Connecticut

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Carefree Homeowners v. William Morrissette et al.,
No. 128007 (Conn. 11/05/2003)

128007

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW LONDON,
AT NORWICH

November 5, 2003, Decided

November 5, 2003, Filed

NOTICE: [*1] THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: Leuba, JTR.

OPINIONBY: Leuba

OPINION: MEMORANDUM OF DECISION ON DEFENDANTS' CLAIM OF EXEMPTION FROM PREJUDGMENT ATTACHMENT

In this case the plaintiff, on September 22, 2003, obtained a prejudgment remedy of attachment against the defendants' residential property at 61 Carriage Drive, Lebanon, Connecticut, in connection with the initiation of an action to collect an alleged debt owed.

A hearing was held before the undersigned at the request of the defendant to determine whether the "homestead" exemption provided by Section 52-352a and Section 52-352b of the General Statutes prohibits the prejudgment remedy.

Both parties appeared by counsel. Anna Morrissette, on behalf of the defendants, testified as to the ownership of the property and gave her opinion as to the fair market value and the amount of the first mortgage.

For the limited purpose of this hearing the plaintiff, by counsel, stipulated that whatever the value of the property and the amount of the mortgage the two defendants had an equity interest [*2] in the property of less than the $ 75,000 provided by those statutes and that the property now constituted their primary residence.

The parties provided considerable argument to advance their respective positions relating to the issues raised by the defendants.

The defendant provided the court with a copy of the decision in the case of Bolduc v. Riches, decided in the Superior Court, Judicial District of Hartford, by Booth, J. (34 Conn. L. Rptr. 129), in which a careful and thorough review of the law relating to the arguments of the parties in this case. Judge Booth in that case came to the conclusion that a party plaintiff could obtain a prejudgment attachment on residential property which was "exempt" under the homestead exemption. That case pointed out that this result was necessary to establish priorities of creditors in the event the exemption was lost by one of the many means that could happen.

The defendants relied on the "plain meaning" of the exemption statute and advanced the argument that an attachment is one method of "debt collection" which is precluded by the exemption. In response the plaintiff argues that the process of obtaining an attachment is not the collection [*3] of the debt but on the contrary is only the method by which creditors can establish their respective priorities as seems to be the holding in the Bolduc Case. The plaintiff claims that since this is not an execution against the residence of the defendants it does not constitute a "debt collection" which would be precluded by the statute.

The defendants point out that the court in this case is not bound to follow the Bolduc decision which is a Superior Court case and should instead reach a different conclusion.

Having considered carefully the arguments of the parties this court is persuaded by the thorough analysis of the law found in the Bolduc Case and on that basis the defendants' request to vacate the attachment order on the basis of the homestead exemption is denied.

Leuba, JTR

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