Opinion
No. CV 92-0061073
August 30, 2005
MEMORANDUM OF DECISION
The plaintiff originally brought this action against the defendants in 1992 for foreclosure of a mortgage executed as security for a $270,000 loan. After a protracted history that includes two judgments of strict foreclosure and three appellate decisions, the case came before this court in February 2000 for trial on an amended complaint. Trial of this case, delayed in part by reassignment of this judge to other courthouses, multiple bankruptcies filed by defendants, and plaintiff's efforts to secure testimony from the defendant Marie Jajer, took place over 11 days between February 4, 2000, and April 16, 2004. Following the conclusion of evidence, both sides filed briefs. Another bankruptcy petition temporarily stayed the action, but it is now ready for decision. For the reasons stated below, judgment enters for the plaintiff.
The defendants originally appeared in the proceedings before this court with counsel, but after the conclusion of most of the evidence, their counsel were allowed to withdraw. Both defendants had pro se appearances in the file. The defendant Maurice Jajer appeared for subsequent proceedings, but his wife, the defendant Marie Jajer, did not. On the final day of trial, resumed after the United States Bankruptcy Court granted a relief from the stay of proceedings caused by a bankruptcy filing by defendants, Mr. Jajer appeared and requested a continuance to obtain new counsel. The court denied that motion. He left the courthouse and did not remain for the remaining testimony. Defendants did submit a post-trial brief, however.
I — HISTORY OF THE PROCEEDINGS
The original foreclosure complaint brought in 1992 identified only two parcels of vacant land as securing the mortgage note. A judgment of strict foreclosure entered against the defendants on the original complaint on August 22, 1994, with a law day of September 19, 1994, for the defendants to redeem or to be foreclosed. The defendants failed to redeem on their law day, and title to the two vacant parcels vested in the plaintiff on September 23, 1994. The plaintiff thereafter moved to open the judgment so that it could file an amended complaint containing a description of a third piece parcel of land, the defendants' residence at 99 Merryall Road in New Milford, as well as the two original parcels. The plaintiff requested new law days for the third parcel only. The ensuing history before assignment of the amended complaint to this court for trial is set forth in the margin. After remand back to the Superior Court, the plaintiff amended its complaint, and defendants filed an answer denying that the third parcel was ever part of the original mortgage and that the defendant Marie Jajer ever signed the mortgage or mortgage deed for the third parcel and interposing a counterclaim for violations of The CT Page 11768-js Connecticut Unfair Trade Practices Act. The case was assigned to the undersigned for trial. By agreement of the parties, trial on the counterclaim has been deferred until decision on the amended complaint.
The court (Walsh, J.) granted the motion to open and amend the complaint motion on March 27, 1995, and the plaintiff filed an amended complaint with respect to all three parcels on April 12, 1995. On April 24, 1995, before expiration of the time for defendants to plead and before the defendants had been defaulted, the plaintiff filed a motion for judgment. On May 11, 1995, counsel for the defendants informed plaintiff's counsel that the motion for judgment was premature because a motion for default for failure to plead had not yet been filed. Counsel for the defendants also informed plaintiff's counsel that he would not be present at the hearing on the plaintiff's motion because he was required to be present at a hearing of the Statewide Grievance Committee in Hartford regarding his own disbarment. On May 12, 1995, the defendants attorney also filed an objection to the plaintiff's motion for judgment and also informed the court that he would be unavailable on May 15, 1995. Also on May 12, 1995, plaintiff's counsel filed a motion for default for failure to plead and the motion was granted on that day.
On May 15, 1995, the court (Pickett, J.) granted the plaintiff's motion for judgment of strict foreclosure on the amended complaint notwithstanding the absence of the defendants' attorney. The defendants' motion to open and set aside the May 15, 1995 judgment was denied on June CT Page 11768-jy 5. On appeal, the Appellate Court held that General Statutes § 49-15 precludes the opening of a judgment of strict foreclosure once title vests in the mortgagee, thus depriving the trial court of jurisdiction in such matters. In accordance with this finding, the court vacated the judgment of May 15th and reinstated the judgment of August 22, 1994. New Milford Savings Bank v. Jajer, 44 Conn.App. 588, 691 A.2d 598 (1997). After the granting of certification, the defendants appealed to the Supreme Court, which reversed the Appellate Court on the jurisdictional issue and remanded the case to the Appellate Court to resolve issues that it had not reached. New Milford Savings Bank v. Jajer, 244 Conn. 251, 708 A.2d 1378 (1998). On remand, the Appellate Court found that the trial court had not violated the Bankruptcy Court order in opening the foreclosure. The court further found that the defendants' attorney was "otherwise disabled" within the meaning of General Statutes § 52-235b on the date that the court granted the motion for judgment of strict foreclosure and that the defendants' objection was an answer within the meaning of Practice Book § 363A[b], now § 17-32[b]. The court remanded the matter back to the Superior Court for retrial of the amended complaint regarding the third piece of property. New Milford Savings Bank v. Jajer, 52 Conn.App. 69, 726 A.2d 604 (1999).
II — DISCUSSION
The principal issues before this court are whether the property at 99 Merryall Road was security for the mortgage and whether defendant Marie Jajer signed a mortgage deed conveying an interest in the Merryall Road property to the plaintiff bank. In the earlier proceeding between the parties, on the foreclosure of the first two parcels, the court found that both parties signed the mortgage note and that they have defaulted on that note. Both findings were essential to the judgment of strict foreclosure on those parcels. Those factual issues having been adjudicated previously, after being fully and fairly litigated in that proceeding, and those findings being necessary to the prior judgment of strict foreclosure, the defendants are now precluded, under principle of res judicata and collateral estoppel, from denying them now.
The defendants also filed a special defense based on conduct they allege occurred after the first judgment of foreclosure on the two vacant parcels. Defendants offered no evidence on their special defense and have not sustained their burden of proof on such.
"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . ." Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 69 Conn.App. 151, 154-55 (2002). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn.App. 571, 577-78, 739 A.2d 726 (1999), cert. CT Page 11768-kz denied, 252 Conn. 925, 746 A.2d 789 (2000).
A. Was the 99 Merryall Road property security for the mortgage note?
The defendant Maurice Jajer testified that he never intended the 99 Merryall Road property to be given as security for the mortgage. He also testified that the piece of paper containing "Schedule A," the description of the 99 Merryall Road property, was not with the mortgage papers when he signed the mortgage. The original mortgage deed does not conform in format to the copy of the mortgage deed on the land records. The overall evidence, however, persuades the court that the Merryall Road property was given as security for the mortgage.
The original loan application signed by the defendants stated that the purpose of the $300,000 loan sought by the defendants was to refinance the "subject property" listed at 99 Merryall Road. The bank's initial mortgage commitment letter, dated February 18, 1987, stated the bank had approved a loan for a lesser amount, only $225,000, on that property. A "revised commitment" letter eight days later, on February 26, 1987, stated that the bank would now approve a mortgage loan for $270,000, on the Merryall Road property and on a second parcel of "land only consisting of 7.3 acres." (By the time of the closing, the security being offered by defendants for the $270,000 loan was the improved property containing defendants' residence at 99 Merryall Road and two parcels of vacant land on Merryall Road totaling 6.88 acres.) The title insurance policies obtained by the defendants' attorney for the closing was for all three of these parcels of land. The settlement statement signed by CT Page 11768-jt defendants and their attorney stated that the location of the property for the mortgage loan was at 99 Merryall Road.
Although the mortgage deed certified by the town clerk as entered on the land records differs in certain respects from the original mortgage deed, those differences are not significant. Both versions contain the same language, except that the certified copy of the recorded deed omits a blank acknowledgment on the last page of the original deed and certain identifying information about the deed on the bottom of the last page of the original. The rest of both deeds is the same in content (though not in format). Evidence introduced by the plaintiff established that the defendants' own attorney submitted the original deed to the town clerk for recording and that it is the normal procedure for town clerks to take possession of the original deed, make the copy to be placed on the land records, and then return the original. The court concludes that the differences in format between the original mortgage deed and the deed as recorded on the land records result from the way that the town clerk photocopied the original deed. The similarities in language, the procedures for recording in this case and all the other evidence lead this court to find that the original mortgage deed, plaintiff's exhibit 2, which lists 99 Merryall Road as one of the properties securing the mortgage loan, is the same document as that recorded on the land records and that the mortgage deed did convey an interest in 99 Merryall Road to the plaintiff.
The description of the 99 Merryall Road property is on the second sheet of paper of the original mortgage deed on a page entitled "Schedule A, continued." The description of the 99 Merryall Road property is the only writing on that page. On the certified copy of the recorded deed, "Schedule A, continued" and the description of the 99 Merryall Road property are not on a separate piece of paper but instead are on the last page of the deed beneath the signatures of the grantors and witnesses and the acknowledgment. There is thus one more page in the original mortgage deed than in the copy on the land records, but this difference is easily explained as the result of the town clerk having copied the portion of the page containing "Schedule A, continued" onto blank space on the last page of the mortgage deed copy, as this court finds occurred.
B. Did the defendant Marie Jajer sign the mortgage deed conveying an interest in 99 Merryall Road to the plaintiff?
A significant portion of the trial was spent in plaintiff's efforts to prove that the defendant Marie Jajer signed the mortgage deed conveying an interest in 99 Merryall Road to the plaintiff. (Mr. Jajer admitted at trial that he signed the deed.) Signatures bearing each defendant's name appear on the mortgage deed, and the deed also lists two witnesses; but there is only one signed acknowledgment, for Mr. Jajer, and none for Mrs. Jajer. Section 47-5(a)(3) of the General Statutes requires that "All conveyances of land shall be . . . acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; . . ." The lack of an acknowledgment for Mrs. Jajer's signature does not invalidate any conveyance on her part, however, because of the validating acts passed by the legislature. Section 3 of Connecticut Special Acts 89-6 (1989), entitled An Act Validating Acts and Deeds, Valid Except for Certain Irregularities and Omissions, provides as follows:
Conveyances. (a) No deed, mortgage, lease, power of attorney, release, assignment or other instrument made CT Page 11768-ju for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state and recorded prior to the effective date of this act in the land records of the town in which such real property is located shall be deemed invalid, because any such deed, mortgage, lease, power of attorney, release, assignment or other instrument: (1) Was not acknowledged or was improperly acknowledged or the person taking the acknowledgement did not have the authority to do so, or the authority of the person taking such acknowledgement was not properly stated or authenticated, or the date or place of such acknowledgment is not stated; . . .
Thus, because the mortgage was recorded on March 24, 1987, before the effective date of this act, April 18, 1989, Section 3 of Special Act 89-6 validates the otherwise defective mortgage deed.
Mrs. Jajer did not appear at trial, and Mr. Jajer waffled on whether the signature bearing Mrs. Jajer's name on the mortgage deed was actually signed by her. Although the plaintiff filed a request for admission asking Mrs. Jajer to admit she had signed the mortgage deed, her counsel filed an "Objection and/or Response" on her part stating that counsel had
made reasonable inquiry and the information sought by the Plaintiff's Request is not known or readily obtainable by undersigned counsel so as to enable the undersigned on behalf of Marie Jajer to admit or deny the Plaintiff's Request.
Plaintiff never moved for a determination of the sufficiency of her response as would have been permitted under Practice Book Section 13-23(b).
However, the plaintiff did prove that the signature bearing Mrs. Jajer's name on the mortgage deed was signed by the same person who signed the mortgage note through the expert testimony of James L. Streeter on handwriting and document examination and identification. Streeter testified that the same person signed the name Marie Jajer on the mortgage note and the mortgage deed. The court found this testimony credible and persuasive. "It is undisputed that where an issue is raised regarding the authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an CT Page 11768-jv exemplar, the authenticity of which has been established." Shakro v. Haddad, 149 Conn. 160, 163, 177 A.2d 221 (1961). It has long been the law, moreover, that the trier of fact, whether judge or jury, may compare a disputed writing with a specimen of known authorship to determine the identity of the person. Tyler v. Todd, 36 Conn. 218, 222-23 (1869); Tait's Handbook of Connecticut Evidence (3rd ed. 2001); § 9.6.3, p. 762; Commentary, Connecticut Code of Evidence § 9-1(a)(3) ("The trier of fact or an expert witness can authenticate a contested item of evidence by comparing it with preauthenticated samples.") The court has itself compared the signatures on the original mortgage deed with that on the mortgage note and finds them to have been signed by the same person.
In the earlier portion of the proceeding, in which the court entered a judgment of strict foreclosure on the two vacant parcels of land, the court found that the defendant Marie Jajer signed the mortgage note. That factual issue was fully and fairly litigated and actually decided in the prior proceeding. That finding was also necessary to the judgment of strict foreclosure. The defendants are thus now precluded, under principles of res judicata and collateral estoppel, from denying the identical issue in this proceeding — that the signature on the mortgage note was that of Mrs. Jajer. Since Mrs. Jajer signed the mortgage note, and since the signature on the mortgage deed was from the same person who signed the mortgage note, the court finds that she also signed the mortgage deed.
C. Other Findings
The court makes the following additional findings:
1. All necessary defaults have been entered.
2. The New Milford Savings Bank is the proper party to bring a foreclosure action, as it is the holder of the mortgage note, and it has brought this action against the proper parties, the mortgagors of the property at 99 Merryall Road in New Milford.
3. The plaintiff is the mortgagee and current holder of the note, on which the defendants have defaulted.
4. The court (Pickett, J.) found a debt of $308,181.11 owing on the mortgage and, after awarding counsel fees to the bank of $2,000, found total indebtedness to the bank of $310,181.11. The court also found that the two parcels of vacant land on which the court entered an order of strict foreclosure and to which absolute title passed to the bank on September 23, 1994, had a value of $52,000. Interest on the debt from the CT Page 11768-jw date of judgment on August 22, 1994, to September 23, 1994, at $74.36 per day is an additional $2,305.16. Interest from September 24, 1994, until the present, at the rate of 8.75%, or $62.45 per day, is an additional $249,800 in interest. The court heard the testimony and reviewed the appraisal report from Donna Hemming, a certified residential real estate appraiser called as a witness for the plaintiff and who appraised the value of the land and improvements at 99 Merryall Road, and finds the fair market value of the piece of land plus improvements there to be $274,000. The evidence also established that the plaintiff has paid, through September 1999, real estate taxes on that property in the amount of $29,687.72 and insurance of $5,035.43. The court thus finds the amount of the debt, with interest through August 31, 2005, to be $597,009.42. The court also awards counsel fees to plaintiff in the amount of $2,000, and a title fee of $150 and an appraisal fee of $350 for total debt, for the purposes of redemption, to be $599,509.42, as shown below:
Debt found on August 22, 1994 $ 310,181.11 Interest on two vacant parcels from August 22, 1994 to September 23, 1994, at the rate of $74.36 per day $ 2,305.16 Interest from September 24, 1994, to August 31, 2005, at the rate of 8.75%, or $62.45 $249,800.00 Real estate taxes paid by plaintiff on 99 Merryall Road through September 30, 1999 $ 29,687.72 Real property insurance paid by plaintiff on 99 Merryall Road through September 30, 1999 $ 5,035.43 Total $597,009.42 Counsel fees $ 2,000.00 Title fee $ 150.00 Appraisal fee $ 350.00 Total Debt $599,509.42 Since the total debt exceeds the fair market value of the property, strict foreclosure is appropriate. CT Page 11768-jxIII — ORDERS
The court enters a judgment of strict foreclosure in favor of the plaintiff and against both defendants with a law day of September 23, 2005 for the owners of the equity of redemption, and subsequent dates in inverse order of priority.
BY THE COURT
FRAZZINI, J.