Opinion
No. CV98-0265016-S
September 27, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #195
This matter comes before the court for consideration of the Plaintiff's Motion for Summary Judgment (#195.00) seeking judgment as to liability only as against the defendant, Susan Agleh.
The present action arises out of alleged defaults on a note and various guarantees. On February 14, 2011, the plaintiff, CadleRock Joint Venture II, L.P., filed a two-count amended complaint against the defendants, Melina Enterprises, Inc. (Melina) (as borrower) and the defendants Marie Milazzo, Barbara Milazzo, Susan Agleh, and Michael Milazzo, as guarantors. Specifically, in its amended complaint, the plaintiff alleges the defendant, Susan Agleh, became indebted to the plaintiff, by executing an Agreement of Guaranty and Suretyship dated July 17, 1991. Under the terms of the borrower's note, Melina became liable to Connecticut Savings Bank (CSB) in the original principal amount of $175,000. In particular, Melina agreed to pay CSB principal and interest according to the tenor of the note with a final maturity date of July 1, 1996. Under the terms of the guaranty, Susan Agleh agreed to "absolutely and unconditionally guarantee to [CSB], its successors, endorsees and assigns, the full and prompt payment, together with interest, as and when the same becomes due and payable, of all obligations, liabilities, sums of money and indebtedness of any kind or nature, whether presently existing or hereafter created or arising, of Melina to [CSB], including all obligations under the [n]ote."
On October 19, 1998, the plaintiff had originally filed a two-count complaint against the defendants Marie Milazzo, Barbara Milazzo, Wageeh Agleh, Susan Agleh and Melina. On August 1, 2006, however, the court, Wiese, J., granted Wageeh Agleh's motion for summary judgment, dated September 19, 2005. Furthermore, on January 13, 2011, the court, Fischer, J., granted the plaintiff's motion to cite in Michael Milazzo, and its request for leave to amend its complaint. Therefore, the amended complaint filed on February 14, 2011, is the operative complaint. See Practice Book § 10-60(a)(1).
The plaintiff further claims it became the owner of the note and guaranty by means of an allonge, which transferred the note from Credit Suisse First Boston Mortgage Capital LLC to the plaintiff and as such, the plaintiff claims entitlement to all rights, titles and remedies pertaining to the note and guarantees. The plaintiff further claims that Melina and Susan Agleh are in default on the note for failure to make payments when due.
On January 19, 2005, the defendant, Susan Agleh, filed an answer and four special defenses to the plaintiff's original complaint. In her answer, the defendant admits that she has not made any payments to the plaintiff or its predecessor in interest on any guaranty she may have signed, but otherwise leaves the plaintiff to its proof. In her first special defense, the defendant alleges that the plaintiff's ability to recover from the defendant has been released, discharged and/or otherwise affected by the operation of paragraph 7(e) of the guaranty because CSB and any of its successors in interest, failed to act in a commercially reasonable manner in realizing upon collateral owned by Melina. In her second special defense, the defendant alleges that the plaintiff's ability to recover from the defendant has been released, discharged and/or otherwise affected by the operation of paragraph 7(e) of the guaranty because CSB and any of its successors in interest, failed to act in a commercially reasonable manner in realizing upon collateral owned by any other parties liable for the indebtedness of Melina. In her third special defense, the defendant alleges that she received no consideration in exchange for signing the guaranty and, therefore, the plaintiff's claims against her should be barred for lack of consideration. In her fourth special defense, the defendant alleges that the note was assigned, transferred and endorsed to Credit Suisse First Boston Mortgage Capital, LLC (Credit Suisse) and, therefore, the plaintiff has no standing to bring this suit.
On February 11, 2011, with the permission of the court, the plaintiff filed an amended complaint alleging the identical facts as against defendant Susan Agleh. Because the plaintiff has not moved the defendant to plead to the amended complaint, the court will address Agleh's original answer and special defenses to the amended complaint.
On April 27, 2011, the plaintiff moved for summary judgment as to liability only against Susan Agleh and the motion was accompanied by a memorandum of law, affidavits and other exhibits as proof. On May 27, 2011, the defendant filed a memorandum of law in opposition. On June 9, 2011, the plaintiff filed a reply to the defendant's memorandum. The matter was heard at short calendar on June 13, 2011.
The exhibits attached to the Supplemental Barta affidavit were as follows: the promissory note from Melina Enterprises, Inc. to Connecticut Savings Bank dated July 17, 1991 (Exhibit A); allonges to the note, including the allonge from Credit Suisse First Boston Mortgage Capital, LLC to CadleRock Joint Venture II, L.P. certified to be a true and correct copy on March 16, 2001 (Exhibit B); the Agreement of Guaranty and Suretyship of Marie Milazzo (Exhibit C); an open end mortgage deed executed by Marie Milazzo (Exhibit D); and the Agreement of Guaranty and Suretyship of Susan Agleh (Exhibit E).
DISCUSSION I. STANDARD OF REVIEW ON SUMMARY JUDGMENT MOTIONS
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Moreover, the "court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, supra, 791.
The plaintiff argues that there is no genuine issue of material fact in that the defendant Melina is in default on the note and the defendant Susan Agleh signed the guaranty. Therefore, the plaintiff is entitled to enforce the guaranty as a matter of law. The plaintiff contends that the defendant's special defenses are unavailable to her as a matter of law based on the language of the guaranty. In support of its memorandum, the plaintiff submitted the following relevant evidence: (1) the signed and sworn affidavit of Peter Barta, as Senior Vice President of Cadlerock II, Inc. and general partner of the plaintiff, Cadlerock Joint Venture II, L.P.; (2) the original note dated July 17, 1991; (3) multiple allonges to the note including an allonge dated July 25, 1997, whereby the plaintiff became the owner and holder of the note; and (4) the Agreement of Guaranty and Suretyship signed by the defendant, Susan Agleh and dated July 17, 1991.
The defendant counters that the Motion for Summary Judgment must fail because the Agreement of Guaranty and Suretyship signed by the defendant, Susan Agleh and dated July 17, 1991, is not sworn to as a true and correct copy and therefore should be disregarded, and further, that the plaintiff has failed to demonstrate that there are no genuine issues of material fact as applied to the defendant's special defenses.
The plaintiff, in his reply to the defendant's objections, argues that the plaintiff need not provide a sworn copy of the Agreement of Guaranty and Suretyship signed by the guarantor because the defendant does not claim that she did not execute the document nor has she offered any contradictory evidence to contest the guaranty. Additionally, the plaintiff has provided a supplemental affidavit attesting to the fact that all copies are true and correct and therefore the sufficiency of the guarantee is no longer at issue.
II. SUFFICIENCY OF SWORN AFFIDAVITS
As a preliminary matter, Practice Book § 17-46 provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." The Appellate Court has indicated what constitutes a sworn copy of a document by articulating the ways in which a document may be authenticated. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). "Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Emphasis added.) Id.
In this case, the plaintiff has submitted a supplemental affidavit in which Peter Barta attested to having "personal knowledge of the facts stated [therein] and of the books and records of the [p]laintiff as they relate to this matter." Barta further attested that a "true and correct copy" of the note, allonges and guaranty are attached to his affidavit. Therefore, the court finds that pursuant to Practice Book § 17-46, the affidavit of Peter Barta constitutes sufficient authentication of the executed Agreement of Guaranty and Suretyship signed and dated July 17, 1991, by the defendant Susan Agleh.
III. THE GUARANTY
"[A] guarantee is a promise to answer for the debt, default or miscarriage of another . . . It is simply a species of contract." (Citations omitted.) Regency Savings Bank v. Westmark Partners, 59 Conn.App. 160, 164, 756 A.2d 299 (2000). "More specifically, a guaranty is an undertaking by a guarantor to answer for payment of some debt, or performance of some contract, of another person in the event of default." 38 Am.Jur.2d 947, Guaranty § 1 (2010); see also TD Bank, N.A. v. Northern Expansion, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 09 6001534 (November 22, 2010, Matasavage, J.). Typically, "[t]o establish a prima facie case of entitlement to recover on [a] [g]uaranty . . . [the] plaintiff must show (1) that it is owed a debt from a third party; (2) that [the] defendant made a guaranty of payment of the debt; and (3) that the debt has not been paid by either the third party or [the] defendant." (Emphasis in original; internal quotation marks omitted.) TD Bank, N.A. v. Northern Expansion, LLC, supra, Superior Court, Docket No. CV 09 6001534; see also TD Banknorth, N.A. v. Norwich River, LLC, Superior Court, judicial district of New London, Docket No. CV 07 5008138 (December 8, 2008, Martin, J.).
First, the plaintiff claims that there is no genuine issue of material fact that it is owed a debt from the third party Melina Enterprises, Inc. "[T]he liability of the guarantor is based on the liability of the debtor." Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 44 Conn.App. 409, 413, 689 A.2d. 1166 (1997), appeal dismissed, 243 Conn. 667, 706 A.2d 975 (1998). "[S]ince the guaranty contract secures a principal or primary obligation, [the liability of the guarantor] . . . depends on the construction and application of the primary contract." 38 Am.Jur.2d 1004-1005, Guaranty § 57 (2010); see also TD Bank, N.A. v. Northern Expansion, LLC, supra, Superior Court, Docket No. CV 09 6001534. A number of Superior Court decisions have determined that a prior rendering of summary judgment against the borrower as to liability under the note is sufficient to establish that there is no genuine issue of material fact that a plaintiff is owed a debt from a borrower. See TD Bank, N.A. v. Northern Expansion, LLC, supra, Superior Court, Docket No. CV 09 6001534; see also TD Banknorth, N.A. v. Norwich River, LLC, supra, Superior Court, Docket No. CV 07 5008138. In the present case, however, there has not been a prior rendering of summary judgment against Melina. Nevertheless, a plaintiff typically has "to prove by a preponderance of the evidence that it was the owner [and/or holder] of the note . . . and that [the borrower] [has] defaulted on the note." (Internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn.App. 315, 319 n. 5, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). The "holder" is the "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession . . ." General Statutes § 42a-1-201(b)(21)(A).
Melina, however, has been defaulted for its failure to appear on December 16, 1998, and on January 15, 2004.
In the present case, Peter Barta attested in his supplemental affidavit that Melina had executed and became liable under a term note dated July 17, 1991, in favor of CSB and that the plaintiff became the owner and holder of the note by virtue of an allonge dated March 31, 1997. Moreover, Barta attested that Melina is in default under the note as a result of its failure to make payment under the note when due and continues to neglect and/or refuses to pay all outstanding sums due under the note. The plaintiff further attached a copy of the note made payable to CSB and signed by Michael Milazzo on behalf of Melina on July 17, 1991, along with copies of three allonges to the note. The first allonge, dated March 31, 1997, makes the note payable to the plaintiff. The second allonge, dated July 25, 1997, makes the note payable to Credit Suisse. The third allonge, which is undated but certified on March 16, 2001, makes the note payable to the plaintiff. The defendant does not deny that the plaintiff is the owner and holder of the note or that Melina has defaulted on the note. Accordingly, there is no genuine issue of material fact that the plaintiff is owed a debt from Melina Enterprises, Inc.
While the defendant's fourth special defense alleges that the plaintiff has no standing to bring this suit because the note was assigned, transferred and endorsed to Credit Suisse, the defendant admits, based on the evidence, that this defense now fails.
Second, the plaintiff must also establish that there is no genuine issue of material fact that the defendant made a guaranty of payment of the debt "A guarantor's liability depends primarily on the construction and application of the guaranty contract." 38 Am.Jur.2d 1004, Guaranty § 57 (2010); see also TD Bank, N.A. v. Northern Expansion, LLC, supra, Superior Court, Docket No. CV 09 6001534. "[O]ur Supreme Court has stated that where the guaranty of a note [is] unconditional or absolute default of the maker or endorser to pay the note promptly . . . [causes] the guarantor [to become] liable to the holder, and the relation of debtor and creditor [is] at once established between the guarantor and the holder of the note." (Internal quotation marks omitted.) TD Bank, N.A. v. Northern Expansion, LLC, supra, Superior Court, Docket No. CV 09 6001534; see Perry v. Cohen, 126 Conn. 457, 459, 11 A.2d 804 (1940); see also 38 Am.Jur.2d 962-63, Guaranty § 15 (2010).
Clearly the Agreement of Guaranty and Suretyship signed by the defendant, Susan Agleh, and conveyed to the Connecticut Savings Bank [CSB] states that the defendant "has requested [CSB] to make a loan or advances or otherwise extend credit . . . to Melina . . . pursuant to a [n]ote or [a]greement, which [is dated July 17, 1991], between [Melina] and [CSB], and as a condition of making such [l]oan to [Melina], [CSB] has required that [the defendant] unconditionally guarantee the full and prompt payment of all liabilities and indebtedness due or to become due from [Melina] to [CSB] whether under or pursuant to such [n]ote or [a]greement or otherwise." The guaranty further states that the defendant "hereby absolutely and unconditionally guarantees to [CSB], it successors, endorsees and assigns, the full and prompt payment" thereof.
Additionally, paragraph 1(a) of the guaranty states: "[t]his [g]uaranty is a continuing guaranty and security for the indebtedness now due or owing to [CSB]." Paragraph 1(b) states that "[t]his [g]uaranty is irrevocable and shall continue in full force and effect until all of the indebtedness . . . has been fully and finally paid to [CSB]." Paragraph eight states: "[t]he liability of the [defendant] . . . is direct, absolute and unconditional without regard to the liability of any other person. [CSB] shall have the right to proceed against the [defendant] immediately upon any default by [Melina] and shall not be required to take any action or proceeding of any kind against [Melina] or any other party liable for the indebtedness or any collateral or security which [CSB] may have before proceeding against the [defendant]."
The language of the Agreement of Guaranty and Suretyship at issue clearly states that Susan Agleh unconditionally guaranteed the payment of Melina's debt. The defendant does not deny that she signed the agreement. Accordingly, there is no genuine issue of material fact that the defendant, Susan Agleh, made a guaranty of payment for the debt incurred by Melina Enterprises, Inc.
Finally, it is the plaintiff's burden to establish that there is no genuine issue of material fact that the debt has not been paid by either a third party or the defendant. Peter Barta's affidavit clearly attests that Melina continues to neglect and/or refuses to pay all outstanding sums due under the note and that Susan Agleh is in default under her guaranty in that she has failed to make payment when due and claims that she continues to neglect and/or refuses to pay all outstanding sums due under the guaranty. Moreover, Peter Barta attests that the current outstanding balance on the principal is in the amount of $142,908.52 and claims interest accruing on the note. The defendant in fact admits that she has not made any payments to the plaintiff or its predecessor in interest on any guaranty she may have signed. Accordingly, there is no genuine issue of material fact that the debt has not been paid and therefore, the court finds the plaintiff has proved its prima facie case.
IV. SPECIAL DEFENSES
Upon review of the defendant's claims of special defenses the court does not find any stated defense that presents genuine issues of material facts necessitating a trial. "[I]t is appropriate for a court to render summary judgment in favor of a plaintiff when the special defenses asserted by a defendant are either not legally viable or do not present a genuine issue of material fact." Kazlon Communications, LLC v. American Golfer, Inc., 82 Conn.App. 593, 596, 847 A.2d 1012 (2004). "Only one of [a] defendants' defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [the] claimant's motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
A. The defendant's first and second special defense
The plaintiff argues that the defendant waived any rights against CSB and the plaintiff with regard to liquidation of collateral through paragraph 5(e) of the guaranty. The defendant counters that she has not waived any rights against CSB or the plaintiff because paragraph 7(e) of the guaranty provides her with rights where CSB wilfully failed to act to avoid the waste and loss of the collateral securing the loan. In this regard, the plaintiff contends that there is a genuine issue of material fact because the plaintiff has failed to establish that CSB has not wilfully failed to act to avoid the waste and loss of the collateral securing the loan. The plaintiff replies that paragraph 5(e) of the guaranty provides that CSB was not obligated to liquidate its collateral and that adopting the defendant's interpretation of the guaranty would render paragraph 5(e) superfluous. The plaintiff contends that a better reading of paragraph 7(e) is that the defendant's "rights against [CSB] as to the collateral are triggered only when [CSB] has taken possession of the collateral and then caused it to deteriorate . . . while under [CSB's] control." Regardless, the plaintiff argues that the defendant's first and second special defenses are patently unsupported and insufficient to overcome summary judgment.
"[A] guarantor may expressly waive his rights with respect to collateral that secures the debt that he has guaranteed . . . While a determination about a party's intent to waive his rights ordinarily poses a question of fact, clear and definitive contract language can establish waiver as a matter of law." (Citations omitted.) Connecticut National Bank v. Douglas, 221 Conn. 530, 545, 606 A.2d 684 (1992). "[When] the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . It also is settled that the individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part . . . A contract should be construed so as to give full meaning and effect to all of its provisions . . ." (Citation omitted; internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 811, 17 A.3d 40 (2011).
In the present case, paragraph 5(e) of the guaranty states: "[CSB] may, . . . in the event of nonpayment when due, whether by acceleration or otherwise, of any of the indebtedness, realize on the collateral or any part thereof, as a whole or in such parcels or subdivided interests as [CSB] may elect in a commercially reasonable manner, at any public or private sale or sales, for cash or on credit or for future delivery, without demand and without resort to legal process or judicial hearing, order, or authorization, or by foreclosure or otherwise, or forebear from realizing thereon, all as [CSB] in its discretion may deem proper, and purchase all or any part of the collateral for its own account at any such sale or foreclosure." Paragraph eight of the guaranty further states: "[CSB] shall have the right to proceed against the [defendant] immediately upon any default by [Melina] and shall not be required to take any action or proceeding of any kind against [Melina] or any other party liable for the indebtedness or any collateral or security which [CSB] may have before proceeding against the [defendant]." The language of the guaranty is clear and unambiguous that CSB was entitled to "forebear from realizing" on any collateral and was entitled to "proceed against the [defendant] immediately upon any default by [Melina]."
Paragraph 7(e) of the guaranty, however, states: "The obligations of the [defendant], and the rights of [CSB] in any collateral or security, shall not be released, discharged or in any way affected, nor shall the [defendant] have any rights against [CSB] . . . [b]y reason of any deterioration, waste or loss by fire, theft or otherwise, of any of the collateral, unless such deterioration, waste, loss or failure to have adequate insurance coverage thereon, be caused by willful failure to act of [CSB]." While an expansive reading of this clause may provide rights to the defendant where CSB caused deterioration, waste or loss by its "willful failure" to foreclose on the collateral, an individual clause of a contract cannot be given an interpretation apart from the contract of which it is a part. See FCM Group, Inc. v. Miller, supra, 300 Conn. 811. Such an expansive reading would render paragraph 5(e) and paragraph eight superfluous. "A contract should be construed so as to give full meaning and effect to all of its provisions." Id. Accordingly, paragraph 7(e) cannot be read to negate paragraph 5(e) and paragraph eight but should be read in conjunction therewith. In this regard, the "willful failure to act" cannot be read to include the failure to foreclose, but rather, the failure to act, after foreclosure, to prevent deterioration, waste or loss.
Therefore, the defendant's first two special defenses are not legally viable because they have been waived pursuant to the unambiguous terms of the guaranty.
B. The defendant's third special defense
With regard to the third special defense, the plaintiff argues that the language of the guaranty states that it was supported by consideration. The defendant counters that there is a genuine issue of material fact as to whether she received consideration for the guaranty because, while the guaranty states as such, she claims that she did not receive consideration and there is no evidence otherwise. The plaintiff replies that the fact that the guaranty indicates that the consideration is acknowledged is sufficient to show that the guaranty was supported by consideration and that, in this regard, the guaranty specifically states that a condition of extending credit to Melina was the defendant's guaranty.
"Generally, in the absence of consideration, an executory promise is unenforceable." General Electric Capital Corp. v. Transport Logistics Corp., 94 Conn.App. 541, 546, 893 A.2d 467 (2006). "[C]onsideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the ptomisee . . . [T]he doctrine of consideration does not require or imply an equal exchange between the contracting parties . . . Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Internal quotation marks omitted.) Id., 546-47. In General Electric, the Appellate Court concluded that a party's "signing [a] guarantee induced the plaintiff to lease equipment to the corporate defendant, and the plaintiff's continued leasing of equipment to the corporate defendant was consideration" for the party's guaranty. Id., 547. The Appellate Court also relied on the fact that the guaranty stated that the party signed the guaranty "for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged . . ." (Internal quotation marks omitted.) Id.
In the present case, the defendant has signed a guaranty, which states that the defendant "has requested [CSB] to make a loan or advances or otherwise extend credit . . . to Melina . . . pursuant to a [n]ote or [a]greement, which [is dated July 17, 1991], between [Melina] and [CSB], and as a condition of making such [l]oan to [Melina], [CSB] has required that [the defendant] unconditionally guarantee the full and prompt payment of all liabilities and indebtedness due or to become due from [Melina] to [CSB] whether under or pursuant to such [n]ote or [a]greement or otherwise." Furthermore, the guaranty states that the defendant guaranteed the indebtedness "in consideration of [o]ne [d]ollar ($1.00) and other valuable consideration from [CSB], receipt of which is hereby acknowledged." General Electric makes clear that the defendant's signing of the guaranty induced CSB to make a loan or advance to Melina and CSB's loan or advance to Melina was consideration for the defendant's guaranty.
Therefore, there is no genuine issue of material fact as to the defendant's third special defense because it is clear that she received consideration under the terms of the guaranty.
CT Page 23048
C. The defendant's fourth special defense
While the defendant admits that there is evidence that the plaintiff has been assigned the note, the defendant argues that there is still a genuine issue of material fact as to whether the plaintiff is the holder of the defendant's guaranty. The plaintiff replies that the supplemental affidavit makes clear that it is the owner and holder of the defendant's original guaranty and that the copy attached to the affidavit is true and correct. The plaintiff further contends that, since the note was assigned to the plaintiff, the defendant's guaranty of the indebtedness under the note now benefits the plaintiff and may be enforced by it."Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009). "The plaintiff's standing to enforce [a] note is set forth by the provisions of the Uniform Commercial Code as adopted in General Statutes § 42a-1-101 et seq." Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 577, 989 A.2d 606 (2010). "Under these statutes, only a `holder' of an instrument or someone who has the rights of a holder is entitled to enforce the instrument." Id.; see also General Statutes § 42a-3-301. The "holder" is the "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession . . ." General Statutes § 42a-1-201(b)(21)(A).
The plaintiff need not be a party to the guaranty in order to enforce the guaranty, however. See D'Amato Investments, LLC v. Sutton, 117 Conn.App. 418, 422-23, 978 A.2d 1135 (2009). In D'Amato, a lease was assigned to the plaintiff but not a guaranty. Id., 422. Nevertheless, the guaranty stated: "[T]he undersigned guarantees to Landlord, Landlord's successors and assigns, the full performance and observance of all covenants, conditions and agreements, therein provided to be performed and observed by Tenant . . ." (Emphasis in original.) Id. The Appellate Court determined that the "resolution of the issue of standing depends on whether the plaintiff was a successor or assignee to [the original beneficiaries] under the guarantee." Id. The Appellate Court, therefore, concluded that the plaintiff, as an assignee of the lease from the original beneficiaries of the guaranty, had standing to enforce the guaranty. Id., 423.
In the present case, there is no dispute that the plaintiff is the holder of the note and, therefore, has standing to enforce the note. Furthermore, the guaranty states: "[T]he [defendant] . . . hereby absolutely and unconditionally guarantees to [CSB], its successors, endorsees and assigns, the full and prompt payment" of any indebtedness due under the note. This language is substantially similar to the language in D'Amato. Therefore, there is no genuine issue of material fact as to the defendant's fourth special defense because the plaintiff, as the successor under the guaranty, has standing to enforce it.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's motion for summary judgment as to liability only against the defendant, Susan Agleh.