# Petition for Writ of Certiorari — Tucker v. Hartford National Bank & Trust Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0465%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 845 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0465%3A1. Public record. Not legal advice.