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Tedesco v. Agolli

Court of Appeals of Connecticut

May 29, 2018

ANGELO TEDESCO, TRUSTEE
v.
RESMIJE AGOLLI ET AL.

          Argued March 14, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., brought to the Superior Court in the judicial district of Waterbury, where Scott Tedesco, trustee of the Angelo P. Tedesco Money Purchase Pension Plan was cited in as a plaintiff; thereafter, Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan was substituted as the plaintiff; subsequently, the matter was tried to the court, Dooley, J.; judgment for the substitute plaintiff as to liability; thereafter, the court, Lager, J., granted the motion for a judgment of foreclosure filed by the substitute plaintiff and rendered judgment of foreclosure by sale, from which the named defendant et al. appealed to this court. Affirmed.

          Justin J. Garcia, for the appellants (named defendant et al.).

          Jeremy S. Donnelly, for the appellee (substitute plaintiff Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan).

          Lavine, Keller and Bear, Js.

          OPINION

          PER CURIAM.

         The defendants, Resmije Agolli and Fikri Development, LLC (Fikri), [1] appeal from the judgment of foreclosure by sale rendered in favor of the substitute plaintiff, Scott Tedesco, trustee of the Heritage Builders of Waterbury, LLC, 401 (k) Profit Sharing Plan.[2] On appeal, the defendants challenge the trial court's findings with respect to the dates of disassocia-tion and removal of Gina Antonios as member and Joseph Antonios as manager of Fikri.[3] The defendants also claim that the court improperly found that Agolli, as a member of Fikri, had the authority to bind Fikri to the mortgage at issue in the present case.

         Angelo Tedesco, as trustee of the Angelo P. Tedesco Money Purchase Pension Plan, serveda complaint seeking foreclosure of a mortgage on several parcels of real property in favor of the Angelo P. Tedesco Money Purchase Pension Plan. He alleged that he was the holder of the note and mortgage. The defendants filed an answer in which they denied all of the plaintiff's substantial allegations against them, and they asserted five special defenses. The defendants later stipulated that the plaintiff was the owner and holder of the note, and that the note was in default. The defendants also limited their special defenses to lack of consideration, duress, and no meeting of the minds.

         Following a trial to the court, the court found that the defendants had not met their burden of proof on the remaining special defenses and it rendered judgment in favor of the plaintiff as to liability. The court subsequently rendered judgment of foreclosure by sale in favor of the plaintiff.

         After examining the record and the briefs and considering the arguments of the parties, we are persuaded that the court correctly rendered judgment of foreclosure by sale in favor of the plaintiff. The issues raised by the defendants were resolved properly in the trial court's thorough and well reasoned memorandum of decision rendering judgment in favor of the plaintiff as to liability. We therefore adopt that memorandum of decision as the proper statement of the relevant facts, issues and applicable law. See Tedesco v. Agolli, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV-12-6016130-S (June 21, 2016) (reprinted at 182 Conn.App. 294). It would serve no useful purpose for us to repeat the discussion contained therein. See Seminole Realty, LLC v. Sekretaev, 162 Conn.App. 167, 169, 131 A.3d 753 (2015), cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016).

         The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

         APPENDIX

         ANGELO TEDESCO, TRUSTEE

         v.

         RESJIMI AGOLLI ET AL.[*]

         Proceedings

         Action to foreclose a mortgage on certain real prop- erty owned by named defendant et al. Judgment for plaintiff as to liability.

         Superior Court, Complex Litigation Docket at Waterbury File No. CV-12-6016130-S

         Memorandum filed June 21, 2016

         Opinion

          DOOLEY, J.

         PRELIMINARY STATEMENT

         This is an action to foreclose a mortgage covering several parcels of real property located in Waterbury, Connecticut, each of which is owned by the defendant Fikri Development, LLC (Fikri). The properties at issue are: (1) 3743 East Main Street; (2) 3496 East Main Street; (3) 51 Matteson Road; and (4) 3514 Main Street. The defendant Resjimi Agolli (Agolli) is currently the sole member of Fikri. The defendants assert several special defenses to the foreclosure action. Trial was conducted over the course of three days in May, 2016. The court heard testimony from seven witnesses and admitted numerous documents into evidence. Simultaneous trial briefs were submitted on June 1, 2016. The court has considered the testimony and evidence introduced, the arguments set forth in the parties' memoranda, the authorities cited therein, and renders this decision based thereupon. For the reasons set forth below, judgment will enter in favor of the plaintiff as to liability.

         FACTUAL FINDINGS

         ‘‘In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.'' (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004). The court makes the following factual findings by a fair preponderance of the evidence, unless otherwise indicated, based upon the better, more credible evidence presented.[1]

         Agolli came to the United States in 1967 from what is now Macedonia as a young woman newly married to Fikri Agolli. She and her husband settled in the Water-bury area where they raised three children. Eventually, Agolli's husband owned and operated a diner in Water-bury, at which Agolli sometimes worked. As the children grew, they helped in the diner as well. Ultimately, each of the children pursued careers of their own. In 2006, Agolli's husband was diagnosed with cancer, an illness to which he would eventually succumb. Agolli could not run the diner on her own and so arranged to sell it. At the time, there was an interested buyer for the diner but his interest was contingent upon a zoning change being made. The buyer paid Agolli $7500 per monthas consideration for not selling the diner to someone else. Ultimately, the putative purchaser did not obtain the zone change and terminated the option to purchase. Thereafter, Agolli located a buyer and sold the diner for $375, 000.

         During his life, Agolli's husband had purchased numerous parcels of undeveloped property in the Waterbury area. After his passing, Agolli became the owner of these parcels.

         Joseph Antonios was a local mortgage broker who ran his own business, Metro Mortgage. He also owned and operated The Private Mortgage Fund, LLC (The PMF), which financed mortgage loans. Fesnik Agolli (Nik), Agolli's son, worked for Antonios' mortgage brokerage business for approximately fourteen years. He is presently a police officer for the city of Waterbury. During the time that Nik Agolli worked for Metro Mortgage, Antonios became well known to and a friend of the Agolli family. He would often accompany Nik Agolli to Agolli's home for dinner. The Agollis liked and trusted Antonios. In 2007, Antonios began discussions with Agolli about developing her properties so that they would generate cash flow for Agolli.[2] Fikri was formed and Agolli transferred all of her real estate holdings into Fikri, to include her personal residence. Agolli was a 50 percent member; Antonios' wife, Gina, was a 50 percent member; and Antonios was made the manager.[3]The arrangement called for Antonios, as the manager, to develop the properties. The operating agreement gave Antonios broad and largely unfettered authority to act on behalf of Fikri.

         Between 2008 and 2010, Antonios borrowed hundreds of thousands of dollars on behalf of Fikri, securing these loans with the properties Agolli had transferred into Fikri. Some of these loans were financed by the Angelo P. Tedesco Money Purchase Pension Plan (ATMPPP). Angelo Tedesco was a local property developer. He had a business relationship with Antonios, and would, at times, provide the funds through which The PMF extended loans. In 2008, Antonios arranged for The PMF to loan Fikri $750, 000. This debt was secured by a mortgage on the four properties at issue here, as well as Agolli's personal residence locatedat 375 Maybrook Road, Waterbury, Connecticut, and an undeveloped parcel of land located on Austen Road in Waterbury, Connecticut. In 2010, Tedesco, as Trustee of the ATMPPP, agreed to take an assignment of this note and mortgage. In connection therewith, Agolli, on behalf of Fikri, signed a Note and Mortgage Modification Agreement, to include a new Promissory Note dated January 12, 2010 (exhibit B). This transaction closed on or about January 12, 2010. The Promissory Note contained a 10 percent interest rate and a payment schedule of interest only for twelve months with the principal due in full on January 12, 2011.

         No discernible progress was made in the development of the properties. As a result, the properties did not generate any cash flow with which to service the enormous debt which had been taken on by Fikri.[4] Fikri defaulted under the terms of the January, 2010 Note.

         By service of a writ of summons and complaint filed September 3, 2010, Angelo Tedesco as Trustee of the ATMPPP commenced a foreclosure action against Agolli and Fikri.[5] Fikri and Agolli were represented by Attorney Timothy Sullivan of Mahaney, Geghan & Sullivan. Attorney Sullivan was a childhood friend of Nik Agolli and had known the Agolli family for many years. Nik Agolli asked Attorney Sullivan to defend the foreclosure with the primary objective being the securing and safeguarding of Agolli's personal residence on May-brook Road in Waterbury, Connecticut.

         Although it is not clear precisely when the relationship between Agolli and Antonios soured, following the filing of the foreclosure action, the determination was made to remove both Joseph and Gina Antonios from any further involvement with Fikri. Also during this time period, Agolli spoke directly with Angelo Tedesco in an effort to resolve the foreclosure and satisfy Fikri's debt to the ATMPPP. She testified that she asked him whether he intended to leave her ‘‘out on the street'' with nothing. Agolli wanted Tedesco to accept $500, 000 from the anticipated sale of one of the parcels of property in full satisfaction of Fikri's debt.

         Attorney Sullivan eventually worked out a resolution of the foreclosure action with Tedesco, who was represented by Attorney Paul Margolis. The debt would be refinanced as follows. Fikri would consummate the sale of property located on Austen Road, Waterbury, Connecticut, from which $290, 000 would be paid to Tedesco to pay down the outstanding Fikri debt. Fikri would sign a new Promissory Note in the reduced amount of approximately $571, 000. The new Note would bear interest at 5 percent, instead of the previous interest rate of 10 percent. The new Note would be secured by the four properties at issue here, but Agolli's personal residence would no longer be on the mortgage, protecting her home in the event of future default. ...


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