PATTY JENKINS PITTMAN, JUDGE.
The plaintiffs brought this action against the defendants New Berkshire Industries, Inc., Pelican Industries, Inc., J. Robert Poulter, and Webster Bank, N.A., to recover payment due on a promissory note. After obtaining a default judgment on certain counts against the first three defendants (the case is evidently still pending against Webster Bank, N.A.) for $403,568.42, the plaintiff served a property execution on a number of entities including Webster Bank, which held a checking account in the name of New Berkshire Industries, Inc., also known as Berkshire Industries. The plaintiffs and Webster Bank disagree over the disposition of the sum of $12,953.85. The plaintiffs have filed a Claim for Determination of Interests in Disputed Property, on Judicial Branch form JD-CV-5c, pursuant to Conn. Gen. Stat. § 52-356c. Webster Bank has filed an Objection to Claim for Determination of Interests. The parties — the plaintiffs and Webster Bank, for purposes of this dispute — have stipulated to all material facts in connection with the New Berkshire bank account but the parties have competing views about the legal significance of those facts.
THE FUNDS AND THE TIME SEQUENCE
On March 22, 2006, the plaintiffs, having obtained a prejudgment remedy, caused to be served an attachment and garnishment order on Webster Bank. At the time of the service of the attachment and garnishment order, the records of Webster Bank showed the current balance in the New Berkshire account as $24,973.97. Of that amount, $13,153.85 had been recently been deposited in the form of two checks — one for $5,181.17 and one for $7,972.68. It was the bank's policy to make only $100 per deposited instrument available for withdrawal by the account owner until each deposited instrument had cleared. On May 19, CT Page 14785 2006, Webster filed a Disclosure of Assets by Garnishee with an affidavit disclosing that it was holding $12,020.12 pursuant to the garnishment order. Webster provided no additional information about the account balance to the plaintiffs at that time. No reference was made to the remaining funds that the bank showed in New Berkshire's account balance as of March 22, 2006.
That sum is calculated by subtracting $13,153.85 (the amount of the deposited but uncleared checks) from $24,973.97 (the total balance) and adding back in $100 x 2 (the amount to which the bank allowed the account holder access on the two deposited checks prior to notice of clearance).
Meanwhile in June 6, 2006, the bank exercised its rights under a loan agreement with New Berkshire to place a hold on the remaining funds in the account as security for the repayment of sums owed to the bank under a line of credit extended to New Berkshire.
On August 24, 2006, the plaintiffs obtained a judgment against New Berkshire. On September 21, 2006, the plaintiffs caused an execution to be served on Webster, and Webster paid over to the levying officer the sum of $12,020.12, less a $30.00 bank service charge.
Meanwhile the plaintiffs began to investigate whether they had received an accurate accounting of New Berkshire's funds on deposit at Webster Bank as of March 22, 2006, the day New Berkshire's funds were secured by the garnishment order. On November 17, 2006, pursuant to an inquiry from the plaintiffs, Webster Bank provided counsel for the plaintiffs with photocopied account profiles for March 22 and 23, 2006, which for the first time indicated that the account balance for New Berkshire on March 22 was, in fact, greater than the $12,020.12 that the bank turned over to the plaintiffs pursuant to the September 21, 2006, execution.
On March 8, 2007, the plaintiffs filed a Claim for Determination of Interests in Disputed Property and obtained a show cause hearing date of April 16, 2007. Among those served with the Order for Hearing on the disputed property claim was Webster Bank. Webster filed an Objection on April 16, 2007. The court heard argument from Webster and from the plaintiffs and allowed the filing of supplemental briefs, the last of which was filed on April 27, 2007.
The plaintiffs had served property executions on a number of other business entities that had accounts payable to New Berkshire. Some had remitted their accounts payable to the levying officer and some had not. The Claim for Determination of Interests in Disputed Property was filed by the plaintiffs to resolve any claims of these other entities as well. The court has issued a separate ruling, #139, dated August 10, 2007, as to those issues.
THE DISPUTE
Webster advances three reasons why the court should reject any claims of the plaintiffs to the disputed funds on deposit at Webster: 1) that the plaintiffs waited too long to present this dispute to the court for resolution; 2) that Webster has accurately accounted for and already turned over the correct sum to the plaintiffs; and 3) that the plaintiffs can only assert their rights against Webster through the scire facias procedure, Conn. Gen. Stat. § 52-381, and cannot utilize CT Page 14786 the determination of interests procedure, Conn. Gen. Stat. § 52-356c, to compel Webster to account for and turn over any of the disputed funds. The plaintiffs maintain that they have timely utilized the correct procedure, and, in their memorandum of law, they urge the court to issue a turnover order compelling Webster Bank to pay to the levying officer the sum of $12,952.85, which is the difference between what the plaintiffs calculate the account balance to have been on March 22, when the attachment and garnishment order was served, and amount remitted to the levying officer pursuant to the September 21, 2006, execution.
TIMELINESS
Webster asserts that by waiting until March 8, 2007, to file a Claim for Determination of Interests in Disputed Property, for an execution that had been served on September 21, 2006, the plaintiffs have missed the deadline for asserting their rights to the disputed property. Webster points to the enabling statute — Conn. Gen. Stat. § 52-356c(a), which provides:
(a) Where a dispute exists between the judgment debtor or judgment creditor and a third person concerning an interest in personal property sought to be levied on, or where a third person claims that the execution will prejudice his superior interest therein, the judgment creditor or third person may, within twenty days of service of the execution or upon application by the judgment creditor for a turnover order, make a claim for determination of interests pursuant to this section.
Webster claims that the time limit for asserting an interest in the disputed property under this statute is twenty days, and that the gap between the September 21, 2006, execution and the March 8, 2007, filing of the claim of the plaintiffs is beyond the twenty days.
The plaintiffs point to the following language in the statute as an exception to the twenty-day deadline: "the judgment creditor or third person may, within twenty days of service of the execution or upon application by the judgment creditor for a turnover order, make a claim for determination of interests pursuant to this section." The problem for the plaintiffs is that they have not filed an application for a turnover order. To be sure, they have referred to such a request in their memorandum of law. But they have filed no separate application for a turnover order, only the Claim for Determination of Interests in CT Page 14787 Disputed Property.
Accordingly the court has no authority, under the current posture of this case, to determine who has the superior interest in the disputed funds and, if it is the plaintiffs, to order Webster Bank to turn over the disputed funds to them. Therefore the claim of the plaintiffs for a determination of interests in disputed property is dismissed, without prejudice and without any determination on the merits.
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