Attorney General's Opinion

Attorney General, Richard Blumenthal

June 24, 2005

Commissioner Leonard Boyle
Department of Public Safety
111 Country Club Road
Middletown, Connecticut 06457-9294 

Dear Commissioner Boyle:
 

Your department has requested a formal opinion concerning the following questions:

            “What impact, if any, does the placement of a lis pendens against property (real estate) have upon the bond limit set for a properly licensed and authorized bondsman, when the property in question has been designated as an asset by the bondsman in the calculation of their authorized bond limit?”

            “What impact, if any does the placement of a lien against property (real estate) have upon the bond limit set for a properly licensed and authorized bondsman, when the property in question has been designated as an asset by the bondsman in the calculation of their authorized bond limit?”

Pursuant to Chapter 533, Conn. Gen. Stat. § 29-144 et seq., the Department of Public Safety licenses bondsmen.  Under these sections, the bondsmen and bondsmen applicants are required to provide a statement of assets and liabilities at the time of the license application, license renewal, or in the event of any material change impacting financial assets or liabilities.  In documents that you have provided, the application and renewal forms request additional information, including information concerning whether there are judgments or lawsuits pending against the applicant and whether the applicant is an endorser on the notes of others.  This information is used by your office in determining the bondsman’s bond limit.

Conn. Gen. Stat. § 29-147 states that the purpose of the renewal application is to permit the Commissioner to determine “whether for any reason such bondsman’s fitness to continue in such business has been otherwise altered since the issuance of any prior license.”  The purpose of these licensing requirements is to ensure that, in the event of default, the bondsman has sufficient assets to secure the bond obligation.  However, Chapter 533 does not set forth a formula to be used to calculate a bondsman’s financial fitness, therefore implicitly leaving this question a matter within the discretion of the Commissioner.

With this in mind we may answer your questions as follows:

Concerning the impact the placement of a lis pendens has on a bondsman’s authorized limit, it is important to remember that a notice of lis pendens is, under Connecticut law, a notice to prospective purchasers of the property and creditors of the owners that there is a lawsuit pending concerning the property.  Garcia v. Brooks Street Assoc., 209 Conn. 15, 22 (1988).  Therefore, the Commissioner may take the notice of lis pendens into account in determining the authorized bond limit, just as he may take into account any other lawsuit that has been filed against the bondsman. In so doing, the Commissioner need not make an independent determination concerning whether the litigation is likely to be successful.  Connecticut law provides a procedure for the discharge of a notice of lis pendens.  If a property owner moves to discharge the lis pendens, the court must determine whether there is probable cause to sustain the validity of the claim.  Conn. Gen. Stat. § 52-325b.  The burden should be on the bondsman to move to discharge the lis pendens.  If the bondsman fails to move to discharge the lis pendens or if the bondsman moves to discharge, but the court determines that there is probable cause to sustain the claim, and the bondsman’s appeal rights have expired, the Commissioner may reduce the bondsman’s authorized limit by the amount of the underlying claim, given that the bondsman has either failed to pursue his legal remedy or that an independent judicial review has already determined that there is probable cause to sustain the lis pendens.

In your second question, you ask about the effect of the placement of a lien on the property of a bondsman or bondsman applicant when that property has been designated an asset.  A mortgage is perhaps the best-known type of lien.  As you note in your request, your department typically deducts the amount of a mortgage from the fair market value of the property in determining the value of the property.   In most circumstances, this will be the appropriate course to follow with other liens.  Connecticut law permits a lienee to make application to discharge or reduce a lien.  See, e.g., Conn. Gen. Stat. § 49-35a (mechanics’ lien).  Since it is the obligation of the bondsman applicant to demonstrate his “sound financial responsibility”, Conn. Gen. Stat. § 29-146, the burden is appropriately

placed on the bondsman or bondsman applicant to initiate legal proceedings to reduce or discharge the lien if he believes there is reason to do so.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Neil Parille

Assistant Attorney General

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