Opinion
No. HHDCV106005957S
May 9, 2011
MEMORANDUM OF DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT
FACTS
On December 4, 2010, the plaintiff, Comm 2006-C8 Asylum Street, LLC, filed an action for foreclosure against the defendants, Northland Cityplace II, LLC ("Northland"), Northland Portfolio, LP ("Northland LP") and Northland Investment Corporation ("Northland Corp."). In its complaint, the plaintiff alleges the following facts. On November 30, 2006, Northland executed a promissory note in favor of Deutsche Banc Mortgage Capital, LLC ("Deutsche Capital") for an original principal amount of $25,000,000. As security for the $25,000,000 loan, Northland delivered to Deutsche Capital an "Open-End Leasehold Mortgage and Security Agreement," dated November 30, 2006, in which it promised to make monthly payments on the loan through December 1, 2011 and to repay the loan in full on that date. The note was further secured by various security interests in real and personal property and indemnification agreements executed by Northland LP and Northland Corp. as detailed in the plaintiff's complaint. Deutsche Capital, the original lender, is the plaintiff's predecessor in interest. The plaintiff is the present holder and owner of the note and mortgage executed by the borrower Northland.
The three-count complaint filed by the plaintiff requests foreclosure of the mortgage (count one), enforcement of the note (count two) and enforcement of the guaranty (count three). The defendants are referred to individually as Northland, Northland LP and Northland Corp. and collectively as "the defendants."
On or about June 1, 2009, Northland ceased making payments due under the terms of the note and mortgage. Northland has been in default of its payment obligations since that time. On August 17, 2009, the plaintiff notified Northland of the default and made a demand on Northland to comply with its payment obligations. By letter dated September 3, 2009, Deutsche Capital notified Northland that the loan had been accelerated and made demand on Northland for payment in full. By letter dated October 6, 2009, Deutsche Capital notified Northland LP and Northland Corp. of their liability as guarantors and made demand on Northland LP and Northland Corp. for payment in full of that liability.
The plaintiff claims that Northland LP and Northland Corp. are fully and personally liable for up to $2,000,000 of the principal balance of the loan pursuant to a "Guaranty and Indemnity," dated November 30, 2006 (Plaintiff's exhibit G), wherein Northland LP guaranteed certain recourse obligations of Northland as borrower and the "Reaffirmation, Consent to Transfer and Substitution of Indemnitor," dated February 8, 2008 (Plaintiff's exhibit P), wherein Northland LP and Northland Corp. assumed all obligations of the original guarantor, Northland LP.
On March 2, 2011, the plaintiff filed a motion for partial summary judgment against the defendants (No. 128), seeking summary judgment of foreclosure against borrower Northland and entry of a $2,000,000 monetary judgment against guarantors Northland LP and Northland Corp. The plaintiff filed a memorandum of law and has submitted the following evidence in support of its motion: a legal description of real property subject to mortgage, located at 151-163 Asylum Street, Hartford (City Place II) [Plaintiff's Exhibit A-1]; a ground lease for real property [Exhibit A-2]; a $25,000,000 promissory note issued by Northland, dated November 30, 2006 [Exhibit B]; a mortgage issued by Northland, dated November 30, 2006 [Exhibit C]; an assignment of leases and rents (ALR) by Northland, dated November 30, 2006 [Exhibit D]; a UCC financing statement (fixture filing), recorded in the Hartford land records on November 30, 2006 [Exhibit E]; a UCC financing statement ("SOS filing") filed with the Delaware secretary of state on December 1, 2006 [Exhibit F]; a guaranty and indemnity executed by Northland LP, dated November 30, 2006 [Exhibit G]; an environmental indemnity agreement executed by Northland and Northland LP, dated November 30, 2006 [Exhibit H]; a subordination of management agreement executed by Northland and Northland Corp., dated November 30, 2006 [Exhibit H]; an assignment of open-end leasehold mortgage, security agreement, and ALR by Deutsche Capital to LaSalle Bank National Association as trustee for registered holders of Comm 2006-08 commercial mortgage pass-through certificates ("LaSalle"), recorded in the Hartford land records on February 22, 2007 ("LaSalle loan assignment") [Exhibit J]; a UCC financing statement recorded in the Hartford land records on February 22, 2007 ("LaSalle fixture filing assignment") [Exhibit K]; a UCC financing statement amendment filed with the Delaware secretary of state on March 15, 2007 ("LaSalle SOS assignment") [Exhibit L]; an assignment of open-end leasehold mortgage, security agreement, and ALR by LaSalle to Wells Fargo Bank, NA as trustee for registered holders of Comm 2006-08 commercial mortgage pass-through certificates ("Trustee"), recorded in the Hartford land records on April 11, 2008 ("Trustee loan assignment") [Exhibit M]; a UCC financing statement recorded in the Hartford land records on April 11, 2008 (`Trustee fixture filing assignment") [Exhibit N]; a UCC financing statement amendment filed with the Delaware secretary of state on March 27, 2008 ("Trustee SOS assignment") [Exhibit O]; a consent to transfer and substitution of indemnitor executed by Northland LP and Northland Corp., dated February 8, 2008 (substitution of indemnitor) [Exhibit P]; a limited power of attorney issued by Trustee to LNR Partners, Inc., dated February 20, 2008 and recorded in the Hartford land records on November 24, 2009 (LPOA) [Exhibit Q]; an assignment of open-end leasehold mortgage, security agreement, and other loan documents by Trustee to Comm 2006-C8 Asylum Street, LLC ("the plaintiff"), dated November 12, 2009 and recorded in the Hartford land records on November 24, 2009 (2009 loan assignment) [Exhibit R]; an assignment of leases and rents by Trustee to the plaintiff, dated November 12, 2009 and recorded in the Hartford land records on November 24, 2009 ("2009 ALR assignment") [Exhibit S]; a UCC financing statement recorded in the Hartford land records on November 24, 2009 ("2009 fixture filing assignment") [Exhibit T]; and a UCC financing statement amendment filed with the Delaware secretary of state on November 30, 2009 ("2009 SOS assignment") [Exhibit U].
In support of its motion for partial summary judgment, the plaintiff submitted the affidavit of Dennis van der Reis, dated March 1, 2011 (No. 129), as well as the following evidence: substantively duplicate exhibits titled A-U; August 17, 2009 letter informing Northland of its default [Plaintiff's Exhibit V]; September 3, 2009 letter informing Northland of its continued default and demanding payment [Exhibit W]; October 6, 2009 letter informing guarantors Northland LP and Northland Corp. of their respective liabilities [Exhibit X]; lis pendens recorded in the Hartford land records December 2, 2009 [Exhibit Y]; transcript of the deposition of Steven O. Rosenthal [Exhibit Z]; email by Robert Reichert to Gary Mennitt, dated January 4, 2011 [Exhibit AA].
For purposes of this memorandum, plaintiff's exhibits A-AA refer to those titled in the affidavit of Dennis van der Reis, dated March 1, 2011 (No. 129).
On April 5, 2011, the defendants filed an objection to the plaintiff's motion for summary judgment and a supporting memorandum in opposition (No. 136). The defendants have supported their objection with the following evidence: an affidavit from Steven F. Rosenthal, dated April 5, 2011 (No. 137); a letter by Charles R. Bennett, Jr. to Katherine A. Burroughs, dated December 11, 2009; letter by Charles R. Bennett, Jr. to Katherine A. Burroughs, dated December 22, 2009; letter of summary intent for landlord and/or lender consideration by John McCormick to Joel Grieco, dated December 14, 2009; letter by Charles R. Bennett, Jr. to Katherine A. Burroughs, dated February 10, 2011 [affidavit Exhibits A].
On April 8, 2011, the plaintiff filed a supplemental brief in support of its motion (No. 140). This matter was heard on the short calendar on April 11, 2011. Additional facts will be discussed as they become necessary to decide particular legal issues.
ANALYSIS
"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." (Citations omitted.) Weiss v. Weiss, 297 Conn. 446, 457, 988 A.2d 766 (2010).
"A material fact is a fact that will make a difference in the outcome of the case." Byrne v. Burke, 112 Conn.App. 262, 267, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009). "As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
I. MOTION FOR PARTIAL SUMMARY JUDGMENT
The plaintiff seeks summary judgment of foreclosure against borrower Northland and the entry of a $2,000,000 monetary judgment against guarantors Northland LP and Northland Corp. The plaintiff claims that, after summary judgment is granted with respect to the defendants' liability, it will file a motion for entry of judgment of strict foreclosure against the defendants and the remaining issues for trial will be limited to claims for further guarantor liability. The plaintiff responds that partial summary judgment is appropriate, and is routinely granted by judges of this Court.
Connecticut Practice Book § 17-50 authorizes the entry of partial summary judgment, as to liability, where there is a genuine issue of material fact as to damages only. Pursuant to this rule, judges of this Court may grant motions for partial summary judgment as to liability in foreclosure actions. See, e.g., Bank of New York v. Sebastian Mangiafico, Superior Court, judicial district of Hartford, Docket No. CV 08 5022713 (October 21, 2010, Aurigemma, J.) (granting summary judgment as to liability in foreclosure action); U.S. Bank National Ass'n v. Joseph, Superior Court, judicial district of Hartford, Docket No. CV 10 6007164 (September 9, 2010, Aurigemma, J.) (granting summary judgment of foreclosure); Chase Home Finance, LLC v. Fequiere, Superior Court, judicial district of Fairfield, Docket No. CV 09 6004786 (October 25, 2010, Hartmere, J.) (outlining conditions precedent to grant of summary judgment in foreclosure actions); U.S. Bank National Ass'n v. 3060 Main, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019806 (July 6, 2010, Hartmere, J.) (granting summary judgment as to liability in foreclosure action). See also Danzig v. PDPA, Inc., 125 Conn.App. 242, 9 A.3d 382 (2010) (affirming trial court's entry of summary judgment in foreclosure action), appeal denied, 300 Conn. 920, 14 A.3d 1005 (2011).
Connecticut Practice Book § 17-50 provides: "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages. If the determination is by a jury, the usual procedure for setting aside the verdict shall be applicable. Upon the conclusion of these proceedings, the judicial authority shall forthwith render the appropriate summary judgment."
Under the foregoing authorities, the plaintiff's partial motion for summary judgment as to liability is permissible and may be considered by the Court.
II. SPECIAL DEFENSES
The plaintiff argues that summary judgment should be granted with respect to the special defenses raised by the defendants.
The defendants' February 3, 2010 answer and special defenses (No. 109) asserts three special defenses: (1) lack of evidence of ownership and assignment; (2) unclean hands; and (3) failure to state a monetary claim. The plaintiff maintains that summary judgment is warranted because the defendants' special defenses are factually unsupported, legally insufficient and do not relate to the making, validity or enforcement of the note.
"[T]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a [plaintiff's] motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses . . . Summary judgment on a special defense is also improper because [e]ven if the special defenses were all to fail . . . the plaintiffs' motion and supporting documents do not remove from dispute facts relevant to determining whether they are entitled to judgment as a matter of law on the complaint itself . . ." (Citation omitted; internal quotation marks omitted.) U.S. Bank National v. Suvemay, Superior Court, judicial district of Fairfield, Docket No. CV 08 50143585 (October 4, 2010, Hartmere, J.); see also Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 104 Conn.App. 685, 692 n. 7, 936 A.2d 280 (2007), cert denied, 286 Conn. 901, 943 A.2d 1103 (2008).
Under the foregoing authorities, the plaintiff's motion for summary judgment with respect to the defendants' special defenses must be DENIED.
III. SUMMARY JUDGMENT AS TO DEFENDANTS' LIABILITY
The plaintiff argues that it is entitled as a matter of law to foreclose the mortgage on borrower Northland's property and to a $2,000,000 judgment against guarantors Northland LP and Northland Corp. because there are no genuine issues of material fact concerning the allegations contained in the complaint. In opposition, the defendants argue that the evidence submitted by the plaintiff is insufficient to support entry of summary judgment on its behalf.
"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, 916 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.). See also 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) ("[t]o make out its prima facie case, [the mortgagee] had to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that [the mortgagor] had defaulted on the note").
"[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 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.).
"Only after this initial burden is met does the court then determine whether any special defenses alleged are legally sufficient to defeat a claim for foreclosure. [ Bank of New York v. Conway, supra, 50 Conn.Sup. 195]; see also LaSalle National Bank v. Shook, Superior Court, judicial district of New London, [Docket No. CV 0549266 (July 13, 2000, Hurley, J.) ( 29 Conn. L. Rptr. 462)] (`When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether the special defense is legally sufficient before granting summary judgment'), aff'd, 67 Conn.App. 93, 787 A.2d 32 (2001)." Webster Square Investors, LLC v. Rebelo, supra, Superior Court, Docket No. CV 08 5008381.
In the present case, the plaintiff argues that it has submitted evidence to establish that the defendants defaulted on the note, that the plaintiff is the owner of the note and mortgage and that the plaintiff is entitled to recover under the guaranty. The defendants maintain that summary judgment should be denied because: (1) the affidavit of Dennis van der Reis ("Reis affidavit") fails to establish the competence of the affiant; (2) the plaintiff is not entitled to summary judgment of foreclosure and cannot establish the amount of the alleged debt by partial summary judgment; (3) the exhibits described as "true and correct copies" in the Reis affidavit are insufficient to support summary judgment; (4) the plaintiff cannot establish a right to the claimed prepayment penalty by partial summary judgment as to liability only; and (5) there are procedural issues and material questions of fact that must be determined before a $2,000,000 judgment can be entered against the guarantors. The defendants also assert three special defenses: (1) lack of evidence of ownership and assignment of the promissory note; (2) unclean hands; and (3) failure to state a monetary claim.
This memorandum addresses the defendants' arguments concerning the Reis affidavit and the evidentiary sufficiency of the plaintiff's exhibits. Because the plaintiff's motion for summary judgment may be resolved on these grounds, the defendants' remaining arguments need not be considered by the court.
This memorandum does not consider the merits of the defendants' special defenses.
A. The Reis Affidavit: Personal Knowledge
The defendants argue that the Reis affidavit fails to adequately state the basis for Reis' claimed "personal knowledge" and so does not establish the competence required to authenticate the 27 exhibits submitted therewith. The plaintiff maintains that the Reis affidavit establishes Reis' competence and personal knowledge with respect to the matters averred therein and properly authenticates the exhibits attached thereto.
"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 (1995). "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. The material must: (1) be based on `personal knowledge'; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
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."
In the present case, the Reis affidavit is signed and notarized. In it, Reis attests: "I am Asset Manager for LNR Partners, LLC, successor by statutory conversion to LNR Partners, Inc., a Florida corporation, non-member manager for COMM 2006-C8 Asylum Street ("Plaintiff") and Special Servicer for the Loan at issue in the above-captioned action . . . The statements contained herein are based upon my personal knowledge and a review of the records customarily kept and maintained by Plaintiff in regard to the Loan." Reis affidavit (No. 129), ¶ 1. Reis then makes statements concerning, inter alia, the $25,000,000 loan made to defendant Northland, Northland's execution of the note and mortgage at issue, the guaranty agreements executed by defendants Northland LP and Northland Corp., the series of transfers that resulted in the plaintiff's present ownership of the note and mortgage, Northland's 2009 default on the loan and the notice of default and demand of payment made upon all defendants. The affidavit makes reference to each of the 27 exhibits submitted in support of the plaintiff's motion for summary judgment.
Reis is an employee of LNR Partners, LLC, formerly known as LNR Partners, Inc., the agent for Wells Fargo Bank, NA as trustee for registered holders of Comm 2006-08 commercial mortgage pass-through certificates ("the Trustee"). The Trustee, acting by and through its agent, LNR Partners, Inc. (presently known as LNR Partners, LLC), assigned Northland's loan to the plaintiff. See Reis affidavit (No. 129), ¶ 13; Plaintiff's exhibits Q-U. By these attestations, Reis avers that he is employed as a loan servicer, for the loan at issue in the present case, by the entity that effectuated transfer of that loan to the plaintiff.
In U.S. Bank National Ass'n v. 3060 Main, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019806 (July 6, 2010, Hartmere, J.), a factually analogous foreclosure action, the Superior Court granted summary judgment as to liability. The defendant challenged the admissibility of an affidavit submitted by the plaintiff in support of its motion for summary judgment, arguing that the affidavit was unreliable because there was no basis for the affiant's personal knowledge regarding his assertions that the plaintiff owned the subject note and mortgage. The affiant, who was employed by the plaintiff lender's servicing agent, stated that he had obtained personal knowledge of the account at issue through his review of company records. The trial court rejected the defendant's argument, stating: "Our Appellate Court has determined that attestations similar to these are sufficient to provide a basis for an affiant's personal knowledge in an affidavit used to support a judgment of strict foreclosure. The Appellate Court stated: `The affidavit asserted that the affiant was employed by the servicing agent for the substitute plaintiff, a relationship strong enough to establish a foundation for the affiant's claims that she was familiar with the books and records regarding the defendant's indebtedness.' Bank of America, FSB v. Franco, 57 Conn.App. 688, 695, 751 A.2d 394 (2000). As [the affiant] attests that he is employed by the plaintiff's servicing agent and that he has personally reviewed the books and records relating to [loan and mortgage at issue], [the] affidavit establishes a sufficient foundation for his personal knowledge such that the affidavit can be used to support the plaintiff's summary judgment motion." U.S. Bank National Ass'n v. 3060 Main, LLC, supra, Superior Court, Docket No. CV 08 5019806.
The defendant argued: "[The affiant] states that he is employed as a Vice President with Aurora Bank, FSB. Aurora Bank, FSB is not a party to this matter and we learn only through [the affiant], that Aurora Bank, FSB was formerly known as Lehman Brothers Bank, FSB . . . How [the affiant] knows what happened at Lehman Brothers Bank, FSB, when the Note, Mortgage and Guaranty were purportedly assigned/transferred is totally unclear." U.S. Bank National Ass'n v. 3060 Main, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019806 (July 6, 2010, Hartmere, J.).
In the present case, Reis attests that he is employed by the plaintiff's "non-member manager" and loan servicer and that he has personally reviewed records kept and maintained by his employer with respect to the loan issued to defendant Northland. Therefore, Reis' affidavit establishes a sufficient foundation for his personal knowledge such that his affidavit may be used to support the plaintiff's summary judgment motion. See U.S. Bank National Ass'n v. 3060 Main, LLC, supra, Superior Court, Docket No. CV 08 5019806.
B. Sufficiency of the Evidence: Admissibility of Plaintiff's Exhibits
The defendants argue that the Reis affidavit fails to establish an evidentiary foundation for the 27 exhibits submitted by the plaintiff in support of its motion for summary judgment. The defendants object to nearly every exhibit on several grounds, including hearsay and lack of proper authentication. The plaintiff responds that all exhibits are authentic and admissible, as they fall within the business records exception to the hearsay rule.
The defendants also object on grounds of relevance and claim that plaintiff's exhibit Z, a transcript of the deposition of Steven O. Rosenthal, is not properly certified. With respect to relevance, the exhibits submitted by the plaintiff go to the execution, transfer and present ownership and state of the note and mortgage at issue. They are therefore relevant. See, e.g., State v. Gupta, 297 Conn. 211, 239, 998 A.2d 1085 ("Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Conn. Code Evid. § 4-1"). With respect to the Rosenthal deposition transcript, plaintiff's Exhibit Z, pp. 4 and 7, shows that the deposition was given under oath before a notary public, who then certified the transcript. Thus the defendants' objection is without merit.
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 233 n. 10, 899 A.2d 738, cert. denied 280 Conn. 917, 908 A.2d 538 (2006). Practice Book § 17-45 states, in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ."
"Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005); see also Gianetti v. Anthem Blue Cross Blue Shield of Connecticut, 111 Conn.App. 68, 72-73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).
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 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 Power Co. v. Gilmore, 289 Conn. 88, 116, 956 A.2d 1145 (2008). "[I]t 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). While 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); the witness whose testimony provides the foundation for the admission of a business record must testify to the three requirements outlined in General Statutes § 52-180. See, e.g., Calcano v. Calcano, supra, 257 Conn. 241; First Union National Bank v. Woermer, 92 Conn.App. 696, CT Page 10982 709, 887 A.2d 893, cert. denied, 277 Conn. 914, 895 A.2d 788 (2005); Webster Bank v. Flanagan, 51 Conn.App. 733, 745, 725 A.2d 975 (1999).
In the present case, the affidavit of Dennis van der Reis states: "The statements contained herein are based upon my personal knowledge and a review of the records customarily kept and maintained by Plaintiff in regard to the Loan." Reis affidavit (No. 129), ¶ 1. No further explanation is given as to the origin of the documents or their use in the mortgage lending and/or loan servicing industries. The Reis affidavit does not state (1) that the documents submitted as exhibits in support of the plaintiff's motion for summary judgment were made in the regular course of business; (2) that it was the regular course of business to records of the sorts contained in those documents; or (3) that such records were made when the act, transaction or event at issue occurred or shortly thereafter. The Reis affidavit therefore fails to satisfy the three requirements set forth in General Statutes § 52-180. Accordingly, the documents cannot be admitted pursuant to the business records exception to the hearsay rule and may not be considered in support of the plaintiff's motion for summary judgment. See Connecticut Light Power Co. v. Gilmore, supra, 289 Conn. 116.
Had the affiant testified to the three statutory requirements, the documents would have been admissible pursuant to the business records exception and would likely have established the plaintiff's prima facie case for foreclosure and guarantor liability.
For an example of what would satisfy the business records exception in this context see U.S. Bank National Ass'n. v. 3060 Main, LLC, supra, Superior Court, Docket No. CV 08 5019806 ("In his affidavit, [the affiant] attests: `The books and records were kept in the ordinary course of business and said books and records were made at or about the time described therein. It is the regular course of business for mortgage lenders to maintain such records when originating and/or servicing a mortgage loan." [The] affidavit then specifically references each of the exhibits attached to [the affiant's] affidavit and [the affiant] attests that the documents are all [true and accurate] copies").
CONCLUSION
Although the Reis affidavit establishes the personal knowledge of the affiant, Dennis van der Reis, with respect to the matters stated therein, its failure to satisfy the business records exception to the hearsay rule renders the affidavit, and the plaintiff's accompanying exhibits, inadmissible to support the plaintiff's claims. See Connecticut Light Power Co. v. Gilmore, supra, 289 Conn. 116; Barrett v. Danbury Hospital, supra, 232 Conn. 251. Accordingly, because the plaintiff has failed to submit sufficient admissible evidence to support its motion for summary judgment, said motion must be DENIED.
IT IS SO ORDERED this 9th day of May 2011.