Peter Minore v. Jose Fernandez et al. (2012)

MEMORANDUM OF DECISION

This is a civil action wherein the plaintiff Peter P. Minore (plaintiff) has brought suit on two promissory notes against three defendants, Jose Fernandez, Myriam Fernandez and Eduardo Perez (defendants).   The case was tried before this court on October 4, 2011.   Appropriate post-trial briefs were filed by the parties.

The plaintiff died on December 17, 2011, a resident of the town of East Haven, Connecticut.   On January 6, 2012 Doreen Scungio of Madison, Connecticut was approved as Executrix of the Estate of Peter P. Minore by the probate court for the District of East Haven–North Haven and her motion to be substituted as party plaintiff was approved by this court on January 24, 2012.

The court finds the following facts and reaches the following conclusions.   It is undisputed that the plaintiff loaned the defendants a total of $64,000 in consideration for two written promissory notes in the amounts of $42,000 and $22,000 both dated March 16, 2007.   The two notes were drafted by the defendants.

In consideration of the $42,000 note (1st note) the defendants agreed to pay the plaintiff the principal plus 15% annual interest and 5 points.   The first note provides for monthly payments of interest only in the amount of $505.78 and a maturity date of March 31, 2008.   In consideration of the $22,000 note (2nd note) the defendants agreed to make a one-time payment of $22,000 on the maturity date of July 31, 2007.   Each note provided that in the event of default the defendants were to pay the costs of collection, attorneys fees and court costs.

The defendants paid interest totaling $5,549.78 on the first note and $5,000 toward the principal on the 2nd note.   Both notes waived notice and demand.

The parties stipulated at trial that in the event that the plaintiff prevails the amount due and owing on the 1st note is $71,653.21 and the amount due and owing on the 2nd note is $23,542.23.   The parties also stipulated that a reasonable attorney's fee is $15,320.

The trial was essentially a case of determining the credibility of the plaintiff as against the defendants Eduardo Perez and Jose Fernandez.   The defendant Myriam did not appear at trial.   The defendants claimed that they had paid an additional $61,500, all in cash and with no receipts.   The defendants' evidence was inconsistent and not credible.   The court accepts the testimony of the plaintiff and finds in favor of the plaintiff for the stipulated amounts.

In addition to deciding this case based on credibility findings the court also notes that the defendants did not file a special defense alleging payment, and that the plaintiff claims correctly that the failure to do so in accordance with Practice Book Section 10–50 precludes the defendants from claiming payment.   This claim affords an additional basis for finding for the plaintiff in this case.  Connecticut Bank and Trust Co. v. Dadi, 182 Conn. 530, 532 (1980);  New Haven Securities v. Drazen, 38 Conn.Supp. 578, 580 (1982).

A judgment may enter in favor of the plaintiff in the total sum of $110,515.44 as against the three defendants.

William L. Hadden, Jr.

Judge Trial Referee

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