Berkeley Federal Bank & Trust, FSB v. Ogalin

708 A.2d 620, 48 Conn. App. 205, 1998 Conn. App. LEXIS 105
CourtConnecticut Appellate Court
DecidedMarch 17, 1998
DocketAC 17206
StatusPublished
Cited by13 cases

This text of 708 A.2d 620 (Berkeley Federal Bank & Trust, FSB v. Ogalin) 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
Berkeley Federal Bank & Trust, FSB v. Ogalin, 708 A.2d 620, 48 Conn. App. 205, 1998 Conn. App. LEXIS 105 (Colo. Ct. App. 1998).

Opinion

[206]*206 Opinion

LAVERY, J.

This is an appeal by the named defendant et al.1 from a judgment of foreclosure by sale rendered by the trial court following its acceptance of an attorney trial referee’s report. On appeal, the defendants claim that the trial court improperly accepted the attorney trial referee’s report because (1) the referee improperly admitted hearsay evidence on the value of the mortgage debt, and (2) the plaintiffs notice of default was defective. We reverse the judgment of the trial court only as to the calculation of the late charges.

The attorney trial referee found the following facts. On June 4, 1987, the defendants executed a note dated June 4, 1987, for the principal amount of $225,000 in favor of the Bank Mart and secured by a mortgage on the property of the defendants at 1451 North Peters Lane, Stratford. The mortgage and note, after various assignments, is owned by the plaintiff.2 Notice of default and notice of the plaintiffs right to accelerate the balance of the loan was dated July 6, 1992, and received by the defendants on July 9,1992. The notice of acceleration provided for a right to cure a default within forty-five days of the date of the notice. The acceleration notice provision was satisfied by the notice providing forty-five days from July 6,1992, to allow the defendants to cure their default by August 20, 1992, a date that could be specifically determined from the notice and that was at least thirty days from the date of the receipt of the letter. The defendants failed to cure the default.

The computer generated records of Gateway Bank and the plaintiff, which were kept in the ordinary course [207]*207of business, reflected entries made when transactions took place, were regularly updated and were required to be kept by each institution in the course of its business. The defendants’ special defense of lack of notice was found not proven and the giving of notice was found to have been proven by the plaintiff.

The attorney trial referee recommended judgment for the plaintiff, finding the debt to be $323,266.81 as of June 16, 1996. Foreclosure by sale was also recommended. The attorney trial referee’s report was filed on April 17, 1996. On April 28, 1997, the trial court accepted the report and rendered a judgment of foreclosure by sale. The trial court found that the total amount of the debt was $349,780.99. As part of that debt, $4081.99 was awarded to the plaintiff as late fees.

I

The defendants’ first claim is that the trial court improperly accepted the attorney trial referee’s report because the referee admitted inadmissible hearsay evidence on the value of the mortgage debt. Specifically, the defendants claim that the following bank records— a computer generated printout showing the total payoff amount of the mortgage, a summary of escrow advances, a computer generated transaction history concerning the defendants’ loan, a computer generated “collection card” and the notice of default—are inadmissible hearsay and that the plaintiff failed to satisfy the statutory requirements for the admission of business records as a hearsay exception. We disagree.

Unless the default notice and computer generated printouts come within an exception to the hearsay rule, the documents are inadmissible because they are out-of-court statements offered to establish the truth of the facts contained in the statements. Shadhali, Inc. v. Hintlian, 41 Conn. App. 225, 227, 675 A.2d 3, cert. [208]*208denied, 237 Conn. 926, 677 A.2d 948 (1996). The documents in question were admitted under the business records exception to the hearsay rule over the defendants’ objections on hearsay grounds. See General Statutes § 52-180.3 “General Statutes § 52-180 permits hearsay evidence to be admitted if (1) [the] writing was made in the regular course of business, (2) it was the regular course of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial court has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra [665]; State v. Lawler, supra [832], Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 709-10, 638 A.2d 44 (1994).” (Internal quotation marks omitted.) Shadhali, Inc. v. Hintlian, supra, 227-28. “[T]he essential hallmark of admissibility under § 52-180 is the trustworthiness of the document; American Oil Co. v. Valenti, 179 Conn. 349, 358-59, 426 A.2d [209]*209305 (1979) . . . .” (Citations omitted.) Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987).

We hold that the attorney trial referee did not abuse his discretion by admitting the exhibits in question pursuant to the business records exception to the hearsay rule. One exhibit was the plaintiffs computer generated printout showing the total payoff amount of the debt as of the date of trial, January 16, 1996. At trial, Jan Carter, the plaintiffs research loan servicing supervisor, testified that the exhibit was an accurate copy of the information contained in the plaintiffs computers concerning the mortgage loan of the defendants. In addition, Carter testified that (1) computer records are maintained in the regular course of banking business generally and at Berkeley Federal Bank, (2) computer records are updated promptly when there is any change in account information, and (3) she utilizes computers at Berkeley on a regular basis in her position, and that she also reviews the information on the computer system for accuracy and requests maintenance changes based on research conducted to determine if adjustments are required to the records on the system. This testimony satisfies the requirements of § 52-180. Therefore, the exhibit was properly admitted to establish the defendants’ debt at the time of trial.

Carter also testified that another exhibit was a summary of escrow and other advances made from and on behalf of the defendants’ account. She further testified that she created the document from information she gathered on the plaintiffs computers, that the document was created for use in this litigation and that foreclosure litigation is conducted in the regular course of the plaintiffs business as a bank.

Linda Sock, who was the litigation manager of Gateway and Gateway’s assistant treasurer at the time of [210]*210the default, testified in regard to the Gateway computer generated transaction history concerning the defendants’ mortgage loan.

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Bluebook (online)
708 A.2d 620, 48 Conn. App. 205, 1998 Conn. App. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkeley-federal-bank-trust-fsb-v-ogalin-connappct-1998.