BAC LP v. Mark Zeiger, aka (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN JUDGMENT

In the present case, the marshal's return of service indicates that, on March 9, 2010, he left service of process at the defendant, Mark Zeiger's, “verified place of abode,” 349 North Windham Rd., N. Windham, CT. The marshal's return further indicates that he left a second service of process at the defendant, Dean Zeiger's, “verified place of abode,” 347 North Windham Rd., N. Windham, CT. The defendants however, both deny receiving the complaints.

In support of their motion to open the judgment, the defendants included affidavits by Mark Zeiger and his wife, Valerie Zeiger, a nonparty.   Valerie testifies in her affidavit that she resides with her husband at 349 North Windham Road and “did not see a Summons and Complaint at our property and have looked around both of the houses on the property and have not found either of the copies the State Marshal is said to have delivered.”   Valerie Zeiger further testifies, “[i]t was only after the Ejectment Order from the State Marshal that I became aware that the foreclosure case had been filed and was completed.”   In his affidavit, Mark Zeiger testifies, “I was not aware that a Foreclosure Judgment had been entered in this case until my wife informed me.”   The plaintiff responds that the defendants were properly served with the foreclosure action.

Pursuant to General Statutes § 52-57(a), “process in any civil action shall be served by leaving a true and attested copy of it ․ with the defendant, or at his usual place of abode, in this state.”  “The statute's chief purpose is to ensure actual notice to the defendant that the action is pending.”   (Internal quotations marks omitted.)  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).   Accordingly, § 52-57(a) requires that, “[t]he process must be left at the usual place of abode of the defendant in such a place and in such a manner that is reasonably probable the defendant will receive the notice of the action against him.”  Pozzi v. Harney, 24 Conn.Sup. 488, 491, 194 A.2d 714 (1963).

“The [marshal's] return is prima facie evidence of the facts stated therein.”  Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).  “Where the [marshal's] return shows abode service in Connecticut, the burden rests on the defendant to prove insufficiency of service of process ․ That is, the defendant bears the burden of proving that service was not made at his usual place of abode.”  (Internal quotation marks omitted).   Remondi v. Girard, Superior Court, judicial district of New London at Norwich, Docket No. 08 4107505 (April 15, 2008, Boland, J.) (45 Conn L. Rptr. 307).  “While the return creates a strong presumption of the facts stated in it, [the return] may be contradicted and facts may be introduced to show otherwise.”  (Internal quotations marks omitted).   Oaks Condominium v. Small, Superior Court, judicial district of New Haven, Docket No. CV 06 5001377 (March 19, 2008, Holden, J.).  “[The defendant's] affidavit alone is insufficient to rebut the presumption of proper abode service made by the marshal.”   Eastern Savings Bank v. Bernier, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0176209 (December 23, 2009, D'Andrea, J.T.R.).  “The court need not view affidavits containing self-serving and unsubstantiated allegations as persuasive.”   Erlich v. Forest Land Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0453266 (January 6, 2003, Celotto, J.T.R.) (33 Conn. L. Rptr. 592).  “A denial of service by the defendant which is not corroborated by any other evidence, details or circumstances is insufficient to overcome the prima facie evidence of the officer's return.”   Rubin v. Sugita, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0183400 (October 23, 2001, D'Andrea, J.T.R.);   see also, Oaks Condominium v. Small, supra, Superior Court, Docket No. CV 06 5001377 (“simple, self-serving blanket denial contained in the defendant's own affidavit is not sufficient to rebut the presumption of truth created by the statements in the marshal's return”).

The facts of the present case are similar to the facts of GMAC Mortgage Corp. v. Barclay, Superior Court, judicial district of Hartford, Docket No. CV 9905937115 (June 15, 2000, Stengel, J.), in which the defendant sought to open a judgment of strict foreclosure, based on improper abode service under § 52-57(a).   The defendant admitted that she resided at the address where the return of service indicated abode service was made, but denied receiving notice of the foreclosure proceeding until after judgment was entered by the court.   The only evidence offered by the plaintiff to rebut the marshal's return, was her own affidavit.   The court stated, “[a] mere denial [of service] by the defendants unsupported by corroborating evidence or circumstances should not be enough to justify the vacating of a judgment because to permit a defendant to impeach a summons by simply denying service would create chaos in the judicial system,” and therefore found the defendant had not sustained her burden of proof that service was improper under § 52-57(a).  (Internal quotation marks omitted.)  Id.

In Erlich v. Forest Land Corp., supra, Superior Court, Docket No. CV 01 0453266, the court also addressed whether a defendant's affidavit denying that he received service of process was sufficient to overcome a marshal's return so as to grant a motion to open strict foreclosure.   In that case, the defendant admitted that the address where the marshal's return indicated he left service of process was the defendant's usual place of abode.   The defendant asserted, however, that he was not properly served.   In support of his motion, the defendant included an affidavit stating “he did not believe that copies of this action were left for [him at his usual place of abode].”  (Internal quotations marks omitted.)  Id. The court found the court's reasoning in GMAC Mortgage Corp v. Barclay, supra, Superior Court, Docket No. CV 99 05937115, persuasive and held that the defendant's affidavit alone, “is insufficient to overcome the presumption of truth attached to [the marshal's] return.”  Id.

As in GMAC Mortgage Corp and Erlich, the marshal's return of service in the present case indicates service was left at each of the defendants' “verified” places of abode.   The burden, therefore, is on the defendants to show that service of process was insufficient.   The only evidence offered by the defendants to show service of process was not made at their verified places of abode is the self-serving affidavits of the defendant, Mark Zeiger, and his wife, Valerie Zeiger, in which they simply deny receiving such service.   This evidence alone is insufficient to overcome the presumption of truth attached to the marshal's return and the defendants have not sustained their burden of proof that service was improper pursuant to § 52-57(a).

The motion is denied.

THE COURT

POTTER, J.T.R.

Potter, Russell F., J.T.R.