Donald Gallo v. Donna Anastasia (2014)

INTRODUCTION AND SUMMARY OF FACTS

Presently before the court is an application for a prejudgment remedy of attachment in the amount of $165,000.00 brought by the plaintiff Donald Gallo.   The plaintiff seeks to attach the property of the defendant, Donna Anastasia, in order to secure the aforementioned sum.   Pursuant to the requirements of General Statutes § 52–278c, the plaintiff has attached to his application the proposed writ, summons and complaint, a form of order, as well as a required affidavit from the plaintiff setting forth sufficient facts to show probable cause that a judgment in the amount of $165,000.00 will be rendered.   The plaintiff's complaint sounds in three counts, partition of certain property located at 29 High Street, Westport in which the plaintiff claims an undivided half interest, use and occupancy pursuant to 52–404(b) as to property located at 20 High Acre Road, Weston, CT and unjust enrichment as to mortgage payments which he made for the benefit of the above properties.   The plaintiff has also filed, pursuant to Practice Book § 13–13, a Request for disclosure of the defendant's assets, defined as any accounts receivable, contract rights, instruments, chattel paper, general intangibles, insurance proceeds, notes, drafts, deposit accounts, acceptances or other obligations, any interest in real estate or insurance proceeds.   The plaintiff's proposed order of attachment leaves blank what specific properties he seeks to attach.

The court heard testimony from both parties and an appraiser at the hearing held on December 5, 2013.   The court finds that the plaintiff has satisfied the procedural statutory requirements for consideration of an application for prejudgment remedy.   Based on the evidence presented at the hearing, the court makes the following findings of fact:

1. The plaintiff and defendant are co-owners of real estate located at 20 High Acre Road, Weston, Connecticut, a description of which is attached to the complaint.

2. Said premises are subject to the following:

a) mortgage in an original principal amount of $412,500.00 from Donald Gallo and Donna Anastasia to World Savings Bank dated March 31, 2000 as modified by Agreement dated January 16, 2003 and recorded on January 31, 2003 in Volume 337 Page 398 in the Weston Land Records;

b) mortgage in the original principal amount of $130,000.00 from Donald Gallo and Donna Anastasia to Anthony Anastasia and Anita Anastasia dated June 7, 2001 and recorded in Volume 298 page 88 in the Weston Land Records;

c) mortgage in the original principal amount of $150,000.00 from Donald Gallo and Donna Anastasia to People's United Bank dated July 7, 2008 and recorded in volume 474 Page 678 in the Weston Land records.   The parties used the $121,800.00 proceeds of this mortgage to pay off a mortgage which the defendant's parents had placed on their property.   The loan which had been the subject of this mortgage was used for the benefit of the parties' Weston property.

3. On or about January 4, 1999, defendant's parents refinanced the mortgage on their Westport home with WaMu. The proceeds of the WaMu mortgage were used to pay off a previous mortgage on the High Acre property and for the benefit of the defendant.

4. The plaintiff made all monthly payments on the WaMu mortgage from January 2008 until its payoff in July 2008, approximately $800.00 per month for 102 months, a total of approximately $81,600.00.

5. In September 2008 Anthony and Anita Anastasia transferred title to the Westport property to Anthony Anastasia and the defendant as joint owners with rights of survivorship.   Following Anthony Anastasia's death in March 2009, defendant has possessed an undivided one-half interest in the subject property.

6. In or about May 2013, following a breakdown in the relationship between the parties, the defendant forced the plaintiff to vacate the subject property, requiring him to seek other accommodations.

7. From May 2013, to present, the defendant has occupied, used, received the benefit of the entire subject property, in greater proportion to her 50% undivided interest.

8. Plaintiff has failed to pay the defendant for his share of the fair rental value of the subject property.

9. After considering the testimony of real estate appraiser Michael Nostin, Jr., the court finds the fair rental value of the subject property to be approximately $3,000.00 per month.

10. The defendant has not asserted any exemptions that might apply to her interest in the subject property and/or assets, a right accorded to a defending party under § 52–278d.

Pursuant to General statutes 52–278d(a), the court finds that the plaintiff has satisfied his burden of proof that there is probable cause that judgment will be rendered in an amount equal to or greater than the amount claimed herein, taking into account all defenses, counterclaims or setoffs which the defendant had the opportunity to present to the court.   See Dufraineu v. CHRO, 236 Conn. 250, 261 (1996).   For the purposes of this hearing alone the court finds that the reasonable value of the damages established by the plaintiff in this matter as a result of the actions of the defendant is $60,900 (one-half of the value of the WaMu mortgage which was used for the benefit of the parties' Weston property), $40,800.00 (one-half of amount of the WaMu mortgage payments made by the plaintiff, and $27,000.00 (one-half of the fair rental value of the subject property for the nine-month period from May 2013 through January 2014) for total damages $128,700.00.

The court therefore grants the plaintiff's application for prejudgment remedy attachment the amount of $12S,700.00. It is further ordered that effective immediately, the defendant shall not transfer any interest, legal or equitable, she may have in any real or personal property or other asset pending further proceedings or disposition of this action on the merits.

ORDER GRANTING PREJUDGMENT REMEDY

The foregoing application having been presented to me, a Judge of the aforesaid Court, and it appearing that there is probable cause that a judgment will be rendered in such matter in favor of the applicant in an amount equal to or greater than the amount of the prejudgment remedy sought, taking into account any defenses, set-offs or counterclaims, and it further appearing that the plaintiff seek attachment of property of the defendant DONNA

ANASTASIA, 20 HIGH ACRE ROAD, WESTON, CONNECTICUT.

It is hereby ORDERED that the attorneys for the plaintiff may cause to be issued an attachment to the following property of the aforesaid defendant to secure the sum of One Hundred Twenty–Eight Thousand and Seven Hundred 00/100 ($128,700) Dollars:

(a) Real property known as 29 High Street, Westport, Connecticut;

(b) All bank accounts wherever located;

(c) Any interest in real estate;

(d) All proceeds of the foregoing, including the proceeds of insurance.

(e) Such additional assets of the defendant sufficient to satisfy the prejudgment remedy ordered as shall be identified in response to the plaintiff's Request for Disclosure of Assets or otherwise.

Dated at New Haven, CT this 10th day of January, 2014.

SOMMER, J.

Sommer, Mary E., J.