Lumni Zhuta v. Remo Tartaglia (2011)

MEMORANDUM OF DECISION

The court having heard the evidence in this matter at a trial that took place on April 13, 2011 makes the following findings:

1) The plaintiff, Lumni Zhuta (Zhuta), loaned the defendant, Remo Tartaglia (Tartaglia), $200,000.00 on December 1, 1999.

2) This loan was memorialized by a promissory note executed on December 1, 1999 by Tartaglia to Zhuta.  (See Plaintiff's Exhibit 1.)

3) The terms of the note included interest at the rate of 8% per annum, simple interest, interest payable monthly, due and payable November 1, 2002 and an attorneys fee provision should collection of the note be required.

4) Within two weeks of execution of the note, Tartaglia paid Zhuta $140,000.00.

5) This prompted the amendment of the note to reflect the amount due to be $60,000.00 and changed the due date to November 1, 2001.   The note indicates crossed out changes and initials.

6) Tartaglia acknowledged that these events took place and that he owed Zhuta $60,000.00 at the time the note was amended.

7) Tartaglia paid interest monthly to Zhuta beyond the due date of the note and through June 2004.

8) Tartaglia failed to make interest payments after June 2004 through the date of trial.

9) Tartaglia did not pay Zhuta the principal amount of $60,000.00 at any time after the execution of the amendment to the note.

10) There was evidence of other transactions between the parties in their capacities as members of other business entities which the court found had no reference to the claim to enforce payment of the note.

11) Tartaglia withdrew any claims of offset and offered no evidence to support such a claim.

12) Tartaglia's two special defenses are accord and satisfaction and lack of consideration for the note.

13) Tartaglia did not provide any evidence in support of either special defense.

14) Tartaglia, individually, did not provide any evidence that he paid Zhuta the principal and interest due on the note that he executed made payable to Zhuta.

CONCLUSION

The court finds, based on the preponderance of the evidence which was presented at trial, which includes the testimony of the parties and the credibility the court assessed to the testimony, that judgment shall enter in favor of the plaintiff, Lumi Zhuta.

The judgment amount is as follows:

1) Principal amount of note:  $ 60,000.00

2) Interest at 8% per annum

from July 2004 to April 2011 $ 32,800.00

3) Attorneys fees:  $ 9,000.00

TOTAL:  $101,800.00

AGATI, J.

Agati, Salvatore C., J.