Bank of Boston Connecticut v. Scott Real Estate, Inc.

673 A.2d 558, 40 Conn. App. 616
CourtConnecticut Appellate Court
DecidedMarch 19, 1996
Docket13753
StatusPublished
Cited by30 cases

This text of 673 A.2d 558 (Bank of Boston Connecticut v. Scott Real Estate, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Boston Connecticut v. Scott Real Estate, Inc., 673 A.2d 558, 40 Conn. App. 616 (Colo. Ct. App. 1996).

Opinion

HEIMAN, J.

The defendants appeal from the judgment of the trial court rendered after the court granted the plaintiffs motion for summary judgment. The defendants claim that the trial court improperly found that no issue of material fact existed as to the defendants’ special defenses and counterclaim. The defendants argue that issues of material fact existed as to whether (1) the plaintiff failed in its duty to notify the defendants of foreclosure proceedings affecting a collaterally assigned mortgage, (2) such alleged failure constituted a breach of the implied covenant of good faith and fair dealing that existed between the parties, (3) such alleged failure should result in the plaintiffs being equitably estopped from collecting the debt owed by the defendants, and (4) the plaintiff made an election of remedies under General Statutes § 42a-9-505 (2).1 We affirm the judgment of the trial court.

The following facts are relevant to a resolution of this appeal. On January 13, 1987, Bank of Boston Connecticut (BBC) loaned $650,000 to Scott Real Estate, Inc. (SRE), pursuant to a demand promissory note (BBC note). The guarantors of the BBC note were James [618]*618Scott, Raymond Lubus and John Novak (guarantors). SRE borrowed the $650,000 from BBC in order to loan that money to Dana Investment Corporation (Dana). As security for the BBC note, SRE and Lubus executed a collateral assignment to BBC of a promissory note made by Dana and payable to SRE and Lubus in the amount of $650,000 (Dana note), and a mortgage deed (Dana mortgage) in favor of SRE and Lubus encumbering two parcels of property in Danbury owned by Dana (Danbury properties). BBC also received and recorded on the Danbury land records an outright assignment of the Dana mortgage. The Danbury properties were also subject to prior mortgages.

Between December, 1987, and August, 1988, the prior encumbrancers of the Danbury properties commenced foreclosure proceedings (Danbury foreclosures), and BBC was named as a defendant in those actions because of the outright assignment of the Dana mortgage to BBC. BBC did not notify SRE or the guarantors of the Danbury foreclosures at that time. In September, 1988, SRE and Dana entered into a business venture that resulted in a profit to Dana of approximately $757,000. The profit due Dana was initially received by SRE, and SRE subsequently released the money to Dana on December 1, 1988, despite Dana’s obligations to SRE under the Dana note and SRE’s obligations to BBC under the BBC note. Subsequent to December 1, 1988, SRE learned of the Danbury foreclosures and defaulted on the BBC note. BBC demanded payment on March 4, 1991.

BBC, the original plaintiff in this case,2 brought an action against SRE and the guarantors (defendants) to recover the moneys due BBC pursuant to the BBC note. [619]*619The defendants raised three special defenses and one counterclaim. As special defenses, the defendants claimed that (1) the plaintiffs acceptance of the outright assignment of the Dana mortgage and its failure to notify the defendants of the Danbury foreclosures released the defendants of their liability to the plaintiff, (2) the plaintiff was estopped from collecting on the BBC note because it failed to notify the defendants of the Danbury foreclosures and (3) the plaintiff should be deemed to have elected to proceed exclusively against the Dana note and the Dana mortgage in satisfaction of the defendants’ debt to the plaintiff. In the counterclaim, the defendants asserted that the plaintiff breached its duty of good faith and fair dealing because it did not notify the defendants of the Danbury foreclosures. The plaintiff moved for summary judgment and the court granted the motion. This appeal followed.

The defendants claim that the trial court improperly granted the plaintiffs motion for summary judgment because several issues of material fact existed as to the defendants’ special defenses and counterclaim. We do not agree.

“The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 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. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Don-nelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its [620]*620adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, citing Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). Trotta v. Branford, 26 Conn. App. 407, 409-10, 601 A.2d 1036 (1992).” (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 243-44, 659 A.2d 1226 cert. denied, 225 Conn. 915, 665 A.2d 609 (1995).

I

The cornerstone of the defendants’ first and second special defenses and their counterclaim is that the plaintiff had a duty to notify the defendants of the Danbury foreclosures. The defendants posited that if the plaintiff had given notice to the defendants of the foreclosures, then the defendants would not have released the $757,000 profit to Dana, but instead would have remitted that money to the plaintiff in satisfaction of the BBC note. In their first argument on appeal, the defendants assert that a genuine issue of material fact existed as to the plaintiffs duty to notify the defendants of the Danbury foreclosures. The existence of this alleged duty selves as the basis of the defendants’ second and third arguments on appeal that the plaintiff breached its implied covenant of good faith and fair dealing, and that the plaintiff should be equitably estopped from [621]

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Bluebook (online)
673 A.2d 558, 40 Conn. App. 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-boston-connecticut-v-scott-real-estate-inc-connappct-1996.