Antvan Huribal v. Mark Ndoj et al. (2013)

MEMORANDUM OF DECISION

This is a foreclosure action brought by the plaintiff, Antvan Huribal, against the defendants, Mark Ndoj and Lina Ndoj, after the defendants defaulted on a note (“Note”) executed and delivered to the plaintiff on or about February 18, 2008 in the original principal amount of $41,000.00.   The Note is secured by a mortgage (“Mortgage”) against the defendants' home at 3 Dominick Drive, Shelton, Connecticut (“primary home”).   The plaintiff is the holder of both the Note and the Mortgage.   In response to the plaintiff's foreclosure complaint, the defendants filed an answer and special defenses claiming, inter alia, that the Note and Mortgage is a contract of adhesion, the plaintiff knew or should have known the defendants lacked the capacity to enter into the transaction because they are unable to speak English and possess minimal English fluency, the defendants were induced to execute the agreements by fraud and misrepresentation, the actions of the plaintiff were unfair and in violation of public policy and the interest rate was unscrupulous.   A two-day trial was held on July 25, 2012 and July 26, 2012 at which the parties testified and presented evidence.

Based upon the evidence presented during the trial, the court finds the following credible and relevant facts.   The plaintiff is a licensed mortgage broker who has experience in handling thousands of loans.   The defendants are a married couple who were born in Albania.   They have lived in the United States for sixteen years.   The defendant Mark Ndoj owns a masonry company and can speak English well enough to conduct his business.   He can, at a minimum, read simple phrases such as his address.   The defendant Lina Ndoj has a limited command of the English language.   In the past, the defendants obtained loans for and purchased four investment properties that they lease and secured a loan to buy their primary home.   They were assisted by either an Albanian interpreter or an Albanian attorney at prior real estate closings involving said transactions.   In January of 2008, the defendants were interested in purchasing an investment property located at 36 Bridgeport Avenue, Shelton, Connecticut (“daughter's house”) for one of their daughters who was living with them for two years following her divorce.   This property consisted of a two family house and an additional lot with an appraised value of $215,000.00 and a sale price of $180,000.00.   The defendants believed the property was an excellent investment and it would also enable their divorced daughter to move into one of the units.   Due to their poor credit and insufficient income documentation, the defendants were denied a mortgage from several conventional banks.   An employee of People's Bank referred the defendants to the plaintiff so the plaintiff could secure a loan for them.   The plaintiff obtained a mortgage for the defendants based on their income as shown by deposits on their bank statements.   The mortgage commitment was contingent upon the defendants' contribution of a down payment of twenty percent of the purchase price or, in other words, $36,000.00.   The defendants informed the plaintiff that they would be willing to pay $6,000.00 to obtain the $36,000.00 loan for a down payment to buy the daughter's house.   The plaintiff asked the defendant Mark Ndoj to bring his then 19–year–old daughter, Terezina Ndoj, to the closing so she could act as an interpreter.   Terezina Ndoj had previously attended one of multiple meetings that was held between the plaintiff and the defendant Mark Ndoj in relation to their discussions about the down payment loan.   The closing for the down payment loan was held on or about February 18, 2008.   Present at the closing were the parties, attorney Steven Leo and Terezina Ndoj, who translated what attorney Leo was communicating in English into the Albanian language.   The plaintiff deducted approximately $6,000.00 in pre-paid interest and closing costs from the down payment loan, which netted the defendants the sum of $32,877.00 (“deposit money”) from the original $41,000.00 face amount of the loan.   The note was secured by a mortgage on the defendants' primary home.   The defendants transferred the deposit money to a personal friend who purchased the daughter's house in his own name on behalf of the defendants.   The defendants' friend neither contributed any money toward the purchase price of the daughter's house nor to the expenses of maintaining it after the closing.   As planned, the defendants' divorced daughter subsequently moved into one of the units of the daughter's house.   The defendants have been paying the mortgage and other expenses associated with the daughter's house from the proceeds of rent collected from the daughter and treat the daughter's house as if it were the defendants' own investment property.

Although the crux of the defendants' claim essentially is that the plaintiff took advantage of their limited English fluency by forcing them to accept unconscionable loan terms, the court is not persuaded that the defendants lacked the capacity to enter into the loan for the deposit money or were unable to understand the loan transaction based upon the further credible and relevant facts in the record.   The evidence reveals different facts that are at odds with or fail to substantiate what the defendants allege.   At the plaintiff's urging, the defendant Mark Ndoj brought his daughter Terezina Ndoj to the closing for the deposit money so the daughter could serve as a translator.   Thus, a translator was in fact present at the closing.   The court also finds attorney Leo's testimony that he makes it a practice to explain the details of a loan's terms to be credible.   Furthermore, the street address of the defendant's primary home is prominently displayed in the Mortgage and is clearly referenced in the body of the Note. Therefore, it is highly unlikely that there could have been any confusion about which property was intended to be and actually was the subject of the Note and Mortgage.   The plaintiff and the defendant Mark Ndoj conducted several meetings to discuss the terms and conditions of the loan for deposit money.   And contrary to their claims of language limitations, the defendants are financially sophisticated due to their prior business dealings because they attended real estate closings on four other occasions, executed notes and mortgages to acquire four investment properties and the Note and Mortgage in question clearly and unambiguously indicates that said instruments pertain to the defendants' primary home.   The defendants also demonstrated how savvy they are in relation to business and real estate transactions when they asked a friend to purchase the daughter's house for them in his name because they could not show sufficient income for a traditional loan and then later assumed control over the daughter's house by collecting rent from her and treating it as yet another one of their investment properties.

With respect to the merits of the defendants' special defenses, the court will not address the legitimacy of the same on the grounds that there is insufficient evidence in the record to support any of the eight special defenses raised by the defendants and the special defenses so raised were inadequately briefed.   Consequently, the court finds the plaintiff has satisfied its burden of proving that the parties entered into a valid note and mortgage and that the defendants' defaulted on said note and mortgage by failing to pay on the note when due.   Therefore, the court enters a judgment of foreclosure in favor of the plaintiff and against the defendants and further refers this case for placement on the foreclosure short calendar docket for the purpose of establishing the spectrum of foreclosure and forms of relief applicable thereto.

BY THE COURT,

SYBIL V. RICHARDS, JUDGE

Richards, Sybil V., J.