Opinion
No. CV 04-0400 19 66 S
February 28, 2005
MEMORANDUM OF DECISION RE MOTION TO DISSOLVE LIS PENDENS
The plaintiffs Angelo C. Memoli, Anthony Memoli and Gene Memoli brought this action against the defendants alleging that the defendant Rosario Debrizzi fraudulently conveyed the property located at 258 Golden Hill Street in Bridgeport. As part of this action the plaintiffs recorded a notice of lis pendens on the land records. The defendant Rescomm V, LLC has filed the instant amended motion to discharge the lis pendens.
According to the allegations of the complaint, in 1995 the plaintiffs commenced the action in the Judicial District of Fairfield entitled Angelo Memoli et al. v. DeBrizzi Associates, CV 95-0319474. The defendant Rosario DeBrizzi was a defendant in that action. In August 2001 Rosario DeBrizzi was the only remaining defendant in that action.
He filed a pro se appearance in June 1996.
The plaintiffs further allege that the defendant Rosario Debrizzi became indebted to the plaintiffs after a court order granting summary judgment with respect to liability. See Angelo Memoli et al. v. DeBrizzi Associates, CV 95-0319474, ruling on Motion for Summary Judgment dated February 11, 2002 (Gallagher, J.) The plaintiff alleges that on March 9, 2004, after summary judgment ruling but before final judgment had entered, the defendant Rosario DeBrizzi transferred subject property to the defendant Rescomm V., LLC. According to the plaintiff there was no consideration for the transfer.
The plaintiffs filed a lis pendens on the land records. "The purpose of the lis pendens . . . [is] to give constructive notice to persons seeking to purchase or encumber property after the recording of a lien or the commencement of a [law] suit." (Internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership. 37 Conn.App. 698, 704, 657 A.2d 1110 (1995).
The plaintiffs allege a fraudulent conveyance. A fraudulent conveyance must be proven by clear and convincing evidence. Tessitore v. Tessitore, 31 Conn.App. 40, 43, 623 A.2d 496 (1993). Therefore, to preserve their lis pendens, the plaintiffs must show that there is probable cause to believe that they can prove by clear and convincing evidence that the conveyance by Rosario DeBrizzi to RESCOMM. V., LLC was fraudulent.
"Probable cause is a bona fide belief in the existence of facts essential under the law for the action and such would warrant a man of ordinary caution, prudence and judgment under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard . . ." (Emphasis omitted; internal quotation marks omitted.) Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996).
The plaintiffs do not have to establish that he will prevail, "only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . . Probable cause for purposes of the PJR statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false . . . In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim . . . Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action." (Citation omitted; internal quotation marks omitted.) Weicker v. Granatowski, No. 398167 (Sep. 2, 2003) Superior Court, Judicial District of Fairfield at Bridgeport. (September 2, 2003, Levin, J.) ( 35 Conn. L. Rptr. 333).
A party endeavoring to prove that a conveyance was fraudulent must show either that: (1) the conveyance was made without substantial consideration and rendered the transferor unable to meet his or her obligations; or (2) the conveyance was made with fraudulent intent in which the grantee participated. Litchfleld Asset Management Corp. v. Howell, 70 Conn.App. 133, 141, 799 A.2d 298 (2002).
At the hearing on the motion to discharge the lis pendens, the plaintiffs established the following facts. There was a pending civil action wherein the plaintiff had secured a favorable ruling on a motion for summary judgment. Subsequently, the defendant Rosario DeBrizzi recorded a quit claim deed which placed title to said property in his name. One month later, for no apparent consideration, Rosario DeBrizzi transferred the property to the defendant Rescomm V., LLC. The real estate conveyance tax return for the transfer of said property stated that no consideration was paid for the conveyance.
Turning to the first grounds for a fraudulent conveyance, the plaintiffs must establish that the conveyance was made without substantial consideration and that it rendered the defendant unable to meet his obligations. The plaintiffs presented evidence that the conveyance was made without apparent consideration. However, they also were required to establish that the conveyance rendered Rosario DeBrizzi unable to meet his obligations. There is no evidence of this critical fact.
Alternatively, the plaintiffs must establish actual fraud in the conveyance. To determine whether Rosario DeBrizzi actually intended to defraud creditors the court must look at the facts and reasonable inferences from those facts. Matthews v. Converse, 83 Conn. 511, 514-15, 77 A. 961 (1910). In the present case, indicia of fraudulent intent include transfer of the property to Rosario DeBrizzi during the pendency of the earlier action, and a subsequent transfer by Mr. DeBrizzi after his liability had been established. Although the plaintiffs suggest that the transfers were made from and to individuals and entities involved in each litigation, there is no evidence of that fact. Further the court would be speculating if it were to conclude that transfers were made to an insider for consideration not reasonably equivalent to the value of the property. The plaintiffs provided no evidence that the transfer was made to deplete or conceal assets or that the transfer rendered Mr. DeBrizzi insolvent. Finally the plaintiffs provided no evidence of the link between Mr. DeBrizzi and Rescomm, LLC.
This court recognizes that intent is often proven by inferences. Nevertheless, some evidence is required. Speculation and suspicion is not a substitute for probable cause. The plaintiffs have not established probable cause to sustain the validity of their claim of fraudulent transfer. The motion to dissolve the lis pendens is granted.
DEWEY, J.