Opinion
CV176033308S
08-06-2018
GREENWICH PORTFOLIO LENDER, LLC v. 111 MILL STREET, LLC et al.
UNPUBLISHED OPINION
TAGGART D. ADAMS, JUDGE TRIAL REFEREE
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS
The plaintiff, Greenwich Portfolio Lender, LLC (Greenwich Portfolio) commenced this action to foreclose a mortgage held by Greenwich Portfolio on five parcels of real property located in Greenwich, Connecticut (Mortgage). The properties are known as: 21 Division Street West (owned by the defendants Paul and Dale Antonik) 37 Henry St. (same ownership) 18 Norias Road (same ownership) 111 Mill St. (owned by the defendant 111 Mill Street, LLC) and 9-11 South Water St. (owned by the defendant 9-11 South Water Street, LLC). The Mortgage was security for a debt of $1.5 million based on a promissory note dated November 4, 2014 (Note) made by the defendant 111 Mill, 9-11 South Water and Paul Antonik Building Contractor, LLC (PABC) and payable to First Bank of Greenwich (FBG).
The above facts are drawn from the affidavit and exhibits of Edward Martell, the Manager of Greenwich Portfolio submitted in support of the plaintiff’s summary judgment motion. Dkt. Entry 124.00. They are essentially reiterated in an affidavit of Evon Corsello, an officer of FBG. Dkt. Entry 136.00.
According to the terms of the Note, a copy of which is Exhibit A to the Martell Affidavit, the entire balance due was payable by the defendants 111 Mill, 9-11 South Water and PABC on the maturity date of November 1, 2016, and the plaintiff alleges there has been a default. On August 27, 2017 the plaintiff purchased the Note, the Mortgage and associated loan documents, including guarantees by Paul and Dale Antonik from FBG. Martell Aff., ¶¶ 12-14. On that date FBG transferred to the plaintiff the Note, an Allonge affixed to the Note, an assignment of the Mortgage and, inter alia, an assignment by FBG of its rights under all the loan documents. Id., ¶¶ 14-20.
An Allonge is additional paper attached to a commercial note to allow room for additional endorsements or signatures.
In December 2017 the defendants filed a motion to strike that contested the plaintiff’s ownership and right to enforce the Note, Mortgage and loan documents. Dkt. Entry 120.00. That motion was denied in March 2018, as was a motion to reconsider. Dkt. Entries 120.01, 127.00, 127.01. The plaintiff now seeks an order of summary judgment against the defendants as to their liability pursuant to the Note and Mortgage.
II. SCOPE OF REVIEW
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." Appleton v. Board of Education, 254 Conn. 205, 209 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law." Appleton v. Board of Education, supra, 254 Conn. 209. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969). The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1998).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ... a party opposing summary judgment 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. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, supra, 254 Conn. 209.
These general principles of law relating to summary judgments have been regularly restated and reaffirmed over the years by the Connecticut Supreme Court. See e.g. Sic v Nunan, 307 Conn. 399, 406 (2012); Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015).
III. DISCUSSION
The plaintiff has submitted a memorandum of law in support of summary judgment along with the Martell Affidavit. Dale Antonik has filed an affidavit with exhibits and memorandum opposing summary judgment, and the defendants have filed an answer. Dkt. Entries 132.00, 133.00, 134.00. The plaintiff has filed a reply memorandum, with exhibits and an affidavit of Evan Corsello with exhibits. Dkt. Entries 135.00, 136.00, 137.00. The court has carefully reviewed and considered the entire court file including all of the above submissions.
The plaintiff seeks to foreclose a mortgage on five separate properties. The mortgage is security for a debt of $1.5 million set forth in a promissory note (Note) executed by the defendants 111 Mill, 9-11 South Water and PABC. The Note matured in November 2016 and is in default. The above facts are not disputed by the defendants. The Note and Mortgage were transferred to the plaintiff Greenwich Portfolio who commenced this action in late 2017. This fact is not disputed either.
In opposing summary judgment a member of 111 Mill, 9-11 South and PABC the defendant Dale Antonik, who is the wife of Paul Antonik and half owner of 111 Mill, 9-11 South Water and PABC, executed an affidavit dated June 20, 2018 which admits that she and her husband Paul executed the Note, which became due and payable on December 1, 2016. Dkt. Entry 133.00, ¶¶ 7, 8, 10. Her affidavit further states "[o]n December 1, 2016 I was promised a temporary extension of my loan" by FBG in consideration of which she paid an extra interest charge and made unspecified "monthly payments on the note" and was assured by "agents of FBC the Note would be "subject to refinancing and not considered in default for purposes of foreclosing." Id., ¶¶ 11-15.
In many ways this affidavit is more specific than the defendants’ answer to the complaint dated June 26, 2018 that denied having sufficient information to answer the complaint’s allegations that the defendants borrowed $1.5 million from FBC and executed a mortgage in connection therewith on five parcels of Greenwich property; that they delivered to FBG a conditional assignment of rents, and that both Antoniks signed guarantees. Dkt. Entry 134.00.
The defendants also assert the Martell affidavit is "rife with self-serving and conclusory statements" and fails to comply with General Statute § 52-180 codifying the business records exception to the hearsay rule. This broad attack on the Martell affidavit is not persuasive. Martell asserts, without any contradiction by defendants, that he has "personal knowledge" of the matters in the affidavit, was personally involved in the acquisition of the loan from FBC and personally knows that Greenwich Portfolio owns and holds the Note, Mortgage and other loan documents. Notably, the defendants do not assert that the copies of documents attached to the Martell Affidavit are incorrect, inaccurate or fraudulent in any fashion. Neither do they deny their signatures on the documents. Additionally, the defendants implicitly criticized that the Martell affidavit simply mimics the allegations of the complaint and contend "merely restating the allegations of the Complaint under oath makes them no more or less true." Dkt. Entry 132.00, p. 10. That may be so, but a party’s or witness’ statement made under the penalties of perjury has a more persuasive consequence than an unsworn declarative statement. See United Services Auto Association v. Dolan, Superior Court, judicial district of New Haven, CV 13-604272 (March 30, 2015, Frechette, J.) (2015 WL 1867619) at n.4; J.C. Penney Properties, Inc. v. Peter M. Santella Co., Inc., 210 Conn. 511 (1989).
The defendants Paul and Dale Antonik assert that plaintiff cannot establish their liability when the complaint seeks only foreclosure and they are not the maker or signatories of the subject Note. However, as established by the Martell affidavit and exhibits, Mr. and Mrs. Antonik are joint owners of three of the properties involved and signatories on the mortgage deed delivered to FBG now owned by the plaintiff and being foreclosed on. The defendants’ citation to JP Morgan Chase Bank v Winthrop Properties, 312 Conn. 662 (2014), is not helpful to their argument because, among other reasons, that case involved a mortgage foreclosure and a claim on a separate guarantee. In Winthrop the defendants were neither owners nor mortgagers. In any event, the present complaint, and this motion do not seek to enforce any guarantees.
Martell is the Manager of the plaintiff, and, as he asserts in his affidavit, has personal knowledge of the purchase of the loan, mortgage and other matters by the plaintiff. It is too much of a reach for the defendants to contend that Martell has no personal knowledge that plaintiff is the owner of the Note and Mortgage and has been since August 29, 2017, especially when the defendants offer not a shred of evidence otherwise and in light of Mrs. Antonik’s admission that the Note became fully due and payable on December 1, 2016. As to the Martell affidavit being "self-serving" that is not a reason to dismiss the facts stated therein, particularly when such facts are based on and drawn from the underlying documents attached as exhibits to the affidavit.
The defendants also assert that the Martell affidavit relies on hearsay evidence that does not meet the standards of admissibility set out in General Statutes § 52-180(a) which states:
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 time of the act, transaction, occurrence or event or within a reasonable time thereafter.
The court finds that the exhibits to the Martell affidavit are admissible business records made in the regular course of business, and that it was the regular course of the business of the plaintiff to make or keep these records at or near the time of the transaction. Furthermore, the plaintiff has submitted the affidavit of one Evan Corsello. Dkt. Entry 136.00. Corsello is the Senior Vice President of FBG and states he was personally involved in the making and administration of the $1.5 million loan in 2014 to 111 Mill, 9-11 South Water and PABC and the execution of the Note and Mortgage on the five parcels of property Id., ¶¶ 1-5, 8. Corsello’s affidavit authenticates the relevant Note, Mortgage and other loan documents entered into and executed by the defendants and confirms that these documents were transferred and sold to the plaintiff on August 29, 2017. Id., ¶¶ 12-17. Corsello also states that the Note was in default when 111 Mill, 9-11 South Water and PABC failed to make the payment when the Note matured on December 1, 2016. Id., ¶¶ 18-19. Further, contrary to the intimation in Mrs. Antonik’s affidavit, Corsello confirms the Note and other loan documents were not modified on or after December 1, 2016, or any time after origination on November 14, 2014. Id., ¶ 20.
The plaintiff cites New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 603 (1998) for the proposition "[there] is no requirement in § 52-180 ... that the documents must be prepared by the organization itself to be admissible as that organization’s business records." In Jenzack Partners, LLC v. Stoneridge Associates, LLC, 183 Conn.App. 128 (2108) the Appellate Court recently held that a business record received in the ordinary course of business rather than made in the ordinary course of business is not entitled to the hearsay exception under § 52-180(a) citing River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 801 and 801 n.14. There may be some disconnect between New England Savings Bank and Jenzack, but if so it need not be resolved here, because, as shown infra, Corsello was involved in the actual making of the Note and Mortgage.
The Corsello affidavit cures any defect claimed by the defendants that Martell’s affidavit was not based on personal knowledge. As an officer of FBG Corsello participated in and has personal knowledge of the subject loan transaction with the defendants and the transfer of the Note and Mortgage to the plaintiff.
The defendants also contend they have had an "inability to conduct discovery and put forth an answer and special defense." Dkt. Entry 132.00, is in fact, as noted, an answer to the complaint without special defense, that has been filed by the defendants. Dkt. Entry 134.00. Defendants contend that summary judgment should be denied pursuant to Practice Book § 17-47 to allow them to "present facts essential to justify opposition" to summary judgment. The court is not inclined to grant this request for delay. As plaintiff points out, this motion was filed well over four months ago and the defendants appeared in the case through counsel in October 2017. Since that time the defendants have served no discovery on the plaintiff whatsoever. Moreover, it is hard to imagine what documents relevant to the disposition of this case are not already in the record.
Finally, the court’s review of this case leads definitively to the conclusion that no material facts are in dispute, and the plaintiff is entitled to summary judgment.
SO ORDERED.