182 Conn. App. 291
Conn. App. Ct.2018Background
- Plaintiff (Heritage Builders of Waterbury, LLC / Scott Tedesco, trustee) holds a promissory note and open-end mortgage signed by defendant Fikri Development, LLC (then signed by Resjimi “Agolli” on behalf of Fikri) secured by four Waterbury properties; note went into default for missed payments beginning Feb. 1, 2012.
- Original lending and encumbrances arose from loans arranged by Joseph Antonios and The Private Mortgage Fund; Angelo Tedesco (and later his trustee/assignee) financed/reassigned the loan and prosecuted an earlier foreclosure that was later withdrawn after a settlement/refinance closing on July 26, 2011.
- At the July 26, 2011 closing: parties restructured debt (lowered interest, six‑month payment deferral, removed Agolli’s personal residence from mortgage), proceeds from an Austen Road sale paid down the debt, Joe and Gina Antonios were removed from their roles in Fikri, and Agolli executed the new Note and Open‑End Mortgage on behalf of Fikri.
- Defendants asserted special defenses at trial: lack of consideration, duress, and no meeting of the minds (including a contention that Agolli lacked authority to bind Fikri). Trial court found the plaintiff proved a prima facie foreclosure case and rejected each special defense.
- Key factual/findings: court credited testimony of attorneys and participant witnesses that refinancing terms were negotiated and explained, that Agolli understood and consented, and that the Antonioses were removed prior to Agolli signing; no evidence that Tedesco participated in any fraud by Antonios.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prima facie foreclosure entitlement | Tedesco/Hertage holds note & mortgage; note is in default; conditions precedent satisfied | None disputing holder/default; defenses raised instead | Judgment for plaintiff on liability—prima facie case established |
| Lack of consideration | Refinance provided value: withdrawal of foreclosure, lower rate, payment deferral, removal of Agolli’s residence from mortgage | No adequate consideration; asserted release or that restructure was not a true refinance | Held consideration existed (documents recite "for value received" and evidentiary benefits constituted consideration) |
| Duress | N/A (plaintiff denies wrongdoing) | Agolli was forced into transaction due to Antonios’ prior misconduct and had no reasonable alternative | Rejected: defendants offered no proof of wrongful act/threat by Tedesco or that Agolli’s free will was overborne; economic pressure insufficient to show duress |
| Meeting of the minds / authority to bind LLC | Agreement memorialized in signed documents; plaintiff relied on Agolli’s representation she was sole member and authorized | Agolli lacked authority because Antonios/Gina removal procedures under LLC Act/operating agreement were not followed; inadequate explanation/understanding by Agolli | Rejected: court credited testimony that Antonioses were removed before closing, counsel explained documents, and Agolli knowingly signed on behalf of Fikri; no mutual mistake shown |
Key Cases Cited
- Cadle Co. v. D’Addario, 268 Conn. 441 (2004) (trial judge is sole arbiter of witness credibility)
- Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384 (2014) (plaintiff must prove ownership of note/mortgage, mortgagor default, and conditions precedent)
- Connecticut Nat’l Bank v. Voog, 233 Conn. 352 (1995) (consideration doctrine and enforceability of contracts)
- Chase Manhattan Mortg. Corp. v. Machado, 83 Conn. App. 183 (2004) (duress requires wrongful act or threat by mortgagee or knowledge thereof; third‑party fraud not imputed to mortgagee absent participation/knowledge)
- Emigrant Mortg. Co. v. D’Agostino, 94 Conn. App. 793 (2006) (defendant bears burden to prove special defenses)
- Milford Bank v. Phoenix Contracting Group, Inc., 143 Conn. App. 519 (2013) (contract provisions acknowledging consideration are generally sufficient)