Joseph Chekroun v. Myriam Weil et al. (2010)

MEMORANDUM OF DECISION

I. FACTS

The plaintiff, Joseph Chekroun, commenced this foreclosure action by way of a one-count complaint filed on February 13, 2009.   In his complaint, the plaintiff alleges the following facts.   By a promissory note dated November 7, 2005, the defendants Myriam Weil and Steven Weil ¹ promised to pay the plaintiff the sum of $400,000 with interest thereon.   To secure the note, the defendants mortgaged to the plaintiff the premises located at 211 Teller Road in Trumbull.   The premises are owned and possessed by the defendants.   The defendants have failed to pay the installment of principal and interest which came due under the terms of the note on November 23, 2008.   With notice of this default having been provided to the defendants and upon the defendants' failure to cure the default within the time stated in the notice, the plaintiff has exercised its option contained in the note and mortgage to declare the debt of $400,000, with interest thereon, due and payable in full.   Accordingly, the plaintiff seeks strict foreclosure and possession of the mortgaged premises, a deficiency judgment against the defendants, and other relief.

The defendants filed an answer, special defenses, counterclaim and setoff on April 7, 2009.   On March 29, 2010, the plaintiff filed a motion for summary judgment as to both his claim on the promissory note and the defendants' setoff claim and counterclaim with an accompanying memorandum of law and attached exhibits.   The defendants filed a memorandum in opposition on May 12, 2010 with exhibits attached.   The plaintiff filed a memorandum in further support of his motion for summary judgment on May 17, 2010, and the court heard oral argument on the motion on the same day.

II. DISCUSSION

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d. 1207 (2006).   When a party moves for summary judgment, “and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”   Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

A. The Plaintiff's Claim on the Promissory Note

As to the plaintiff's claim on the promissory note, the court concludes that the evidence submitted by the plaintiff shows that there exist no disputed issues of material fact as to the defendants' liability on the note.   The promissory note recites an obligation of $493,170.23 in principal and interest due on October 23, 2008.   The note states that the collateral, in part, includes the premises located at 211 Teller Road in Trumbull.   Further, the deposition testimony of Steven Weil, submitted by the plaintiff, reveals that there is no dispute as to the fact that the defendants have failed to pay and remain liable on the promissory note.   The defendants have made no argument and submitted no evidence in their memorandum in opposition challenging their liability under the note.

Accordingly, the plaintiff has shown that there is no genuine issue of material fact as to the defendants' liability on the promissory note and that he is entitled to summary judgment, as a matter of law, as to liability.

B. The Defendants' Setoff Claim

In their setoff claim, the defendants allege that the plaintiff remains indebted to the defendants in the amount of $107,382 on a loan in the original amount of $222,382.   The defendants claim that Myriam Weil never released her claims against Raviv International or against the plaintiff, and that Myriam Weil is entitled to a setoff of the funds owed her against any claim of the plaintiff.   The defendants further assert a CUTPA counterclaim, alleging that the plaintiff committed unfair acts and practices in violation of General Statutes § 42-110a et seq.

The plaintiff in his memorandum of law in support of the motion for summary judgment argues that the statute of frauds bars the setoff claim because it is a claim for payment by the plaintiff of the debt of another, and also because it involves an alleged loan exceeding $50,000 for which there is no written agreement signed by the plaintiff.   In support of its motion, the plaintiff attaches, inter alia, the affidavit of Raviv Chekroun, who attests that the plaintiff had no involvement with Raviv International, the recipient of the defendants' loan.   Accordingly, the plaintiff argues, he is entitled to summary judgment on the setoff counterclaim and the derivative CUTPA counterclaim.

The defendants, in response, argue that there remain questions of fact to be decided.   Specifically, the defendants argue that they believe there is a relationship between the plaintiff and Raviv International and seek the opportunity to impeach the plaintiff's affidavit.   The defendants further argue that the statute of frauds does not apply to the present case due to part performance by both Raviv International, which refunded checks totaling $15,000 to the defendants, and by the plaintiff, who provided a personal check in the amount of $100,000 to Steven Weil in order to secure the release of Raviv International and Raviv Chekroun from responsibility.

1. Whether Disputed Issues Of Material Fact Exist

With regard to the defendants' setoff counterclaim, the undisputed facts as established by the pleadings may be stated as follows.   The defendants loaned to Raviv International the total amount of $222,382 by a series of checks.   Most of this money was lost by Raviv International.   Subsequently, the defendant Steven Weil signed a release agreement pursuant to which Weil agreed to discharge any and all claims against Raviv International or against the plaintiff personally, among other parties.   In consideration for this release, the plaintiff paid to Steven Weil the sum of $100,000.   The defendant Myriam Weil did not sign the release.

As to the material facts in dispute in the pleadings, the defendants allege in their setoff claim that “the [p]laintiff ․ was a member or a partner of [Raviv International], and as a member or partner he benefitted from that membership or partnership,” and that the plaintiff had other involvement with Raviv International.   The plaintiff denied these allegations in his reply to special defenses, counterclaim and setoff.   The plaintiff attached to his motion for summary judgment the affidavit of Raviv Chekroun, in which Chekroun attests that “[the plaintiff] was not involved with [Raviv International] in any way, shape or form.   He was never an owner, a member, an investor or an employee of [Raviv International].   He was not involved in any business transactions with [Raviv International], or on behalf of [Raviv International].” ²  The defendants have not submitted any evidence contradicting or challenging this affidavit.   Rather, the defendants in their memorandum in opposition seek additional time to impeach the affidavit, but provide no affidavits of their own attesting as to why they have been unable to present facts opposing the plaintiff's affidavit.   In the absence of an affidavit stating reasons for the defendants' inability to obtain evidentiary affidavits, the court's discretionary authority to deny a motion on such ground is not invoked.   See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971);  Practice Book § 17-47.

Accordingly, the court concludes that there is no dispute between the parties as to the existence of the loan, and that the plaintiff, by the uncontradicted affidavit presented, has sustained his burden of showing that he was not involved with Raviv International in any way.³

2. Whether the Plaintiff Is Entitled to Judgment As A Matter of Law

Having found that no issues of material fact regarding the defendants' counterclaim are in dispute, the court turns to consider whether the plaintiff is entitled to judgment as a matter of law.   By showing his lack of involvement with Raviv International, the plaintiff has negated the allegations in the defendants' setoff claim that the plaintiff was a member of or was otherwise involved with Raviv International.   As these allegations form the basis for the plaintiff's liability under the setoff claim, the plaintiff has shown, by the evidence presented, his entitlement to judgment as a matter of law.   Although the motion for summary judgment is properly decided on this ground alone, the court also considers the plaintiff's argument that the defendants' claim is barred by the statute of frauds, codified in General Statutes § 52-550, because it is a claim for the payment of a debt of a third party and because it is a claim based on an alleged agreement for a loan exceeding $50,000.

General Statutes § 52-550 provides in relevant part “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:  (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property;  (2) against any person upon any special promise to answer for the debt, default or miscarriage of another;  (3) upon any agreement made upon consideration of marriage;  (4) upon any agreement for the sale of real property or any interest in or concerning real property;  (5) upon any agreement that is not to be performed within one year from the making thereof;  or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.”

It is the contention of the plaintiff that the subsection (2) applies here as there is no document signed by the plaintiff promising to answer for the debt of Raviv International, and that subsection (6) applies as the defendants' claim is based on an alleged agreement for a loan in excess of $50,000.   The defendants do not argue in their memorandum in opposition that their claim is not based upon a promise to answer for the debt of another, or that the amount of the debt in question is $50,000 or less.   Rather, the defendants argue that the statute of frauds does not apply because there was part performance by the plaintiff in the form of the $100,000 paid by the plaintiff pursuant to the release agreement, and because they were induced to make the loan to the plaintiff by the plaintiff's statements.

“When estoppel is applied to bar a party from asserting the statute of frauds ․ we also require that the party seeking to avoid the statute must demonstrate acts that constitute part performance of the contract ․ Specifically, [t]he acts of part performance ․ must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties ․ The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute.”  (Citation omitted;  internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 60-61, 873 A.2d 929 (2005).  “[T]he elements required for part performance are:  (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract;  (2) knowledge or assent to the party's actions in reliance on the contract;  and (3) acts that unmistakably point to the contract.”  Id., 62.

The defendants argue that the first element of part performance is satisfied because they relied on the plaintiff's statements in order to make the loan to Raviv International.   This allegation is not made in the defendants' setoff claim nor have the defendants attached any evidence to their memorandum to support it.   Additionally, the defendants argue that the $100,000 paid by the plaintiff pursuant to the release agreement amounts to knowledge or assent to the party's actions in reliance on the contract.   The defendants have not, however, submitted any evidence contradicting the plain language of the release agreement or the affidavit of Raviv Chekroun attesting that the agreement was, as it states, a release from “all ․ claims and demands whatsoever ․ which against the said [r]eleasees ․ the [r]eleasor [Steven Weil] ever had,” rather than a payment pursuant to a separate contract.   Finally, the defendants make no argument and have submitted no evidence showing that the plaintiff's acts unmistakably point to the existence of a contract between the plaintiff and the defendant Myriam Weil. Altogether the court concludes that the defendants have failed to satisfy any of the three elements for the doctrine of part performance.

The court concludes that the plaintiff has established that it is entitled to judgment as a matter of law on the defendants' setoff claim.   The plaintiff is likewise entitled to judgment on the defendants' CUTPA counterclaim, which is derivative of the allegations in the setoff claim.

III. CONCLUSION

The plaintiff has shown that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law on his claim on the promissory note.   Additionally, the court concludes that the plaintiff has shown the absence of any genuine issue of material fact on the defendants' setoff claim and counterclaim and that he is entitled to judgment as a matter of law on the grounds that (1) the undisputed facts negate the basis for the plaintiff's liability under the setoff claim and (2) under the undisputed facts the defendants' setoff claim is barred by the operation of the statute of frauds.   Accordingly, the plaintiff's motion for summary judgment on the promissory note is granted as to liability only.   The plaintiff's motion for summary judgment on the defendants' setoff claim and counterclaim is granted.

HARTMERE, J.

FOOTNOTES

FN1. The plaintiff's complaint names a total of eight defendants, including Myriam Weil, Steven Weil, TAGR Development Co., LLC, People's Bank, Joseph Couto, Cecilia Couto, NewAlliance Bank and Local Yokel, LLC. The plaintiff moves for summary judgment only as to Myriam Weil and Steven Weil, however, the court will refer to Myriam Weil and Steven Weil as “the defendants” hereinafter..  FN1. The plaintiff's complaint names a total of eight defendants, including Myriam Weil, Steven Weil, TAGR Development Co., LLC, People's Bank, Joseph Couto, Cecilia Couto, NewAlliance Bank and Local Yokel, LLC. The plaintiff moves for summary judgment only as to Myriam Weil and Steven Weil, however, the court will refer to Myriam Weil and Steven Weil as “the defendants” hereinafter.

FN2. “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”  Practice Book § 17-46.   The attestations of Raviv Chekroun in the affidavit are sufficient to show that Chekroun, as the founder of Raviv International, is competent to testify to the matters stated..  FN2. “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”  Practice Book § 17-46.   The attestations of Raviv Chekroun in the affidavit are sufficient to show that Chekroun, as the founder of Raviv International, is competent to testify to the matters stated.

FN3. The plaintiff, in his memorandum of law, claims that an additional dispute of material fact exists.   The plaintiff argues that to the extent there is a dispute of fact between the plain language of the release agreement and the deposition testimony of Steven Weil, the deposition testimony is barred by the parol evidence rule and is inadmissible to contradict the express terms of the release agreement.   Even were the rather ambiguous comments attributed to the plaintiff by Weil sufficient to create a genuine factual dispute, however, the court concludes that such a dispute is not material to the present case.   The defendants' setoff claim does not allege that the plaintiff owes a debt to Steven Weil. Rather, the setoff claim is expressly limited to debts allegedly owed to Myriam Weil. The question as to whether the plaintiff remains indebted to Steven Weil, raised by the plaintiff in its motion for summary judgment, is not at issue in the defendants' setoff claim, and is not material to the separate issue of the plaintiff's liability to Myriam Weil. Accordingly, the court does not consider it here..  FN3. The plaintiff, in his memorandum of law, claims that an additional dispute of material fact exists.   The plaintiff argues that to the extent there is a dispute of fact between the plain language of the release agreement and the deposition testimony of Steven Weil, the deposition testimony is barred by the parol evidence rule and is inadmissible to contradict the express terms of the release agreement.   Even were the rather ambiguous comments attributed to the plaintiff by Weil sufficient to create a genuine factual dispute, however, the court concludes that such a dispute is not material to the present case.   The defendants' setoff claim does not allege that the plaintiff owes a debt to Steven Weil. Rather, the setoff claim is expressly limited to debts allegedly owed to Myriam Weil. The question as to whether the plaintiff remains indebted to Steven Weil, raised by the plaintiff in its motion for summary judgment, is not at issue in the defendants' setoff claim, and is not material to the separate issue of the plaintiff's liability to Myriam Weil. Accordingly, the court does not consider it here.

Hartmere, Michael, J.