TD v. LLC (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUPPLEMENTAL PREJUDGMENT REMEDY

By complaint returnable on August 31, 2010, the plaintiff, TD Bank, N.A. has brought an action against Bristol Fields, LLC, seeking recovery of a note in the principal sum of $12,130,000.   The plaintiff is a nationally chartered bank, and the defendant a Connecticut limited liability company.   The note is secured by a parcel of land known as 1559 King Street, Enfield, Connecticut.   The defendant seeks to discharge the attachment.   The plaintiff has also filed a Motion for Supplemental Prejudgment Remedy.   The plaintiff claims that the security offered by the defendant's property at 1559 King Street in Enfield is insufficient to secure the value of its claim against the defendant, and seeks to attach a second parcel of land owned by the defendant.

“The purpose of a prejudgment remedy of attachment is security for the satisfaction of the plaintiff's judgment, should he obtain one ․ It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover ․ The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action.   It is independent of and collateral thereto.”   (Internal quotation marks omitted.)  Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn.App. 638, 646-47, 922 A.2d 1131 (2007).

Findings

The role of the court in considering an award of a prejudgment remedy is well established.  “A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims, set-offs will be rendered in the matter in favor of the plaintiff ․” Kendall v. Amster, 108 Conn.App. 319, 948 A.2d 1041 (2008).

The parties appeared before the court on November 4, 2010.   Based on the evidence submitted, the court finds probable cause for the following findings.

The defendant Bristol Fields, LLC is indebted to the plaintiff pursuant to the terms of a note dated March 31, 2004 in the principal amount of $12,130,000.   That note was originally executed by Sound Enfield Group of Connecticut LLC and assumed by the defendant Bristol Fields LLC on or about June 1, 2005 by an instrument entitled “ASSUMPTION AGREEMENT AND MODIFICATION OF CONSTRUCTION LOAN AGREEMENT, MORTGAGES, NOTES AND RELATED DOCUMENTS.”

Pursuant to the terms of the note and related documents, the defendant fulfilled its obligations to the plaintiff from the time of the assumption of the note until approximately June of 2010 at which time the defendant defaulted by nonpayment.

The principal amount due under the note is $10,093,282 as of the date of the hearing referenced above.   In addition there are interest charges, late charge fees and expenses which bring the total amount due under the note to $10,308,562.49.

The terms of the loan contain a provision for a “swap cancellation fee.”   The amount presently due under this provision is $1,248,203.16.

The defendant's total indebtedness as of the date of hearing is $11,556,765.65.

There was conflicting testimony as to the value of the property at 1559 King Street, Enfield, Connecticut.   The value of that property is found to be $8,750,000.

The defendant is also the owner of real property known as 30 Waterchase Drive, Rocky Hill, Connecticut.

The value of the defendant's property located at 30 Waterchase Drive, Rocky Hill, Connecticut is $7,500,000.   There is a valid first mortgage as to that property in the amount of $4,208,964.   The defendant's equity in the property is $3,291,036.

Conclusion

The defendant's application to discharge the prejudgment remedy is hereby denied.   The plaintiff's application for a supplemental prejudgment remedy attachment is hereby granted.   The plaintiff may attach the real estate of the defendant known as 30 Waterchase Drive, Rocky Hill Connecticut to the extent of $2,806,765.

Robaina, J.

Robaina, Antonio C., J.