158 Conn.App. 705
Conn. App. Ct.2015Background
- Hartford Club executed an open-end mortgage and promissory note for $977,000 in favor of The Connecticut Bank and Trust Company (CBT) in 2009; payments defaulted beginning late 2012.
- CBT merged into Berkshire Bank effective April 20, 2012; Berkshire possessed the original note and mortgage when it filed foreclosure in June 2013.
- Berkshire moved for summary judgment as to liability, supported by two affidavits from its vice president (Matejek) and a certification letter from the Massachusetts Division of Banks confirming the merger.
- The Hartford Club opposed the motion but submitted no affidavits or documentary evidence; its special defense alleged Berkshire’s ownership/standing was not established.
- Trial court granted summary judgment for Berkshire on liability and later entered judgment of foreclosure by sale; Hartford Club appealed claiming evidentiary and sufficiency defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Matejek affidavits | Affidavits are competent (personal knowledge from review of business records) and authenticate ownership and default facts. | Affidavits lack foundation: do not trace chain of title, do not show CBT owned/held the note at merger, and fail to show basis for personal knowledge. | Admissible: personal-knowledge objections and lack of chain detail go to weight, not admissibility; reviewing business records can supply personal knowledge. |
| Admissibility / sufficiency of merger certificate | Certificate from MA Division of Banks is proper evidence of merger when uncontradicted; best-evidence argument is only preferential. | Certificate is not best evidence; merger documents should be produced. | Certificate admissible and sufficient in absence of contradictory evidence; best-evidence rule is not exclusionary here. |
| Sufficiency to establish right to enforce note | Possession of original note plus merger evidence makes Berkshire a nonholder in possession with transferor’s rights — establishes prima facie right to enforce. | Even if admissible, evidence insufficient to prove Berkshire had right to enforce (may be a non-holder without rights). | Sufficient: undisputed affidavits, certificate, and possession of original note established Berkshire’s right to enforce; defendant produced no counterevidence. |
Key Cases Cited
- J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (Conn. 2013) (nonholder in possession can have rights to enforce transferred instrument)
- Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn. App. 699 (Conn. App. 2012) (unen-dorsed note can transfer enforcement rights when transferor’s intent is shown)
- New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594 (Conn. 1998) (chain-of-custody gaps affect weight, not admissibility, of business records)
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (Conn. 2011) (holder in possession is presumed owner of the debt absent rebuttal)
- Deutsche Bank National Trust Co. v. Shivers, 136 Conn. App. 291 (Conn. App. 2012) (summary judgment standards in foreclosure context)
- Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384 (Conn. App. 2014) (prima facie foreclosure requirements for summary judgment)
- Cadle Co. v. Errato, 71 Conn. App. 447 (Conn. App. 2002) (best-evidence rule is preferential, not exclusionary)
- Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369 (Conn. App. 1999) (personal-knowledge challenges affect weight, not admissibility)