Putnam Financial Associates, Inc. v. LLC (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 118)

Plaintiff moves for a summary judgment as to liability on a series of promissory notes issued by the defendants to various entities, and secured by mortgages on properties located on Industrial Park Road in the Town of Putnam.

The August 26 revised complaint sets forth the material allegations as to each note, mortgage, and instrument of assignment.   The defendants DTS Trucking, Inc., and Storage Trailer Rentals, LLC, have not appeared here and have previously been defaulted for failure to appear.   The defendants Richard L. Trayner, Jr., and Putnam Park Associates, LLC have appeared, but neither has filed an answer nor disclosed any defense, and both have been defaulted previously for failure to plead.   Defendant Kyle L. Trayner has appeared and filed an answer dated October 4, 2013.   His answer either admits or claims to have insufficient knowledge upon which to respond to the allegations of the complaint.   By way of special defense, he challenges for legal insufficiency the seventh paragraph of plaintiff's claim for relief, which demands “Damages for rent, use and occupancy and fair rental value repairs to properties due to conduct of the defendants” (sic).   The remaining defendants are named as holders of interests in the subject premises junior to those of plaintiff, and have all been defaulted for failure to appear or for failure to plead.

The motion now before this court seeks a summary judgment as to liability against all makers of the notes or owners of the properties securing the same.   The motion was scheduled for oral argument before this court on December 9. None of the defendants filed any response to the motion, nor did they appear at short calendar to argue against its being granted.

I. Legal Standards

Recently, in Marinos v. Poirot, 308 Conn. 306 (2013), at pages 311–312, the Supreme Court articulated how deliberations on a motion for summary judgment must proceed:

Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”   A party moving for summary judgment is held to a “strict standard.”   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 17–45 (citations omitted).

This court has utilized that process in its review of this motion so as to require of plaintiff a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations of its complaint.   If it meets that burden, the absence of any objection from the defendants will leave a clear path to judgment for the plaintiff.

Since this motion seeks a judgment relative to the foreclosure of mortgages, the court takes guidance from the recent Appellate Court decision in GMAC v. Ford, 144 Conn.App. 165, (2013), outlining the essential elements of such a proceeding:  “In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied ․ Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense.”   144 Conn.App. 165, 176 (citations omitted).

II. Plaintiff's Case in Chief

The complaint alleges five separate transactions as the bases for the five counts of its complaint.   The affidavit of plaintiff's manager, Stuart Greenfield, dated November 12, 2013 and submitted in support of this motion, runs to 171 pages including exhibits.   The affidavit satisfies this court that the following transactions occurred as the plaintiff has alleged.

A. Count One

On July 14, 1997, the defendant Putnam Park Associates, LLC, issued a promissory note in the amount of $150,000 to Agway, Inc., secured by a mortgage on property located at 63 Industrial Park Road in the town of Putnam.   The mortgage is recorded at volume 310, page 162 of the Putnam Land Records.   It has subsequently been modified and assigned, the last assignment having been to plaintiff on April 7, 2005, by an assignment recorded at volume 513, page 55 of the Putnam Land Records.   The note and mortgage, as modified, are held by plaintiff and are in default for failure of payment.

B. Count Two

On October 5, 1990, the defendants DTS Trucking, Inc. and Kyle L. Trayner issued a promissory note in the amount of $200,000 to Norwich Savings Society, secured by a mortgage on property located at 33 Industrial Park Road in the town of Putnam.   The mortgage is recorded at volume 210, page 31 of the Putnam Land Records.   It has subsequently been modified and assigned, the last assignment having been to plaintiff on April 7, 2005, by an assignment recorded at volume 512, page 20 of the Putnam Land Records.   The note and mortgage, as modified, are held by plaintiff and are in default for failure of payment.

C. Count Three

On March 11, 1996, the defendants Putnam Park Associates, LLC, DTS Trucking, Inc., Storage Trailer Rentals, LLC, Richard L. Trayner, Jr., and Kyle L. Trayner issued a promissory note in the amount of $275,000 to Elaine R. Malchman and Linda S. Greenfield, secured by a mortgage on property located at 47 Industrial Park Road in the town of Putnam.   The mortgage is recorded at volume 289, page 46 of the Putnam Land Records.   It has subsequently been modified and assigned, the last assignment having been to plaintiff on April 7, 2005, by an assignment recorded at volume 513, page 23 of the Putnam Land Records.   The note and mortgage, as modified, are held by plaintiff and are in default for failure of payment.

D. Count Four

On March 11, 1996, as additional security for the note described in Count three, issued an additional mortgage deed to the holder of that note, securing property located at 33 Industrial Park Road in the town of Putnam.   The mortgage is recorded at volume 289, page 29 of the Putnam Land Records.   It has subsequently been modified and assigned, the last assignment having been to plaintiff on April 7, 2005, by an assignment recorded at volume 513, page 23 of the Putnam Land Records.   The note and mortgage, as modified, are held by plaintiff and are in default for failure of payment.

E. Count Five

On April 7, 2005, the defendants Putnam Park Associates, LLC, and Kyle L. Trayner issued a promissory note in the amount of $102,000 to Elaine R. Malchman, secured by a mortgage on property located at 63 Industrial Park Road in the town of Putnam.   The mortgage is recorded at volume 513, page 65 of the Putnam Land Records.   It has subsequently been assigned to plaintiff on August 9, 2013, by an assignment recorded at volume 725, page 199 of the Putnam Land Records.   The note and mortgage, as modified, are held by plaintiff and are in default for failure of payment.

Paragraph 19 of Plaintiff's affidavit of debt sets forth the balance due plaintiff on each of the four promissory notes as of September 30, 2013, and (with the exception of the 2005 note) includes the amount of per diem interest accruing on the instruments thereafter.   From that affidavit, the court finds the following amounts are due to plaintiff as of the date of this motion:

A.  As to Count One, defendant Putnam Park Associates, LLC, owes a total of $195,228.44. which includes a September 30 debt of $192,188.20 plus 88 days of interest at $40.23 per day, or 3,540.24;

B. As to Count Two, defendants Kyle L. Trayner and DTS Trucking, Inc., owe a total of $170,196.05. which includes a September 30 debt of $168,207.25 plus 88 days of interest at $22.60 per day, or 1,988.80;

C. As to Counts Three and Four, defendants Putnam Park Associates, LLC, DTS Trucking, Inc., Storage Trailer Rentals, LLC, Kyle L. Trayner, and Richard L. Trayner, Jr., owe a total of $514,893.20 which includes a September 30 debt of $507,040.08 plus 88 days of interest at $89.24 per day, or 7,853.12;

D. As to Count Five, defendants Putnam Park Associates, LLC, and Kyle L. Trayner owe a total of $171,216.55.

Paragraphs 16 through 21 of that same affidavit provide proof that defendants failed to pay certain amounts of principal and interest and taxes owed, that these omissions are an instance of default under the terms of the notes, and that in response plaintiff had exercised its option to accelerate and declare immediately due and payable the entire remaining balance on each note.   Further, plaintiff sufficiently avers that it remains the holder of all the relevant instruments and that there are no valid set-offs or counterclaims.

Unless the special defense is adequate, this court must find that the plaintiff's pleadings and affidavit satisfy its burden of establishing a right to summary judgment as to liability in this case;  see, Citimortgage, Inc. DLJ Mortgage Capital, Inc. v Speer, Docket No. CV09 6001411, Superior Court, New London Judicial District (2011;  Devine, J.);  One West Bank, FSB v. Reinoso, Docket No. CV10 6006307, Superior Court, judicial district of Fairfield (2012;  Hartmere, J.).   The court will not give much weight to that defense, as defendant Kyle Trayner has not attempted to show how this defense bears upon the merits of the plaintiff's claims.   At best, it might limit the relief this court would order after a hearing on the form of judgment.

III. Conclusion and Orders

The court concludes that the plaintiff has set forth a sufficient basis upon which to conclude that the defendants are liable to it upon the four promissory notes described above.   The motion for summary judgment as to liability is granted.

A hearing will be held on the form and terms of a foreclosure judgment upon plaintiff's filing of an appropriate motion.

Boland, J.

Boland, John D., J.