Thomas DellaBitta v. Lisa Ann Miceli aka Lisa Ann Amato et al. (2010)

MEMORANDUM OF DECISION

This is a foreclosure action brought by the plaintiff, Thomas DellaBitta (plaintiff), seeking to foreclose a mortgage dated March 2, 2005 from the defendant Lisa Ann Miceli a/k/a Lisa Ann Amato (Amato) to the plaintiff.   The mortgaged property is a parcel of land with the buildings located thereon and described as 29 Second Avenue, Branford, Connecticut (property).   The mortgage was given to secure a loan of $50,000.00 made by the plaintiff to Amato as evidenced by a promissory note in the amount of $50,000.00 given by Amato to the plaintiff on March 2, 2005.

All of the defendants have been defaulted, except for the defendant Robert Kenney (Kenney).   Kenney is the title owner of the property.   The plaintiff claims that the entire $50,000.00 plus interest is unpaid.   Kenney denies this claim and alleges by way of two special defenses that the plaintiff has been paid in part or in full on the note, and that the plaintiff should be estopped from attempting to collect the full balance of the note because the plaintiff told multiple persons that the balance due and owing in the note was only $5,000.00, and the other parties relied on his representations.

Kenney also has filed a three-count counterclaim alleging an action to quiet title to the property, fraudulent misrepresentation and negligent misrepresentation.   In support of all three counts Kenney alleges, in substance, that he purchased the property from Amato on September 3, 2009, that the mortgage has been substantially paid so that there is only a balance due of $5,000.00, that the plaintiff admitted that Amato or people acting on her behalf had paid the mortgage and there was only a balance due of $5,000.00, that these admissions by the plaintiff were fraudulent and intentional misrepresentations which Kenney relied upon, to his damage, and that he has offered to pay $5,000.00 to the plaintiff to obtain a release of the mortgage but the plaintiff has refused to provide such a release.

This court held an evidentiary hearing on August 4, 2010.   The purpose of the hearing was to determine the amount owing on the mortgage, and thereafter to proceed on the plaintiff's motion for a strict foreclosure.   Appropriate memoranda have been filed by the plaintiff and Kenney.

The court finds the following facts and reaches the following conclusions.   Miceli purchased the property in 1998 and married Amato in September 2000.   On September 28, 2000 Miceli transferred1/212 of the property to Amato.   The remaining1/212 of the property was transferred to Amato in 2002.   They separated in 2006 and in January 2007 they were divorced.

In 2005 Miceli, Amato and Miceli's company, Consolidated Construction, were being sued by a surety company.   The plaintiff loaned $50,000.00 to Amato on March 2, 2005 to settle the claim with the surety company, and the loan was secured by a mortgage from Amato on the property.   The loan was made by way of a certified bank check.   This is the only loan the plaintiff has ever made to Amato.   The mortgage was recorded on the Branford Land Records on March 10, 2005, and is the subject of this foreclosure action.   The plaintiff is the current holder of the note and mortgage.

The plaintiff is the general manager of the Mark IV Construction Co. He and his company have done business with Miceli and his company for many years.   The plaintiff regularly loaned Miceli and his company money without getting promissory notes or mortgages from Miceli.   The plaintiff would give Miceli a check and Miceli would give the plaintiff a check for the amount of the loan plus interest.   The plaintiff would hold Miceli's check until Miceli told him to deposit it.

After the plaintiff loaned the $50,000.00 to Amato, Miceli told the plaintiff that if Amato should inquire about payments on the loan by Miceli, that the plaintiff should tell Amato that Miceli had made payments of $45,000.00 and that only $5,000.00 remained unpaid.

On May 6, 2008 Amato and Kenney entered into an agreement entitled bond for deed under which the parties agreed that Kenney would purchase the property from Amato on or before November 15, 2008.   Kenney paid Amato $71,000.00 at the time of the execution of the bond for deed and agreed to pay off the balances owed on mortgages totaling $370,722.00 held by Chase Manhattan Mortgage Company and Wachovia Bank before the closing on November 15, 2008.   The property was also subject to IRS liens, a mortgage to Amato's mother and the mortgage to the plaintiff which is the subject of this litigation.

Attorney Lawrence A. Levinson represented Amato in connection with the bond for deed.   On September 10, 2008 Levinson wrote to the plaintiff inquiring as to the amount necessary to pay off the plaintiff's mortgage in full as of September 30, 2008.   The plaintiff called Levinson and told him that there was only a $5,000.00 balance on his mortgage.   The plaintiff also told this to Amato.

During 2008 a lawsuit had been brought by Kenney against Amato in connection with the bond for deed.   In July and August 2009 the plaintiff called Levinson and told him that the full amount of his mortgage was unpaid.   When the bond for deed litigation was settled on September 3, 2009 Kenney acquired the property from Amato by way of a quitclaim deed, instead of a warranty deed, because of the claim by the plaintiff that no payments had been made on his mortgage.   When Kenney acquired title to the property on September 3, 2009 he was aware that the plaintiff claimed that $50,000.00 plus interest was due and owing on his mortgage, and he took title to the property subject to the plaintiff's mortgage and whatever was due on it.   When he acquired title, Kenney intended to contest the amount due on the mortgage held by the plaintiff.

The court finds that there have been no payments made on the note in question and that the full amount of $50,000.00 plus 10% interest from March 3, 2005 is due and owing.   The misstatements by the plaintiff made to Amato and Levinson were made by the plaintiff under a belief that they would help Miceli in connection with his marital problems with Amato and not to mislead Kenney.   Kenney had already entered into the bond for deed when the plaintiff made the misstatements to Amato and Levinson, and the plaintiff told each of them that his original misstatements were not true before Kenney took title to the property.

The special defense of estoppel requires Kenney to prove that the plaintiff did something intended to cause Kenney to believe that certain facts exist and to change his position in reliance on those facts and thereby to be damaged.   Kenney has failed to prove any of the elements of an estoppel and therefore he has failed to prove that special defense.

The first count of Kenney's counterclaim requests that the court quiet title to the property in him upon a payment of $5,000.00 to the plaintiff.   The court has found that no payments have been made on the note and that the full amount of the note is due.   Kenney has failed to prove that he is entitled to have the title to the property quieted in him.

The second and third counts of the counterclaim alleging fraudulent and negligent misrepresentations require proof that false information was given to another, either fraudulently or negligently, and that the false information was relied upon by the other person resulting in pecuniary loss.   In view of the court's finding that Kenney did not rely on the false information when he entered into the bond for deed or when he acquired title, the court finds that Kenney has failed to prove either of these claims.

With respect to Kenney's claims of estoppel and fraudulent and negligent misrepresentation, all three claims require proof that misstatements were made to Kenney or someone associated with him.   The evidence established that the misstatements made by the plaintiff were made to Amato and her attorney, Levinson, and not to Kenney or anyone associated with him.   This is an additional basis for finding that Kenney has failed to prove any of these three claims.

The court finds that the $50,000.00 promissory note has been due since March 2, 2006.   Interest at 10%, as provided in the note, from March 2, 2005 to October 19, 2010 is $28,050.81.   The debt and interest on the promissory note as alleged in the complaint is $78,050.81 as of October 19, 2010 and is accruing at $13.69 per day.

Judgment may enter in favor of the plaintiff on the defendant Robert Kenney's counterclaim.

The court will retain jurisdiction of the file and await the filing of the plaintiff's motion for judgment of foreclosure.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.