Opinion
FBTCV166057211S
12-16-2016
Benchmark Municipal Tax Services, LTD. v. Now Entity, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Edward T. Krumeich, J.
Plaintiff Benchmark Municipal Tax Services, Ltd. (" Benchmark"), as assignee of the City of Bridgeport, has moved for summary judgment against Now Entity, LLC, (" LLC") to establish liability for certain municipal tax liens on properties in Bridgeport. The LLC has objected to the motion on two grounds: 1. Benchmark failed to comply with Practice Book § 10-70(a)(1)-(2), and 2. there is no proof the assignment of tax liens was assigned in accordance with C.G.S. § 12-195h by virtue of a resolution voted upon by the legislative body of the City of Bridgeport.
For the reasons stated below, the Court accepts the first ground and rejects the second ground. The Court denies the motion for summary judgment without prejudice to its resubmission with the proof required to comply with the Practice Book.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
Plaintiff Has Not Complied With Practice Book § 10-70(a)(1)
Practice Book § 10-70 provides, in pertinent part, as follows:
(a) In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove: (1) the ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made; (2) that thereafter a tax in the amount specified in the list, or such assessment in the amount made, was duly and properly assessed upon the property and became due and payable; (3) (to be used only in cases where the lien has been continued by certificate) that thereafter a certificate of lien for the amount thereof was duly and properly filed and recorded in the land records of the said town on the date stated; (4) that no part of the same has been paid; and (5) other encumbrances as required by the preceding section.
(b) When the lien has been continued by certificate, the production in court of the certificate of lien, or a certified copy thereof, shall be prima facie evidence that all requirements of law for the assessment and collection of the tax or assessment secured by it, and for the making and filing of the certificate, have been duly and properly complied with. Any claimed informality, irregularity or invalidity in the assessment or attempted collection of the tax, or in the lien filed, shall be a matter of affirmative defense to be alleged and proved by the defendant.
Plaintiff has failed to submit evidence as to the owner of the liened properties at the time the property went on the tax rolls or assessment as required by P.B. § 10-70(a)(1) and has not submitted admissible evidence of the certificates of lien transferred to plaintiff from Bridgeport as stated in the affidavit filed in support of the motion. If plaintiff had done so, it would have dispensed with the need to satisfy P.B. § 10-70(a)(2) by submitting evidence that the tax was " duly and properly assessed" on the properties.
In City of New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005), the Appellate Court reversed the granting of summary judgment for foreclosure of a tax lien because the city had " failed to submit either an original certificate of lien or a certified copy as required by Practice Book § 10-70." The court held that the documents submitted must be authenticated and noted that in support of the motion for summary judgment plaintiff " failed either . . . to attach an affidavit attesting to the truth and accuracy of the various submissions or to provide certified copies of any of the documents." The Court also quoted P.B. § 10-70(b), which requires submission of the original certificate or a certified copy to make a prima facie case " [w]hen the lien has been continued by certificate . . ."
In Water Pollution Control Authority v. Goncalves, 2012 WL 695465 *3 (Conn.Super. 2012), Judge Hartmere held that plaintiff's failure to submit certified copies of the liens was " fatal to plaintiff's case, " citing Town of Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 163, 459 A.2d 525 (1983). See generally 1 Conn.Prac., Super.Ct.Civ. Rules § 10-70 (2016 ed.) (" [f]ailure to submit the original certificate or a certified copy under this section is fatal").
The affidavit submitted in support of the motion does not append copies of the certificates of liens Benchmark seeks to enforce and no certified copies of the certificates of lien were provided to the court. The affidavit describes the taxes assessed and due as well as the address of the properties, but does not identify the owners of the subject properties at the time the properties entered the tax rolls or on assessment. The affidavit relates details concerning the recorded assignments of the certificates of lien by Bridgeport to Benchmark. The affidavit identifies the LLC as the present owner and possessor of the liened properties, which, despite demand, has failed to pay the " delinquent municipal taxes" described in the affidavit. There is also only conclusory evidence about the assessment and no evidence that the properties " were duly and properly assessed" as required by P.B. § 10-70(a)(1). Appended to the affidavit is a statement that breaks down the delinquent taxes, including the dates of assessment, but again does not identify who owned the properties in April 2014, 2015 and 2016, when the assessments were made. Plaintiff's failure to comply with P.B. § 10-70(a) precludes summary judgment.
Defendant Has the Burden of Showing Noncompliance with C.G.S. § 12-195h
Defendant argues that Benchmark failed to prove that the assignment of the tax liens by the City was authorized by a resolution approved by the legislative body of the municipality, in this case the Common Council of the City of Bridgeport, as required by C.G.S. § 12-195h.
Section 12-195h provides in pertinent part:" [a]ny municipality, by resolution of its legislative body, as defined in section 1-1, may assign, for consideration, any and all liens filed by the tax collector to secure unpaid taxes on real property as provided under the provisions of this chapter."
Assuming plaintiff had made a prima facie case in compliance with Practice Book § 10-70, the burden of alleging and proving noncompliance with C.G.S. § 12-195h would fall on defendant. See Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 162, 459 A.2d 525 (1983). See generally Voluntown v. Rytman, 27 Conn.App. 549, 554, 607 A.2d 896 (1992). Practice Book § 10-70(b) provides in cases where the lien has been continued by certificate that " [a]ny claimed informality, irregularity or invalidity in the assessment or attempted collection of the tax, or in the lien filed, shall be a matter of affirmative defense to be alleged and proved by the defendant." Defendants' claim that the certificates of lien were not validly assigned and plaintiff's attempted collection of the tax is improper would certainly fall within the requirement that these matters be raised by special defense proven by defendant. This would not be an insurmountable burden on defendant since presumably the minutes of the council are public records and would show whether the City complied with C.G.S. § 12-195h by appropriate resolution approving assignment of the certificates of tax lien. Plaintiff has presented evidence by affidavit the lien certificates were duly assigned. Defendant, which has not raised this issue by special defense, has presented no evidence to suggest otherwise so there is no issue of genuine material fact concerning compliance with § 12-195h.
As to the importance of alleging a special defense to preserve a claim challenging " the validity of the lien or the underlying assessment, levy or attempt to collect the tax, " see Trumbull v. Palmer, 104 Conn.App. 498, 507, 934 A.2d 323 (2007).
CONCLUSION
For the reasons stated above, the motion for summary judgment as to liability is denied without prejudice to its renewal upon submission of proper proof to establish a prima facie case.