208 Conn.App. 38
Conn. App. Ct.2021Background:
- JPMorgan Chase (successor to Washington Mutual) sued to foreclose a mortgage on Malick’s Fairfield property, alleging default on a $417,000 note and acceleration.
- The court granted summary judgment to the bank on liability; Malick continued to contest the amount owed.
- The bank submitted an affidavit of debt stating outstanding indebtedness of $749,420.60 (updated to include additional accrued interest).
- Malick objected to the affidavit, alleging the bank overstated municipal taxes (by $4,208.83), failed to account for a tax abatement, and miscalculated interest under a variable rate.
- The trial court gave Malick time to supply verified documentation, then held a rescheduled hearing which Malick did not attend; the court accepted the affidavit and entered a judgment of strict foreclosure.
- The Appellate Court reversed, holding that once Malick challenged the amount of the debt the hearsay exception in Practice Book §23-18(a) no longer applied and the bank was required to present admissible evidence of the debt amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Practice Book §23-18(a) allows the bank to prove the amount owed by affidavit despite defendant’s objections to the calculations | §23-18(a) permits proof of the debt by affidavit when no defense to the amount is interposed; the affidavit was sufficient | Malick argued he interposed specific defenses to the amount (taxes, interest), precluding use of the affidavit | Reversed: Under Burritt once the defendant raises objections to the amount, §23-18(a) no longer applies and the bank must present admissible evidence |
| Whether a general assertion of ‘‘no monetary obligations’’ or failure to appear at the rescheduled hearing shields the affidavit from challenge | The bank relied on the affidavit and the defendant’s absence at the hearing to uphold the judgment | Malick maintained he had substantively challenged the calculations and sought to submit supporting documentation | Court said the substance of Malick’s articulated objections mattered; a mere general denial is insufficient, and the absence did not validate use of the affidavit once amount was contested |
Key Cases Cited
- Burritt Mut. Sav. Bank of N. Br. v. Tucker, 183 Conn. 369 (Conn. 1981) (holding that once the amount of the mortgage debt is contested, the affidavit exception does not apply)
- Bank of Am., N.A. v. Chainani, 174 Conn. App. 476 (Conn. App. 2017) (discussing scope and application of Practice Book §23-18(a))
- Nat’l City Mortg. Co. v. Stoecker, 92 Conn. App. 787 (Conn. App. 2005) (affirming that an articulated challenge to the debt amount precludes use of the affidavit under §23-18)
- U.S. Bank Nat’l Assn. v. Bennett, 195 Conn. App. 96 (Conn. App. 2019) (clarifying that only challenges that actually dispute the amount will prevent §23-18(a) from applying)
- Conn. Nat’l Bank v. N.E. Owen II, Inc., 22 Conn. App. 468 (Conn. App. 1990) (holding that a mere claim of lack of knowledge is insufficient to trigger an evidentiary hearing on the amount)