200 Conn.App. 335
Conn. App. Ct.2020Background
- 2005 promissory note ($720,000) and mortgage on Stamford property; mortgage later assigned to HSBC (plaintiff) and Ocwen was the loan servicer. Default alleged as of June 1, 2016.
- Plaintiff filed foreclosure; defendants denied default and asserted special defenses including improper notice of acceleration and hearsay/business‑records objections.
- Plaintiff moved for summary judgment as to liability, submitting an affidavit from Flora Rashtchy (Ocwen) attaching a notice of default; some pages were omitted when electronically filed due to a claimed scanning error.
- Plaintiff then filed a supplemental affidavit from Anel Hernandez (Ocwen) with a complete copy of the notice; defendants argued the two affidavits created a factual dispute and that affidavits failed Practice Book §17‑46/Jenzack requirements.
- Trial court accepted the supplemental affidavit (and counsel’s explanation of the scanning error), found no genuine issue of material fact as to liability, granted summary judgment as to liability, and later entered a judgment of foreclosure; defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proper notice of default/acceleration was sent | Supplemental affidavit shows complete, compliant notice; original filing had a clerical scanning error | Two different affidavits with different attached notices create a genuine factual dispute | Court: scanning/clerical error corrected by supplemental affidavit; no genuine issue; summary judgment on liability affirmed |
| Whether affidavits satisfied Practice Book §17‑46 / business‑records exception | Affiants (Ocwen employees/servicer) were competent and familiar with business records; no documentary exhibits required for validity | Affiants didn’t work for original lender/holder and thus lacked foundation; hearsay/business‑records foundation lacking (invoking Jenzack) | Court: employment with servicer and attestations about record creation were sufficient; affidavits admissible for liability determination |
| Whether court could rely in part on plaintiff’s counsel statement about the scanning error | Counsel’s representations explained a litigation filing error, not disputed operative facts | Counsel’s out‑of‑court, unsworn statement is not admissible evidence | Court: may rely on counsel’s representations about litigation events; doing so here was proper |
| Whether affidavit of debt was admissible for foreclosure judgment (Practice Book §23‑18 / Jenzack) | §23‑18 applies because defendants did not interpose a defense to the amount; affidavit based on servicer’s records suffices; alternatively Jenzack permits incorporation | Affiant lacked personal knowledge of starting balance (relied on third‑party data) so affidavit is inadmissible hearsay under Jenzack | Court: §23‑18 applies (defendants didn’t properly contest amount); even under Jenzack (as later clarified by the CT Supreme Court), incorporated third‑party data in assignee’s business records can be admissible |
Key Cases Cited
- Jenzack Partners, LLC v. Stoneridge Associates, LLC, 334 Conn. 374 (Conn. 2020) (assignee’s business records that incorporate lender’s initial data may be admissible under the business‑records exception)
- Bank of America, N.A. v. Chainani, 174 Conn. App. 476 (Conn. App. 2017) (Practice Book §23‑18 allows affidavit of debt where amount is not actively disputed)
- Maio v. New Haven, 326 Conn. 708 (Conn. 2017) (trial court may rely on counsel’s representations in appropriate circumstances)
- Equity One, Inc. v. Shivers, 310 Conn. 119 (Conn. 2013) (counsel’s representations to the court can be treated as credible for certain procedural matters)
- Midland Funding, LLC v. Mitchell‑James, 163 Conn. App. 648 (Conn. App. 2016) (explaining requirements for admitting business records under §52‑180)