Opinion
FSTCV106004691S
12-31-2015
Bank of America, N.A. v. Ludys Nino
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO REARGUE AND FOR AN EVIDENTIARY HEARING DATED JULY 21, 2014 (#224.00)
Hon. Kevin Tierney, Judge Trial Referee.
This Motion to Reargue is addressed by the defendant, Ludys Nino, to this court's July 1, 2014 Memorandum of Decision (#220.00) issued by the undersigned after a contested foreclosure trial. The court granted the Motion to Reargue pursuant to P.B. § 11-12(c) and assigned the motion for an evidentiary hearing. Both parties appeared, argued and offered testimony. The court applied the well-known standards on motions to reargue in issuing this Memorandum of Decision.
'[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.' (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn.App. 194, 202, 655 A.2d 790 (1995). It also may be used 'to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court.' K.A. Thompson Electric Co. v. Wesco, Inc., 24 Conn.App. 758, 760, 591 A.2d 822 (1991). '[A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.' (Internal quotation marks omitted.) Northwestern Mutual Life Ins. Co. v. Greathouse, Superior Court, judicial district CV 98-0164835 (D'Andrea, J., June 27, 2000).Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
In its July 1, 2014 Memorandum of Decision the court invited the filing of a Motion to Reargue addressed to the court's mathematical calculations and other such matters. " Either party can file a timely and procedurally correct Motion to Reargue pursuant to P.B. 11-11 and/or 11-12 addressed to the court's calculation of the debt. Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977); Izard v. Izard, 88 Conn.App. 506, 509 fn.3, 869 A.2d 1278 (2005); Connecticut Code of Evidence, Sec. 2-2(b). If granted, the court at that evidentiary hearing, will determine the debt by examining documentary proof of advances for real estate taxes and insurance made by the plaintiff, payments made on the debt by the defendant after December 1, 2009, amortization schedules, interest rates from and after January 1, 2014, all items in Exhibit 6, credits toward the debts as per Exhibits 8 through 15, late charges, other fees charged by plaintiff, credits due the defendant, and the resulting mathematical calculations." (#220.00, page 53.) The defendant availed herself of that invitation, offered testimony and documents and pointed out to the court certain claimed errors. In addition the defendant requested reargument on other matters set forth specifically in her Motion to Reargue. The plaintiff appeared and offered testimony, documentary evidence and oral argument.
The defendant files this motion on the grounds that (1) the court overlooked and misapprehended material facts and controlling principles of law which shows that plaintiff failed to prove that defendant was in default since the December 1, 2009 payment as alleged in its complaint; (2) it would lead to injustice if the court merely credits defendant for the payments plaintiff claims were in default while still granting the plaintiff Strict Foreclosure; (3) there are inconsistencies in the trial court's memorandum of decision that needs to be resolved and (4) the court improperly calculated the debt by failing to credit defendant for the cashier's checks Exhibits 10, 11, 12, 13 & 14. Furthermore, an evidentiary hearing is being requested so that defendant may be given a meaningful opportunity to be heard on the issue of the checks and credits for those checks because contrary to plaintiff's testimony, plaintiff accepted and cashed the cashier's checks Exhibits 10, 11, 12, 13 & 14 as payment after February 1, 2010.
Motion to Reargue and for an Evidentiary Hearing dated July 21, 2014 (#224.00, page 1).
Wherefore, based on the foregoing defendant ask that the court grant rearguement and hold an evidentiary hearing so defendant may have a meaningful opportunity to be heard on the issues surrounding the plaintiff's cashing all of these checks that the plaintiff claims were never made by defendant.
Motion to Reargue and for an Evidentiary Hearing dated July 21, 2014 (#224.00, page 17).
The court makes the following findings of fact and legal conclusions:
The first reason for reargument is that the plaintiff alleged in its complaint " that defendant was in default since the December 1, 2009 payment:" (#224.00, page 1, paragraph 1). This is not an accurate characterization of the allegations of the only two complaints that were before this court. The allegations of default were contained in paragraph 5 of the original complaint dated April 15, 2010: " Said Note is in default and the Plaintiff, Bank of America National Association as the holder of said Mortgage and Note has elected to accelerate the balance due on said Note, to declare said Note to be due in full and to foreclose the Mortgage securing said Note." The identical allegations appear in the operative complaint, the October 19, 2011 Revised Complaint (#124.00, page 2, paragraph 5). The court having granted reargument, denies the relief requested in the July 21, 2014 Motion to Reargue, reason (1) (#224.00, page 1, paragraph (1)).
On November 1, 2013, the fourth day of trial, the defendant's counsel offered into evidence eight exhibits, each a one-page copy of a check. Ex. 8-15. Previously the court had received in evidence on February 1, 2010, a three page notice letter that stated that . . . " you have failed to make the required monthly payments under the terms of your Note ('Note') and related mortgage, ('Security Instrument') since 12/01/09." Ex. 5. Frank Dean, a home loan research officer for JP Morgan Chase Bank, NA, the servicer of this loan, testified for the plaintiff that according to the bank's business records the loan was in default since December 1, 2009 due to a default in payments. The court found Mr. Dean to be credible (#220.00, page 3). Included within the eight checks offered by the defendant was a December 22, 2009 check in the amount of $5,175.72 payable to " WAMU Chase Loan." Ex. 8. The defendant, at trial, claimed that this check was cashed by the lender and should be applied to the loan. She argued that the sum of $5,175.72 should have been credited toward the monthly payment due on December 1, 2009. She argued that this December 22, 2009 check covered any claimed default and should be credited in payment of the monthly mortgage payment due on December 1, 2009.
At trial the court examined carefully Exhibits 8-15. The court found: " The defendant offered Exhibits 8 through 15 as to payments made on this loan after December 1, 2009. The court has no verification that any of these checks were related to payments of the principal or interest due on this mortgage. There is no verification that any of these checks were cashed and applied to the mortgage. One of the checks were returned by a letter from the loan servicer. Exhibit 15. The back of the checks are illegible and the court cannot determine if these checks were cashed. Exhibit 6." (#220.00, page 40.)
The fact that the court could not determine from its examination of the eight checks marked as Exhibits 8-15, was verified at the evidentiary hearing on the Motion to Reargue. A Chase Bank employee reviewed the eight checks, Ex. 8-15, on the witness stand and stated that no one could determine from these documents that the checks cleared or were credited toward the mortgage loan.
When the Motion to Reargue was filed, this court suggested to the defendant, who was now self-represented and assisted by an interpreter in court, that she subpoena a Chase Bank officer requesting that appropriate complete copies of the checks, front and back in legible fashion, be provided in court. See Order #224.87, dated September 3, 2014. That was done. Two bank officers testified under subpoena and the defendant successfully offered eight checks, Exhibits 29-36, into evidence. Each newly offered check contained the front, back as well as posting information. The Chase Bank employees who testified were able to confirm that each of the eight checks, Ex. 29-36, were cashed.
At the reargument hearing, the plaintiff recalled Frank Dean to the witness stand. He verified the eight checks, Ex. 29-36, and confirmed that each of these checks were cashed and applied to the defendant's mortgage loan. This was confirmed by Chase's payment history, a detailed 17-page document offered into evidence at the reargument hearing. Ex. 41. Included within these eight cashed checks was the $5,175.72 December 22, 2009 check, marked as Ex. 8 at trial and Ex. 29 at the reargument hearing. Eight checks were offered at trial and eight checks were offered at the reargument hearing. The first seven checks, Ex. 8-14 are Ex. 29-35, with the exception that Ex. 29-35 contain the backs of each check with legible endorsement information and the posting information. The court will discuss separately Ex. 15 and Ex. 36.
Once that December 22, 2009 check was received in evidence at the reargument hearing supported by the bank officer's testimony that the check was cashed, the defendant moved to dismiss the foreclosure lawsuit. In seeking dismissal the defendant claimed that the December 29, 2009 check, Ex. 29, was proof that the February 1, 2010 default letter was in error since the 12/01/09 payment had been made and accepted by the bank prior to the issuance of the February 1, 2010 default letter. The court had not yet concluded the reargument hearing and the plaintiff had not been given an opportunity to offer any evidence. For that reason the court denied the defendant's motion to dismiss and continued with the reargument hearing. The plaintiff later offered the entire payment history of this mortgage loan as to all payments made and credited since the inception of the loan. Ex. 41.
In this discussion of the payment history, Ex. 41, the court is referencing the first two columns identified as: " DUE DATE" and " PROC DATE." The line numbers contained in this Memorandum of Decision are obtained by using Exhibit 41, the 17-page payment history, and counting the lines of print that appear to the far left of each page. The print to the middle of the page and to far right has printing that is between those far left hand lines. Only the far left-hand side of each page is being used to count the line numbers. Each line is not labeled with a number. The line number is based on the court's manually counting of each far left-hand line.
This was a December 11, 2006 mortgage for $780,000. Ex. 1, Ex. 2. The payment history showed that the first payment on this December 11, 2006 mortgage loan was due on February 1, 2007. Ex. 41, page 54485, line 3 " DUE DATE 02-01-07." This is consistent with the December 11, 2006 Fixed/Adjustable Rate Note for $780,000 at issue in this contested foreclosure action. " I will make my monthly payments on the first day of each month beginning on FEBRUARY 01, 2007" Ex. 1, paragraph 3. (A). The February 1, 2007 monthly mortgage payment was timely made and duly credited on the second page of Exhibit 41, page 85144, line 11 " DUE DATE 02-07" " PROC DATE 02-02." All of the remaining ten monthly payments for the 2007 calendar year were made and credited toward the mortgage loan. Ex. 41, pages 85144-45. All payments in the year 2008 were made and credited toward the mortgage loan in 2008 but were made later in each calendar month. Ex. 41, page 37175. For example: the payments due on the first day of the calendar month were made on 08-15, 09-15, 10-15, 11-17 and 12-15. Ex.41, page 37176, lines 8, 9, 10, 11, and 12 " PROC DATE" column for each entry.
In the year 2009 the monthly mortgage payments were made and accepted on 01-13, 02-17 and 03-16. Ex. 41, page 987, lines 11, 12 and 13. The April 2009 payment due in the amount of $5,175.72 was paid in two installments: $4,000.00 on 05-21 and $1,175.72 on 05-26. Ex. 41, page 987, lines 17 and 18. The plaintiff did not declare a default for these 2009 payments or any prior late payments. The plaintiff accepted these two payments for the monthly payment due on April 1, 2009. The Fixed/Adjustable Rate Note does not contain a grace period. " If I do not pay the full amount of each monthly payment on the date it is due, I will be in default." Ex. 1, paragraph 7. (B). The May 2009 payment in the amount of $5,175.72 was paid in two installments: $4,200.00 on 05-26 and $975.72 on 05-26. Ex. 41, page 988, lines 5 and 6. Again no default was issued. The next four 2009 payments were made on 06-15, 07-15, 08-25 and 09-22, each in the required amount of $5,175.72. Ex. 41, page 989, lines 8, 11, 15 and 21. All of these payments for 2009 were credited toward the mortgage loan. No default notices were issued by the plaintiff through September 2009 despite the continued lateness.
There were no payments made after September 22, 2009 in the month of September 2009, no payments made in the month of October 2009, no payments made in the month of November 2009 and no payments made in the first 21 days of December 2009. Ex. 41, page 989, lines 5 through 14. As of December 21, 2009 the defendant owed three monthly mortgage loan payments, each in the amount of $5,175.72, for the mortgage loan payments due on October 1, 2009, November 1, 2009 and December 1, 2009. As of December 21, 2009 the defendant was in arrears 82 days for non-payment of monthly mortgage payments due. (October 1, 2009 through and including December 21, 2009 is 82 days.) The plaintiff did not then issue a default notice.
On December 22, 2009 the defendant paid $5,175.72 by check and that sum was credited to the mortgage loan. Ex. 8, Ex. 29, Ex. 41, page 989, line 15. That $5,175.72 paid the monthly payment in full due on October 1, 2009. Ex. 41, page 989, line 15 verified the application of the December 22, 2009 payment to the earliest unpaid month of October 1, 2009; " DUE DATE 10-09." See Ex. 41, page 989, line 15 in the column " DUE DATE." Therefore, with the crediting of the December 22, 2009 payment of $5,175.72 to the October 2009 payment, as of the following day, December 23, 2009, the defendant owed the full monthly payment of $5,175.72 each due on November 1, 2009 and December 1, 2009. The mortgage was not declared in default as of December 23, 2009 despite the fact that the defendant was in violation of the payment terms of the note: " I will make my monthly payments on the first day of each month beginning on FEBRUARY 01, 2007" Ex. 1, page 1, paragraph 3. (A). As of December 23, 2009 the defendant was in arrears 53 days for non-payment of monthly mortgage payments due. (November 1, 2009 through and including December 23, 2009 is 53 days.) The plaintiff did not then issue a default notice.
The defendant appears to be claiming that since the plaintiff cashed the December 22, 2009 check, Ex. 8 and Ex. 29, and applied that payment of $5,175.72 toward the mortgage loan on December 22, 2009, Ex. 41, page 989, line 15, that check must be applied to the monthly payment due on December 1, 2009 all the while leaving the October 1, 2009 and November 1, 2009 payments due unpaid. According to the defendant's argument the February 1, 2010 default letter, Ex. 5, is incorrect when it states that the December 1, 2009 mortgage payment had not been made and the note was therefore not in default. The plaintiff counters by stating that as of December 21, 2009 the defendant owed three monthly payments, for October 1, 2009, November 1, 2009 and December 1, 2009. The note contains no grace period. All payments are due on the first day of each calendar month. The plaintiff applied the December 22, 2009 payment to the earliest of these unpaid monthly payments, the payment due October 1, 2009, leaving the November 1, 2009, and December 1, 2009 payments not made as of the day following the payment on December 22, 2009. The bank did not then declare the mortgage note in default either in December 2009 or January 2010.
The plaintiff argues that there is no provision in the Fixed/Adjustable Rate Note, Ex. 1, that permits the application of a monthly payment to the calendar month in which the payment is made when prior months have not been paid. " Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal." Ex. 1, page 1, paragraph 3. (A). The Fixed/Adjustable Rate Note requires that each and every monthly payment must be paid. " I will pay principal and interest by making a payment every month." Ex. 1, page 1, paragraph 3. (A). Late charges accrue for months not paid. Ex. 3, paragraph 7. (A). " Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than JANUARY 01, 2037" Ex. 2, page 2, paragraph (D) of Open End Mortgage Deed. " Such payments shall be applied to each Periodic Payment in the order in which it became due." Ex. 2, page 4, paragraph 2. The defendant has not cited any provision in the mortgage documents that supports her legal and factual claims permitting her to skip two monthly payments. Ex. 37.
The next monthly payment due after December 22, 2009 was on January 1, 2010. On January 29, 2010 the defendant paid $5,175.72 to the plaintiff. Ex. 9, Ex. 30. That check was cashed and the $5,175.72 was credited toward the mortgage. Ex. 9, Ex. 30, Ex. 41, page 36804, line 17. The plaintiff credited the January 29, 2010 payment of $5,175.22 to the earliest monthly payment not yet paid, the November 1, 2009 payment, " DUE DATE 11-09." This paid in full the November 1, 2009 mortgage payment due. As of the following day, January 30, 2010, the defendant had not paid the monthly payments due on December 1, 2009 and January 1, 2010 and was in arrears 61 days for non-payment of monthly mortgage payments due. (December 1, 2009 through and including January 30, 2009 is 61 days.) The plaintiff then chose to issue its default notice letter on February 1, 2010. Ex. 5.
The February 1, 2010 letter, Ex. 5, contained payment terms necessary to cure the default. " You are required to pay this amount no later than the close of business on 04/02/10 to cure the default." Due to the fact that additional payments of principal, interest, escrow, and late charges may be due between February 1, 2010 and April 2, 2010, the February 1, 2010 letter further stated in bold print: " Therefore, you may not rely on the amount shown above to be sufficient to cure your loan delinquency after today." Ex. 5, second page, first paragraph. The Total Amount Due in the February 1, 2010 letter was $12,153.91, which this court calculates to be two full monthly payments of principal, interest and escrow, seven monthly late charges of $226.36 (See #220.00, page 41) plus $32.55 for Outstanding Fees and $21.70 for Corporate Advance. There was no evidence submitted at trial or at the reargument hearing that the defendant paid or partially paid or attempted to pay the sum of $12,153.91 in order to cure the February 1, 2010 declared default.
The next monthly payment due after January 29, 2010 was on February 1, 2010. That payment was not made before the issuance of the default letter of February 1, 2010. Ex. 5. Due to the adjustable interest rate provisions, the monthly mortgage payment due on February 1, 2010 and thereafter changed to $5,257.57. The defendant did not make a monthly payment when due on February 1, 2010. The defendant issued personal check #1124 to the plaintiff on February 15, 2010 in the amount of $3,000. Ex. 36. This $3,000 check #1124 was not offered at trial and was not contained within Ex. 8-15. The plaintiff credited that $3,000 payment to the mortgage loan. This February 15, 2010 check was posted on February 23, 2010. That February 15, 2010 $3,000 check did not pay the December 1, 2009 payment of $5,175.72 in full, leaving an unpaid balance of $2,175.72 for the December 1, 2009 payment. Ex. 41, page 36805, line 6 " DUE DATE 12-09." As of the day following that $3,000 payment, on February 16, 2010, the defendant had not paid the full monthly payments due on December 1, 2009, January 1, 2010 and February 1, 2010 and was in arrears 78 days for non-payment of monthly mortgage payments due. (December 1, 2009 through and including February 16, 2010 is 78 days.) The plaintiff had declared a default on February 1, 2010. Ex. 5.
The defendant paid $5,257.57 by a check dated April 22, 2010. Ex. 10, Ex. 31. The plaintiff credited this check toward the mortgage loan. Ex. 41, page 36805, line 27. For some reason this check was not posted until May 27, 2009 even though the check was dated April 22, 2009 " POSTING DATE: 05/27/2010." Ex. 31. This April 22, 2010 check paid in full the remainder of the December 1, 2009 payment due and the balance was applied to a portion of the January 1, 2010 payment. As of April 23, 2010, the day following the April 22, 2010 payment of $5,257.57, the defendant had not made the monthly payments due as of January 1, 2010, February 1, 2010, March 1, 2010 and April 1, 2010 and was in arrears 113 days for non-payment of monthly mortgage payments due. (January 1, 2010 through and including April 23, 2010 is 113 days.) The plaintiff had declared a default on February 1, 2010. Ex. 5.
The defendant paid $3,000 by a check dated April 29, 2010 and the plaintiff credited this check toward the mortgage loan. Ex. 11, Ex. 32, Ex. 41, page 36805, line 23. For some reason this check was not posted until May 24, 2009, even though the check was dated April 29, 2010 " POSTING DATE: 05/24/2010." Ex. 32. This $3,000 April 29, 2010 check did pay the remainder of the January 1, 2010 payment in full and the balance was applied toward the February 1, 2010 payment. As of April 30, 2010, the day following the April 29, 2010 payment of $3,000, the defendant had not paid the monthly payments due on February 1, 2010, March 1, 2010 and April 1, 2010 and was in arrears 89 days for non-payment of monthly mortgage payments due. (February 1, 2010 through and including April 30, 2010 is 89 days.) The plaintiff had declared a default on February 1, 2010. Ex. 5.
On May 24, 2010 the defendant paid the plaintiff $3,000 by check. Ex. 12, Ex. 33. That $3,000 check cleared and was credited toward the mortgage loan. Ex. 41, page 36806, line 5. That May 24, 2010 check did not pay in full the remainder of the February 1, 2010 monthly mortgage payment due of $5,257.57. Ex. 41, page 36806, line 5. As of the day following that $3,000 payment, on May 25, 2010, the defendant had not paid the monthly payments due on February 1, 2010, March 1, 2010, April 1, 2010 and May 1, 2010 and was in arrears 114 days for non-payment of monthly mortgage payments due. (February 1, 2010 through and including May 25, 2010 is 114 days.) The plaintiff declared a default on February 1, 2010. Ex. 5.
The defendant paid $3,000.00 on June 11, 2010 by check. Ex. 13, Ex. 34. That $3,000 check cleared and was credited toward the mortgage loan. Ex. 41, page 36806, line 7. That $3,000 payment was credited to the remaining balance due for the February 1, 2010 monthly payment and did pay the February 1, 2010 in full. The remainder was credited toward the March 1, 2010 payment leaving a balance due for March 2010. As of June 12, 2010, the day following the June 11, 2010 $3,000 payment, the defendant had not paid the payments due March 1, 2010, April 1, 2010, May 1, 2010 and June 1, 2010 and was in arrears 104 days for non-payment of monthly mortgage payments due. (March 1, 2010 through and including June 12, 2010 is 104 days.) The plaintiff declared a default on February 1, 2010. Ex. 5.
On July 2, 2010 the defendant paid the plaintiff $3,000 by check. Ex. 14, Ex. 35. The plaintiff credited this $3,000 toward the mortgage loan as of July 16, 2010. Ex. 41, page 36806, line 9. This $3,000 was applied to the March 1, 2010 monthly payment still leaving a balance due for the March 2010 monthly mortgage loan payment. As of the next day, July 3, 2010, the defendant had not paid the payments due March 1, 2010, April 1, 2010, May 1, 2010, June 1, 2010 and July 1, 2010 and was in arrears 155 days for non-payment of monthly mortgage payments due. (March 1, 2010 through and including July 3, 2010 is 155 days.) The plaintiff declared a default on February 1, 2010. Ex. 5.
The July 2, 2010 payment was the last payment made by the defendant. Ex. 14, Ex. 35. Although the defendant made mortgage payments after the February 1, 2010 notice of default letter, Ex. 5, none of these payments brought her current. She was falling further and further in arrears since her September 22, 2009 payment and remained in arrears consistently since September 22, 2009. An August 13, 2010 check payable by the defendant to the plaintiff in the amount of $3,000 was returned to the defendant. It was not cashed or credited to the mortgage loan. Ex. 15. This $3,000 check was returned to the plaintiff on August 19, 2010 with the following comment: " Funds insufficient to cover default." Ex. 17.
In summation, the six monthly mortgage payments due on October 1, 2009, November 1, 2009, December 1, 2009, January 1, 2010, February 1, 2010 and March 1, 2010 totaled $31,254.02. These six monthly mortgage payments due from October 1, 2009 through March 1, 2010 were four at $5,175.72 and two at $5,275.57. They total $31,254.02. The defendant made eight payments during the 11 months from September 2009 through July 2010 that were credited by the plaintiff toward those six monthly mortgage payments due from October 1, 2009 through and including March 1, 2010. Ex. 29-36. Ex. 15 was returned uncashed. These eight payments over an 11 month period total $30,627.01. These eight payments made by the defendant were two at $5,175.72, one at $5,257.57 and five at $3,000. These eight payments total $30,609.01. Although the plaintiff was owed $31,254.02, the defendant only paid $30,609.01, a shortfall of $645.01 plus no payments for the months of April, May, June and July 2010. That $645.01 shortfall occurred in the March 1, 2010 payment that was not paid in full. No payments have been made nor credited after July 2, 2010. Atlantic National Trust, LLC v. Van Eck, 89 Conn.App. 200, 203, 873 A.2d 179 (2005); Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 289, 857 A.2d 366 (2004).
The mortgage terms required interest to be paid in arrears. The loan closed on December 11, 2006. At the December 11, 2006 closing the plaintiff collected the interest on the $780,000 loan for the period of December 15, 2006 through and including December 31, 2006. Ex. 16. The court assumes no interest was charged for the refinance recission period. No monthly payment was required by the Fixed/Adjustable Rate Note in the month of January 2007. The first monthly mortgage payment that was required was on February 1, 2007. The February 1, 2007 payment was made. That monthly mortgage payment paid a portion of the principal due as well as the interest on the $780,000 loan from January 1, 2007 through and including January 31, 2007. Thus interest is paid in arrears. See HUD closing statement. Ex. 16. " Interest from 12/15/2006 to 12/31/2006."
Therefore the monthly mortgage payment due on March 1, 2010 would pay interest from February 1, 2010 through and including February 28, 2010. Since that March 1, 2010 payment had not been paid in full, interest was due on the then outstanding principal balance as of February 1, 2010. This is precisely what the plaintiff is claiming in its two Payoff Letters, October 31, 2013, Ex. 6, and February 13, 2015, Ex. 42, on the line " Interest Due From 2/1/10." This is consistent with the payment history. Ex. 41. Deutsche Bank v. Lichtenfels, Superior Court judicial district of New Haven, Docket Number NHH CV 04-4003402 S June 17, 2009, Corradino, J.) ; North Water, LLC v. North Water Street Tarragon, LLC, Superior Court, judicial district of Stamford/Norwalk, Docket Number FST CV 07-5004758 S (October 13, 2009, Tierney, J.T.R.); Adams v. Way, 33 Conn. 419, 421 (1866).
The court hereby confirms its finding made in its July 1, 2014 Memorandum of Decision: " that the Fixed/Adjustable Rate Note is in default, that the defendant has been in default since the December 2009 payment." (#220.00, page 5.) The court hereby confirms its finding made in its July 1, 2014 Memorandum of Decision that the February 1, 2010 default notice letter was valid and accurate. The court further confirms its July 1, 2014 finding that: " the court finds the issues in this foreclosure lawsuit for the plaintiff." (#220.00, page 38.)
In its July 1, 2014 Memorandum of Decision the court did not credit the defendant with certain checks. (#220.00, page 45-47.) Based on the presentation of the complete copies of these checks, both front and back and the bank's posting information at the reargument hearing, the court now finds that eight checks, Ex. 29-36, all have been cashed by the plaintiff and credited toward the defendant's mortgage loan. At trial the court had insufficient evidence that Ex. 8-15 had been cashed or credited toward the defendant's mortgage loan. At trial the court found the principal due as of February 1, 2010 to be $746,830.52. (#220.00, page 48.) Since these eight checks have now been found by this court to have been cashed and credited toward the defendant's mortgage loan, the resulting principal balance due will be reduced.
The second and fourth reason for reargument relate to the court's failure to credit certain checks to both the debt and the claimed December 1, 2009 default. The court, having granted reargument, partially grants the relief requested in the July 21, 2014 Motion to Reargue, reasons (2) and 4), (#224.00, page 1, paragraphs (2) and (4)).
The third reason for reargument claims that " there are inconsistencies in the trial court's memorandum of decision that needs to be resolved." The court carefully reviewed the Motion to Reargue (#224.00) and a later Motion to Reargue (#228.00) along with its trial notes for the five days of the evidentiary hearing on reargument. The only alleged inconsistencies relate to the credits for certain checks toward the default date of December 1, 2009 and the overall calculation of the debt. At reargument the defendant offered definitive proof of eight checks that have been paid and credited by the plaintiff to the mortgage loan. In this court's opinion, that new evidence, accepted by this court as accurate, has resolved all of the claimed inconsistencies. The court, having granted reargument, denies the relief requested in the July 21, 2014 Motion to Reargue, reason (3) (#224.00, page 1, paragraph (3)).
The court finds that the payment history accurately reflects the credit for these eight checks in evidence. Ex. 29-36, Ex. 41. The payment history credits each and every one of the eight checks offered in evidence at the reargument hearing toward the defendant's mortgage loan including the latest check dated July 2, 2010. Ex. 36. The court finds that after crediting all the eight checks including the $3,000.00 July 2, 2010 payment, the defendant's mortgage loan principal balance due is $744,497.50. " PRINCIPAL BALANCE $744,497.50." Ex. 41, page 36806, line 9. This exact amount of $744,497.50 is contained in the latest Payoff Letter dated February 13, 2015 as " Unpaid Principal Balance." Ex. 42. It is the exact same amount as in the " Unpaid Principal Balance" in the October 21, 2013 Payoff Letter submitted at trial. Ex. 6. As already found, the July 2, 2010 check had not paid in full the payment due March 1, 2010. Interest is in arrears, Ex. 1. Thereafter the court will compute interest due on the principal balance due of $744,497.50 from February 1, 2010. Ex. 42. " Interest Due From 2/1/10."
A new Payoff Letter was submitted at the reargument hearing by the plaintiff. It is dated February 13, 2015. Ex. 42. The plaintiff is claiming Late Charges of $2,037.24. The court found in its July 1, 2014 Memorandum of Decision that the Late Charges of $2,037.24 was correctly calculated from the terms of the Fixed/Adjustable Rate Note, Ex. 1, paragraph 7. The court disallowed these Late Charges on July 1, 2014 since " no independent verification of the amounts of these items has been provided to this court" (#220.00, page 49). At reargument no independent verification was provided for the Late Charges despite the opportunity for the plaintiff to do so. The Late Charges will be disallowed.
At trial the court disallowed the following items contained in the October 21, 2013 Payoff Letter, Ex. 6: " Other Fees **** $59.25, Recording Fee $53.00, Corporate Advance **** $2,134.50, Incurred Attorney Fees $2,875.00 and Estimated Attorney Costs $53.00" (#224.00, pages 48-49). These items also appear in the latest Payoff Letter dated February 13, 2015, Ex. 41, offered at reargument. Each of these same items with the same dollar amount is set forth in the latest Payoff Letter dated February 13, 2015. Ex. 42. No independent verification for these items was provided at reargument. On July 1, 2014 the court did not allow the above items (#220.00, page 48-49). The court after reargument will not allow the above items including the claim for Late Charges of $2,037.24.
No further information, documentation or testimony was furnished for the line item in the February 13, 2015 Payoff Letter: " Suspense ($4,484.86)." This same item and amount was contained in the October 21, 2013 Payoff Letter at trial. Ex. 6. This item " Suspense ($4,484.86)" was disallowed in the July 1, 2014 Memorandum of Decision and will be disallowed after reargument (#220.00, pages 42 and 49).
At reargument the plaintiff provided documentary verification of a previously disallowed item: Escrow Advance Balance Ex. 6, Ex. 42. On July 1, 2014 this item of $25,292.90 was disallowed (#220.00, pages 41-48). At reargument Frank Dean testified as to the amount advanced for real estate taxes and insurance on the mortgaged premises. An Escrow Transaction History from December 15, 2006 through and including July 18, 2014 was accepted in evidence at reargument. Ex. 45.
The Escrow Transaction History showed the first negative Balance on July 13, 2009 for the real estate taxes due the Greenwich Tax Collector (identified in Ex. 45 as " City Tax"). The escrow Balance was not sufficient to pay in full the real estate taxes as of 12/17/09, the Homeowners Insurance payment on 05/24/10 or these two types of escrow, insurance and taxes, for the remainder of 2010, 2011, 2012, 2013 and up to the last entry in the Escrow Transaction History on 07/18/14. The five escrow payments credited to the Escrow Transaction History after 09/22/09 occurred on 12/23/09, 01/30/10, 05/27/10, 05/29/10 and 07/16/10, dates that are consistent with the Posting Information dates on five of the checks offered at the reargument hearing. Ex. 29, Ex. 30, Ex. 31, Ex. 32, and Ex. 35. Thereafter no further payments were made by the defendant to the Escrow account for the payment of homeowners insurance premiums and real estate taxes due the Town of Greenwich. The plaintiff paid these sums from and after December 12, 2009 until July 18, 2014 and incurred an expense of $34,212.98 in doing so. Frank Dean's testimony at the reargument hearing as well as the Escrow Transaction History, Ex. 45, provides independent verification of the sum due the plaintiff of $34,212.98 as Escrow Advance Balance. The court will allow the plaintiff $34,212.98, increasing the debt by this amount.
The total of the homeowner's insurance premiums and real estate taxes paid by the plaintiff is $34,212.98, which the court finds is the Escrow Advance Balance. Exhibit 42. The February 13, 2015 Payoff Letter, labels the " Escrow Advance Balance" as of February 13, 2015 as being $37,089.76. The court allows $34,212.98 for the " Ending Escrow Balance" as stated in Ex. 45. In addition to the principal and interest, such payments for insurance premiums and real estate taxes are required to be paid by defendant pursuant to the Mortgage Deed. Ex. 2, page 4, Section 3.
The court allowed plaintiff's attorney fees in its July 1, 2014 Memorandum of Decision in the amount of $36,516.10 as per the Affidavit of Attorney Fees (#192.00) and an additional $5,010 for 28 additional hours on trial days not contained in the Affidavit of Attorney Fees for a total attorney fees of $41,556. No other affidavit of Attorney Fees was provided at the reargument hearing. The moving party, the defendant, was successful at reargument in reducing the debt by submission of eight checks. The court will not increase the attorney fees award. Smith v. Snyder, supra, 267 Conn. 477, 479. The court will continue to award $41,556 as plaintiff's attorney fees.
Neither party offered evidence of the rate of interest after January 1, 2014 (#220.00, page 48). The court on July 1, 2014 calculated interest on the principal sum due at the rate of 5.7% from and after February 1, 2010 (#220.00, pages 43 and 44) and 2.75% from and after January 1, 2014 (#220.00, pages 47 and 48). The court stated: " Either party may file a Motion to Reargue in order to have this court hold an evidentiary hearing on the calculation of the debt." (#220.00, page 48). Neither party offered any evidence at reargument of the appropriate interest rate based on the terms of the Fixed/Adjustable Rate Note, Ex. 1, despite being given that evidentiary opportunity in open court. The court therefore will calculate interest on the $744,497.50 principal balance due found at the rate of 5.7% from February 1, 2010 to December 31, 2013 and at the rate of 2.75% from January 1, 2014 to the date of the Corrected Memorandum of Decision. The per diem interest in the February 13, 2015 Payoff Letter is $56.09, which the court has calculated to be exactly 2.75% interest on $744,497.50 principal due. It was calculated by the court using a 365 day year.
The court imposed a sanction on the plaintiff in the July 1, 2014 Memorandum of Decision for the plaintiff's failure to timely record an assignment of mortgage on the Greenwich Land Records. (#220, pages 50-53.) " The plaintiff, has earned the sanction of forfeiture of interest from the due date of February 1, 2010 until the recordation of the Assignment of Mortgage, two years later on February 2, 2012. (#220.00, page 53.) The court calculated that sanction using the then principal due in the amount of $746,830.52 at 5.7% annual interest. The total sanction was calculated on July 1, 2014 to be $85,256.53. Since the principal amount due has been reduced, the sanction will be reduced. The sanction will result in a reduction in the total debt due by the product of 5.7% annual interest on the $744,497.50 principal due for the two years and one day from February 1, 2010 until February 2, 2012 as compared with the previous principal found of $746,830.52. That calculation will be contained in the Corrected Memorandum of Decision. At the conclusion of the one year one day sanction discussion in its July 1, 2014 Memorandum of Decision, the court instructed the parties to reargue its debt calculation, which gave the parties the opportunity for the plaintiff to decrease or eliminate the sanction and for the defendant to increase the sanction. At reargument, neither party offered evidence, testimony, documents, calculations, or argument of any change in the two year one day sanction. Therefore, except for the mathematical change caused by the reduction in the principal amount due, the court will not modify, alter, eliminate, decrease, or increase the two year one day sanction.
In its July 1, 2014 Memorandum of Decision this court ordered a judgment of strict foreclosure (#220.00, page 54). That finding remains. New Law Days must be established in the Corrected Memorandum of Decision.
The " Interest Per Diem" as set forth in the February 13, 2015 payoff letter is found to be $56.09. Ex. 42. " Interest Per Diem $56.09." The " Interest Per Diem $56.09" will remain. The court's July 1, 2014 award of interest due will change, (#220.00, page 48), since interest has continued to accrue on the debt found at the rate of 2.75%.
Accordingly, the court's July 1, 2014 Memorandum of Decision (#220.00) is hereby modified and corrected, by the filing of a Corrected Memorandum of Decision, filed contemporaneously herewith. Due to the pendency of the Motion to Reargue, the time deadlines set out in the Corrected Memorandum of Decision for compliance shall be measured from the December 31, 2015 date of the Corrected Memorandum of Decision. Town of Newtown v. Gaydosh, Superior Court, judicial district of Danbury, Docket Number DBD CV 09-4010751 S (Wenzel, J., April 18, 2012).
In all other regards, the Motion to Reargue (#224.00) having been granted, the relief requested therein is denied. Light v. Grimes, 156 Conn.App. 53, 69, 111 A.3d 551 (2015).