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Bank of America, N.A. v. Chainani

Court of Appeals of Connecticut

July 11, 2017

BANK OF AMERICA, N.A., TRUSTEE
v.
STEVEN CHAINANI ET AL.

          Argued Date: January 11, 2017

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. A. William Mottolese, judge trial referee.

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant, brought to the Superior Court in the judicial district of Stamford-Nor-walk, where the defendants JP Morgan Chase Bank, N.A., et al., were defaulted for failure to appear; thereafter, the defendant Webster Bank was defaulted for failure to plead; subsequently, the court, Hon. A. William Mottolese, judge trial referee, granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant appealed to this court. Affirmed.

          Roy W. Moss, for the appellant (named defendant).

          Stephen I. Hansen, for the appellee (plaintiff).

          Keller, Mullins and Harper, Js.

          SYLLABUS

         Pursuant to the rule of practice (§ 23-18 [a]), ‘‘[i]n any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness . . . .''

         The plaintiff sought to foreclose a mortgage on certain of the defendant's real property after the defendant had defaulted on a promissory note. In the defendant's answer, he denied the debt was in default and averred insufficient knowledge to admit or deny the alleged amount of the debt and left the plaintiff to its proof. At trial, pursuant to § 23-18 (a), the plaintiff submitted two affidavits of debt to establish the amount of the debt owed. The defendant objected that § 23-18 (a) did not apply because he had put forth a defense implicating the amount of the debt. The trial court considered one of the affidavits to establish the amount of the debt, determined the debt to be $3, 268, 499.34, and rendered a judgment of strict foreclosure, from which the defendant appealed to this court. On appeal, the defendant claimed that the trial court erred in admitting the affidavit of debt into evidence under § 23-18 (a) because he disputed the amount of the debt via his answer that contained responses that were sufficient to bar the affidavit's admission, and thus the affidavit was inadmissible hearsay evidence that deprived the defendant of his right to cross-examine witnesses on the amount of the debt. Held:

         1. Contrary to the parties' claims that the abuse of discretion standard of review applied to this case, this court clarified that in claims involving an affidavit of debt admitted under § 23-18 (a), the appropriate standard is plenary review; the defendant's claim that the trial court erred in determining that § 23-18 (a) applied is properly characterized as challenging the trial court's determination that an exception to the general prohibition of hearsay applies, and whether an exception to the hearsay rule applies is a question of law over which this court's review is plenary.

         2. The trial court did not err in admitting the affidavit into evidence and determining that § 23-18 (a) applied, as the defendant never raised any defense to the amount of the debt sufficient to prohibit the admission of affidavits of debt under that rule of practice; a defense challenging the amount of a debt must be actively made, and the defense must be squarely focused on the amount of the debt rather than other ancillary matters, such as whether the loan is in default, and the defendant's proffered challenges here that he had insufficient knowledge to admit or deny the amount of the debt and that the debt was not in default did not amount to defenses as to the amount of the debt.

          OPINION

          HARPER, J.

         In this appeal from a judgment of strict foreclosure after a trial, the defendant, Steven Chainani, [1] challenges the applicability of Practice Book § 23-18 (a), [2] under which the plaintiff, Bank of America, N.A., [3] was permitted to establish the amount of the debt at issue via an affidavit of debt, rather than through the presentation of live testimony from witnesses. The defendant's arguments implicate two affidavits that were admitted at separate hearings; however, his claims attack only the use of these affidavits to the extent they were used to establish the amount of the debt, for which the court used only the second affidavit.[4] The relevant affidavit was admitted at a hearing to determine the form of the judgment and was used to determine the amount of the debt pursuant to § 23-18 (a). The defendant argues that the trial court erred because § 23-18 (a) was not applicable to this case. He asserts that this was not harmless error ...


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