147 Conn. App. 681
Conn. App. Ct.2014Background
- Fairfield, LLC owned real property at 2936–2938 Fairfield Ave., Bridgeport, CT; Drabkin held a note and mortgage securing that loan.
- Drabkin defaulted, accelerated the debt, and a foreclosure action against Fairfield was initiated.
- In Oct. 2007, Nikola Nikola lent Drabkin $140,000 at 13% interest; Drabkin prepaid points and assigned the first $140,000 of the mortgage note to Nikola.
- The plaintiff, as assignee of the mortgage note, sought damages and a judgment of foreclosure as to Fairfield.
- In Sept. 2012, the court entered a judgment of foreclosure by sale for $206,794, with a sale date set, leading to this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Holder status of note and mortgage | Nikola argues he is holder of the note by assignment | Fairfield contends holder status not established | Holding affirmed: plaintiff validly holder of note and mortgage |
| Usury defense and mortgage exception | Usury defense not applicable to plaintiff's mortgage assignment | Defendant argues usury defense should defeat foreclosure | Holding affirmed: mortgage exception applies and usury defense not negating foreclosure |
| Amount of debt | Debt exceeds $140,000 due on the note | Debt limited to assigned amount | Holding affirmed: debt $206,794 supported by affidavit of debt |
Key Cases Cited
- Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59 (2008) (clear error standard for factual findings; deferential review)
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011) (holder of negotiable note has standing to foreclose)
- Ferrigno v. Cromwell Development Associates, 244 Conn. 189 (1998) (mortgage exception applies to bona fide real property mortgages over $5,000)
- Bankers Trust Co. of California, N.A. v. Vaneck, 95 Conn. App. 390 (2006) (definition of ‘mortgage note’ and related concepts)