Petition for Writ of Certiorari — Tucker v. Hartford National Bank & Trust Co.

Office - Supreny: Court, US, |

95-86 - FIRED

= < ——Sur 4 1985

IN THE i

ALEXANDE? L. STE? as, |

SUPREME COURT OF THE UNITED STATES CLERK

October Term 1984

aa —_—

No

la i a el as a

STANLEY V. TUCKER,

Petitioner

-V-

HARTFORD NATIONAL BANK & TRUST CO

Respondent

enm,

-_—

fee ee nee

} PETITION FOR A WRIT OF CERTIORARI TO

THE CONNECTICUT SUPREME COURT

STANLEY V. TUCKER

Petitioner

} Box 35

‘ Hartford Conn 06101

203 528-6616

MAJOR QUESTION PRESENTED FOR REVIEW

The State Courts of Connecticut have for

first time interpreted a federal question

of state wide importance in a manner con-

trary to decisions of this Honorable

Court in Mathews v Eldridge, 424 US 319

(1976) and in Memphis Light & Water Div

v Craft, 436 US 1 (1978)

QUESTIONS PRESENTED FOR REVIEW

1. Did the Connecticut Supreme Court rule

contrary to the decisions of this Court in

appointment of substitute rent receiver

: WITHOUT DUE NOTICE including notice of

State and Federal defenses ?

2. Did the Connecticut Supreme Court rule

contrary to decisions of this Court in

appointment of substitute rent receiver

WITHOUT DUE NOTICE including notice of

speedy mechanizm to terminate with damages

& counsel fees a receiver incompetent ot

negligent?

3. Did the Connecticut Supreme Court rule

contrary to decisions of this Court in app-

Ointment of substitute rent receiver without

EQUAL PROTECTION by denying to Owner right to

post equal bond and be rent receiver of the

property he owns?

4. Did the Connecticut Supreme Court rule

contrary to decisions of this Court by the

appointment of substitute rent receiver WITH-

OUT DUE PROCESS consisting of notice and a

hearing as to qualifications?

5. Did the Connecticut Supreme Court rule

contrary tc the decisions of this Court in

permitting a re-litigation of a mortgage

ALREADY MERGED INTO JUDGMENY?

6. Did the Connecticut Supreme Court rule

contrary to decisions of this Court denying

EQUAL ‘PROTECTION by refusing Petitioner a

hearing on’ Set Off of claims against Bank?

-ii-

SUBJECT iNDEX

Page

Questions Presented i

Table of Authorities iv

Citation to Opinions 1

Jurisdiction 1

Constitutional & Statutory 1

Statement of the Case 3

REASONS FOR GRANTING THE WRIT 7

I. Petitioner Denied Due Process 7

I.A. Rules 506-510 Violate 51-14 8

. Review Escaped a Century ll

-Rules Deny Notice & hearing 12

A

B

C

I.D.Rule 506 Without Notice/Hearing 14

E. Rule 506 Authorizes Hearsay 15

F. Rules Violate Mathews & Craft 1/7

G

I.G.Petitioner Denied Federal Rights23

II. JUDGMENT VOID MERGED WITH MORG. 24

III. Petitioner Penalized Bank Tort 26

IV. Hearing Denied Fiduciary Claims 26

Conclusion 29

-1iii-

TABLE OF AUTHORITIES

28 USC 1257 (3)

5th Amendment

14th Amendment

Bates v Arizona State Bar

433 US 350

Consumers Union v American Bar

505 F Supp 822

Dionne v Bouley

53 LW 2487

Fuentes v Shevlin

407 US at 80

Mathews v Eldridge

424 US 319

Memphis Light v Craft

436 US 1

Mitchell v Grant

416 US 607

Myers v City of Alcoa

53 L W 2363

Nelson v Regan

560 F Supp 1101

N Georgia Finishing v Di Chem

419 US 606

Tucker v Maher

405 US 1052

US v Leffler

9 L Ed 642

-iv-

Page

1

l

l

9

10

18

16,23,24.

19

20

12

12

25

RITIES

Page

U. S. v Sherwood 7

312 US 584

Wright v Tanezio 19

USDC Conn 81-353

1983

CONNECTICUT AUTHORITIES

Conn GS 51-14 8

Conn GS 52-278 a-n 12

Conn GS 52-279 11

Conn GS 52-361 19.-

Conn Practice Book 506-510 8,11,14,15,16,17,21

Burritt v Belfy 25

47 Conn 323

Hartford National Bank v Tucker 11,22,23

195 Conn 223

Hartford National Bank v Tucker 26

181 Conn 296

Hartford Federal S & L v Tucker 11

192 Conn i

Silver v Kingston Realty il

114 Conn 349

Tilden v Century 24

112 Conn 441

Young v Polish Loan Li ,a3

126 Conn 714, 715

PETITION FOR CERTIORARI TO THE

CONNECTICUT SUPREME COURT

Petitioner prays that a Writ of Cert-

iorari issue to review the judgment

of the Conn. Sup Ct entered Feb 12,

1985. Timely petition for rehearing

filed Feb 22, 1985 and denied 3/22/85.

CITATION TO OPINIONS BELOW

The opinion of the Conn. Sup Ct is re-

ported 195 Conn 218 and 195 Conn

See Appendix Bl-/7

JURISDICTION

The judgment of the Conn Sup Ct denying

re-hearing was entered March 22, 1985.

Jurisdiction of this Court is invoked

under Title 28 USC 1257 (3)

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves a denial of substan-

tive Due Process and Due Notice and

Equal Protection of the laws, the 5th

and 14th Amendments to the U.S. Cons-

ale

VXAn EEO eee

Constitution as set forth Appendix B herein.

This case involves Connecticut State

Practice Book Sections 506-510 under color

of which orders were made claimed unconsti-

tutional and void. PB 506 - 510

Sec. 506. ——Appointment

Every application for the appointment of a receiver of rents shall

be made in or ancillary to a civil action and may be made either to the

court before which such action is pending or, when the court is not in

actual session, to a Judge in chambers. The court or judge may examine

the plaintiff or his atturney and may thereupon appoint a receiver of

rents. Notice of the hearing should be given when practical but such

appointment may be made without notice if sufficient cause appears.

(P.B. 1963, Sec. 427.)

Sec. 507. ——Bond

No such appointment shall become effective until the receiver shall

have filed a bond in such amount as shall have been fixed at the time

of his appointment or until said bond shall have been approved by the

judge or clerk of the court in which the action is pending; provided that

no bond need be required of a bank or trust company. The condition of

-bonds of such receivers shall be substantially in the following form:

The condition of this obligation is such that, whereas the above

named A has by (court or judge) been appointed, in an action brought by

X against Y, to be receiver of rents of property located in the town

of and described as (describe generally, e.g.,

No. 93 Maple Street) :

Now, therefore, if said A shall well and truly perform his duties under

such appointment, then this obligation shall be void, otherwise in full force

and effect.

(P.B. 1963, Sec. 428.)

Sec. 508. ——Discharge

Any party in interest may at any time move for the discharge of the

receiver.

(P.B. 1963, Sec. 429.)

Sec. 509. ——Orders

The court in which the action is pending, or the appointing judge,

may make such orders for the governance of the receiver as circumstances

require. The judge shall certify any order passed by him in chambers

to the court in which the action may be pending.

(P.B. 1963, Sec. 430.)

Sec. 510. ——-Reports

Such receivers shall file written reports quarterly and at such other

times as may be required.

(P.B. 1963, Sec. 431.) -2-

a

STATEMENT OF THE CASE

RET OEIRRRE AIIM TIE eet NS

This action comes from 1966 when Petitioner

took out a $235,000 construction mortgage

to finance 32 unit apt building. Approx.

$1 2,000 in mortgage payments made on time

for 9 years until over obiections the Bank

without court order appointe:’ a rent re-

ceiver who by neglect brought about 14 Vac-

ancies and all payments on mortgage 7 taxes

stopped.

In 1976 using losses it created with its

"self help" rent receiver the BAnk started

this foreclosure and secured a court appoint-

ment for present rent receiver on hearsay

argument, without any grounds in motion and

without ‘any testimony.

Waste & losses mounted and continued until

in March 1979 23 vacancies developed when

receiver gone on vacation left order ‘do

nothing until I return" and heating system

ran out of oil and froze up. Fire Dept

ate

"rescued" tenants using fire axes to

chop in doors.

In Dec 1977 Bank prevailed and got

judgmeat for $192,000 and sustained

on appeal. During appeal a court sale

took place and due to automatic. stay

(P.B. 3065) a second appeal took place

and Conn Sup Court held sale null and

Void.181 Conn 299 . The order of

remand provided only for ‘necessary

orders not inconsistent with this

opinion"

However, in lower court counsel for

Bank without re-opening judgment''re-

litigaged" the mortgage (now merged

into valid judgment) and added $64,176

in post judgment interest and fees none

of Which was provided for by mortgage

nor in complaint nor in valid judgment

drawn by counsel for BAnk. Petitioner

sought hearing on waste and losses

caused by Bank and was denied a hearing.

This appeal followed. -4-

Rent receiver moved in 1981 to terminate

the receivership and restore the proper-

ty to Owner's control as there were no

grounds to continue receivership. In

addition because his business expanded

and he often flew to Michigan to go fly

fishing he claimed he could no longer

take care of the rents. A hearing took

place and this MOfion denied.

Subsequently the Bank moved for a new

and unknown appointment and without any

hearing or notice the Court made a new

appointment to which the appeal amended.

During early years of receivership

Petitioner was refused any reports by Bank

Bank but in later years was able to get

annual report so he could file losses

with IRS.

During early years of receivership

Petitioner was threatened with force

and violence including arrest if he

‘entered the building to find out which

apts were rented. It was discovered

«Se

many rented for years by Superintendent

who abscounded with rents beleived to

approach $30,000. No report filed by

Bank and no action taken by Court.

An intense housing shortage slowly

filed the vacancies and now in escrow

is about $165,000. Petitioner has

urged this be in an interest bearing

accounts as rates were up to 13-14%

for some years but the rent receiver

keeps it on ceposit in a non interest

account at Hartford National Bank on

grounds said bank does not want to pay

interest. Lost interest believed to

exceed $100,000.

Rent losses have run. $3,000/month

for 9 years a total of $324,000 almost

$100,000 more than claims of Bank. Each

attempt by Peitioner to terminate or

to ,control receiver has bees ignored

by state court because no rules or no

standards exist to controlrent receivers.

-6-

SUBSTANTIAL REASONS ROR GRANTING WRIT

I. PETITIONER HAS BEEN DENIED DUE

PROCESS OF LAW BY STATE COURT

RENT RECEIVERSHIP THAT VIOLATES

THE FEDERAL CONSTITUTION.

—

Over the centures -much debate has

taken place over the meaning of due

process and this latest decision of

Conn. Sup Ct is in SHARP CONFLICT with

decisions of this Honorable Court.

Fuentes v Shevlin

407 US at 80

For more than a century the central meaning of pro-

cedural due process has been clear: “Parties whose rights

are to be affected are entitled to be heard; and in order

that they may enjoy that right they must first be noti-

fied.” Baldwin v. Hale, 1 Wall. 223, 233. See Windsor

v. McVeigh, 93 U.S. 274; Hovey v. Elliott, 167 U.S. 409:

Grannis v. Ordean, 234 U. S. 385. It is equally funda-

mental that the right to notice and an opportunity to be

heard “must be granted at a meaningful time and in a

meaningful manner.” Armstrong v. Manzo, 380 U. S.-

545, 552.

While Connecticut long enjoyed name

"Constitution State'’ because early pa-

triots hid the Charter from King George's

ten it would now be more appropirate to

call it the ''Hear8ay State" due to Conn.

ile

eo Ete Bom ee ee

Practic Book which authorizes use of _..

hearsay on matters such as appointment

of rent receivers. Hearsay without

question is a major working ingredient

in the Conn. State Court system daily

on a massive basis without knowledge or

consent of clients.

I.a. RULES 506-510 ARE OUTSIDE CONSTI-

TUTIONAL LIMITS GIVEN CONN SUP CT

GS 51-14''The judges of the Supreme

Court shall adopt rules

regulating.pleading, prac-

tice and procedure in ju-

dicial proceedings in the

courts. Such rules shall

not abridge, enlarge or

modify any substantive right

nor the jurisdiction of the

Courts"

These rules do just the opposite

of the statutory limitation - they

enlarge and abridge substantive

rights and create illegal new jur-

isdictional power for the state courts:

-8-

This Court has repeatedly rejected

rules of court adopted by State Supreme

Courts that violate federal rights or

abridge them.

U

312 US 584 1941

"Power of court to make rules of

practice gives it no authority

to modify or enlarge substantive

rights"

Recently this court struck down as

unconstitutional Arizona state court

rules that prohibited attorney adver-

fising as violation of lst amendment.

433 US 350 1977

",.justification advanced by appellee

inadequate to support suppression

of all advertising by attorneys"

More recently the same problem arose

wich Virginia state court rules vio-

lating the U.S. Constitution.

Consumers Union v American Bar Asso.

505 _F Supp 822 USDC ED Virginia 1981

nsum x ciation

505 F Supp 82

USDC ED Virginia 1981

Consumer organization brought civil

rights suit against Virginia Supreme Court

and its Chief Justice seeking a declaration

that their promulgation and enforcement of

rule prohibiting attorney advertising wag .

unconstitutional. A three-judge District ;

Court, Eastern District of Virginia, 427 *

F.Supp. 506, rendered judgment for the ~

consumer organization. The United States ©

Supreme Court, 433 U.S. 917, 97 S.Ct. 2998, -

53 L.Ed2d 1104, vacated that judgment.

On remand, the three-judge District Court, -

470 F.Supp. 1055, held again the advertising

ban unconstitutional and assessed an award

of attorney fees against the Virginia Su-

preme Court and its Chief Justice in his

official capacity and the Virginia Supreme |

Court appealed. The Supreme Court, 46 ©

U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641, .

vacated and remanded. On remand, the

District Court, Albert V. Bryan, Senior Cir

cuit Judge, held that plaintiff was entitled

to collect attorney fees from Supreme

Court of Virginia upon prevailing in its civil

rights suit to invalidate the advertising pro-

vision of the Virginia bar code; however,

because Virginia Bar endeavored to have

code amended to conform to constitutional

standards, no fees would be assessed —

against the Bar.

“1Ge

I.B. FOROVER A CENTURY CONN. SUP CT

ESCAPED REVIEW OF CONSTITUTIONALITY

P.B. 506-510 DECLARING THAT ORDERS

ARE ''NOT APPEALABLE"

A long line of cases dates back a

century or more of dismissals of appeals

of rent receivership orders as "not

appealable"’ - No opinion given - the

grounds are esoteric, mysterious, dev-

ious and unknown to the public. No

opinion can be found to support this

massive denial of judicial review.

Hartford National Bank v Tucker

195 Conn at 223 Feb 1005

No appeal lies from the appointment of a receiver

of rents in a foreclosure action.‘ Young v. Polish Loan

- & Industrial Corporation, 126 Conn. 714, 715, 11 A.2d

395 (1940); Silver v. Kingston Realty Corporation, 114

Conn. 349, 350n, 158 A. 889 (1932). Review of that rul-

ing must await an appeal from the final judgment of

- foreclosure. Hartford Federal Savings & Loan Assn.

v. Tucker, 192 Conn. 1, 5, 469 A.2d 778 (1984). ,

In 1972 this Petitioner filed id-

entical briefs in Conn Sup Ct and US

Sup Ct challenging on constitutional

grounds pre judgment attachments, GS

52-279, made without notice or hearing.

a

The Conn Sup Ct dismissed the appeal

claiming the issues ''not understood"

But .this court granted certiorari,

Tucker v Maher, 405 US 1052. On remand

a Three Judge District Court held a

hearing but before decision former Gov

Meskill signed into law the new Pre-

Judgement Remedy Act, GS 52-278 a-n.

While the new act MADE ALL PRE JUDGMENT

ORDERS APPEALABLE P. B. 506-510 BEING

ILLEGAL COURT RULES escaped the att-

ention of the legislature.

I.C. PETITIONER WAS DEPRIVED OF NOTICE

UNDER RULES THAT ALLOW DEPRIVATION

OF NOTICE AND HEARING.

For many decades-this Honorable

Court's decisions made clear that notice

and hearing constitute minimum Due

Process requirements.

N Georgia Finishing v Di-Chem

419 US at 606

atts

N Georgia Finishing v Di Chem

419 US at 606

That the debtor was deprived of only the use and pos-

session of the property, and perhaps only temporarily,

did not put the seizure beyond scrutiny under the Due

Process Clause. “The Fourteenth Amendment draws

no bright lines around three-day, 10-day, or 50-day

deprivations of property. Any significant taking of

property by the State is within the purview of the Due

Process Clause.” Jd., at 86. Although the length

or severity of a deprivation of use or possession would

be another factor to weigh in determining the appropriate

form of hearing, it.was not deemed to be determinative

of the right to a hearing of some sort. Because the offi-

cial seizures had been carried out without notice and

without opportunity for a hearing or other safeguard

against mistaken repossession, they were held to be in

violation of the Fourteenth Amendment.

But the Conn Supreme Ct argues in

its line of cases that no appeal lies

until "final judgment" because ''Due

Notice" is not required and the deb-

tor must wait to appeal from final

judgment, when UNFORTUNATELY THE

DAMAGES ALL DONE - IT IS TOO LATE:

Young v Polish Loan

126 Conn 714,715

«tS

I.D. CONN PRACTICE BOOK 506 AUTHORIZES

APPOINTMENT OF RENT RECEIVER WITH-

A HEARING AND WITHUUT NOTICE

Sec. 506. ———Appointment

Every application for the appointment of a receiver of rents shall

be made in or ancillary to a civil action and may be made either to the

court before which such action is pending or, when the court is not in

actual session, to a judge in chambers. The court or judge may examine

the plaintiff or his attorney and may thereupon appoint a receiver of

rents. Notice of the hearing should be given when practical but such

appointment may be made without notice if sufficient cause appears.

(P.B. 1963, Sec. 427.)

The language above was the sole

authority in this action for ex parte

"hearings" or "communications" from

Bank's counsel to Court without any

notice to Petitioner to bring about

the appointment of substitute rent

receiver. Any representations made

were in chambers or on phone out of

sound and sight of this Petitioner.

The seizure of rents approximating

$100,000/ year cannot be so small a

matter as to dispense with need for

notice and hearing.

While the rule contains qualifying

language...''without notice if suffi-

cient cause appears"'’.. no decision of

ethin

Conn Sup Ct defines what is "sufficient

cause'"’ and no order of appointment makes

finding of "sufficient cause" to justify

dispensing with notice and hearing.

This language then becomes :ma@:ning-

less gingerbread or frosting on the

cake without any meaning to Defendant

deprived of his fundamentally federally

protected right to Due Process of law,

to adequate Notice and to Meaningful

Hearing.

I. E. CONN P.B. 506 AUTHORIZES THE

APPOINTMENT OF RENT RECEIVER

___ON_ HEARSAY

P. B. 506 .."'the court may examine..

his attorney.."

This is precisely the proceedure

used in the initial appointment of

lst rent receiver and the appointment

of substitute rent receiver. No good

grounds given in motion, no testimony

given by bank, the court made the app-

‘ointment based on hearsay allegations

aite

of counsel just as PB 506 provides

...' the court may examine.. his

attorney..."

But such crude creditor mechanisms

were rejected by this Court in a line

of cases holding that a "meaningful"

hearing is required for any depriva-

tion of property rights no matter how

small.

SEE

416 US 60

"Petitioner's claim must accordingly

be narrowed to one for a hearing on

the issues in the possessory action -

default, the existence of a lien,

and possession of the debtor - be-

fore property is taken"

While during early years of rent

receivetship Petitioner applied to court

to terminate and control rent receiver

Conn PB 506-510 are barren of a word of

standards or grounds and motions all

disregarded and denied by state courts.

ibe

I.F. APPOINTMENT OF SUBSTITUTE RENT

RECEIVER UNDER PB 506-510 VIO-

LATES THIS COURT's COMMAND IN

MATHEWS V ELDRIDGE AND IN MEMPHIS

LIGHT GAS & WATER v CRAFT

In 1976 this Honorable Court ann-

ounced for first time the principle

that notice was not due process not-

ice where proeprty rights involved UN-

LESS THE NOTICE GAy‘E NOTICE TO DEBTOR

OF HIS STATE & FEDERAL RIGHTS & PRO-

VIDED A QUICK AND EASY MEANS OF ACHIE-

VING THESE RIGHTS.

424 uS 319

"Due process reqmiiires consideration of:

First - the private interest that will

be affected by official action

Second-Risk of Erronious deprivation

through proceedures used.

Third - Governments interest in added

proceedural requirements"

These requirements were expanded, clar-

‘ifed and affirmed in Craft, infra.

nite

- . —_,i

436 US 1 1978 at Page 2

3. Petitioners deprived respondents of an intcrest in property without

due process of law. Pp. 12-22. . |

(a) Notice in a case of this kind does not comport with —

tional requirements whe +t does not advise the customer of the avail-

ability of an administrative procedure for protesting a threatened

termination of utility services as unjustified, and since no such notice was

given respondents, despite “good faith efforts” on their part, they were

not accorded due notice. Pp. 13-15. -

(b) Due process requires, at a minimum, the provision of an

opportunity for presenting to designated personnel empowered to rectify

error a customer’s complaint that he is being overcharged or charged for

services not rendered, and here such a procedure was not made available

to respondents. The customer's interest in not having services terminated

is self-evident, the risk of erroneous deprivation of services is not

insubstantial, and the utility’s interests are not incompatible with afford-

ing the notice and procedure described above. Mathews v. Eldridge,

424 U.S. 3:9. Po 16-19.

After, Craft, supra, a constantly

growing line of cases arose where in

State after state statutes were struck

down because of not providing "Due

Notice" consisting of notice of state

& federal defenses and a SPEEDY MEANS

OF ACHIEVING THESE DEFENSES.

Probaily the most recent is Rhode Island

Dionne v Boule

3 LW 2487 Ist CA

"Due process requires the state to

spell out more clearly procedural

rights and remedies"

okie

Another recent state is Tennesse :

Myers vy City of Alcoa

53 LW 2363 th AA

"Craft mandated that a customer who

disputed his bill is to be given op-

portunity to meet with responsible

employee to resolve dispute prior to

termination"

In 1983 in Connecticut two situations

arose where statutes were struck down for

failing to meet "Due Notice" requirements

and for not PROVIDING NOTICE OF STATE &

FEDERAL DEFENSES & A SPEEDY MECHANISM TO

ACHIEVE THSE DEFENSES

First was a post judgment situation

where it was held AFTER JUDGMENY before

wage execution levied :debtor has a )

"Due Notice" right to NOTICE OF STATE &

FEDERAL DEFENSES & SPEEDY MECHANISM FOR

RELIEF.

i io

USDC Conn No 81-353

3-11-83

"Conn GS 52-361 fails to provide prior

to wage execution... a speedy adequate 3

and meaningful opportunity to be

heard at a meaningful time"

-19- 4

"lst - does not require notice to debtor

2nd - no procedure to promptly, simply

and inexpensively challenge the

validity of execution

_3rd- statute fails to provide notice to

debtor of existance of state &

federal exemptions"

"

The second was the state "IRS intercept

statute that permitted the state to

recover support for children by levy

upon IRS refunds. It was held that

"Due Notice'’ required NOTICE OF STATE: &

& FEDERAL DEFENSES & A SPEEDY MECHANISM

TO ACHIEVE THESE DEFENSES"

Nelson v Regan 8. Constitutional Law ¢>286

560 F Supp 1101 Internal Revenue e=4973

1983 Federal-state intercept program, under

which federal income tax refunds may be

transferred to state to extent of taxpayer’s

past-due support obligations, violated tax-

payer's due process rights, in that preinter-

cept notice and postintercept notice failed

to meet due process requirements for no-

tice, as neither mentioned possible defenses

individual might have to interception of tax

refunds or the availability of regular proce-

dures in which to challenge offset, and tax-

payers did not have available an opportuni-

ty be heard at a meaningful time and in a

meaningful manner. Social Security Act,

§ 464, as amended, 42 U.S.C.A. § 664; 26

U.S.C.A. §§ 6305, 6402; U.S.C.A. Const.

Amends. 5, 14.

-20-

The Conn Sup Ct speaks of the trial

Court as having "authority" which this

Court knows to be a false, a phantom, a

fraudulent authority since it is self

created by adoption of P.B. 506-510

in violation of Conn GS 51-14 limiting

power over rules to "rules of practice"’

The opinion below is TOTALLY BARREN

OF ANY CONSIDERATION OF ''DUE NOTICE"

NOR OF ANY CONSIDERATION OF STATE &

FEDERAL DEFENSES NOR OF SPEEDY MECH-

ANISM WITH WHICH THESE DEFENSES COULD

BE ACHIEVED:

The Opinion grandly goes on to talk

of ''make any such order in the action

as the exigencies of the case may re-

quire'"’ This refers to former language

of PB 509:

"The court... may make such orders

for the governance of the receiver

as circumstances may require"

iin

ath a

This language is assumed to over ride

the DUE PROCESS clause of the 5th & 14th

Amendments to the U.S. CONSTITUTION. No-

where is "exigencies™ or "circumstances"

defined in the rules nor in any reported

decision of the Conn Sup Court. This

bland langauge is the authority according

to 195 Conn 224, this action, for denial

to this Petitioner notice and hearing

when the substitute rent receiver was

appointed.

The clear command of the lst CA in

Dionne, supra, controls... "due process

requires the state (Connecticut) to

spell out more clearly procedural rights

and remedies".

However, the "Due Notice" rights

were totally ignored in the state court

proceedings where this Petitioner was

denied the right to have former rent re-

ceiver terminated and as Owner to take over

and denied notice or hearingwhen the Court

in clandestine ex parte proceedings in

a ee

Chambers or on phone with help of Bank's

counsel selected and appointed the sub-

stitute rent receiver subject of this

Petition.

In this action SHOCKING is the dispar-

ity between the above well reasoned cases

all consistent with THIS HONORABLE COURT's

ruling in Craft, Supra, and this action.

Bank v_ Tucker

195 Conn at 224

Not only did the trial court have the authority to con-

tinue the receivership and to ‘‘modify any such order’’

* as necessary, but also to ‘‘make any such order in the

action as the exigencies of the case may require.”

I.G. PETITIONER HAS BEEN DENIED FEDERAL

RIGHTS IN STATE COURT SUBSTITUTION

OF RENT RECEIVERS.

The facts of this action show that

the Petitioner denied fundamental fed-

erally guaranteed rights affirmed by

this Court in other actions.

1. Petitioner was denied equal right to

be receiver of property he owned a

right this Court upheld in Mitchell

v Grant 416 US 600 -23-

2. Petitioner was denied a meaningful

speedy hearing on merits at which

he could seek discharge of rent

receiver Mitchell v Grant 416 US 606

3. Petitioner was denied a hearing at,

which he could seek damages and

counsel fees against bank for vio-

lation of its fiduciary duties.

Mitchell v Grant 416 US 606

4, Petitioner was denied ''DUE NOTICE"

including notice of state & fed-

eral defenses. Mathew & Craft, supra.

as Petitioner was denied ''DUE NOTICE"

to include notice of speedy mechan-

ism-to present his state & federal

defenses. Mathew & Craft, supra.

II. STATE COURT JUDGMENT VOID AS

WITHOUT DUE PROCESS BEING WITH-

OUT JURISDICTION AS MORTGAGE

MERGED INTO JUDGMENT

Ee

The Supreme Court of Conn used only

one case to justify the re-litigation

that took place and that case does not

support what happened. In Tilden vy

«She

Century 112 Conn 441-42 the time for

sale passed on appeal and the lower |

court set new sale date.

However, that cannot justify the

Conn Sup Ct approving a re-litigation of

fees and interest on grounds it sustain-

ed such claims when the mortgage in

effect because NOW THE MORTGAGE MERGED

INTO THE JUDGMENT.

United States v Leffler

9 L Ed 642

"An original cause of action is merged

forever when judgment entered up-

on remains in full force, un.eversed"

Over the years the Leffler doctr: ne has

been adopted by all State Courts known

including early decisions in Connecticut.

Burri

47 Conn 323 1879

"Principal that judgment for part of

demand is bar to any other suit for

another part of the same demand is

everywhere inflexibly maintained"

-25-

III. PETITIONER SHOULD NOT BE PENALIZED

FOR CIVIL RIGHTS TORTS OF BANK

The sole basis for award of massive

interest and fees is the civil rights

tort committed by bank in selling the

property during automatic stay on appeal.

This sale held void and without due pro-

cess. Hartford National Bank v Tucker

181 Conn 299. Yet the Bank sought and

recovered in the state court fees and

interest for the conduct of the illegal

sale.

This petitioner should not be pen-

alized with interest and fees while

Bank conducted civil rights torts

forcing time consumed on appeal which

Bank's judgment reversed:

IV STATE COURT DENIED HEARING TO PRE-

SENT CLAIMS AGAINST BANK FOR LOSSES

& WASTE CAUSED BY ITS VIOLATION OF

FIDUCIARY DUTIES.

Petitioner claims the bank had fid-

uciary duties in the seizure of all rents

and full control of the property under

a Mortgage Conditional Assigment of Rents.

~26=

‘The appointment of original rent

receiver was without any court partici-

pation. Using losses its own illegal

receiver created the Bank started this

foreclosure and appointed on hearsay

motion the present rent receiver. Th

Bank controlied the receiver, refusing

to put money into interest bearing

account, refusing to raise rents to

market level, i ions to

terminate or control the rent receiver.

Indeed so cooperative was the Conn

Court. to the Bank that it can fairly

be called a kangaroo court.

But in a recent case this Court

affirmed fiduciary duties over the

United States because Congress passed

laws appointing a federal agency cover

Indian lands made the U.S. liable for

damages for waste and negligent mana-

gement. Is not Hartford National Bank

Also liable for similar damages and is

not Petitioner entitled to hearing?

<

Mitchell v U.S.

664 F 2d 60) 1081

~

Individual allottees of land in Indian

reservation sued Government to recover

damages for alleged mismanagement. On

remand from the United States Supreme

Court, 445 U.S. 535, 100 S.Ct. 1349, 63

L.Ed.2d 607, reversing Court of Claims, 591

F.2d 1300, the Court of Claims, Davis, J.,

held that: (1) timber sales statute, statute

Providing for regulations and sustained

yield and statute concerning rights-of-way

8ive federal officials full authority to man-

&ge Indian forest property and land and

thereby create fiduciary relationship, and

Plaintiff Indians could recover, on proof, for

breach of such fiduciary obligations and

obtain compensation provide~ by the stat-

utes, although recovery woulda be limited in

reach and scope: (2) under such statutes,

Indians could sue for any fall-off from in-

come they would have received from their

forests and lands if Government had prop-

erly complied with directive of statutes and

regulations, and for value or decrease in

value of their property which was lost or

diminished in value through improper ac-

tions of Department of Interior, ’

There is no difference between the

fiduciary duty imposed on the U.S. and

the same fiduciary duty imposed on Bank

by its seizure of control of the property

and of the rents of Petitioner.

+; =

CONCLUSION

This Court should summarilly reverse

the decision below and retain juris-

diction to ensure appropriate amendment

made to Conn. Practice Book to provide

"DUE NOTICE"

The judgment as to interest and fees

should be vacated as WITHOUT DUE PROCESS

and without jurisdiction, declared null

and void.

Hearing should be directed on Petitioners

claims for Banks violatiomof its fidu-

ciary duties. This hearing ordered in

speedy time against both Bank and Rent

Receiver.

In the Alternative probable jurisdiction

should be noted.

RESPECTFULLY:

STANLEY V.TUCKER

PETITIONER

o29-

ah Se

AMENDMENT V—CAPITAL CRIMES; DOUBLE JEOPAR-

DY; SELF-INCRIMINATION; DUE PROCESS; JUST

COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or otherwise in-

famous crime, unless on a presentment or indictment of a Grand

dury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

thall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty, or

Property, without due process of law; nor shall private property be

n for public use, without just compensation.

AMENDMENT XIV.—CITIZENSHIP; PRIVILEGES AND IM.

‘MUNITIES; DUE PROCESS; EQUAL -PROTECTION:

APPORTIONMENT OF REPRESENTATION; DISQUALI.

— OF OFFICERS; PUBLIC DEBT; ENFORCE.

._ Section 1. All persons born or naturalized in the Uni )

_ and subject to the jurisdiction thereof, are citizens of ro ton

, States and of the State wherein they reside. No State shall make

or enforce any law which shall. abridge the privileges or immuni-

.ties of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law:

rg my to any person within its jurisdiction the equal protection

@ laws. “2 wos ‘a. © as ; . oy

MOTLON TO TERMINATE RECEIVERSHIP

The undersigned, being this Court's

duly authorized and qualified Rent

Receiver.... moves this court to

terminate the Rent Receivership......-

aii 1981 s/Edward Manasse

ih De

oe DES

ne Court after hearing, HEREBY ORDERS:

1. Motion to terminate receiYership is

denied; Attorney Michael A Merati is

hereby substituted as receiver, effective

upon filing of a final account .. and

acceptance ... by Court.

Jan 12, 1982 s/ THE COURT

MOTION FOR SET OFF

Defendant moves the court for its order

granting judgment ... against Debt.

Set Off 1l- Costs awarded $482...

Set Off 2- Fire Insurance Funds $8000

Set Off 3- $319,542 for waste, negligence,

conversion, etc.

July 22,1981 s/ STANLEY V. TUCKER

ORDER

Motion for default for failure to plead

to set off denied.

August 10, 1981 THE COURT

AFFIDAVIT OF DEBT

There is no offset or counterclaim to

plaintiff's claim. 7-23-81 s/Bank Supervisor

alk Re

195 Conn 218 FEBRUARY, 1985

Hartford National Bank & Trust Co. v. Tucker

HARTFORD NATIGNAL BANK AND TRUST COMPANY v.

STANLEY V. TUCKER ET AL.

(10976)

PETERS, C. J., HEALEY, DANNEHY, COVELLO and F. HENNESSY, Js.

There was no merit to the named defendant's claims on this his

fifth appeal

to this court from the trial court’s judgment ordering, inter alia, fore-

closure by sale of certain property he owned in Torrington.

Argued December 5, 1984—decision released February 12, 1985

Action to foreclose a mortgage, brought to the Supe-

rior Court in the judicial district of Litchfield and tried

to the court, Sponzo, J.; judgment of foreclosure by sale

which, on appeal by the named defendant, was affirmed

by this court and remanded to the trial court for, inter

alia, the setting of a new date of public sale; the court,

N. O’Neill, J., rendered a new judgment of sale and

denied the named defendant’s motion that payment of

a deposit not be required should he be the successful

bidder; from that order of denial, and from certain

other orders, the named defendant appealed to this

court, which set aside that order and remanded the case

for, inter alia, the setting of a new date for a public

sale of the mortgaged premises; the court,

Stoughton, J., ordered a new judgment of sale; from

that order, and from various other orders, the named

defendant appealed. No error.

Stanley V. Tucker, pro se, the appellant (named

defendant).

Bourke G. Spellacy, with whom were Frank Scinto

and, on the brief, Charles F. Corcoran III and Emily

G. Holcomb, for the appellee (plaintiff).

Edward W. Manasse, for the rent receiver.

-B 2-

DANNERY, J. This is an appeal by the named defend-

ant (hereinafter the defendant) from a judgment for

the plaintiff in an action to foreclose a mortgage of

premises at 711 East Main Street in Torrington. The

defendant contends, inter alia, that the trial court erred

in allowing interest, attorneys’ fees, payment for insur-

ance, and fees for an appraisal and title search to be

made a part of the sum awarded to the plaintiff in the

judgment which ordered a foreclosure by sale.!

This is the third appearance of this case in this court.’

We do not understand on what ground the defendant

undertakes to reargue that the plaintiff is not entitled

to interest and reimbursement for expenses, costs,

attorneys’ fees and appraiser’s fee. Those asserted

errors were raised, discussed and appropriately

interred in Hartford National Bank & Trust Co. v.

Tucker, 178 Conn. 472, 423 A.2d 141 (1979), cert.

denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d

319 (1980) (Tucker I), and Hartford National Bank &

Trust Co. v. Tucker, 181 Conn. 296, 435 A.2d 350, cert.

denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221

(1980) (Tucker IT). We pass that portion of the argu-

ment by, only remarking that the mandates of this court

in the previous appeals of this case significantly deter-

mined the course to be pursued in the trial court on

remand.

A statement of facts and the reasons for our deci-

sions have been set forth in full detail in Tucker I and

Tucker II and we will only briefly restate them here.

This litigation had its provenance in January, 1976,

when the plaintiff instituted an action to foreclose a

mortgage given by the defendant to the plaintiff on a

certain piece of land owned by the defendant in Tor-

rington. A receiver of rents was appointed. The action

went to judgment, and on December 2, 1977, the trial

court ordered the sale of the premises at public auc-

tion. The defendant appealed to this court. On July 24,

1979, we concluded that no error had been committed

by the trial court and, as the day set for sale had passed

by reason of the appeal, remanded the case to it for

the setting of a new date for a public sale of the mort-

SSL... as

= %

195 Conn 218 FEBRUARY, 1985 "921

Hartford National Bank & Trust Co. v. Tucker

gaged premises and other formalities not inconsistent

with our decision. Tucker I, supra, 480. On July 27,

1979, the plaintiff filed a motion with the trial court

seeking an order setting a new date for a public sale

of the subject property and other incidental orders. On

August 3, 1979, the defendant filed a motion to reargue

his appeal before this court, which was denied on Sep-

tember 19, 1979. On September 21, 1979, he filed a

motion with this court for a stay of proceedings so that

he might prepare a petition for certiorari to be filed

with the United States Supreme Court.? We granted

the defendant a stay of proceedings for thirty days on

November 1, 1979. Tucker IT, supra, 297.

Ignoring our order that stayed the force of the judg-

ment and suspended its execution, on September 5,

1979, the trial court granted the plaintiff's motion of

July 27, 1979, and modified the judgment to provide

for a public sale to be held on October 13, 1979. The

defendant appealed from that judgment. We reviewed

all of the claims raised by the defendant. None had

merit. We found error with regard to the modification

of judgment only because the defendant was deprived

of the full and unhampered right of appellate review

in accordance with the applicable rules of practice or

statutes. The case was remanded on June 24, 1980, “for

the setting of a new date fora public sale of the mort-

gaged premises and any other necessary orders not

inconsistent with this opinion.” Id., 298-99.

On May 26, 1981, the plaintiff moved for the setting

of a new date for a public sale of the mortgaged prem-

ises and other necessary orders. Both parties appeared

and were heard on the motion. The court heard all the

evidence which was offered, the defendant being always

present. After ascertaining the sum total that was due

on the mortgage and after extended inquiry into the

* The defendant's petition for certiorari was denied on February 25, 1980.

Tucker I, 455 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980).

= ee

222 FEBRUARY, 1985 195 Conn 218

Hartford National Bank & Trust Co. v. Tucker

value of the mortgaged premises, on July 23, 1981, the

trial court decreed foreclosure by sale to be held on

October 17, 1981. This appeal ensued.

In carrying out the direction of a mandate, the Supe-

rior Court is limited to the specific direction of the man-

date as interpreted in the light of the opinion. Mazzotta

v. Bornstein, 105 Conn. 242, 243, 135 A. 38 (1926); see

Gary Excavating Co. v. North Haven, 163 Conn. 428,

430, 311 A.2d 90 (1972). Our mandate to the Superior

Court both in Tucker I and in Tucker IT made it plain

that the judgment of that court rendered on Decem-

ber 2, 1979, was affirmed and that further proceedings

should not be inconsistent with the views expressed in

those opinions. This phraseology, while not controlling

the details of the course to be pursued in the trial court,

limits the proceedings insofar as they must conform

to the remanding directions. We are satisfied that the

judgment rendered by the trial court on remand con-

formed to the mandate of this court. That being so, the

defendant cannot now raise questions which were or

could have been answered on the former appeals.

The time fixed in the judgment for the public sale of

the mortgaged premises passed pending appeal.

Because of delays incident to the legal process of

appeal, the judgment of the trial court became ineffec-

tive in an essential respect, and what is in effect a new

judgment became necessary. Tilden v. Century Realty

Co., 112 Conn. 439, 441-42, 152 A. 707 (1930). Our

prior holdings that the plaintiff was entitled to inter-

est and reimbursement for expenses, costs, attorneys’

fees and appraiser’s fee were binding upon the trial

court. The effect of the rescripts in Tucker I and in

Tucker II was to affirm the judgment of December 2,

1977, in every particular. It was therefore proper for

the trial court in the new judgment to confirm the origi-

nal one in all respects except as modification was made

necessary by the delays incident to the appellate pro-

February 12, 1985 CONNECTICUT LAW JOURNAL Page 37

— 5.

195 Conn 218 FEBRUARY, 1985 223

Hartford National Bank & Trust Co. v. Tucker

cess. Tilden v. Century Realty Co., supra, 442. The trial

court, in carrying out the rescripts in our decisions,

was required to set a new date for a public sale of the

mortgaged premises, to ascertain the amount due the

plaintiff, and to add to that amount interest and reim-

bursement for expenses, costs, attorneys’ fees and

appraiser's fee. This was the judgment rendered by the

trial court on July 23, 1981. There is no error.

The complaint accompanying the mesne process in

this action was filed in the Superior Court on January

30, 1976. On August 13, 1976, upon motion of the plain-

tiff and over vigorous objections by the defendant, a

receiver of rents was appointed. After judgment for

a foreclosure by sale was rendered on July 23, 1981,

and the defendant appealed, the receiver of rents filed

a motion to terminate the receivership. The motion to

terminate the receivership was denied but the receiver

was substituted, effective upon the filing of a final

account. The original receiver was allowed compensa-

tion and authorized to spend money for maintenance

and to pay from the balance left in his hands taxes due

to the city of Torrington in an amount not to exceed

$10,000. The defendant claimed the court erred in mak-

ing these orders and amended his appeal accordingly.

No appeai lies from the appointment of 2 receiver

of rents in a foreclosure action.* Young v. Polish Loan

& Industrial Corporation, 126 Conn. 714, 715, 11 A.2d

395 (1940); Silver v. Kingston Realty Corporation, 114

Conn. 349, 350n, 158 A. 889 (1932). Review of that rul-

ing must await an appeal from the final judgment of

foreclosure. Hartford Federal Savings & Loan Assn.

v. Tucker, 192 Conn. 1, 5, 469 A.2d 778 (1984). In this

case, the receiver of rents was appointed by the court

in 1976, prior to the entry of the judgment of fore-

* By contrast, the denial of an application for the appointment of a receiver

is an appealable final judgment. Brey v. Brey, 1 Conn. App. 397, 398 n.4,

472 A.2d 354, cert. denied, 193 Conn. 806, 477 A.2d 659 (1984).

CONNECTICUT LAW JOURNAL February 12, 1985

“8 6-

224 FEBRUARY, 1985 195 Conn 218

Hartford National Bank & Trust Co. v. Tucker

closure on December 2, 1977. Any objection the defend-

ant may have had to the appointment of the rent

receiver was raised when he appealed from the judg-

ment of foreclosure of December 2, 1977. Since the

defendant exercised his right to appeal from the

appointment of the rent receiver, we are entitled to pre-

sume that he had a full opportunity to present his

claims. ‘‘Our trial and appellate procedures are not so

unreliable that we may not afford their completed oper-

ation any binding effect. . . . To the contrary, a final

judgment commands respect.” United States v. Frady,

456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816, reh.

denied, 456 U.S. 1001, 102 S. Ct. 2287, 73 L. Ed. 2d

1296 (1982).

In Young v. Polish Loan & Industrial Corporation,

supra, we noted an exception to the general rule that

the appointment of a receiver of rents is not an appeal-

able final judgment. When an appointment is made

after a judgment in the action has be. 2 rendered but

while an appeal is pending from that judgment, a claim

that the order was erroneous may be included in that

appeal. Id., 715. The trial court’s order of January 12,

1982, denying the motion to terminate the receivership

effectively continued the receivership, merely chang-

ing the identity of the rent receiver. The continuation

of a rent receivership with a substituted rent receiver

does not constitute an appealable order within the

aforementioned exception. The defendant’s appeal from

the trial court’s December 2, 1977 order of foreclosure

included a challenge to the 1976 appointment of the

receiver of rents which was rejected in Tucker I. No

further review of that appointment by this court is war-

ranted.

Not only did the trial court have the authority to con-

- tinue the receivership and to ‘‘modify any such order”’

as necessary, but also to ‘‘make any such order in the

action as the exigencies of the case may require.”’ Gen-

«— 7.

195 Conn 218 FEBRUARY, 1985 225

Hartford National Bank & Trust Co. v. Tucker

eral Statutes § 52-504; see also Practice Book § 509.

When a receiver is appointed in a foreclosure action

to take charge of the property, he holds it as an arm

of the court and the funds in his hands are available

to the court for distribution to those rightfully entitled

to them; Desiderio v. Iadonisi, 115 Conn. 652, 655, 163

A. 254 (1932); including the payment of taxes and the

compensation of the rent receiver. All of the parties

concerned in the present controversy will still be before

the court when the ultimate determination of their

rights in respect to the distribution of the rents is made

after the mortgaged premises are sold. Silver v.

Kingston Realty Corporation, supra, 350n.

The plaintiff, a layman, tried his own case and pre-

pared and argued his appeal in this court. On labori-

ously reviewing the matter, we have followed the liberal

policy usual where a layman appears pro se, and have

carefully considered his claims so far as they are fairly

presented upon the record. Tucker I, supre., 476. It is

obvious, however, that there is no merit to his claims

and that no injustice has been done to him under the

law.

This litigation has lasted for nine years. There is no

longer any reason to prolong this case into the

indefinite future by allowing the defendant a roving

inquiry into irrelevant matter in the subsequent pro-

ceedings. Our mandate properly interpreted in the light

of prior decisions of this court and the applicable stat-

utes expressly directs the route to be followed.®

There is no error. The case is remanded to the Supe-

rior Court for the setting of a new date for a public

sale of the mortgaged premises and other necessary

orders not inconsistent with this opinion.

In this opinion the other judges concurred.