LTD v. Giancarlo Accettullo et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff Waterfall Victoria Master Fund, Ltd., brings this action to foreclose a mortgage against the defendant Giancarlo Accettullo.   The plaintiff has moved for summary judgment and the defendant, who is self-represented, opposes the motion.   The parties appeared for oral argument on May 20, 2013, after which the court took the matter under advisement.

In the plaintiff's supporting papers, the plaintiff asserts that it is the holder of the note and mortgage that is the subject of this lawsuit, upon an assignment by the original holder and mortgagee Green Point Mortgage Funding, Inc. The plaintiff asserts that the defendant has failed to pay the note according to its terms and is in default.   The plaintiff moves for summary judgment as to liability, subject to a later determination of the exact amount that is due from the defendant.

The defendant opposes summary judgment on two grounds:  that the plaintiff's papers are insufficient to remove from dispute that the plaintiff is the holder of the note—in particular, that the affidavit of Ted Wright is deficient—and that the plaintiff may not have properly credited certain payments made by the defendant during a period when the defendant was making payments under a bankruptcy plan.   The court agrees with the first point and denies summary judgment.

THE DEFICIENCY OF THE OATH/AFFIRMATION

The rules governing summary judgment require that motions be supported by appropriate documents such as affidavits, certified transcripts, and the like.  Conn. P.B. § 17–45.   The plaintiff has failed to file a proper affidavit in support of its position.   Indeed the document appears not to be an affidavit at all.

Rather, it has filed a document entitled Affidavit, signed by Ted Wright, whose signature is acknowledged by a notary public.   Although the words “Subscribed and sworn to me this 19th day of February 2013” appear on the document, they appear above the signature of Wright, as though Wright were the person before whom some other person made an oath and signed the document.   Significantly, it is below Wright's signature that there appears a five line recitation indicating that Wright acknowledged the instrument to be his free act and deed, rather than swear upon oath that the information in the document was true;  and this recitation appears above the signature and seal of a notary public.   A fair reading of the document indicates that Wright properly identified himself to the notary and acknowledged to the notary that he (Wright) was signing the document as a free act and deed.   A fair reading of the document fails to indicate that Wright swore to the notary that the contents of the document were true.

An affidavit is a written document that contains certain facts and that is submitted under penalty of false statement.   In order to create an affidavit, an affiant must “swear to the truth of the document or writing before any proper officer.”  Conn. Gen.Stat. § 1–24.   There is a difference between a document that has merely been acknowledged and one that has been verified, that is, sworn upon oath or affirmed pursuant to statute.   The former involves an averment that the signer is who he purports to be and that he has undertaken the signing freely and with a proper purpose.   See, e.g., Conn. Gen.Stat. § 1–61.   Wills, deeds, and other similar documents that have an independent legal significance are often “acknowledged” but rarely verified as an affidavit, because such documents rarely contain multiple statements of fact.

Affidavits, on the other hand, must be verified, that is signed by the author and sworn or affirmed by the author that the information therein is the whole truth.   See § 1–24a, supra.   The document may or may not have some independent legal significance;  see, e.g., Conn. Gen.Stat. § 49–34 (governing the form of mechanic's liens) but the document is perforce used in place of sworn oral testimony to support or persuade the reader that the facts therein are true.

Moreover the oath must be accompanied by an appropriate “ceremony.”  Conn. Gen.Stat. § 1–22.   An oath signifies the undertaking of an obligation “to speak the truth at a time [that] may deeply affect the rights and the character of individuals.”  State v. Grant, 176 Conn. 17, 24, 404 A.2d 873 (1978).   It is a solemn and formal declaration that the contents of a declaration, written or oral, are true, and it must be administered in accordance with the ceremony and procedures set forth in Conn. Gen.Stat. § 1–22.  Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 578, 620 A.2d 118 (1993).

A fair reading of the wording at the end of the document and the positioning of the signature lines leads to substantial doubt about whether this document is an affidavit or merely an unsworn statement made by one who is known to or otherwise identified by the notarizing authority.

With the plaintiff bearing the burden of demonstrating an entitlement to summary judgment, the court cannot exercise a presumption that this ambiguously constructed document as an affidavit in conformance with our rules of practice.   That being so, the document cannot support the entry of a summary judgment for the plaintiff.

THE DEFICIENCY WITH THE SIGNING CORPORATE AGENT

In paragraph one of the document, the statement is made that the signer is Ted Wright, identified as an officer of Waterfall Victoria Master Fund, Inc., the plaintiff in this matter, who is familiar with the relevant records.   When one reads the identification at the signature line, however, the reader's attention is drawn to a set of asterisks indicating that the signature will not be by one associated with Waterfall Victoria Master Fund, Inc., but rather “By:  CFC Transactions, LLC its Attorney–in–Fact,” after which Ted Wright's signature appears over the words “Attorney in Fact.”

Nowhere in the document is there an explanation of how Ted Wright is associated with CFC Transactions, LLC. In an earlier document in the papers in support of summary judgment, the signature of Ted Wright appears over the words “Managing Director” but it is unclear whether Wright is a director of Waterfall or a director of CFC. If Waterfall wishes to assign servicing responsibilities to an attorney-in-fact, it may certainly do so.   But having done so, any documents filed on Waterfall's behalf must clearly delineate the lines of authority of those who sign documents to effectuate Waterfall's business.   Perhaps Wright is both an officer of Waterfall and a director of CFC, so that he can act for either or both.   But it is up to the plaintiff to clearly state upon whose authority the signer of its business documents is acting, and what the relationship is between the signer and the entity upon whose authority the signer is acting.   At this point, the court cannot discern the basis of Wright's authority by examining the plaintiff's summary judgment submissions.

CONCLUSION

The ambiguities surrounding the verification on Wright's statement and the ambiguities regarding the source of his authority to make any statements, sworn or unsworn, on Waterfall's behalf are fatal, at this stage, to the plaintiff's quest for summary judgment.   The Motion for Summary Judgment is denied.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.