United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR
W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE
April 19, 2016, this Court entered a Judgment of Foreclosure
by Sale (ECF No. 73) and set a sale date for June 18, 2016.
On May 19, 2016, defendants Christopher F. Berry and Deborah
Yedowitz filed an appeal to the United States Court of
Appeals for the Second Circuit. The parties subsequently
participated in the appellate mediation program and entered
into a forbearance agreement. On September 2, 2016, this
Court granted a jointly filed motion and amended the
judgment. The case was then administratively closed subject
to defendant's completion of the forbearance agreement.
Eastern Savings Bank, FSB, has moved the Court to make new
findings of debt, award additional attorney's fees and
costs, and set a new sale date, based upon defendants'
default under the terms of the forbearance agreement.
Specifically, plaintiff contends that defendants have
repeatedly failed to tender timely monthly payments.
respond that they tendered two checks, a bank check for $1,
000, and a personal check for $1, 600, on September 22, 2017.
Defendants further submit that plaintiff held the personal
check for $1, 600 until October 16, 2017, prior to depositing
it. When defendants sent their subsequent October payment of
$2, 600, both it and the September check for $1, 600 were
returned for insufficient funds. Defendants maintain that the
checks would not have bounced if plaintiff had timely
deposited the September check for $1, 600. Defendants assert
that they were unaware that the $1, 600 check had not been
deposited, so presumably they believed that their account
balance reflected the post-deposit balance. This
misconception caused both the September and October checks to
addition, defendants contend that the payment process was
further complicated by the death of their attorney and by
plaintiff's demand that payment be made in the form of
certified cashier's checks.
replies that defendants were at all times represented by
counsel with appearances on the docket. Moreover, plaintiff
asserts that the terms of the forbearance agreement are clear
and unambiguous. The Agreement required an initial
forbearance payment of $10, 000 by August 1, 2016, monthly
payments of $2, 600 from September 1, 2016 through August 1,
2017, and a final forbearance payment of $10, 000 by August
1, 2017. The two lump sum payments had no cure period.
Defendants defaulted multiple times. The initial lump sum
payment was not received until August 4, 2016, a few days
after its due date. The February and March 2017 monthly
forbearance payments were not made until well after the cure
period had expired, following the return of those payments
for lack of sufficient funds. Nevertheless, plaintiff
accepted the late payments, and did not declare a default
based upon defendants' failure to timely remit those
failed to make the final lump sum payment of $10, 000 on
August 1, 2017. By email dated August 17, 2017, plaintiff
agreed to accept the lump sum payment by August 21, 2017, on
the condition that defendants timely make the September and
October post-forbearance payments. By email dated August 21,
2017, defendant Christopher Berry advised plaintiff's
counsel that he could not make the lump sum payment until
August 25, 2017, and stated that he could timely make the
September and October payments. Plaintiff agreed.
still failed to remit the lump sum payment by August 25,
2017. Instead, on August 29, 2017, plaintiff received two
checks: one for $11, 600 and one for $1, 000, which included
the lump sum payment and the August payment. Despite being in
default of the deadline, as conditionally extended, plaintiff
accepted the late payments with the expectation that the
September and October payments would be timely made.
the September monthly payment was not made on time. The
September payment was due on September 1, 2017, but was not
received until September 25, 2017, in the form of a personal
check for $1, 600 and a bank check for $1, 000.
October 16, 2017, the plaintiff received and deposited the
September and October payments. The October payment was a
personal check for $2, 600. As discussed above, the September
and October personal checks were not honored. At that point,
plaintiff was unwilling to accept any more payments.
to the defendants' assertion in its response, the payment
received in November was returned because of defendants'
chronic default, not because it did not include a
"returned check fee." At the time that payment was
remitted, defendants still owed $1, 600 towards the September
forbearance payment, $2, 600 for the October forbearance
payment and $2, 600 for the November forbearance payment.
plaintiff submits that it required certified bank checks only
after multiple personal checks were returned for insufficient
funds. Based on the foregoing, plaintiff argues that there
can be no serious dispute that defendants defaulted under the
terms of the forbearance agreement. Plaintiff gave defendants
multiple opportunities to cure their default under the
agreement, but defendants failed to do so. Accordingly,
plaintiff's motion is GRANTED.
the parties have come to an alternative agreement, plaintiff
is instructed to submit to the docket a proposed judgment of
foreclosure by sale with updated dates and debt ...