JPMorgan Chase Bank, National Assn. v. MalickJPMorgan Chase Bank, National Assn. v. Malick
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Pursuant to the rule of practice (
The plaintiff bank sought to foreclose a mortgage on certain real рroperty owned by the defendant. The plaintiff filed an affidavit of debt attesting to the amount of the mortgage debt. The defendant filed an objection to the plaintiff‘s affidavit, in which he claimed that, inter alia, the plaintiff had overstated his municipal taxes and that it had miscаlculated his interest. Following a hearing, the trial court granted the defendant additional time to obtain and submit verified documentation to support his contention as to those two amounts. The court thereafter held another hearing to consider, inter alia, the defendant‘s offer of proof as to his objection, which the defendant did not attend. The court, relying on the plaintiff‘s affidavit of debt and other submissions, rendered a judgment of strict foreclosure, and the defendant appealed to this court. Held that the trial court erred as a matter of law when it accepted the plaintiff‘s affidavit of debt and relied on it to establish the amount of the defendant‘s indebtedness: under our Supreme Court‘s decision in Burritt Mutual Savings Bank of New Britain v. Tucker (183 Conn. 369), once the defendant raised objections concerning the amount of the mortgage debt set forth in the plaintiff‘s affidavit, the hearsay exception provided in
Argued April 15-officially released September 28, 2021
Procedural History
Action to foreclose a mortgage on certain of thе named defendant‘s real property, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant Shujaat Malick was defaulted for failure to appear; thereafter, the court, Bruno, J., granted the plaintiff‘s motion for summary judgment as tо liability; subsequently, the matter was tried to the court, Bruno, J.; judgment of strict foreclosure, from which the named defendant appealed to this court. Reversed; further proceedings.
Roy W. Moss, for the appellant (named defendant).
Brian D. Rich, with whom, on the brief, was Anthony E. Loney, for the appellee (plaintiff).
ALEXANDER, J. The defendant Abu Hashem Malick1 appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, JPMorgan Chase Bank, Nationаl Association. On appeal, Malick claims that the court erred as a matter of law when, despite his objections to some of the calculations set forth in the plaintiff‘s affidavit of debt, it accepted the affidavit and relied on it to establish the amount of thе defendant‘s indebtedness. Because we are bound by our Supreme Court‘s decision in Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 374-75, 439 A.2d 396 (1981), we reverse the judgment of the trial court.
The following facts inform our review. The defendant is the owner of real property in Fairfield (property). In a complaint dated January 9, 2018, the plaintiff alleged that the defendant had executed and delivered to Washington Mutual Bank, N.A., its predecessor in interest,2 a note in the principal amount of $417,000, of which the plaintiff became the holder, secured by a mortgage on the property. The plaintiff further alleged that the defendant was in default on the note and that it had elected to accelerate the debt. The plaintiff sought a judgment of foreclosure. The defendant filed an answer in which he alleged in part that he had “no monetary obligations” to the plaintiff.
On January 24, 2019, the plaintiff filed a motion for summary judgment as to liability, which was granted by the court on April 4, 2019. The defendant, on April 12, 2019, filed a motion requesting that the court reconsider and vacate its summary judgment as to liability, which the court denied on May 14, 2019. On May 28, 2019, the defendant filed two identical motions in which he again requested that the court reconsider and vacate its summary judgment as to liability.
On June 20, 2019, the plaintiff filed an affidavit of debt, signed by Nicole L. Smiley, an “[a]uthorized [s]igner” of the plaintiff, attesting that the defendant owed the plaintiff $749,420.60 as of June 13, 2019. On June 21, 2019, the plaintiff filed a motion seeking a judgment of strict foreclosure. On July 3, 2019, the plaintiff updated its affidavit of debt to include the interest that had accumulated since its June 20, 2019 affidavit.
Thereafter, on July 5, 2019, the defendant filed a “brief” in support of (1) his April 12, 2019 motion to reconsider and vacate, which motion the court already had denied on May 14, 2019, and (2) his May 28, 2019 motions to reconsider and vacate the summary judgment as to liability. The defendant also filed an objection to the plaintiff‘s affidavit of debt on the grounds that it contained hearsay and inaccurate calculations as to the defendаnt‘s municipal tax liability and the interest owed on his loan. On July 8, 2019, the court
On July 15, 2019, the court held another hearing on the plaintiff‘s motion for strict foreclosure and to consider the defendant‘s offer of proof as to his objection to the amount of the mortgage debt set forth in the plaintiff‘s affidavit of debt. The defendant did not attend the July 15, 2019 hearing, which had been rescheduled for the purpose of allowing him the opportunity to оbtain verified documentation to support his allegations that the plaintiff‘s affidavit contained erroneous calculations. Relying on the plaintiff‘s affidavit of debt and other submissions, the court rendered a judgment of strict foreclosure, setting a law day of September 17, 2019. The present appeal followed.
The defendant claims that the court improperly rendered a judgment of strict foreclosure after he had articulated specific objections to the amount of the mortgage debt set forth in the plaintiff‘s affidavit of debt. Hе argues that “[t]his appeal ultimately concerns the applicability of the hearsay exception provided in
“[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . [T]he proper characterization of the trial court‘s ruling is clarified by examining the nature of an affidavit of debt and the function of
“A trial court‘s decision to admit evidence, if premised on a correct view of the law . . . calls for the abuse of discretion standаrd of review. . . . In other words, only after a trial court has made the legal determination that a particular statement . . . is subject to a hearsay exception, is it [then] vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought. . . . Therefore, a trial court‘s legal determination of whether
”
In Burritt Mutual Savings Bank of New Britain v. Tucker, supra, 183 Conn. 374, the defendant had raised an objection to the plaintiff‘s affidavit of debt, specifically disputing “the amounts shown thereon for рrincipal, interest, taxes, and late charges.” Our Supreme Court explained that once “a defense concerning the amount of the mortgage debt” set forth in the plaintiff‘s updated affidavit of debt was raised, “[t]he rule [
In the present case, the defendant objected to the plaintiff‘s affidavit of debt, raising “a defense concern-
Although the defendant‘s answer alleging that he had “no monetary obligations” to the plaintiff would be insufficient to result in the preclusion of
The judgment is reversed and the сase is remanded for further proceedings.
In this opinion the other judges concurred.