Connecticut National Bank v. N. E. Owen II, Inc.

578 A.2d 655, 22 Conn. App. 468, 1990 Conn. App. LEXIS 261
CourtConnecticut Appellate Court
DecidedJuly 31, 1990
Docket8372
StatusPublished
Cited by32 cases

This text of 578 A.2d 655 (Connecticut National Bank v. N. E. Owen II, 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
Connecticut National Bank v. N. E. Owen II, Inc., 578 A.2d 655, 22 Conn. App. 468, 1990 Conn. App. LEXIS 261 (Colo. Ct. App. 1990).

Opinion

Landau, J.

The defendants1 appeal from the judgment of strict foreclosure rendered by the trial court [469]*469for the plaintiff Connecticut National Bank (CNB). The defendants claim that the trial court (1) incorrectly determined the amount of the debt, (2) improperly denied their motion to open the judgment of strict foreclosure, and (3) awarded an incorrect amount of attorney’s fees to CNB. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. On October 14, 1987, CNB commenced an action to foreclose a mortgage granted by the named defendant on certain real property to secure a $997,919.67 variable rate promissory note. 2 The defendants were defaulted for failing to disclose a defense.

On July 17, 1989, CNB’s motion for judgment of strict foreclosure was heard. At that hearing, the bank submitted an affidavit of debt to the court stating that the amount of the defendants’ debt was $1,268,074. This amount included the entire face value of the note, as there had been no principal repayments, as well as accrued interest, late charges and an appraisal fee.3 The affidavit of debt listed accrued interest as a single lump sum amount of $233,306.41, and contained no supplemental information showing the various interest rates that were in effect during the life of the loan, and the time periods for which those rates were applied [470]*470against the outstanding principal. The note provided for interest to be payable monthly at a rate of 2 percent over CNB’s base rate as well as late charges in the event of delinquent payments.

The defendants opposed the submission of the bank’s affidavit of debt because they did not receive any documentation verifying that the interest rates actually changed on the dates claimed by the bank.4 The defendants indicated, however, that a hearing on this matter was unnecessary.5 6The defendants instead stipulated that they would consent to a finding of the amount of the debt stated in the affidavit, provided that CNB would timely provide them with the rate change documentation. On the basis of the parties’ stipulation and the affidavit of debt, the trial court found the amount of the debt to be that stated in the affidavit, namely, $1,268,074.

CNB also requested an award of $25,000 as reasonable attorney’s fees. In support of its request, the bank submitted an affidavit of attorney’s fees and itemized billing statements. Further, CNB explained to the court the history of the loan and its repeated attempts to refinance this and other Owen family loans. The defendants, while not objecting to an award of attorney’s fees, argued that the amount should be “substantially less” [471]*471than that requested. The court awarded reasonable attorney’s fees in the amount of $17,500, and thereafter granted CNB’s motion for judgment of strict foreclosure.

Subsequent to this hearing, CNB provided the defendants with documentation that showed the specific time periods for which the various rates of interest were in effect, but did not provide the defendants with copies of internal bank memoranda showing the authorization for the interest rate changes.

On August 21,1989, the defendants’ motion to open the judgment was heard. The defendants asserted that the judgment of strict foreclosure should be opened because CNB failed to provide them with the agreed upon documentation. CNB’s counsel represented to the court that the requested information concerning authorizations does not exist, and submitted an affidavit prepared by a bank officer to that effect.6 The court denied the defendant’s motion. This appeal followed.

I

The defendants first claim that the trial court incorrectly calculated the plaintiff’s debt. Relying on Burritt Mutual Savings Bank of New Britain v. Tucker, [472]*472183 Conn. 369, 439 A.2d 396 (1981), the defendants contend that the court should not have relied on the affidavit of debt in finding the amount of the debt once they had raised a defense as to that amount. We disagree.

It is true that the plaintiff has the burden of proof to establish any allegations that are denied by the defendant. Streicher v. Resch, 20 Conn. App. 714, 716, 570 A.2d 230 (1990). It is also true that in a mortgage foreclosure action, a fundamental allegation that must be proved by the plaintiff is the amount of the debt. See D. Caron, Connecticut Foreclosures (2d Ed.) § 5.02A2. A hearing to present evidence on the amount of the debt may not be required, however, if a summary procedure is employed pursuant to Practice Book § 527.7 Under this rule, the plaintiff mortgagee need not present witnesses to testify as the amount of the debt, but may instead submit certain documents to the court, including the original note and mortgage together with an affidavit stating the amount due. Significantly, § 527 can be utilized by the plaintiff mortgagee only “where no defense as to the amount of the mortgage debt is interposed” by the defendant mortgagor. See footnote 7, infra.

A defense is “[t]hat which is offered and alleged by a party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. . . .” Black’s Law Dictionary (5th Ed.). In a mortgage foreclosure action, a defense to the amount of the debt must be based on [473]*473some articulated legal reason or fact. See, e.g., Burritt Mutual Savings Bank of New Britain v. Tucker, supra, 374-75 (where defendant claimed that mortgage debt was inaccurately computed, that the bank waived late charges and that certain amounts had been advanced for taxes).

We conclude that a mere claim of insufficient knowledge as to the correctness of the amount stated in the affidavit of debt is not a defense for purposes of § 527. To allow an insufficient knowledge claim to rise to the level of a defense would remove any incentive for the mortgagor to gather facts during the discovery process or to keep records. A defendant mortgagor should not be able to use a hearing on a motion for judgment of foreclosure to accomplish what he should have done previously through interrogatories or a deposition.

Further, it does not escape appellate scrutiny that after the plaintiff filed a demand for disclosure of defenses, the defendants, on January 19, 1988, were defaulted for failure to disclose. We can discern no reason for allowing the defendants to claim, some eighteen months later, in a hearing on the motion for judgment of foreclosure that they do in fact have a defense, especially when their claim is merely that they have insufficient information.

In addition, when a defendant mortgagor stipulates to the amount of the indebtedness, he is ordinarily barred from later contesting it. A stipulation is generally dispositive of that issue. Cf. Westco Corporation v. AMK Construction Co., 1 Conn. App. 521, 523, 473 A.2d 340, cert. denied, 193 Conn.

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Bluebook (online)
578 A.2d 655, 22 Conn. App. 468, 1990 Conn. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connecticut-national-bank-v-n-e-owen-ii-inc-connappct-1990.