No. CV 09 5012048
November 7, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (#120)
The substituted plaintiff, Donald J. Griggs, Executor of the Estate of Helen Karlonas (hereinafter "plaintiff"), has moved pursuant to P.B. §§ 17-44 and 17-50 for the entry of summary judgment against the defendants as to liability.
As to the defendant, Dominic Piacenza, Administrator of the Estate of Carl D. Sherman (party #52), he has been defaulted for failure to disclose a dense (entry #109.00) and for failure to plead (entry #110.00). Accordingly, pursuant to P.B. § 17-33, the plaintiff is entitled to judgment against the defendant.
As to the remaining defendants, Post Road I, LLC (party #50), and Faith Acquisitions Nominee Trust (party #51) (hereinafter "defendants"), the plaintiff claims that there is no genuine or material fact concerning the validity of the mortgage note and deed, and that a balance is due and owing on same. The defendants have interposed five special defenses, which the plaintiff contends, do not raise issues of material fact regarding foreclosure of said mortgage. As such, the plaintiff claims that it is entitled to judgment as a matter of law.
For the purpose of determining the plaintiff's motion for summary judgment, the court finds the following facts:
The first-named defendant, Post Road I, LLC, is the current owner of certain real property situated in the Town of Waterford, County of New London and State of Connecticut known as 11 Louise Street (hereinafter "Property"), which is more particularly described on Exhibit A to the complaint. On October 14, 1997, Carl D. Sherman executed a promissory note in favor of Helen Karlonas (hereinafter the "Note"). In order to secure payment of the Note, Carl D. Sherman executed and delivered to the plaintiff a mortgage deed dated October 14, 1997 ("Mortgage"), on the Property. On October 16, 2002, Carl D. Sherman transferred the Property to the defendant, Post Road I, LLC, by virtue of a quit claim deed recorded on October 30, 2002, in Volume 564 at page 731 of the Town of Waterford Land Records. Post Road I, LLC took title to the Property subject to the Mortgage.
On October 5, 2007, Carl D. Sherman died. On or about June 5, 2007, Dominic S. Piacenza was appointed ancillary administrator of the Estate of Carl D. Sherman in New London Probate Court. At the time this action was commenced, Helen A. Karlonas was the holder of the Note and Mortgage.
On November 21, 2010, Helen A. Karlonas passed away, and on December 6, 2010, Donald J. Griggs has been appointed the Executor of the Estate of Helen A. Karlonas. Accordingly, by operation of law, the situated plaintiff, Donald J. Griggs, as Executor of the Estate of Helen A. Karlonas, is the holder of the Note and Mortgage. The Note is a demand note. On or about January 16, 2009, Helen A. Karlonas, acting through counsel, made written demand for payment under the Note and has provided written notice of her claim to the defendant, Dominic S. Piacenza, Administrator. Specifically, the letter noted that there had been a $15,000 payment against principal in 1999, and that the most recent interest-only payments was made on February 8, 2007 for the period through December 22, 2006. As such, demand was made for payment of $42,239.73. Despite demand, the defendants have failed, neglected and/or refused to comply with the demand for payment.
The defendant, Post Road I, LLC is the owner of the equity of redemption of the Property and is now in possession of the same. Plaintiff caused a Notice of Lis Pendens to be recorded upon the Town of Waterford Land Records giving notice of the institution of this foreclosure action in accordance with the provisions of P.A. 81-8.
On or about August 25, 2010, the defendants, Post Road I, LLC and Faith Acquisitions Nominee Trust, filed an Answer and Special Defenses to the Amended Complaint (entry #117.00) setting forth the following special defenses: a) Payment; b) Accord of Satisfaction; c) Set-Off; d) Waiver; and e) Statute of Limitations.
On June 13, 2011, the plaintiff, through counsel, propounded a set of Interrogatories and Requests for Production upon said defendants concerning any evidence pertaining to the defendants' special defenses. The request for production and disclosure were not answered by the defendants.
LAW RE SUMMARY JUDGMENT
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 6, 882 A.2d 597 (2005).
A party opposing summary judgment, however, "must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact, and therefore cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Citation omitted; internal quotation marks omitted. Water Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 664-65, 646 A.2d 143 (1994).
"To obtain summary judgment in a foreclosure matter, the plaintiff must demonstrate the absence of a genuine issue of material fact as to its prima facie case. See Bank of New York v. Conway, 50 Conn.Sup. 189, 193-95, 91 A.2d 130 (2006). `In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party has] to prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the mortgagor has] defaulted on the note . . . Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied.' (Citation omitted; internal quotation marks omitted.) Id., 193-94." Webster Square Investors, LLC v. Rebelo, Superior Court, judicial district of New Britain, Docket No. CV 08 5008381 (January 31, 2011, Shortall, J.T.R.).
"[A] foreclosure complaint must contain certain allegations regarding the nature of the interest being foreclosed. These should include allegations relating to the parties and terms of the operative instruments, the nature of the default giving rise to the right to foreclosure, the amount currently due and owing, the name of the record owner and of the party in possession, and the appropriate prayers for relief . . . The terms of the mortgage determine the necessary elements of the plaintiff's prima facie case." (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 610-11, 717 A.2d 713 (1998). U.S. Bank National v. Suvemay, Superior Court, judicial district of Fairfield, Docket No. CV 08 50143585 (October 4, 2010, Hartmere, J.).
In the present case, the plaintiff contends that the defendants have failed to make payment on the note as required. The defendants have pled payment. The plaintiff has submitted an affidavit of Donald J. Griggs and exhibits indicating the execution of the note, dates of payment and balances owed. The defendants, through counsel, submitted a memorandum of law in opposition to the plaintiffs' claims. The defendants filed an affidavit, through its counsel, acting as a power of attorney for a third party i.e., the daughter of the deceased defendant, Carl D. Sherman. The affidavit and accompanying exhibits submitted along with the affidavit have been reviewed by the court. The plaintiff attacks the affidavit by Joy Janelle Sherman, through Dean Golembesky (POA), as hearsay, without the personal knowledge of the affiant and thus not supportive of the defendants' claim of payment or any other of the defenses to the granting of a summary judgment.
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1955). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "It is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard." Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).
"[Practice Book § 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding by either the movant or party in opposition. (Emphasis supplied.) The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affidavit is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995).
Additionally, General Statutes § 52-180 provides: "(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the same time of the act, transaction, occurrence or event or within a reasonable time thereafter."
"To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in . . . § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter . . . In applying the business records exception . . . [§ 52-180] should be liberally interpreted." (Internal quotation marks omitted.) Connecticut Light and Power Co. v. Gilmore, 289 Conn. 88, 116, 956 A.2d 1145 (2008). "It is not necessary . . . that the witness have been the entrant himself or in the employ of the business when the entry was made . . . It is sufficient for a witness to testify that it was the regular business practice to create a document within a reasonable time after the occurrence of the event." (Citation omitted.) Calcano v. Calcano, 257 Conn. 230, 241, 777 A.2d 633 (2001). There is no requirement in the business records exception to the hearsay rule that the documents be prepared by the organization itself to be admissible as that organization's business records. See, e.g., New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 603, 717 A.2d 713 (1998).
In the present case, the affidavit submitted by counsel by way of a power of attorney for a third party does not meet the test for admissibility at trial as enumerated in § 17-46 of the practice book and/or the business entry statute § 52-180. The information given to the defendants' counsel by defendant Carl Sherman's daughter reflects her and, therefore, defendants' counsel's incompetency to testify at trial that any or all of the payments alleged were for the mortgage note in question. Furthermore, both the defendant, Carl Sherman's daughter, and Dean Golembesky, are not keepers of the record in question. They have failed to lay any foundation that the records represent payment on the specific note in question and/or were made in the regular course of the defendants' business.
The defendants have failed in its obligation to establish a genuine issue of fact contrary to the plaintiff's affidavits and exhibits. The defendants have failed to present to the court competent evidence of payment on the note in question. As to the defendants' other defenses, accord and satisfaction, set off, waiver and statute of limitations, the defendants have failed to bring admissible evidence to the court for the court to find a material issue of fact.
The plaintiff's motion for summary judgment (#120) as to all defendants is granted as to liability only.