Opinion
No. HDSP-152228
July 29, 2010
MEMORANDUM OF DECISION
This is a summary process action for nonpayment of rent brought by the plaintiff, Jewel L. Wilson, seeking to recover the premises located at 87 Ridgefield Street, Hartford, Connecticut (the "Premises") from the defendants, Princess Miller and Alford Miller. The plaintiff and defendants were initially self-represented at the court trial but subsequently all parties were represented by legal counsel.
Findings
The Premises consists of a single-family dwelling in which the defendants and their three children have resided since 2002. In 2007, the defendants experienced financial difficulties. The defendants became delinquent on their mortgage loan and the bank holding the mortgage initiated "pre-foreclosure" proceedings. The defendants contacted a mortgage broker, Ken Lewis, who advised the defendants that he had a plan which would permit them keep their home. The plan required the defendants to sell their home to a third party secured by Lewis but the defendants were assured that the sale would be made on the condition that the defendants would be permitted to remain in occupancy. Lewis also represented to the defendants that when their financial difficulties were cleared up, title to their home would be re-conveyed in a year or two.
The plaintiff testified that she knew Lewis for some period of time and that he had referred and was overseeing a home improvement contractor who was doing work on her home. The plaintiff testified that her husband had recently died and she told Lewis that she was experiencing financial difficulties at the time. The plaintiff testified that Lewis advised her that he could arrange for her to "make a quick $3,000 by signing her name on some papers."
Lewis apparently made arrangements for a real estate transaction and mortgage closing without the direct participation by the parties.
The plaintiff and defendants testified that the signatures of the plaintiff and Alford Miller on the real estate purchase agreement submitted by Lewis to the mortgage lender are not theirs. In fact, the parties testified that they never saw a copy of the purchase agreement until a copy was obtained from the closing attorney after this action was commenced. The agreement provided for the sale of the Premises to the plaintiff for the sum of $250,000. The parties agree that there was never any agreement to sell or purchase the Premises for $250,000. The purchase agreement also erroneously describes the seller as Alfred Miller rather than Alford Miller.
The defendants were contacted by Lewis to attend a closing on the sale of the Premises which took place on July 11, 2007. The defendants were unrepresented at the closing.
Although the defendants testified that they were unrepresented at the closing, line 1105 of the HUD Settlement Statement (Defendants' Ex. A) shows that the defendants were charged the sum of $400 by the closing attorneys for "Document Preparation."
The plaintiff and defendants testified that they did not meet at any time before or at the closing at the lawyer's office. The parties did not sit in the same room or sign any papers at the same time at the closing.
The defendants testified that they did not review the deed at the closing. Alford Miller testified that Lewis assured him that the defendants' names were to be added to the deed after the closing. The defendant acknowledged in her testimony that it was her understanding that the Premises were to be re-conveyed to the defendants but the agreement to re-convey was never reduced to writing nor provided to the parties by Lewis. The plaintiff acknowledged that she did not plan to occupy the Premises and intended to continue to reside in her home in Bloomfield.
The $191,250 mortgage on the Premises was assigned after the closing from Lime Financial Services to Vanderbilt Mortgage. Following the closing, the defendants paid approximately $1,800 per month to Lewis who was to forward the payment to Vanderbilt Mortgage. The plaintiff testified that she had no further contact with any of the parties following the closing until she was contacted by a representative of Vanderbilt Mortgage and was informed that the mortgage payments were delinquent. The plaintiff testified that to avoid further damage to her credit, she decided to "kick" Lewis out of the matter and deal directly with the defendants.
The defendants testified that the plaintiff approached them in September, 2008. The parties agree that this was the first time they met. The plaintiff presented the defendants with a proposed lease which required rental payments of $2,400 per month (Plaintiff's Exhibit 1). The plaintiff testified that when she was notified of the delinquent mortgage payments, she "modified" the mortgage with the lender to add the delinquent sums to the principal balance. As a result of the modification, monthly rental payments of $2,400 rather than $1,800 were required to satisfy the mortgage payments.
The Closing Documentation
The defendants offered copies of numerous closing documents (Defendants' Exhibits A — AA). The defendants testified that they were not provided with any copies of the closing documents at the closing and, with the exception of the HUD-1 Settlement Statement (Defendants' Exhibit A), they were able to obtain only unsigned copies of the documents from the closing attorney. Although the documents are unsigned, the plaintiff offered no contradictory documents nor raised any challenge to the information contained in the copies of the closing documents offered by the defendants.
The court has reviewed the settlement statement and copies of numerous checks introduced by the parties. The settlement statement is seriously at odds with the claims of the parties and copies of the checks issued by the closing attorney.
A check in the amount of $35,000 from the closing proceeds was payable to the plaintiff. (Defendants' Exhibit D-6). This payment is not reflected on the settlement statement. There is a check payable to "Ken Lewis" for $16,500 (Defendants' Exhibit D-5) which is also not reflected on the settlement statement. There are a number of odd checks in sums of $20,000, $15,000, $8,289.02, and $11,465.43 payable to the defendants. There is a computer generated check stub bearing check number 127481 in the amount of $25,017.50 payable to Alford Miller which was neither recorded on the settlement statement nor produced with the other signed copies of the front and back of checks obtained from the closing attorney. (Defendant's Exhibit B). The plaintiff, however, submitted a copy of a signed check in the identical amount ($25,017.50) payable to the closing attorney, which check lists the plaintiff as the remitter and bears a date of July 13, 2007, two days following the closing.
Although neither party was provided with a copy of an appraisal of the Premises, the plaintiff testified that the appraisal fee listed on the settlement statement was paid to Lewis' firm, USA Financial LLC.
On the basis of the evidence submitted, it is not possible, nor is it necessary, for the court to conduct a forensic accounting review of the financial aspects of the real estate transaction by which the plaintiff now claims to have become the record owner of the Premises. What is clear is that the transaction by which the plaintiff acquired a deed to the Premises was a sham transaction, tainted by forged and false documentation and apparently involved fraud upon a financial institution.
The Right to Possession of the Premises
The plaintiff claims to be the owner of the Premises. However, "A mere paper chain of title does not establish ownership . . ." Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150 (1960). The mere fact that a person is a grantee on a deed does not mean that he or she is the "legal owner" of the property. Gonzalez v. Starkowski, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 07 4015043S (October 8, 2008, Cohn, J.); Biondi v. Dept. of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 01 0511997 (May 14, 2002, Schuman, J.).
On cross examination by the defendants' counsel, the plaintiff invoked her fifth amendment right against self incrimination several times and declined to answer questions concerning the closing documentation. "The [fifth amendment] privilege [against self-incrimination] does not . . . forbid the drawing of adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." (Internal quotation marks omitted.) Olin Corp. v. Castells, 180 Conn. 49, 53-54, 428 A.2d 319 (1980).
This court is obliged to apply the law and fundamental principles of equity. Although the plaintiff apparently was an unwitting participant in the scheme, she voluntarily participated in the scheme for financial gain and cannot ask the court for relief which would offend the principles of equity. "[H]e who seeks equity must himself do equity . . ." OCI Mortgage Corp. v. Marchese, 56 Conn.App. 668, 676, 745 A.2d 819 (2000). In the present case, the scales of equity tip in favor of the defendants.
Moreover, having heard the evidence and found the facts in this matter, the court is confronted with the question of subject matter jurisdiction. "[T]he question of subject matter jurisdiction . . . addresses the basic competency of the court . . . [and] can be raised by any of the parties, or by the court sua sponte, at any time." Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194 (1990).
General Statutes § 47a-23 (a) provides that a notice to quit may be given by an "owner or lessor, or his legal representative, or his attorney-at-law or in-fact." General Statutes § 47a-1(e) defines "owner" as "one or more persons, jointly or severally, in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and includes a mortgagee in possession." General Statutes § 47a-1 (e) requires the legal title to be "vested" in the owner. General Statutes § 47a-(e). The term "vested" is defined as "Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute." Black's Law Dictionary (8th Ed. 2004).
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Id.
On the basis of the foregoing, it would not be reasonable to conclude that the plaintiff has sustained her burden to prove, by a preponderance of the evidence, that she is the bona fide vested owner of the Premises and has the requisite standing to maintain this summary process action. Having found that the plaintiff has failed to prove this essential element, the action is dismissed as the court is without subject matter jurisdiction.