New England Savings Bank v. Mark Lopez et al., 227 Conn. 270

Borden, J. The principal issue of this appeal is whether General Statutes § 49-28, which establishes the procedures governing deficiency judgments following foreclosures by sale, is unconstitutional under the due process clause of the United States constitution because it does not provide an evidentiary hearing to determine the fair market value of the foreclosed property for purposes of calculating the amount of the deficiency. The defendants, Mark Lopez and Pauline J. Henson, appeal from the judgment of the trial court ordering a deficiency.

They claim that following the foreclosure sale, the trial court, Koletsky, J., improperly failed: (1) to grant their request for an evidentiary hearing to establish the fair market value of the mortgaged property, which deprived them of due process of law, and of their rights under the statutes and the Practice Book; (2) to apply the equitable doctrine of appropriation so as to preclude a deficiency judgment; and (3) to exercise its discretion to set aside the foreclosure by sale and order a strict foreclosure in order to provide the defendants with a hearing on the fair market value of the property.

We affirm the judgment of the trial court. The facts are undisputed. In order to secure a promissory note in the amount of $350,000, the defendants executed a mortgage to the plaintiff, New England Savings Bank, on unimproved property located in Groton. Following the defendants’ default on the note, the plaintiff brought this foreclosure action in April, 1991. The plaintiff moved for a judgment of strict foreclosure, and the defendant Stephen B.

Watrous Builder, Inc., a subsequent encumbrancer, and the defendant Melanie Watrous, to whom the property had been transferred (Watrous), moved for a judgment of foreclosure by sale. At the hearing on these motions on August 12,1991, the plaintiff’s appraiser, Christopher S. Buckley, testified that the value of the property was $274,000, and the Watrous’ appraiser, F. Jerome Silverstein, testified that the value was $563,000. The trial court, Teller, J., found the value to be $490,000, found the amount of the debt to be $385,157.59, and granted Watrous’ motion for a judgment of foreclosure by sale.

Pursuant to General Statutes (Rev. to 1991) § 49-25, the trial court appointed three appraisers to appraise the property. The plaintiff was the only bidder at the foreclosure sale. Subject to the approval of the sale by the court, the plaintiff purchased the property for $260,000, free and clear of all liens except for a tax lien to the town of Groton in the amount of approximately $23,000. Thereafter, the defendants moved to set aside the sale and for a judgment of strict foreclosure. The trial court, Koletsky, J., denied these motions and approved the sale.

The plaintiff thereafter moved for a deficiency judgment pursuant to General Statutes § 49-28. The defendants objected to the motion claiming that the value of the property was $490,000, as previously found by Judge Teller, which was more than the amount of the debt. The defendants, relying on Practice Book § 528, also requested an evidentiary hearing regarding the fair market value of the property.

The trial court, Koletsky, J., denied the defendants’ request for such a hearing, and rendered a deficiency judgment against the defendants, based on the difference between the amount of the debt and the sale proceeds, in the amount of $155,905.30. This appeal followed. I A The defendants first claim that General Statutes § 49-28, as applied by the trial court in this case, is unconstitutional under the due process clause of the fourteenth amendment to the United States constitution.

Specifically, they argue that “the calculation of a deficiency in a foreclosure by sale by merely subtracting the sales price from the debt . . . without providing a hearing to establish the actual value of the property sold . . . is unconstitutional because it does not provide the mortgagor, who does not request a foreclosure sale, with any meaningful hearing during which he can give testimony or present evidence . . . as to the true fair market value of the property sold at the forced sale. ” (Emphasis added.) We disagree.

The defendants’ claim is one of procedural due process: the right to a meaningful hearing at a meaningful time. The essential premise of their claim, however, is that they have a protected substantive due process interest in the “fair market value” of the property sold. This must be the premise of the defendants’ argument; otherwise, there would be no reason to determine the fair market value of the property at the hearing that the defendants seek.

On the basis of this premise, they argue that in the calculation of a deficiency judgment following a foreclosure by sale, they are entitled to a credit of the “fair market value” of the property sold. Put another way, their argument rests on the premise that, as a matter of constitutional law, a deficiency judgment must be calculated, not by subtracting the amount of the sale proceeds from the amount of the debt, but by subtracting the fair market value of the property from the amount of the debt. Their premise is unsound.

The defendants do not dispute, and we agree, that an entitlement to procedural due process requires an underlying substantive entitlement or protected property interest. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We also agree, as a general matter, that the defendants have a protected property interest in the proper measurement of any deficiency judgment that may be rendered against them. We disagree with the defendants, however, that this interest must be measured by the fair market value of the property foreclosed.

The substantive due process entitlement that the defendants claim, namely, an interest in the fair market value of the property, must have a basis in some source of state law. See, e.g., Brady v. Colchester, 863 F.2d 205, 211-12 (2d Cir. 1988) (to determine whether an interest rises to the level of a right protected by the fourteenth amendment, courts must look to “ ‘existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits’ ”); Fusco v.

Connecticut, 815 F.2d 201, 205-206 (2d Cir. 1987) (“The opportunity [under Connecticut’s zoning statute] granting] abutting landowners and aggrieved persons to appeal decisions of planning and zoning commissions and zoning boards of appeal is purely procedural and does not give rise to an independent interest protected by the fourteenth amendment.”). We can find no basis, however, in our state law or understandings regarding foreclosure by sale for the proposition that a debtor is legally entitled to a credit for the fair market value of the property sold.

A debtor’s legal entitlement is, instead, to a credit for the amount of the sale proceeds. “While an evidentiary hearing is required to determine the value of the mortgaged property and thus the amount of any deficiency following a strict foreclosure, such a valuation would be superfluous following a foreclosure by sale. In the latter action the price realized upon the sale of the property fixes the amount for which a deficiency may be entered pursuant to General Statutes § 49-28. Fairfield Plumbing & Heating Supply Corporation v. Kosa, 220 Conn. 643, 646 n.8, 600 A.2d 1 (1991); see also Cronin v.

Gager-Crawford Co., 128 Conn. 688, 692-93,25 A.2d 652 (1942); D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05B, p. 161.” (Internal quotation marks omitted.) Baybank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 788-89, 610 A.2d 658 (1992). The deficiency is determined by subtracting the sale proceeds from the amount of the debt. Id., 786; Cronin v. Gager-Crawford Co., supra, 692.

Furthermore, General Statutes § 49-14 (a), which does provide for an evidentiary hearing to determine the fair market value of property under foreclosure, “applies only to deficiency judgments in strict foreclosure actions.” Fairfield Plumbing & Heating Supply Corporation v. Kosa, supra, 646 n.8. Nor does the appraisal procedure provided by § 49-25 supply a basis for the defendants’ premise that they are entitled to a credit of the property’s fair market value, as opposed to the foreclosure sale proceeds, for purposes of determining a deficiency judgment.

That procedure performs two different functions: (1) it gives the trial court guidance on the subsequent question of whether to approve the sale; and (2) it provides the basis for the reduction in the amount of a deficiency judgment permitted to the party who moved for the foreclosure by sale, required under § 49-28. Cronin v. GagerCrawford Co., supra, 692.

Indeed, the usual notion of fair market value is inconsistent with the notion of a foreclosure sale. “[F]air market value is generally said to be the value that would be fixed in fair negotiations between a desirous buyer and a willing seller, neither under any undue compulsion to make a deal.” (Internal quotation marks omitted.) Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 390, 389 A.2d 734 (1978); New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 71, 459 A.2d 999 (1983).

An auction sale, such as a foreclosure sale, is not designed to reach that result because there is no opportunity for negotiations, and the seller, namely, the committee appointed by the trial court to conduct the sale, is under compulsion to “make a deal,” in the sense that it is required to take the highest bid, subject only to the approval of the court. Moreover, the traditional definition of fair market value implies a seller who is willing to entertain offers, and either rejects them or makes counteroffers and negotiates.

That, in turn, implies the willingness to take time to sell, in order to see what the market will bring, and that willingness, in turn, implies a seller willing to take the risk of the market going down. Similarly, a desirous buyer who offers less than what the seller asks takes the risk of the market going up and of another desirous buyer making a higher offer. Neither of these scenarios fits the paradigm of the foreclosure sale, in which there is no asking price, no offer and counteroffer, and no opportunity for the parties to incur the respective market risks.

We find confirmation for this construction of § 49-28 in the parallel provision of the Uniform Commercial Code, which we have recognized as a source of legislative policy for real property transactions. See, e.g., Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983); Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 455 A.2d 857 (1983); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980).

Under General Statutes § 42a-9-504 (2), it is clear that, after a commercially reasonable sale, a secured creditor is entitled to a deficiency judgment measured by the net proceeds of the sale in accordance with § 42a-9-504 (l). General Statutes § 42a-9-507 (2) is even more illuminating, because it provides that a disposition of secured collateral is conclusively deemed to have been commercially reasonable if it has been approved in a judicial proceeding.

A ruling that § 49-28 is constitutionally flawed because it does not permit the mortgagor to establish that the sale proceeds do not equal the property’s “fair market value” would imperil these provisions of the Uniform Commercial Code as well. Consequently, we decline to travel that imprudent path. We conclude, therefore, that state law does not provide a basis for a substantive due process interest in the fair market value of property sold at a foreclosure sale. Absent such a substantive interest, the defendants’ procedural due process claim must fail.

Finally, we note that our foreclosure statutes afford some measure of procedural due process for debtors. Procedural due process emphasizes the right to participate in decision-making—a right to be heard, rather than a right to a particular outcome. Our foreclosure statutes permit a mortgagor to be heard regarding the determination of whether there should be a foreclosure by sale and, if so, whether the sale should be confirmed.

Furthermore, with notice of the sale, the mortgagor may participate, either by bidding or by attempting to increase the likely sales price by interesting other potential bidders in the property. Consequently, we believe that the legislature may constitutionally permit the Superior Court to ascertain the amount of a deficiency judgment in a foreclosure by sale case by subtracting the amount of the proceeds of the sale from the amount of the debt.

B The defendants next argue that, even if they had no constitutional right to an evidentiary hearing, they had such a right pursuant to General Statutes §§ 49-14 and 49-28, and pursuant to “the relevant . . . practice book provisions.” This argument is without merit. We have recently stated and reasserted that § 49-14 (

a) applies only to strict foreclosure proceedings, and not to proceedings for a deficiency judgment following a foreclosure by sale. Baybank Connecticut, N.A. v. Thumlert, supra, 789; Fairfield Plumbing & Heating Supply Corporation v. Kosa, supra, 646 n.8. Furthermore, our discussion in

part I A of this opinion disposes of the defendants’ claim regarding § 49-28. With respect to the Practice Book, although the defendants cite no particular provision, we assume that they meant to refer to Practice Book § 528; see footnote 7; which is the provision upon which they relied in the trial court. It is clear, however, that § 528 tracks the language of § 49-14 (a), and is intended to apply only to deficiency judgments in strict foreclosure cases.

II The defendants next claim that the trial court “should have applied the equitable doctrine of appropriation in determining the amount of the deficiency judgment and should have used the fair market value of the property rather than its sale price in the calculation of the deficiency.” We decline to consider this claim, because the record indicates that the defendants did not at any time request the trial court to apply the doctrine of appropriation.

III The defendants’ next claim is that the trial court should have exercised its equitable discretion to grant their request to set aside the sale and order a strict foreclosure in order to provide them with an evidentiary hearing on the fair market value of the property for purposes of determining the deficiency. We disagree. As the defendants concede, whether to order a strict foreclosure or a foreclosure by sale is a matter committed to the sound discretion of the trial court, to be exercised with regard to all the facts and circumstances of .the case. Fidelity Trust Co. v.

Irick, 206 Conn. 484, 488, 538 A.2d 1027 (1988). Similarly, whether to set aside a foreclosure sale that has already been approved and to order a strict foreclosure is committed to the trial court’s sound discretion. The trial court did not abuse its discretion by denying the defendants’ request to do so. As we have noted, the foreclosure by sale had already been ordered and the sale approved. Indeed, the defendants have never claimed in this appeal that either of those actions of the trial court was improper. Thus, the expenses of the sale have already been incurred.

The defendants do not claim that the sale was not held in a commercially reasonable manner, or that the plaintiff acted improperly with regard to the sale except by bidding a sales price that they deem too low. The only basis for their motion that the defendants presented to the trial court was, in effect, that the sale did not yield the value that Judge Teller had placed on the property earlier—a value that the court was not required to place, and that was, in any event, intended for purposes other than determining the amount of a deficiency judgment. See footnote 11.

Under these circumstances, we conclude that the trial court did not abuse its discretion by declining to reverse direction by setting aside the sale and ordering a strict foreclosure. IV The defendants’ final claim is that the trial court improperly calculated the deficiency judgment by failing to add to the amount of the successful bid at the sale the amount of the real estate tax lien on the property. This claim is without merit. As we have noted, in a foreclosure by sale the deficiency is determined by subtracting the sale proceeds from the amount of the debt. Baybank Connecticut, N.A. v.

Thumlert, supra, 786; Cronin v. Gager-Crawford Co., supra, 692. That does not mean the sale proceeds plus liens for unpaid taxes on the property. Indeed, bids made at a foreclosure sale will inevitably take into account such a lien, as the record indicates occurred in this case, because the successful bidder knows that it will be taking the property subject to that lien.

The defendants’ argument would give the mortgagor credit for that lien and would penalize the mortgagee by reducing the amount of the deficiency, solely because the defaulting mortgagor had permitted the property to become encumbered by a real estate tax lien, thus reducing the equity in the property purchased by the successful bidder. We see no basis in our law or policy to justify such a result. The judgment is affirmed. In this opinion Peters, C. J., Callahan, Norcott and F. X. Hennessy, Js., concurred. General Statutes § 49-28 provides: “when proceeds of sale will not pay in full.

If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate.

If the property has sold for less than the appraisal provided for in

section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of sale; and, when there are two or more debts to which it is to be applied, it shall be apportioned between them.” Also named as defendants were Wayne Whipple, Stephen B. Watrous Builder, Inc., and Melanie G.

Watrous. They have not participated in this appeal. We refer herein to Mark Lopez and Pauline J. Henson as the defendants. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). At the time of the foreclosure hearing, General Statutes (Rev. to 1991) § 49-25 provided in relevant part that, in a foreclosure by sale, “the court shall appoint three disinterested persons who shall, under oath, appraise the property to be sold . . . .

If they cannot agree, an amount agreed upon by a majority may be accepted by the court at its discretion . . . .’’(Emphasis added.) As of October 1, 1991, § 49-25 provides in relevant part that in a foreclosure by sale, “the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold .... Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree.” (Emphasis added.) Subsequently, the appraisers filed their returns of appraisals of the property pursuant to General Statutes § 49-25. See footnote 5. F.

Jerome Silverstein appraised the property at $490,000; Christopher S. Buckley appraised the property at $274,000; and Robert H. Silverstein appraised the property at $350,000. Practice Book § 528 provides in relevant part: “motion for deficiency JUDGMENT “Whenever a deficiency judgment is claimed in a foreclosure action, the party claiming such judgment shall file with the clerk of the court within the time limited by statute a written motion setting forth the facts relied on as the basis for the judgment, which motion shall be placed on the short calendar for an evidentiary hearing.

Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim.

The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment. “Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee for hearing and judgment.” Although the defendants did not raise the constitutional basis of their claim in the trial court, in which they relied solely on Practice Book § 528, we exercise our appellate discretion to consider this aspect of the claim in this appeal under Cahill v.

Board of Education, 187 Conn. 94, 100, 444 A.2d 907 (1982) (“where consideration of the question is in the interest of the public welfare”), because: (1) it is in the interest of the public welfare to lay to rest this constitutional challenge to our foreclosure by sale statute, particularly now when foreclosure cases are crowding our trial dockets; (2) no further factual findings or discretionary rulings are required by the trial court to form the basis of such a claim; and (3) the plaintiff is not prejudiced by our consideration of the issue, which has been fully briefed in this court. General Statutes § 49-14 (

a) provides: “deficiency judgment, (

a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim.

The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.” The history of our strict foreclosure law partially explains the difference in treatment, for purposes of determining a deficiency judgment, between strict foreclosures and foreclosures by sale. “At common law, a mortgagee was required to elect between a foreclosure action or an action on the underlying debt. In Derby Bank v. Landon, 3 Conn. 62, 63 (1819), this court held that ‘a foreclosure and consequent possession, is in the nature of satisfaction of a debt secured by mortgage.

It is deemed an appropriation of the thing pledged, in payment of the demand, for which it was security.’ See also Swift v. Edson, 5 Conn. 532, 534-35 (1825). Because the entry of judgment of foreclosure precluded any further common law proceedings upon the note, the legislature, in Public Acts 1833, c. 18, §§ 1, 2, created the remedy of the deficiency judgment as the only available means of satisfying a mortgage debt when the security is inadequate to make the plaintiff whole. D.

Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05A, p. 158. ‘[A] statute forbidding suit upon the . . . original indebtedness to recover the deficiency, does not operate to prevent suit upon a judgment for deficiency actually obtained in a foreclosure action.’ 2 C. Wiltsie, Mortgage Foreclosure (4th Ed. Eager 1927) § 949, p. 1206. “Before rendering a deficiency judgment, the court must have a mechanism for establishing the value of the subject property to determine whether and to what extent a deficiency exists.

While a foreclosure by sale automatically establishes the value of the property, a strict foreclosure does not have this secondary consequence. Only a proceeding for a deficiency judgment following a strict foreclosure establishes the amount of remaining indebtedness.” Fairfield Plumbing & Heating Supply Corporation v. Kosa, 220 Conn. 643, 647-48, 600 A.2d 1 (1991).

Thus, in determining the amount of a claimed deficiency judgment in a strict foreclosure case, the court necessarily must determine the fair market value of the property involved because it is that property that the mortgagee is acquiring in partial or full satisfaction of the debt, and without such a determination there would be no way to determine whether the mortgagee was entitled to such a judgment and, if so, the amount thereof. This is in contrast to a foreclosure by sale case, in which there is no such necessity because the sale proceeds provide a basis for determining the amount of the deficiency.

Indeed, even the “value” of the property upon which the defendants relied in the trial court, and which they reassert on appeal, and on which the dissenting opinions in this court rely—namely, the “finding” by Judge Teller that the value of the property was $490,000—was not made for purposes of deciding whether and in what amount a deficiency judgment should be rendered. Judge Teller made that finding in the course of ruling on the motions for strict foreclosure and foreclosure by sale.

Such a finding, which is not required either by our statutes or our Practice Book, is not even binding upon the court in determining whether a deficiency judgment should be rendered in a strict foreclosure action. The valuation for purposes of a deficiency judgment in such an action is entered by the court pursuant to General Statutes § 49-14 (

a) and its counterpart, Practice Book § 528. It would be incongruous, therefore, to hold, as the defendants’ and the dissenting opinions’ arguments suggest, that a valuation that is not even binding for purposes of a deficiency judgment following a strict foreclosure must nonetheless be taken as binding for purposes of a deficiency judgment following a foreclosure by sale.

Pursuant to General Statutes § 49-28; see footnote 2; if the sale proceeds are less than the appraisal under General Statutes § 49-25, “no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of the sale . . .

It is clear, however, that this credit only applies to the deficiency judgment sought by “those parties upon whose motion the sale was made.” Cronin v. Gager-Crawford. Co., 128 Conn. 688, 691, 25 A.2d 652 (1942). Anyone who has sold real estate in Connecticut in the past five years appreciates what that risk means. Anyone who bought real estate in Connecticut between 1986 and 1988 appreciates what that risk means. General Statutes § 42a-9-504 provides in relevant part: “secured party’s right to dispose of collateral after default; effect of disposition.

(1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to

article 2. The proceeds of disposition shall be applied in the order following to (

a) the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party; (

b) the satisfaction of indebtedness secured by the security interest under which the disposition is made; (

c) the satisfaction of indebtedness secured by any subordinate security interest in the collateral if written notification of demand therefor is received before distribution of the proceeds is completed. If requested by the secured party, the holder of a subordinate security interest must seasonably furnish reasonable proof of his interest, and unless he does so, the secured party need not comply with his demand. “

(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus and, unless otherwise agreed, the debtor is liable for any deficiency; but if the underlying transaction was a sale of accounts or chattel paper, the debtor is entitled to any surplus or is liable for any deficiency only if the security agreement so provides.” General Statutes § 42a-9-507 (2) provides: “secured party’s liability for failure to comply with this part. ...

(2) The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.

The principles stated in the two preceding sentences with respect to sales also apply as may be appropriate to other types of disposition. A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.” Thus, the defendants’ reliance on Society for Savings v.

Chestnut Estates, Inc., 176 Conn. 563, 409 A.2d 1020 (1979), is misplaced. In that case, we found the applicable strict foreclosure statute constitutionally wanting because the debtor was deprived of a meaningful opportunity to be heard regarding the fair market value of the property. In this case, however, the fair market value is not pertinent, and the debtor does have a meaningful opportunity to be heard at all relevant times. Indeed, it was not the plaintiff but Watrous who had occasioned the foreclosure sale in the first place.