Opinion
No. CV03 0285396-S
November 25, 2003
MEMORANDUM OF DECISION ON APPLICATION FOR PREJUDGMENT REMEDY
This case has come before the court on an application for prejudgment remedy pursuant to General Statutes § 52-278c. The applicant seeks a prejudgment remedy in the amount of $50,000. In the unsigned complaint attached to his application, he seeks to recover $22,000 "lent . . . to the defendant . . . which sum has not been repaid to the plaintiff per the agreement of the parties." The applicant also seeks statutory interest and attorneys fees.
A trial court will issue a prejudgment remedy upon determining whether there is "probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff." General Statutes § 52-278c(a)(2).
In the affidavit attached to the application for prejudgment remedy, the plaintiff avers, "I am thoroughly familiar with the facts contained in the unsigned complaint and in the application for prejudgment remedy in the above-entitled matter, and the facts set forth are true to the best of my knowledge and belief. In my opinion, the foregoing facts are sufficient to show that there is probable cause that judgment will be rendered for the plaintiff." The affidavit attached to the application for prejudgment remedy is conclusory and insufficient.
Where an affidavit alone cannot support a finding of probable cause, evidence has been permitted to buttress an insufficient affidavit. "[A] plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit. We see no reason why the plaintiffs in this case should not be permitted to use evidence at the hearing to buttress the facts contained in the affidavit." (Citation omitted; internal quotation marks omitted.) Doe v. Rapoport, 80 Conn. App. 111, 117 A.2d (2003).
A probable cause hearing in this matter was held on September 29, 2003. A probable cause hearing is not a full scale hearing on the merits. Three S Development Co. v. Santore, 193 Conn. 175, 176, 474 A.2d 795 (1984).
The evidence presented at the hearing indicates that the plaintiff advanced $15,000 to the defendant on April 7, 2003, and that the defendant agreed to pay "another $7,000 making the total amount to be repaid $22,000 . . . in 3 weeks from Tuesday, April 8, 2003." An agreement to pay $7,000 on a loan of $15,000 — interest of approximately 46.7% — in 22 days — would likely run afoul of General Statutes § 37-4, which provides for a 12% per annum limit, and of General Statutes § 37-8, which provides that no action may be brought to collect principal or interest on any such prohibited loan.
Under Connecticut law, recovery of both the principal and interest on a usurious note is barred if the lender had the unlawful intent to exact payments that exceed the amount of interest allowed by statute, and in the absence of unlawful intent, recovery may be had for the amount actually loaned, or where the circumstances warrant, for the principal and legal interest. See Greglon Industries, Inc. v. Bowman, 21 Conn. App. 131, 572 A.2d 369, cert. denied, 215 Conn. 807 (1990) (a general discussion and construction of § 37-8 and the relevance of intent in transactions involving usurious noninterest-bearing notes).
Based on all the evidence presented regarding the allegations of the complaint and considering the possible defenses, the plaintiff has failed to show there is probable cause to sustain the validity of his claim.
The application for prejudgment remedy is denied.
LOIS TANZER, JUDGE.