representative, the owner of the mobile manufactured
home park has been unable to locate such owner.
Id. § 21-80(e)(2).
115. Id.
116. Id.
117. CONN. GEN. STAT. § 21-80(e)(2).
118. Id. § 21-80(e)(3).
2001]
owner has actual knowledge."19 Notice must also be sent by certified
120
mail to the municipality in which the mobile home park is located.
The form of notice to the mobile home owner should "maximize the
likelihood that the owner will receive actual notice."' 2' Regardless of
whether the mobile home owner appeared in the summary process
action, notice to such owner shall be posted at the mobile home's
entrance and sent to the owner, or his/her representative, by certified
mail with return receipt requested to such owner's last known
address. 122 In addition, notice shall be sent to any person who it is
reasonably believed knows the location of123
the mobile home owner and
requires.
court
the
notice
any supplemental
If the court determines at the hearing that all the above
requirements have been fulfilled, it shall determine whether the mobile
home is abandoned. 124 Once that determination has been made, the
court shall order the park owner to conduct a public sale of the mobile
home. 12 Notice of the sale must conspicuously state the public sale will
extinguish all previous ownership and lien rights.126 In addition to
sending notice of the sale to all persons so entitled, notice must be
posted at the entrance of the mobile home and published in a daily
newspaper with a circulation in the area of the mobile home park, in
which the subject mobile home is located, at least three times prior to
the date of the sale. 127 The provisions of giving notice of both the
hearing on the petition and the public auction of the mobile home are
dangerously lacking on procedural due process protections.1 28 There is
no assurance that the mobile home owner or his/her estate will receive
actual notice prior
to being deprived of an important and fundamental
129
property interest.
The park owner must conduct the sale of the subject mobile home,
and at the same time, the park owner may bid on the mobile home along
with any other party bidding. 30 The costs of conducting the sale are
119.
120.
Id.
Id.
121.
CONN. GEN. STAT. § 21-80(e)(3).
122.
123.
124.
Id.
Id.
Id. § 21-80(e)(4).
125.
CONN. GEN. STAT. § 21-80(e)(4).
126.
127.
Id.
128.
129.
See infra Part V; see also CONN. GEN. STAT. § 21-80(e)(3), (4).
130.
CONN. GEN. STAT. § 21-80(e)(4).
Id.
See id.
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reimbursed from the sale proceeds first, then in order of priority, any
lien holders shall be paid.13 The former owner of the mobile home
shall receive any excess proceeds that remain after all liens have been
paid. 132 There is no provision for what happens to any proceeds that
remain when the former
owner of the mobile home was not located or
1 33
notified of the sale.
After completion of the sale, the park owner shall file an affidavit
with the court demonstrating compliance with the court's order. 34 If
the court finds the park owner is in compliance with its order, it shall
issue a conveyance of title to the purchaser and a release of all liens;
though, yet again, there is no mention of the circumstances surrounding
the existence of a federal lien. 135 The purchaser should then file the
conveyance and release on the appropriate municipality's land
records. 36 By decree of the statute, this transaction shall constitute
good title to the mobile home.1 37 As what appears to be a bit of an
afterthought, the statute stipulates that no execution shall issue on the
original summary process action. 138 This only seems fitting since the
now-current owner would likely not 39have been the named defendant in
the original summary process action.1
It seems apparent from the legislative history that not much
thought was given to the process Public Act 99-57 created.1 40 The
legislators and lobbyists were more concerned with protecting the
municipalities and mobile home park owners from the expense of
removing an allegedly abandoned mobile home. 14 1 As is obvious from
the lack of procedural controls and court oversight of the sale process,
very little consideration is given to protecting the property interests of
the mobile home owners. 42 Since the legislative history sheds little
light on what type of property classification under which mobile homes
Id.
Id.
133. Seeid.
134. CONN. GEN. STAT. § 21-80(e)(4).
135. Id.
136. Id.
137. Id.
131.
132.
138.
139.
CONN. GEN. STAT. § 21-80(e)(4).
See id.
140.
141.
142.
See supra Part IlI.A.
See id.
See supra Part II.B.
20011
fall, an examination of the characteristics of143mobile homes and how
they are treated in Connecticut is appropriate.
IV. PROPERTY CLASSIFICATION OF MOBILE MANUFACTURED HOMES
AND ITS EFFECT ON THE STANDARD OF PROCEDURAL DUE PROCESS
It is necessary to determine the property classification of a mobile
home prior to conducting the due process analysis because the analysis
will vary depending upon what type of interest is involved.' 44 Real
property generally encompasses land and structures and natural
145
vegetation attached to the land, in other words, immovable objects.
Personal property, on the other hand, generally includes chattel, or
movable items subject to ownership, and intangibles such as bank
accounts, stocks, and copyrights. 146 A mobile home usually comes
furnished from the manufacturer.147 It is a self-contained unit, including
appliances, built on a chassis, which could be permanently 148
or
semi-permanently attached to the land and used as a residence.
Connecticut law treats mobile homes as real property for some purposes
and as personal property for others. 149 Consequently, the standard of
due process afforded to protect a mobile
home depends on how it is
150
classified as property: real or personal.
For purposes of property tax assessment, the law classifies mobile
homes as real property when occupied as a residence, under title 12,
section 63a of the Connecticut General Statutes. 15' Also, title 12,
section 129b of the Connecticut General Statutes describes mobile
143.
144.
See infra Part IV.
See infra Part V.
145.
ROGER A. CUNNINGHAM
ET AL.,
THE LAW OF PROPERTY § 1.4, at 11-12
(Hornbook Series, 1993); BLACK'S LAW DICTIONARY 1233 (7th ed. 1999).
146. See CUNNINGHAM, supra note 145, at 11-12; BLACK'S LAW DICTIONARY 1233
(7th ed. 1999).
147.
CONN. GEN. STAT. § 21-64(1) (2001).
148. See id. Mobile manufactured homes are defined as:
[A] detached residential unit ... containing sleeping accommodations, a flush
toilet, tub or shower bath, kitchen facilities and plumbing and electrical
connections for attachment to outside systems, and designed for long-term
occupancy and to be placed on rigid supports at the site where it is to be
occupied as a residence. ...
Id.; see also POWELL, supra note 15, § 263.10, at 18B.02(l).
149.
150.
See infra notes 150-81 and accompanying text.
See infra notes 182-230 and accompanying text; see also Boddie v.
Connecticut, 401 U.S. 371, 378 (1971).
151.
CONN. GEN. STAT. § 12-63a(c).
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homes as real property for the purposes of real property tax relief for
persons over the age of sixty-five. 152 A mobile home owner is a
"homeowner" and is eligible for homeowners' insurance on the same
153
terms as a regular homeowner when certain requirements are met.
Eligibility is based on the law that treats a mobile home as real property
for tax assessment purposes. 154 The mobile home must also be
permanently attached to the land and connected to utilities. 155 Thus,
Connecticut's property tax code provides some support for treating
mobile homes as real property. 156
The requirements of recording information on land records
regarding mobile homes lends further support for classifying mobile
homes as real property. 157 The statute requires an owner of a mobile
home to file a certificate of title or other proof of ownership with the
158
town clerk of the municipality in which the mobile home is located.
This is similar to the requirement that landowners record with the town
clerk all deeds of real estate ownership on the land records of the
municipality in which the subject home is located.159 Any person with a
security interest in a mobile home may file proof of the interest on the
160
land records as evidence of an encumbrance on the mobile home.
This process is similar to recording a lien or encumbrance, such as a
mortgage, on a piece of real estate on the land records of the town in
which the real estate is located. 161 Therefore, recording statutes also
treat mobile homes as real property rather than personal property. 162
152. Id. § 12-129b(b).
153. Id. § 38a-317.
154. Id.
155. CONN. GEN. STAT. § 38a-317.
156. See supra notes 150-55 and accompanying text.
157. See infra notes 158-62 and accompanying text.
158. CONN. GEN. STAT. § 21-67a(b).
159. Id. § 47-10; see also Sadd v. Heim, 143 Conn. 582, 585, 124 A.2d 522, 524
(1956).
160. CONN. GEN. STAT. § 21-67a(b), (e).
161. See id. § 47-33f(a) ("Any person claiming an interest of any kind in land may
preserve and keep effective that interest by recording.... a notice in writing, duly
verified by oath, setting forth the nature of the claim."); id. § 47-33g(b) ("Each notice
shall be recorded in the land records of the town where the land described therein is
located."); see also id. § 47-36 ("If the United States of America, . . . claims any lien or
encumbrance on, or interest in, land situated in this state ....the instrument evidencing
or describing that claim... may.be recorded in the land records of the town in which the
land is situated .... Until so recorded, that claim, ... shall not be effective against the
land or constitute constructive notice thereof.").
20011
Furthermore, the process of conveying title to a mobile home has
similarities with real property title conveyances. 163 Title to a mobile
home may be conveyed in accordance with the provisions of title 21,
section 67a of the Connecticut General Statutes. 164 The provisions
require the document conveying title include a description of the mobile
home to be conveyed, an enumeration of all encumbrances on the
mobile home, the address of the mobile home park and lot on which it is
located, and the amount of any taxes due. 165 The mobile home owner
must record this document on the land records of the town in which the
166
mobile home is located and any taxes due must be paid in full.
Executing and recording a document according to the provisions of title
21, section 67a has the equivalent effect of a statutory deed recorded in
a real estate transaction. 167 Both conveyances pass all rights of
possession,68title, interest, and claim of action to the grantee-the
purchaser. 1
Conveyances of real property are governed by title 47, sections 5,
36b, and 36c of the Connecticut General Statutes. 169 These statutes
require a conveyance of title to be in writing, to include a legal
description of the land conveyed, and a list of all encumbrances, if any,
on the land. 170 A real estate conveyance passes the same rights and
privileges to the grantee as a mobile home title conveyance.1 7 1 After
examining the above statutes, it is appropriate to conclude that mobile
homes are
classified as real property for due process analysis
172
purposes.
Conversely, some statutes treat mobile homes as personal
property. 173 Title 21 describes the sale of a mobile home as a retail
transaction, implying a mobile home is personal property.174 No new
175
mobile home may be sold without a manufacturer's written warranty.
The warranty must contain terms stating that the mobile home has no
163.
164.
CONN. GEN. STAT. § 21-67a(c).
165.
Id.
166.
Id.
167.
168.
169.
170.
171.
172.
173.
Id. § 21-67a(d).
CONN. GEN. STAT. §§ 21-67a(d), 47-36(b).
See id. §§ 47-5(a), 47-36b, 47-36c.
Id. §§ 47-5(a), 47-36c.
Id. § 47-36b.
See supra notes 151-71 and accompanying text.
174.
CONN. GEN. STAT. § 21-86.
175. Id.
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substantial structural defects and that all appliances, electrical, heating,
and plumbing systems are installed in working order.176 Also, the
warranty must include a provision that the manufacturer will remedy
any defects that become evident within one year of the date of delivery
to the buyer, and
any corrective action shall be taken at the site of the
177
home.
mobile
Since sales of mobile homes are considered retail transactions, it
may be possible to treat mobile homes as personal property under
Connecticut's Uniform Commercial Code ("UCC"). 78 The UCC
governs secured commercial transactions of goods in Connecticut.1 79 A
mobile home may be collateral pursuant to title 42a, section 9-105 if it
is subject to a security interest, or it may be a good if it were movable at
the time the security interest was attached. 80 A mobile home may also
be considered a fixture under the UCC since it may become so related to
the land on which it is located that the interest arises under real estate
law. 181
Therefore, mobile homes embody a combination of real property
and personal property characteristics. 182 The manner in which specific
statutes classify them as real property strongly suggests mobile homes
should be treated as such. 83 This is especially appropriate since the
statutes deal with ownership rights and obligations, as does Public Act
99-57.184
Since the owner of a mobile home has a fundamental property
interest in maintaining a shelter and residence, the procedural due
process provided for in a proceeding, which could result in the
deprivation of the property interest, must be in accordance with the
interest threatened. 85 Therefore, once a mobile home is classified as
real property in a situation such as the proceeding provided for by
Public Act 99-57, the owner must be afforded the due process
safeguards that offer the most appropriate protection. 8 6 The safeguards
176. Id.
177. Id.
178. See CONN. GEN. STAT. §§ 21-86, 42a-9-105; see also JONATHAN SHELDON ET
AL., REPOSSESSIONS AND FORECLOSURES § 2.4.1.2, at 64 (3d ed. 1995).
179. CONN. GEN. STAT. § 42a-9-102.
180. Id. § 42a-9-105.
181. Id. §§ 42a-9-105, 42a-9-313.
185. See supra Part II; CONN. GEN. STAT. § 21-80(e)(3).
2001]
found in real property foreclosure proceedings, specifically those of
foreclosure by sale, are the closest examples of an appropriate level of
procedural due process in a property taking proceeding. 187 It is
inappropriate to afford mobile home owners only the lower level of
procedural due process protection afforded personal property. Although
a mobile home is treated similar to personal property with regard to the
initial sale from the manufacturer to the owner, 188 once that transaction
is complete, a mobile home is treated as real property for most
purposes. 89 Mobile homes should be afforded equivalent due process
protection under Public Act No. 99-57, as found in foreclosure by sale
proceedings, rather than the low level of protection currently provided
for by the Act.190
V. DUE PROCESS ANALYSIS
Public Act 99-57 would fail constitutional scrutiny for lack of
procedural due process safeguards, just as a foreclosure statute did about
22 years ago.' 91 In 1979, the Connecticut Supreme Court held
statute
judgment
deficiency
then-existing
Connecticut's
"unconstitutional because it [did] not comply with the procedural due
process of law requirements of the [F]ourteenth [A]mendment to the
United States' 92Constitution and article first, § 10 of the Connecticut
constitution."'
In Society for Savings v. Chestnut Estates, Inc.,' 9 3 the court found
that the appellant-defendant had a constitutionally cognizable property
187. See id.
189. See supranotes 151-72 and accompanying text.
191. See id.
192. See Soc'y for Sav. v. Chestnut Estates, Inc., 176 Conn. 563, 564-65, 409 A.2d
1020, 1021 (1979); see also U.S. CONST. amend. XIV, § 1; CONN. CONST. art. I, § 8.
Connecticut statutory law provided, in pertinent part:
Upon the motion of any party to a foreclosure, the court shall appoint three
disinterested appraisers.... who shall appraise the mortgaged property and
shall make written report of their appraisal to the clerk of the court....
[S]uch appraisal shall be final and conclusive as to the value of such
mortgaged property.... [T]he court in which such action is pending may, if
such appraisal and report thereof have been made, render judgment for the
plaintiff for the difference between such appraisal and the plaintiff's claim.
CONN. GEN. STAT. § 49-14 (1979).
193. 176 Conn. 563,409 A.2d 1020 (1979).
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right. 94 He was a cosigner on a mortgage note, which had been
foreclosed. 95 The issue on appeal was whether he had a right to
participate in the proceedings that determined the value of the
mortgaged property. 96 The statute challenged in Society for Savings
allowed parties, at the court's discretion, to participate in the
proceedings prior to the appointment of the appraisers and after they
submitted the appraisal report to the court. 19 7 The value determination
of the mortgaged
property established what deficiency, if any, would be
98
rendered. 1
For a party in the appellant's position, the opportunity to
participate was very limited; he could object to the appraisal report, but
could not introduce his own evidence of the proper value of the
mortgaged property. 199 "In order to pass the test of constitutionality [the
statute] must require an effective opportunity to be heard and proper
notice thereof.' '200 The court recognized that although there is not a
fixed form of hearing required, that does not affect the due process
requirement that an individual have an opportunity 1to be heard before
20
he/she is deprived of a significant property interest.
The court looked at the balance between the rights of the individual
and the interest of the government in the existing procedure.20 2 It found
that the governmental or general public interest was only that the statute
lightens the judicial burden and promotes efficiency.20 3 This type of
interest, the court noted, is not sufficient to withstand constitutional
scrutiny when compared to an important property interest.2°4 When a
valid property right is at stake, the court stated that the challenged
statute must provide adequate procedural safeguards.20 5
In the opinion of the court, the deficiency judgment statute did not
provide sufficient notice or opportunity to be heard or examine and
194. Id. at 571, 409 A.2d at 1024.
195. Id. at 565, 409 A.2d at 1021.
196. Id.
197. Socyfor Sav., 176 Conn. at 571, 409
198. CONN. GEN. STAT. § 49-14(a) (2001).
199. Soc'yfor Sav., 176 Conn. at 571, 409
200. Id. at 572, 409 A.2d at 1024.
201. Id. at 572-73, 409 A.2d at 1024-25
371, 378-79 (1971)).
202. Id. at 573, 409 A.2d at 1025.
203. Soc'yfor Sav., 176 Conn. at 573, 409
204. Id.
205. Id.
A.2d at 1024.
A.2d at 1024.
(citing Boddie v. Connecticut, 401 U.S.
A.2d at 1025.
2001]
206
cross-examine adverse witnesses.
Most importantly, the court found
that the statute violated the due process guarantees of the Connecticut
and United States Constitutions because the debtor was not provided
with an opportunity to challenge the determination of the value of the
mortgaged property.20 7 "In almost every setting where important
decisions turn on questions of fact, due process requires an opportunity
to confront and cross-examine adverse witnesses. 2 E8
The court determined that the debtor did not have the chance to
contest the facts of the appraisal report upon which the deficiency
judgment was rendered.20 9 The appraisal was considered final as to
questions of fact and an objection to it was sustained only upon legal
irregularities.2 10 Since a litigant has the right to contest facts upon
which a judgment depends, the argument for judicial efficiency and
expediency falls short of the due process requirement that the
governmental interest be significant in order to outweigh an important
property interest. 1l
Although the Connecticut Supreme Court recognized that courts
should construe a law so that it is effective,2 12 Public Act 99-57 would
fail constitutional scrutiny for the same reasons the deficiency judgment
statute was held unconstitutional.213 Just as with the deficiency
judgment statute of Society for Savings, Public Act 99-57 does not pass
the test of providing an adequate opportunity to be heard before
deprivation of an important property interest occurs. 214 A mobile home
owner or creditor subject to the procedures of Public Act 99-57 does not
have any chance to cross-examine adverse witnesses or to contest any
findings of fact. 1 5 The court in Society for Savings found this aspect of
E 6 Since the park
the statute to be the most damaging. 216
owner's
compliance with the court's order of sale is accepted as a final
206.
Id.
207. Soc'yfor Say., 176 Conn. at 573-74, 409 A.2d at 1025.
208. Id. at 574, 409 A.2d at 1025 (quoting Goldberg v. Kelly, 397 U.S. 254, 269
(1970)).
209. Id. at 575, 409 A.2d at 1025-26.
210.
Id.
211.
212.
Soc'yforSav., 176 Conn. at 574-75, 409 A.2d at 1025.
Id. at 569, 409 A.2d at 1023 (citing Demond v. Liquor Control Comm'n, 129
Conn. 642, 645, 30 A.2d 547, 548-49 (1943)).
214. See supra Parts HI, IV.
215. CONN. GEN. STAT. § 21-80 (2001).
216. See Soc'y for Sav., 176 Conn. at 574, 409 A.2d at 1025; see also supra notes
205-10 and accompanying text.
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conclusion of fact, the mobile home owner or creditor has no
opportunity to contest the facts upon which the final judgment
depends. 217
Public Act 99-57 is lacking in due process safeguards even where
the statute in Society for Savings was not.2 18 The Act does not contain
sufficient methods of ensuring proper and timely notice of the hearing
on abandonment. 21 9 No safeguards are in place to protect mobile home
owners who cannot be located.22 ° In addition to this problem, there is
no requirement that notice be sent to anyone when the park owner files
his/her affidavit of compliance with the court's order of sale.221 Without
proper notice or a hearing after the sale, there is no occasion to contest
the finding of compliance by the court. 222 A mobile home owner or
creditor has no recourse to prevent transfer of title and/or release of
liens on the subject mobile home.223 Only a tremendous governmental
or public interest could outweigh such an abandonment of all procedural
due process protections against deprivation of a property right.224
The only governmental interest in maintaining the existing
procedures of Public Act 99-57 is judicial efficiency. 225 The public
interest is slightly more compelling; municipalities do not want the
heavy financial burden of removing abandoned mobile homes from their
communities.22 6 The most compelling interest in maintaining the Act's
procedures is that of the park owners.227 The park owners also have a
property interest at stake.22 8 Nonetheless, the park owners' property
interests would still be protected and vindicated even while providing
more due process safeguards to the mobile home owners and their
creditors. 229 Therefore, the requisite important public or governmental
217.
218.
219.
220.
221.
222.
223.
224.
225.
226.
227.
text.
228.
229.
See CONN. GEN. STAT. § 21-80.
See id.
See id.
See id.
See id.
See id.
See id.
See CONN. GEN. STAT. § 21-80; see also supra notes 65-99 and accompanying
20011
interest is lacking and the statute should fail a procedural due process
analysis.230
VI. RECOMMENDATIONS
Since mobile homes are analogous to real estate, similar
procedures should be used to insure adequate due process protection.23 '
Actions in real estate foreclosure must comply with specific rules of
procedure.23 2 These rules ensure parties to the action will receive the
full benefit of procedural due process protections.23 3 The complaint
filed in a foreclosure action must set forth certain specific information,
including all encumbrances of record, the dates and amounts of each
encumbrance, and the date each was recorded.2 34 Through appropriate
documentation, the plaintiff must prove to the court the amount,
including interest, due and owing on the mortgage note, and that there is
no setoff or counterclaim. 235 Prior to the hearing on a motion for
judgment of foreclosure, the plaintiff must file a preliminary statement
of the monetary claim with the court and all appearing parties. 236
If the plaintiff files a motion for judgment of foreclosure, he/she
must serve a copy of an appraisal report of the subject property on the
defendant.237 The court has full discretion to issue a judgment of
foreclosure by sale in any foreclosure proceeding.238 In any foreclosure
proceeding in which the court decrees a judgment of foreclosure by sale,
a disinterested third party shall be appointed to appraise the subject
231. See supra notes 145-72 and accompanying text; see also infra notes 234-67
and accompanying text.
233.
See id.
234. 10 CONN. R. SUPER. CT. CIV. § 69 (West 1998).
235. 23 CONN. R. SUPER. CT. CIV. § 18 (West 1998). The rule provides, in
pertinent part:
In any action to foreclose a mortgage where no defense as to the amount of the
mortgage debt is interposed, such debt may be proved by presenting to the
judicial authority the original note and mortgage, together with the affidavit of
the plaintiff or other person familiar with the indebtedness, stating what
amount, including interest to the date of the hearing, is due, and that there is
no setoff or counterclaim thereto.
Id. § 18(a).
236. Id.§ 18(b).
237. Id.§ 16.
238. CONN. GEN. STAT. § 49-24 (2001).
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[Vol. 20:807
property. 239 The court shall appoint a person, the Committee, to conduct
the sale and shall set the date of the sale.24 °
When the defendant is an inhabitant of the state but is absent at the
time of the commencement of the foreclosure action, the court shall
issue a continuance of the action for thirty days.24' On the other hand, if
the defendant is not an inhabitant or resident of the state at the time of
the commencement of the foreclosure action, the court shall issue a
continuance of the proceedings for ninety days.242 The court may order
any further notice it deems advisable to provide a nonresident defendant
with actual notice.243
Once a defendant has received service of process, the plaintiff must
notify the defendant of the statutory provisions of protection from
foreclosure. 244 The statutory provisions protect underemployed, as well
as unemployed homeowners, from foreclosure, provided they fulfill the
required conditions for qualified status.245 If a defendant qualifies for
protection from foreclosure action, the court may order a restructuring
of the mortgage debt.246 The restructuring would eliminate any
arrearage due on the mortgage.247 The restructuring period set by the
court must not exceed six months. 248 If the court finds the defendant did
not receive notice of the protections, it may issue a stay of fifteen days
during which time the defendant may apply for protection.249
239. Id. § 49-25; see also Northeast Sav., F.A. v. Hintlian, 241 Conn. 269, 275, 696
A.2d 315, 318 (1997) (holding notice of appraisal sufficient when on file with court
clerk).
240. CONN. GEN. STAT. § 49-25.
241. 9 CONN. R. SUPER. CT. CIV. § 1 (West 1998).
242. Id.
243. Id.
244. CONN. GEN. STAT. § 49-31e. The statute provides, in pertinent part:
No judgment foreclosing the title to real property by strict foreclosure or by a
decree of sale shall be entered unless the court is satisfied.., that notice has
been given to the homeowner against whom the foreclosure action is
commenced of the availability of the provisions of sections 49-31d to 49-31i,
inclusive.
Id. § 49-31e(c).
245. Id. § 49-31ftoi.
246. Id. § 49-31g.
247. CONN. GEN. STAT. § 49-31g.
248. Id.
249. Id. § 49-31e(d).
2001]
When a court enters a judgment of foreclosure by sale, it will
appoint a committee to conduct the sale at a public auction.250 The
appointed committee should review the appraisal of the property and the
court file.2 51 The committee must post a sign at the premises giving
notice of the foreclosure auction. 2 Legal announcements must also be
published at least twice in a newspaper with a circulation in the
geographic area of subject property.2 53 Prior to the auction, the
254
committee must set aside time for a public viewing of the property.
The committee should conduct a title search to confirm the only
encumbrances on the property are those listed in the plaintiffs
complaint. 5
After the completion of the sale, the committee should file a report
with the court for approval and a hearing date shall be set, at which time
both plaintiff and defendant have the opportunity to be heard. 256 This
post-deprivation hearing is another important procedural due process
safeguard; it allows the court the opportunity to hear testimony from
either plaintiff or defendant if either has reason to object to the sale.257
The court has held that the existence of this hearing to confirm the sale
upholds the due process clauses of the state and federal constitutions. 258
If the court approves the sale, the proceeds are dispersed to the parties
so entitled by order of the priority of their lien interest.259 Once the
court approves the sale, a title conveyance is issued to the purchaser of
the property.26 °
If the proceeds are insufficient to pay the full amount of the
mortgage or lien foreclosed, any party may move for a deficiency
judgment.261 As a measure of protection for a plaintiffs interests and
250.
SCOTT B.
FRANKLIN,
GUIDELINES FOR COMMITTEE RESPONSIBILITIES
AND
PROCEDURES FOR COMMIrrEE AUCTION SALE 1 (1998), available at Connecticut State
Court Law Libraries.
251. Id. at2.
252. Id. at 3.
253. Id.
254. See FRANKLIN, supra note 250, at 4.
255. Id. at 5.
256. Id. at 7-8.
257. See Northeast Say., F.A. v. Hopkins, 22 Conn. App. 396, 402, 578 A.2d 136,
137 (1990); Danbury Sav. & Loan Ass'n, Inc. v. Hovi, 20 Conn. App. 638, 643, 569
A.2d 1143, 1145 (1990).
258. See Hopkins, 22 Conn. App. at 402, 578 A.2d at 139; Hovi, 20 Conn. App. at
643, 569 A.2d at 1145.
259. CONN. GEN. STAT. § 49-27 (2001).
260. Id. § 49-26.
261. Id. § 49-14.
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[Vol. 20:807
those of other creditors who are party to the foreclosure, the court shall
schedule an evidentiary hearing to determine the amount, if any, of the
deficiency between the debt owed and the amount received at auction.262
Prior to the hearing, the party claiming a deficiency must file with the
clerk and serve to each party a preliminary computation of debt, a
statement of claim, and the name of an expert relied upon to establish
the value of the property.2 63 Any party who plans to contest the
valuation of the property or the debt amount must file an objection and
provide the name of the expert to testify to the value of the property. 26
At the hearing, the court will hear the evidence, establish the value
of the mortgaged property, and enter judgment for the moving party if
the court holds there is a deficiency. 265 The moving party has the
burden of proving that a deficiency does in fact exist; the court is under
no obligation to render a deficiency judgment if the moving party fails
to establish the value of the property, the amount of debt, and the
difference between the two. 2 66 A key element in valuation of the
property is a sufficient and timely appraisal of the property at the time
the title vested in the mortgagee.267
The present deficiency judgment procedure, and other real estate
statutes discussed above, provide sufficient due process protection for a
fundamental property interest. 268 In contrast, Public Act No. 99-57
provides very little in the way of procedural devices for the court and
parties to follow. 269 Although the statute does require allegations of
specific information in the petition and that notice is sent to all
interested parties, it is lacking in notice provisions for absent
defendants. 270 The notice provisions do not require abode service of the
petition and notice of hearing or notice of sale on the defendant as is
required by foreclosure laws.271 Without proper provision for putting a
262.
Id.; 23 CONN. R. SUPER. CT. CIv. § 19 (West 1998).
263.
23
CONN. R. SUPER. CT. CIV. § 19.
264. Id.
265. Id., CONN. GEN. STAT. § 49-14; see also CONN. GEN. STAT. § 49-28.
266. See Eichman v. J & J Bldg. Co., Inc., 216 Conn. 443, 449-53, 582 A.2d 182,
185-87 (1990).
267. See First Fed. Bank, FSB v. Gallup, 51 Conn. App. 39, 41-44, 719 A.2d 923,
924-26 (1998).
269. See Act Concerning Mobile Manufactured Homes, 1999 Conn. Acts 99-57
(Reg. Sess.) (codified at CONN. GEN. STAT. § 21-80(e) (providing procedure for sale by
park owner of "abandoned" mobile manufactured homes)).
270. Id.
271. Id.
2001]
defendant, mobile home owner, on notice of the hearing and sale, he/she
has no recourse to be heard before the mobile home is sold and the
owner is deprived of his/her property.2 72 This is a severe violation of
the state and federal constitutional due process clauses.273
The park owner does not have to prove that non-payment of rent
was due to a counterclaim against the park owner.274 Additionally, there
is no requirement that the park owner notify the court of any
encumbrances on the mobile home, only that he/she sent holders of such
interests notice of the hearing and sale.275 An appraisal of the mobile
home is not required prior to the order for sale by auction is entered, nor
is the value of the mobile home judicially determined.276 Perhaps the
most striking violation of due process safeguards required by the state
and federal constitutions is the fact that no disinterested third party is
appointed by the court to conduct the sale by auction.277 Rather, the
park owner is ordered by the court to handle that responsibility. 278 This
is evidence of the fact that there is insufficient court supervision of the
supplementary petition process and sale of the mobile home as provided
for in Public Act No. 99-57.279
Unlike the statutory protections from foreclosure provided to
individuals who are either underemployed or unemployed, there are no
such similar protections from the deprivation of a person's mobile home
in this petition for sale.28 ° Interestingly enough, authorities describe
mobile homes as affordable housing units, and they are usually owned
and occupied by lower income individuals and families.281 It would
seem these are the exact people the foreclosure provisions aim at
protecting when they own traditional homes. There is no apparent
reason why similar protections were not included in Public Act 99-57
for mobile home owners.
The other serious flaw of Public Act No. 99-57 is the lack of any
protection for lien holders and creditors.282 The statute declares the sale
of a subject mobile home extinguishes all prior lien rights, yet it
272.
273.
274.
See supra Part III.
See supra Parts H, V.
See CONN. GEN. STAT. § 21-80 (2001); supra Part III.
275.
See id.
276.
277.
278.
279.
280.
281.
282.
See id.; supra notes 250-60 and accompanying text.
See CONN. GEN. STAT. § 21-80; supra notes 124-37 and accompanying text.
See CONN. GEN. STAT. § 21-80(e).
See id.; supra notes 245-49 and accompanying text.
See POWELL, supra note 15, § 263.10, at 18B.01.
See 1999 Conn. Acts 99-57 (Reg. Sess.).
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[Vol. 20:807
provides no process by which any lien holders are guaranteed payment
of monies owed them after the sale is complete.283 There is no
procedure by which a lien holder or creditor may move for a deficiency
judgment when the mobile home is sold for less than the debt owed.284
Although a party is deprived of a property interest in both a
foreclosure by sale proceeding and in the proceeding set out by Public
Act No. 99-57,285 there is an important difference between the two
proceedings. In the first instance, the party has the full protection of the
constitutional right to due process of law prior to the deprivation.286 In
the latter, the party is deprived of property with no due process of law
governing the deprivation process.287 Logically, the simplest remedy to
the procedural due process deficiencies of Public Act 99-57 is the
incorporation of safeguards similar to those found in the constitutionally
valid foreclosure by sale statutes.288 Proper notification procedures,
opportunities to be heard by the court both before and after the auction
sale of the mobile home, and appointment of an impartial third party to
conduct the sale of the mobile home, would all greatly increase the level
of due process protection afforded the affected mobile home owners. 289
VII. THE DETRIMENTAL EFFECT OF PUBLIC ACT No. 99-57's FAILURE
TO PROVIDE ADEQUATE PROCEDURAL SAFEGUARDS
Besides the fact that Public Act No. 99-57 violates the procedural
due process clause, it also offers little guidance to courts. 290 This new
proceeding has many in the court system concerned with how the courts
will conduct the day-to-day process of handling such a petition when it
is filed.29'
283. Id.
284. See id. Cf. supra notes 261-67 and accompanying text (examining the
statutory procedure by which any party may move for a deficiency judgment if the
proceeds of a sale are insufficient to pay the full amount of a mortgage or lien).
286. See id.
287. See id.
289. See id.
290. See supra Part V; see also infra Part VII, supra notes 291-314 and
accompanying text.
291. See Interview with Suzanne Colasanto, Chief Clerk, New Haven Housing
Session, in New Haven, Conn. (Nov. 3, 1999). Ms. Colasanto has been the Chief Clerk
since March 1993, and she has been a clerk in the Housing Session a total of twenty
years.
20011
The clerks of the Housing Session are responsible for handling
these petitions since the Housing Session conducts all summary process
actions and this is a supplemental action to a summary process.292 The
lack of procedural guidelines will also cause administrative problems
for the clerks of the Housing Session.293 The clerks' main concern is the
lack of sufficient notice provisions in the statute because it is possible
the judges will refuse, or be reluctant, to accept the existing level of
notice stipulated in the statute.294 Court personnel have suggested that
the court may require abode service performed by the sheriff or deputy
sheriff, along the lines of service of process in a foreclosure action.295
There is also the possibility that the judges may simply "rubber stamp"
a petition and order a sale without any examination of the facts and
circumstances of each individual petition since the statute does not
require any detailed evidentiary hearing prior to ordering the sale. The
same possibility exists with judicial approval of the sale because there is
no post-deprivation hearing as there is in an action of foreclosure by
sale.296 The park owner is only required to file an affidavit with the
court demonstrating compliance with the court's order.297 No other
interested person may offer evidence or be heard by the court to contest
the result of a mobile home sale.298
The courts must also be concerned with the conflict of interest
Public Act No. 99-57 creates by requiring the park owner, who wants to
clear the title to the subject mobile home, to be the person responsible
for conducting the auction sale. 299 The conflict exists because the park
owner has a financial interest in either acquiring the mobile home or
removing it from his/her park.300 Another conflict exists regarding the
fact that the park owner must conduct the sale because he/she may also
bid on the mobile home. °1 In many cases it is possible that the park
owner will be the only person bidding on the mobile home.30 2 This is
292.
293.
294.
295.
296.
297.
298.
299.
300.
301.
302.
CONN. GEN. STAT. § 21-80(e)(1) (2001).
See Interview with Suzanne Colasanto, supra note 291.
See id.
See id.
See supra Part VI.
CONN. GEN. STAT. § 21-80(e)(1)(D).
See id.; supra Part VI.
See CONN. GEN. STAT. § 21-80(e)(4).
Id.
Id.
See id.; see also Interview with Suzanne Colasanto, supra note 291.
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[Vol. 20:807
just one indication of the lack of court supervision allowed by the
construction of Public Act No. 99-57.303
Another example of the lack of procedural due process is that the
statute has not created any mechanism in the process for the court to
follow in ensuring fraud, negligence, and misrepresentation do not occur
during the course of the hearing and sale. 304 The rights of any lien
holder who has an interest in a subject mobile home are at great risk in
this process. 30 5 There are no guarantees a park owner will fulfill, or is
even aware of, the fiduciary obligations he/she takes on when
conducting the sale transaction.3 °6
In order to deal with a petition when one is filed, the clerk of the
Housing Session will attempt to follow the procedures described by the
statute.3°7 This will include examining the petition to make sure it
contains all the requisite allegations and supporting facts.30 8 The clerk
will possibly require the petitioner to include with the petition an order
for hearing and notice when submitting the petition to the court. 30 9 The
court may determine that sheriff service or service by publication is
necessary to supplement the existing service requirements.3 10 Since the
statute does not provide any timing guidelines, the Housing Session
clerks have suggested that the hearing not be scheduled any earlier than
two to three weeks from the date the petition is filed.311
The clerks have also recommended that the court order an appraisal
of the subject mobile home prior to the sale.312 This would help
determine the value of the mobile home and make it easier for the court
to determine whether the sale price is fair and equitable under the
circumstances. 313 The court could also set conditions for the sale such
as a minimum bid requirement, possibly fair market value, or that the
303. See 1999 Conn. Acts 99-57 (Reg. Sess.).
304. See id.; Interview with Suzanne Colasanto, supra note 291.
305. See CoNN. GEN. STAT. § 21-80.
306. Id.
307. See Interview with Suzanne Colasanto, supra note 291. Ms. Colasanto has
drafted suggested guidelines for the clerks' office and court to follow. The guidelines
attempt to outline the requirements of the statute and also offer possible supplementary
procedures to provide a more precise and definite process for the clerks and court to
follow.
308. See id.
309. See id.
310. See id.
311. See Interview with Suzanne Colasanto, supra note 291.
312. See id.
313. See id.
2001]
successful bid cover the amount of any and all liens on the mobile
home.3 14 As a result of the numerous possible conflicts of interest, the
lack of court supervision over the sale of a subject mobile home and the
absence of any statutory procedures for the court to follow, Public Act
99-57 is a poorly drafted and faulty statute, regardless of whether it also
violates the constitutional guarantee of due process.3 15
VIII. BEST SOLUTION: PUBLIC ACT No. 99-57 DECLARED
UNCONSTITUTIONAL
Since it appears that Public Act No. 99-57 lacks any protection of
fundamental procedural due process guarantees,316 the possible remedial
court action would be to declare the statute unconstitutional.3 17 The
amendment to title 21, section 80 of the Connecticut General Statutes
may be declared invalid and unconstitutional through various means
within the court system. 318 The first option is that the Appellate Court
of the State of Connecticut could reserve to itself the right to answer the
question of whether the statute violates the constitutional guarantee of
the right to due process of law prior to any deprivation of a property
interest upon the first filing of a petition pursuant to Public Act No. 9957.319 Prior to the question being reserved to the appellate court, a
stipulation by counsel must be filed with the court stating clearly and
fully the question upon which advice is requested. 320 The stipulation
must state that the determination of the question by the appellate court is
in the interest of simplicity, directness, and economy in judicial
321
action.
It must also assert that the answer to the question is
reasonably certain to enter into the final determination of the case, and
314. See id.
318. See id.
319. Section 1(a) of the Connecticut Practice Book provides, in pertinent part:
Any reservation shall be taken to the supreme court or to the appellate court
from those cases in which an appeal could have been taken directly to the
supreme court, or to the appellate court, respectively, had judgment been
rendered. Reservations in cases where the proper court for the appeal cannot
be determined prior to judgment shall be taken directly to the supreme court.
CONN. PRACTICE BOOK § 73-1(a), at 334 (2000).
320. Id. § 73-1(c), at334.
321. Id.
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[Vol. 20:807
that the appellate court has jurisdiction to take the reservation.32 2 The
Supreme Court of the State of Connecticut could then transfer the
question reserved to the appellate court pursuant to title 51, section 199
of the Connecticut General Statutes.323 A second possible option is for
the Housing Session of the superior court to declare the statute invalid,
and a direct appeal could then be taken to the supreme court
pursuant to
324
title 5 1, section 199 of the Connecticut General Statutes.
A final option is a direct appeal pursuant to title 52, section 265a of
the Connecticut General Statutes. 325 Since it is possible to argue the
deprivation of a property interest is of substantial public interest and
delay would work substantial injustice, a defendant could attempt this
procedure.326 If no party appears for the defendant, this is not a likely
action since it requires an identifiable party to suffer an injustice.32 7
Therefore, either the first or second option would be the better course to
take in declaring the statute unconstitutional.3 28
Declaring Public Act 99-57 unconstitutional follows implicitly
from the characterization of a mobile home as real property.32 9 Once
that is done, the mobile home owner, and any creditor thereof, is
guaranteed by the United States and Connecticut Constitutions that
he/she will have the highest level of due process protection before being
deprived of a mobile home. 330 As Society for Savings331 established, a
party must have a sufficient opportunity to participate and be heard in
any proceeding when deprivation of a property right is a possible
consequence.332 Unfortunately, the provisions embodied in Public Act
99-57 do not afford mobile home owners, or their creditors, the requisite
procedural protections.333 Also, the governmental or public interest
must outweigh the private property interest; lightening of the judicial
burden or promotion of efficiency are not adequate public interests to
overcome a lack of due process safeguards and the legislative history of
322. Id.
323.
CONN. GEN. STAT. § 51-199(c) (2001).
324.
325.
Id. § 51-199(b)(2).
Id. § 52-265a.
326. Id.
327.
CONN. GEN. STAT. § 52-265a.
328.
329.
330.
331.
332.
333.
CONN. PRACTICE BOOK § 73-1, at 334 (2000).
See supra Part IV.
See supra Part II.B.
176 Conn. 563,409 A.2d 1020 (1979).
See supra Part V.
See supra Parts II, VI.
2001]
Public Act 99-57 does not provide a more adequate interest. 334 The
numerous protections found in the real estate foreclosure statutes serve
to emphasize the lack of any such protection in Public Act 99-57.335 All
of the flaws found in Public Act No. 99-57 lead to the inevitable
conclusion that it violates the constitutional
guarantee of procedural due
336
process protection of property rights.
Meghan E. Doherty
334.
335.
336.
See supraParts III, V; supra notes 202-06 and accompanying text.
See supraPart VI.
See supraParts II, III, V-VII.

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