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HSBC BANK USA, NATIONAL ASSOCIATION,
TRUSTEE v. HOWARD I. GILBERT ET AL.
(AC 42599)
Alvord, Keller and Elgo, Js.
Syllabus
The plaintiff, which had been assigned a note secured by a mortgage on
certain real property owned by the defendants, commenced this action
to foreclose that mortgage. The defendants filed an answer, in which
they admitted that they owned the property but denied that they were
in default, and special defenses, alleging, inter alia, that the plaintiff had
failed to provide them with proper notice of the acceleration of the
debt. The plaintiff filed a motion for summary judgment as to liability
only, claiming that there were no genuine issues as to any material fact
alleged in its complaint and appended documentation that included an
affidavit from R, a contract management coordinator with O Co., the
plaintiff’s mortgage loan servicer and holder of the note. R attested,
inter alia, that the note and mortgage were in default and that notice
of the default, a copy of which was attached as an exhibit to her affidavit,
had been given to the defendants. During argument on the summary
judgment motion, the plaintiff’s counsel stated that, when the exhibit
was electronically filed with the court, a scanning error occurred that
resulted in the exclusion from the exhibit of certain documents neces-
sary to demonstrate the plaintiff’s compliance with the notice require-
ments of the mortgage. Thereafter, the defendants filed an objection to
the plaintiff’s summary judgment motion, asserting that genuine issues
of material fact existed because R’s affidavit did not comply with the
applicable rule of practice (§ 17-46) and constituted inadmissible hear-
say. The defendants alleged, inter alia, that R’s affidavit did not identify
which entity’s business records she was familiar with and could testify
to pursuant to Jenzack Partners, LLC v. Stoneridge Associates, LLC
(183 Conn. App. 128). The defendants further claimed that R’s affidavit
failed to establish that the plaintiff sent to them proper notice of the
default and instructions to cure the default and a date by which the
default had to be cured. Prior to argument on the summary judgment
motion, the plaintiff filed a supplemental affidavit from H, a different
contract management coordinator with O Co. H averred, inter alia, that
she had personal knowledge of the transactions at issue and the manner
in which the business records that related to the servicing of the defen-
dants’ mortgage loan were created. A copy of the notice of default
was attached to H’s affidavit. The trial court overruled the defendants’
objection and granted the plaintiff’s motion for summary judgment as
to liability only. Thereafter, the court rendered judgment of foreclosure
by sale, from which the defendants appealed to this court. Held:
1. The defendants could not prevail on their claim that the trial court erred
in granting the plaintiff’s motion for summary judgment because there
was no evidence from which the court could have determined which
of the two notices attached to the affidavits of R and H was sent to the
defendants and that the existence of the two affidavits, one of which
had a defective notice attached to it, created a genuine issue of material
fact as to whether the defendants received proper notice of default and
acceleration: the trial court declined to transform the consequence of
a scanning error into a genuine issue of material fact, the plaintiff’s
counsel having explained at the hearing on the summary judgment
motion that the documentation attached to the affidavits of R and H
was intended to be the same and that R’s affidavit was supplemented
because important pages from the notice of default and acceleration
were inadvertently excluded from R’s affidavit because of the scanning
error; moreover, the court did not err when it relied in part on the
representations of the plaintiff’s counsel as to facts that related to an
error in conjunction with electronic filing, as it could not be said that
counsel attempted to present testimony that concerned disputed facts
related to the foreclosure action.
2. The trial court did not err in relying on the affidavits of R and H in
granting the plaintiff’s summary judgment motion, as the affiants’
employment status with O Co. was sufficient to demonstrate that they
were competent to aver to the facts contained in their affidavits, and
there was no requirement in the law or the rules of practice that aver-
ments need to be supported by documentary evidence; moreover, the
plaintiff submitted admissible evidence to the court that established
that the loan was in default, that the plaintiff was the holder of the note
and record holder of the mortgage, and that a valid notice of default and
acceleration had been sent to the defendants, who offered no evidence
to refute that showing.
3. This court found unavailing the defendants’ claim that the trial court
incorrectly rendered judgment of foreclosure, which was based on the
defendants’ assertion that the plaintiff’s affidavit of debt did not comply
with the holding of Jenzack Partners, LLC, because the affiant lacked
personal knowledge as to the starting balance of the debt: the record
did not suggest, as the defendants claimed, that the plaintiff relied on
a hearsay source as to the starting balance of the defendants’ debt, as
the affiant attested that she relied on records of data compilations that
related to the loan, there was no evidence that she relied on business
records from a third party, and the defendants never raised a defense
that was sufficient to prohibit the admission of the affidavit of debt
pursuant to the applicable rule of practice (§ 23-18 (a)); moreover, even
if Practice Book § 23-18 (a) was inapplicable, the defendants’ reliance
on Jenzack Partners, LLC, was unavailing, as our Supreme Court
reversed in part this court’s judgment in Jenzack Partners, LLC, and
held that the entirety of the record of debt owed on a promissory note
was admissible under the business records exception to the hearsay
rule when that record is maintained by the lender’s assignee and incorpo-
rated into the initial business entry that the lender provided to the
assignee.
Argued March 11—officially released September 22, 2020
Procedural History
Action to foreclose a mortgage on certain of the
defendants’ real property, and for other relief, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, where the court, Genuario, J., granted the
plaintiff’s motion for summary judgment as to liability;
thereafter, the court rendered judgment of foreclosure
by sale, from which the defendants appealed to this
court. Affirmed.
James R. Winkel, for the appellants (defendants).
Marissa I. Delinks, for the appellee (plaintiff).
Opinion
KELLER, J. The defendants Howard I. Gilbert and
Mary S. Gilbert1 appeal from the judgment of foreclo-
sure by sale rendered by the trial court in favor of
the plaintiff, HSBC Bank USA, National Association, as
Trustee for Fremont Home Loan Trust 2005-E, Mort-
gage-Backed Certificates, Series 2005-E. On appeal, the
defendants claim that the court erred in granting the
plaintiff’s motion for summary judgment as to liability
only (1) because the plaintiff failed to establish that
there was no genuine issue of material fact as to
whether it sent proper notice of default and acceleration
to the defendants, (2) because the plaintiff’s affidavits
submitted to the court in support of the motion failed
to satisfy the requirements of Practice Book § 17-46,
and (3) despite the fact that the plaintiff’s affiants failed
to establish that they had personal knowledge of the
facts that were the subject of the affidavits,2 and that
the court erred in rendering judgment of foreclosure
by sale because the plaintiff’s affidavit of debt was
insufficient to demonstrate the amount of debt due
on the subject note. We disagree and, thus, affirm the
judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to the resolution of this appeal. On
November 7, 2005, Howard Gilbert executed a promis-
sory note to Fremont Investment and Loan (Fremont)
in the amount of $720,000. To secure his repayment of the
loan, Howard Gilbert executed a mortgage to Mortgage
Electronic Registration Systems, Inc. (MERS), as nominee
for Fremont, on the property located at 245 Pepper Ridge
Road in Stamford (property). The mortgage was recorded
on the Stamford land records on November 14, 2005.
On December 13, 2016, MERS, as nominee for Fremont,
assigned the mortgage to the plaintiff.
Thereafter, on February 6, 2017, the plaintiff com-
menced this foreclosure action by seeking to foreclose
that mortgage. Following an unsuccessful mandatory
mediation, the plaintiff filed an amended complaint on
August 22, 2018, alleging, inter alia, that the note and
mortgage were in default for nonpayment of the
monthly installments of principal and interest due on
June 1, 2016, and anytime thereafter. On September
13, 2018, the defendants filed an answer and special
defenses in which they admitted their ownership of
the property and denied that they were in default. The
defendants also alleged the following special defenses:
(1) the plaintiff failed to provide proper notice of accel-
eration of the debt; (2) the plaintiff does not have stand-
ing to bring the action; (3) the plaintiff failed to plead
properly the necessary elements for a foreclosure
action; and (4) the plaintiff lacks the authority to prose-
cute the action.
On October 12, 2018, the plaintiff filed a motion for
summary judgment as to liability, claiming that there
was no genuine issue of material fact regarding the
allegations in the complaint and, therefore, it was enti-
tled to judgment as a matter of law. In support of its
motion, the plaintiff argued that the defendants had
admitted their ownership and possession of the prem-
ises, it is the party entitled to collect the debt to enforce
the note and the mortgage, and the conditions prece-
dent to foreclose the mortgage had been satisfied. More-
over, the plaintiff asserted that the defendants’ special
defenses do not preclude the entry of summary judg-
ment because the plaintiff’s affidavit affirmed that
notice was sent and that the plaintiff had standing to
bring the present action. Attached as exhibits to its
motion were a copy of the mortgage and assignment
to the plaintiff, the note, the notice of default, and an
affidavit from Flora V. Rashtchy, a contract manage-
ment coordinator of Ocwen Loan Servicing (Ocwen).
In her affidavit, Rashtchy attested that Ocwen is the
plaintiff’s mortgage loan servicer and that, in her posi-
tion, she was authorized to make the affidavit and had
personal knowledge of the facts and matters in the
document. She further attested that the note and mort-
gage on the property were in default as of June 1, 2016,
that the plaintiff was entitled to collect the debt, and
that the notice of default, a copy of which was attached
as an exhibit to her affidavit, had been given to the
defendants on July 27, 2016. According to the plaintiff’s
counsel, when the exhibit was electronically filed with
the court, a scanning error occurred that resulted in
certain documents, necessary to demonstrate the plain-
tiff’s compliance with the notice requirements of the
mortgage, being excluded from the exhibit. Specifically,
the exhibit failed to include a letter that identified the
action required to cure the default and included only the
amount due. Additionally, the exhibit failed to include
a letter that (1) identified a date, not less than ten days
from the date the notice was given to the defendants,
by which the default must be cured, and (2) informed
the defendants that failure to cure the default on or
before the specified date in the notice may result in
acceleration of the sums secured by the mortgage or the
sale of the property. The exhibit also failed to include
a letter that informed the defendants of their right to
reinstate after acceleration and the right to assert in
court the nonexistence of a default or any other defense
against acceleration and foreclosure or sale.
Thereafter, the defendants filed an objection to the
plaintiff’s motion for summary judgment and argued
that genuine issues of material fact existed because
Rashtchy’s affidavit did not comply with Practice Book
§ 17-46 and constituted inadmissible hearsay. Specifi-
cally, the defendants argued that the affidavit was insuf-
ficient because (1) it was not accompanied by other
documentation to validate Rashtchy’s claim that Ocwen
is the plaintiff’s loan servicer, (2) it failed to establish
that she was competent to attest to the matters set
forth in her affidavit, and (3) it did not identify which
entity’s particular business records she was familiar
with and could testify to, pursuant to Jenzack Partners,
LLC v. Stoneridge Associates, LLC, 183 Conn. App. 128,
192 A.3d 455 (2018), rev’d in part, 334 Conn. 374, 222
A.3d 950 (2020). Last, the defendants argued that the
court should not render summary judgment in this mat-
ter because Rashtchy’s affidavit failed to establish that
the plaintiff sent notice of default that was compliant
with the notice requirements of the mortgage, the plain-
tiff failed to provide instructions that explained the
action that was required to cure the default, and the
plaintiff failed to provide a date by which the default
had to be cured.
On December 5, 2018, the plaintiff filed a supplemen-
tal affidavit in support of its motion for summary judg-
ment signed by Anel Hernandez, a different contract
management coordinator with Ocwen. Like Rashtchy,
Hernandez attested that Ocwen is the plaintiff’s mort-
gage loan servicer, that she was authorized to make
the affidavit, and that she had personal knowledge of
the facts and matters stated in the affidavit. Hernandez
further attested that, in the regular performance of her
job responsibilities, she ‘‘has access to and [is] familiar
with the business records . . . relating to the servicing
of the mortgage loan at issue in this foreclosure action
. . . .’’ Additionally, she attested that she had personal
knowledge of the transactions at issue and the manner
in which the business records were created. She also
reiterated that the note and mortgage were in default
as of June 1, 2016, that the plaintiff was entitled to
collect the debt, and that notice of default, a copy of
which was attached to the affidavit as exhibit A-2, had
been given to the defendants on July 27, 2016.
On December 10, 2019, the court held a hearing on
the plaintiff’s motion for summary judgment. In support
of its position, the plaintiff reiterated its argument that
the two affidavits satisfied the business record excep-
tion to the hearsay rule. See General Statutes § 52-180;
Conn. Code Evid. § 8-4 (a). The plaintiff’s counsel, in
arguing the motion, also explained that, when the plain-
tiff first submitted Rashtchy’s affidavit, ‘‘there was some
kind of scanning error’’ and that the plaintiff submitted
the second affidavit in order to provide a more complete
record of the notice sent to the defendants. In response,
the defendants argued that the filing of the second affi-
davit raised an issue of fact because the second affidavit
failed to explain why the first affidavit was not accurate.
In granting the plaintiff’s motion for summary judg-
ment, the court order stated that, ‘‘[t]he motion for
summary judgment having been heard, it is hereby
found that no genuine issue of material fact as to liability
or damages exists. . . . [Howard Gilbert] in his objec-
tion raises two important issues. The first relates to
the admissibility of the plaintiff’s affidavit under the
business records rule. The defendant claims that the
affidavit contains inadmissible hearsay, and the defen-
dant may have a valid point based on the holding in
Jenzack Partners, LLC v. Stoneridge Associates, LLC,
[supra, 183 Conn. App. 128]. However, parts of the affi-
davit, and particularly those parts necessary to establish
the default, are admissible under the business records
rule. The affidavit includes statements by the affiant
that [Howard Gilbert] has failed to make payments each
and every month in breach of his obligations under the
note up until the present time. The affiant is an
employee of the current servicer of the loan and familiar
with those current records. The affidavit establishes
her familiarity with the current business records and
that they were made in the ordinary course of business
of the affiant’s employer. That is sufficient to establish
that [Howard Gilbert] is in default and has been since
the current servicer acquired its responsibilities. [How-
ard Gilbert] has offered nothing to contradict the evi-
dence that he is in default. This is a motion for summary
judgment as to liability only, and the issue of the precise
amount the defendant owes is therefore beyond the
scope of this motion. The reasonable hearsay issues
raised by defense counsel relate to the precise amount
owed and the admissibility of that conclusion contained
in the affidavit based on information that may have
been provided to the current servicer, which as yet may
not comply with the business records rule. However,
based on the clearly admissible portions of the affidavit
and [Howard Gilbert’s] failure to rebut the same, there
is no genuine issue of material fact that [he] is in default.
‘‘The second issue [Howard Gilbert] raises is the issue
of compliance with the provisions of the loan docu-
ments requiring notice of default, notice of acceleration,
and notice of how to cure the default. In its supplemen-
tal affidavit, filed on December 5, 2018, the plaintiff
provided by way of affidavit a copy of the notice it had
sent to [Howard Gilbert]. That notice complies with the
requirements of the loan documents. At oral argument,
[Howard Gilbert] did not request additional time to
respond to the December 5 affidavit. That affidavit and
its exhibits [establish] that there is no genuine issue
of material fact . . . concerning compliance with the
applicable notice provisions. Accordingly, the motion
for summary judgment as to liability only [is granted].
The plaintiff is on notice, however, that in moving for
final judgment it must submit evidence (whether by
affidavit or testimony) that complies with the holding
of Jenzack Partners, LLC.’’
Following the granting of the plaintiff’s motion for
summary judgment, the defendants filed a motion for
reconsideration, arguing that the court ‘‘failed to address
the genuine issue of material fact as to the [two] differ-
ent notices of default which [were] offered as true and
accurate copies of the notices sent [to] the defendants.’’
The plaintiff objected to the motion. On January 16,
2019, the court denied the defendants’ motion, stating
that ‘‘[t]he revised affidavit provides all the necessary
elements to support the entry of summary judgment,
and the defendants have provided nothing to rebut the
facts and exhibits set forth in that affidavit. Nor [have]
the [defendants] provided anything to rebut the quite
credible statement of [the] plaintiff that the difference
between the exhibit attached to the original affidavit
and the revised affidavit was the result of anything other
than a scanning/clerical error. To suggest that a clerical
error cannot be corrected in a revised affidavit is to
exalt form over substance. Nor in requesting reargu-
ment [have] the [defendants] provided anything mean-
ingful to cast doubt on the statement of the plaintiff
that the revision was filed to correct a clerical error.’’
Following the court’s denial of the defendants’ motion
for reconsideration, the plaintiff submitted a preliminary
statement of debt, a foreclosure worksheet, an affidavit
of debt, an oath of appraisers, and an appraisal. There-
after, the court rendered judgment of foreclosure by
sale.3 This appeal followed.
I
The defendants first claim that the court erred in
granting the motion for summary judgment because the
plaintiff failed to establish that there was no genuine
issue of material fact as to whether it sent proper notice
of default and acceleration to the defendants. Specifi-
cally, the defendants claim that a genuine issue of mate-
rial fact existed because, when the plaintiff filed the
supplemental affidavit, the court, in effect, had before
it inconsistent affidavits that were executed by two
different employees of Ocwen authenticating different
notices of default and acceleration, one of which was
clearly defective. Additionally, the defendants argue
that the trial court incorrectly relied on the statement
of the plaintiff’s counsel explaining the clerical error
rather than on evidence. We disagree.
We begin with our standard of review. ‘‘Summary
judgment shall be rendered forthwith if the pleadings,
affidavits and 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.
. . . The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. . . . When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record. . . . In deciding a motion for summary judg-
ment, 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 fact
which, under applicable principles of substantive law,
entitle him to judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . This court’s review
of a trial court’s decision to grant a motion for summary
judgment is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Wells Fargo Bank, N.A. v. Cal-
drello, 192 Conn. App. 1, 19, 219 A.3d 858, cert. denied,
334 Conn. 905, 220 A.3d 37 (2019).
The defendants argue that summary judgment should
not have been rendered because a genuine issue of
material fact existed. Specifically, they claim that
because there was no evidence from which the court
could have determined which of the two notices was
sent to the defendants, the existence of the two affida-
vits, one of which attached a defective notice, created
a genuine issue of material fact as to whether the defen-
dants ever received proper notice of default and acceler-
ation. The plaintiff’s attorney, however, explained to
the court at the hearing on the motion for summary
judgment that the documentation attached to the first
affidavit and to the second affidavit was intended to
be the same, that the first affidavit was supplemented
because a scanning error had occurred when he elec-
tronically filed the documentation with the court, and
that the scanning error caused the inadvertent exclu-
sion of important pages from the notice of default and
acceleration. Additionally, the plaintiff reiterated this
scanning error in its objection to the defendants’ motion
to reargue, explaining that the two affidavits attach ‘‘the
same exact letter with identical tracking information,
except that the second [affidavit] does not have the
same error in scanning.’’ (Emphasis omitted.) The sup-
plemental affidavit of Hernandez, provided by the plain-
tiff, was properly before the court, and it showed that
the plaintiff sent all of the necessary information prior
to the commencement of the foreclosure action. As
the trial court stated, ‘‘[t]o suggest that a clerical error
cannot be corrected in a revised affidavit is to exalt
form over substance.’’ Like the trial court, we decline
the defendants’ invitation to transform the consequence
of a scanning error incident to filing an affidavit into a
genuine issue of material fact under the circumstances
of this case.
Additionally, the defendants claim that the court
erred in granting the plaintiff’s motion for summary
judgment because it based its determination as to
whether the defendants were provided with a proper
notice of default and acceleration, in part, on statements
of the plaintiff’s counsel during the December 10, 2018
hearing on the motion for summary judgment, rather
than on evidence, in making its determination. Specifi-
cally, the defendants argue that the court committed
reversible error when it relied on a statement made by
the plaintiff’s counsel to the court that ‘‘there was some
kind of scanning error’’ because that statement was
not admissible evidence. The defendants argue that the
court could not rely on this statement because the plain-
tiff’s counsel was not under oath, the statement did not
constitute evidence, and the plaintiff’s counsel failed
to establish that he had personal knowledge as to why
two different notices of default were provided to the
court. Our precedent, however, undermines the defen-
dants’ argument. ‘‘[I]t long has been the practice that
a trial court may rely upon certain representations made
to it by attorneys, who are officers of the court and
bound to make truthful statements of fact or law to the
court.’’ (Internal quotation marks omitted.) Maio v. New
Haven, 326 Conn. 708, 729, 167 A.3d 338 (2017); see
also Equity One, Inc. v. Shivers, 310 Conn. 119, 132–33,
74 A.3d 1225 (2013) (reliance on counsel’s representa-
tion was proper because counsel is officer of court);
Certo v. Fink, 140 Conn. App. 740, 752–53, 60 A.3d 372
(2013) (trial court properly relied on representations
of plaintiff’s counsel that he provided defendant with
requested documents). Here, it cannot be said that
counsel, by means of his representations, was
attempting to present testimony concerning disputed
facts related to the action but, rather, counsel was pre-
senting facts related to an error that occurred during
the litigation itself, in conjunction with electronic filing.
In consideration of applicable precedent, we conclude
that the trial court did not err when it relied, in part,
on the statement of the plaintiff’s counsel in granting
the motion for summary judgment.
II
The defendants next claim that the trial court erred
in granting the plaintiff’s motion for summary judgment
because the plaintiff’s affidavits failed to satisfy the
requirements of Practice Book § 17-46. Specifically, the
defendants argue that the affidavits failed to satisfy the
business records exception to the hearsay rule because
neither affiant worked for the plaintiff; the original note
owner, Fremont; or the original mortgage holder,
MERS. The defendants argue, moreover, that the affi-
ants did not provide any documentation to prove that
they were authorized to testify for the plaintiff, that they
were competent to testify, or that they had personal
knowledge of the facts contained in their affidavits.
Essentially, the defendants argue that the court, in
granting the motion for summary judgment, relied on
inadmissible evidence. We disagree.
In part I of this opinion, we set forth the standard of
review governing a trial court’s granting of a motion
for summary judgment. ‘‘Only evidence that would be
admissible at trial may be used to support or oppose
a motion for summary judgment. . . . Practice Book
§ 17-46 provides in relevant part that affidavits shall be
made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to
the matters stated therein. . . . See, e.g., 12 Havem-
eyer Place Co., LLC v. Gordon, 93 Conn. App. 140, 157,
888 A.2d 141 (2006) (explaining that affidavit [that] does
not contain admissible evidence as required by our rules
of practice . . . is therefore insufficient to oppose a
motion for summary judgment). Moreover, affidavits
must be accompanied by [s]worn or certified copies of
all papers or parts thereof referred to in an affidavit
. . . . Practice Book § 17-46.
‘‘Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted. . . . Unless sub-
ject to an exception, hearsay is inadmissible. . . . If
the proffered evidence consists of business records, the
court must determine whether the documents satisfy
the modest requirements under § 52-180 to admit them
under the business records exception to the hearsay
rule.’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) Midland Funding, LLC v.
Mitchell-James, 163 Conn. App. 648, 655, 137 A.3d 1
(2016).
‘‘To admit evidence under the business record excep-
tion to the hearsay rule, a trial court judge must first
find that the record satisfies each of the three conditions
set forth in . . . § 52-180. The court must determine,
before concluding that it is admissible, that the record
was made in the regular course of business, that it was
in the regular course of such business to make such a
record, and that it was made at the time of the act
described in the report, or within a reasonable time
thereafter. . . . To qualify a document as a business
record, the party offering the evidence must present a
witness who testifies that these three requirements have
been met.’’ (Internal quotation marks omitted.) Id., 656.
Additionally, ‘‘business records may be authenticated
by the testimony of one familiar with the books of the
concern, such as a custodian or supervisor, who has
not made the record or seen it made, that the offered
writing is actually part of the records of business.’’
(Internal quotation marks omitted.) Customers Bank
v. Tomonto Industries, LLC, 156 Conn. App. 441, 450,
112 A.3d 853 (2015).
In support of its motion for summary judgment, the
plaintiff submitted certified copies of the mortgage and
the assignment to the plaintiff. Additionally, the plaintiff
submitted an affidavit from Rashtchy, a contract man-
agement coordinator of Ocwen. In her affidavit, Rasht-
chy averred that she is authorized to make the affidavit,
that she is familiar with the business records maintained
by the plaintiff, which records were made and are main-
tained in the regular and usual course of business, that
she had personal knowledge of the manner in which
the records are created, and that she had reviewed
and relied on the records in making her affidavit. More
specifically, Rashtchy stated that, on November 7, 2005,
the defendants owed Fremont $720,000 plus interest as
evidenced by a promissory note. She further stated that,
prior to the commencement of this foreclosure action,
the plaintiff became the party entitled to collect the
debt evidenced by the note and is the party entitled to
enforce the mortgage securing the debt. She explained
that the unpaid balance of the note was $217,786.82
plus interest from May 1, 2016, which increased the
principal balance to a total of $496,300. As a conse-
quence of nonpayment, Rashtchy explained, the note
and mortgage were in default and the plaintiff had exer-
cised its option to declare the entire balance of the note
due. Last, Rashtchy stated that notice of default was
given to Howard Gilbert on July 27, 2016, and that the
default was not cured. The second affidavit, attested
to by Hernandez, set forth the same information in
substance as was set forth in Rashtchy’s affidavit.
After a careful review of the affidavits, we conclude
that the affiants’ employment status with Ocwen, which
was the servicer of the loan and holder of the note
endorsed in blank, was sufficient to demonstrate that
they were competent to aver to the facts contained in
their affidavits—there is no requirement in the law or
the rules of practice that averments need to be sup-
ported by documentary exhibits attached thereto.
Therefore, we conclude that the plaintiff submitted
admissible evidence to the court that established that
the loan was in default, that the plaintiff is the holder
of the note and the record holder of the mortgage, that
a valid notice of default and acceleration was sent to
the defendants, and that the defendants have offered
no evidence to refute this showing. Accordingly, the
trial court did not err in relying on the affidavits in
granting the motion for summary judgment.
III
Finally, the defendants argue that the court incor-
rectly rendered judgment of foreclosure because the
plaintiff’s affidavit of debt did not comply with the hold-
ing in Jenzack Partners, LLC v. Stoneridge Associates,
LLC, supra, 183 Conn. App. 128. Specifically, the defen-
dants contend that the affidavit of debt that the plaintiff
submitted in support of the judgment of foreclosure
was inadmissible hearsay because the starting balance
of the debt was provided by an entity other than Ocwen,
and, thus, the affiant had no personal knowledge as to
the starting balance.4 In response, the plaintiff argues
that judgment of foreclosure was correctly rendered
pursuant to Practice Book § 23-18. We agree with the
plaintiff.
The following facts and procedural history are neces-
sary for the resolution of this issue. On January 24,
2019, the plaintiff submitted an affidavit of debt. The
affiant for the affidavit of debt, Rashtchy, attested that
she was a contract management coordinator of Ocwen,
the loan servicer for the plaintiff, and that, as such, she
is authorized to make the affidavit, that she is familiar
with the business records maintained by the plaintiff,
which records were made and are maintained in the
regular and usual course of business, that she had per-
sonal knowledge of the manner in which the records
are created, and that she had reviewed and relied on
the records in making her affidavit.
Thereafter, on January 28, 2019, the court heard argu-
ment on the plaintiff’s motion for a judgment of strict
foreclosure. During the hearing, counsel for the defen-
dants argued that the motion for a judgment of foreclo-
sure should not proceed because the affidavit of debt
provided to the court by the plaintiff was ‘‘insufficient’’
and cited to Jenzack Partners, LLC. The defendants,
in support of their argument, explained that the court,
in granting the plaintiff’s motion for summary judgment,
had stated that Jenzack Partners, LLC,5 was applicable
to the matter but that there was enough evidence for
the court to find default. The court, however, further
stated that the plaintiff would have to satisfy the require-
ments of Jenzack Partners, LLC, in order to foreclose
the mortgage. On the basis of the court’s statement,
counsel for the defendants argued that the affidavit of
debt is essentially the same affidavit provided to the
court during the summary judgment phase, and, thus,
the information necessary for the court to render judg-
ment of foreclosure remained insufficient. In response,
the plaintiff argued that the requirements of Jenzack
Partners, LLC, are inapplicable in the present matter.
Additionally, the plaintiff argued that the present cir-
cumstances are similar to the circumstances in Bank
of America, N.A. v. Chainani, 174 Conn. App. 476, 484,
166 A.3d 670 (2017), and, thus, the affidavit of debt is
admissible pursuant to Practice Book § 23-18. In sup-
port of its position, the plaintiff noted that the defen-
dants have not contested the amount of the debt, and,
rather, have merely stated that the affidavit of debt
is insufficient—which is inadequate to overcome the
Chainani requirements. Thereafter, the court reviewed
the original note, the original mortgage, and the certified
assignment, and found that the plaintiff is the holder
of the note and the assignee of the mortgage. Addition-
ally, the court found that the affidavit of debt complied
with Practice Book § 23-18 (a).
We begin with the standard of review. ‘‘A trial court’s
decision to admit evidence, if premised on a correct
view of the law . . . calls for the abuse of discretion
standard of review. . . . In other words, only after a
trial court has made a legal determination that a partic-
ular statement . . . is subject to a hearsay exception
. . . is it [then] vested with the discretion to admit or
to bar the evidence based upon relevancy, prejudice,
or other legally appropriate grounds related to the rule
of evidence under which admission is being sought.’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) Midland Funding, LLC v. Mitchell-
James, supra, 163 Conn. App. 653. ‘‘Therefore, a trial
court’s legal determination of whether Practice Book
§ 23-18 (a) applies is a question of law over which our
review is plenary.’’ Bank of America, N.A. v. Chainani,
supra, 174 Conn. App. 484.
Practice Book § 23-18 provides in relevant part: ‘‘(a)
In any action to foreclose a mortgage where no defense
as to the amount of the mortgage debt is interposed,
such debt may be proved by presenting to the judicial
authority the original note and mortgage, together with
the affidavit of the plaintiff or other person familiar
with the indebtedness, stating what amount, including
interest to the date of the hearing, is due, and that there
is no setoff or counterclaim thereto. . . .’’
Additionally, our case law is clear that ‘‘a defense
challenging the amount of the debt must be actively
made in order to prevent the application of [Practice
Book] § 23-18 (a). [A] mere claim of insufficient knowl-
edge as to the correction of the amount stated in the
affidavit of debt is not a defense for purposes of [§ 23-
18 (a)]. . . .
‘‘A defense, however raised, must be squarely focused
on the amount of the debt rather than other matters
that are ancillary to the amount of the debt, such as
whether the loan is in default, which is a matter of
liability, or challenges that attack the credibility of the
affiant or defects in the execution of the affidavit
itself. . . .
‘‘The pleadings that the defendant characterizes as
challenges to the amount of the debt simply are not
defenses to the amount of the debt. Regarding [a] claim
of insufficient knowledge to admit or deny the amount
of the debt, the case law is clear that this is not a defense
to the debt sufficient to bar application of Practice
Book § 23-18 (a).’’ (Citations omitted; internal quotation
marks omitted.) Bank of America, N.A. v. Chainani,
supra, 174 Conn. App. 486–87.
The defendants’ claim is unpersuasive. The defen-
dants, in their brief, argue that the plaintiff improperly
relied on a hearsay source, but they do not identify this
alleged hearsay source. Moreover, the record does not
suggest that the plaintiff relied on a hearsay source. In
the affidavit of debt submitted by the plaintiff, the affi-
ant attested that she relied on records of data compila-
tions of transactions that related to the loan, which
very well may be the plaintiff’s own records. There is
no evidence in the record that the affiant relied on
business records from a third party. Moreover, the
defendants never raised a defense to the amount of the
debt sufficient to prohibit the admission of the affidavit
of debt under Practice Book § 23-18 (a). As Chainani
explained, an answer of insufficient knowledge is not
a sufficient defense that would bar the application of
§ 23-18 (a). See Bank of America, N.A. v. Chainani,
supra, 174 Conn. App. 487. Accordingly, we conclude
that the court did not err in its legal determination that
the requirements of § 23-18 (a) apply as an exception
to the hearsay rule in this case.
In the event, however, that the requirements of Prac-
tice Book § 23-18 (a) did not apply as an exception to
the hearsay rule, such information would be admissible
pursuant to Jenzack Partners, LLC v. Stoneridge Asso-
ciates, LLC, 334 Conn. 374, 222 A.3d 950 (2020). In the
defendants’ principal brief, they argue that the affidavit
of debt submitted by the plaintiff to support the judg-
ment of foreclosure was inadmissible hearsay because
the starting balance of the debt was provided by an
entity other than Ocwen, and, thus, the affiant had no
personal knowledge of the starting balance. Our
Supreme Court, however, has since reversed in part the
judgment of the Appellate Court in Jenzack Partners,
LLC, supra, 183 Conn. App. 128. Specifically, contrary
to this court’s holding, on which the defendants rely,
our Supreme Court held in Jenzack Partners, LLC, that
the record of debt owed on the promissory note, which
was maintained by the lender’s assignee and incorpo-
rated into the initial business entry that the lender had
provided to the assignee, was admissible under the busi-
ness records exception to the hearsay rule.6 Jenzack
Partners, LLC v. Stoneridge Associates, LLC, supra,
334 Conn. 388–90. Our Supreme Court provided its ratio-
nale pertaining to the reliability of the information, and
it stated that, ‘‘[b]y relying on information from a third
party, an entity stakes not only its livelihood on the
accuracy of the information received but also its reputa-
tion as being a trustworthy entity with which to do
business in the future.’’ Id., 392.
In the event that the plaintiff relied on the starting
balance of the debt from a third party and incorporated
the amount due on the note into its business records,
our Supreme Court in Jenzack Partners, LLC,
explained that the incorporation of those documents is
sufficient to establish that the entirety of the plaintiff’s
record of debt owed on the note, including the initial
entry, is admissible as a business record.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
In this opinion the other judges concurred.
1
Although they were also named as defendants, the Department of Reve-
nue Services, and the United States Department of the Treasury, Internal
Revenue Service, are not parties to this appeal.
Throughout this opinion we refer to Howard Gilbert and Mary Gilbert
individually by name where necessary and collectively as the defendants.
2
The defendants’ second and third claims raise materially similar issues
concerning the affidavits and, thus, we consider them together in part II of
this opinion.
3
In the interest of procedural clarity, it necessary to set forth some addi-
tional procedural history. On July 10, 2017, the plaintiff filed a motion for
a judgment of strict foreclosure. On July 14, 2017, the defendants filed an
objection to the plaintiff’s motion for a judgment of strict foreclosure on
the ground that it was premature because no default or summary judgment
had been rendered against the defendants, and the defendants were partici-
pating in mediation. The court sustained the defendants’ objection on the
ground that the plaintiff’s motion for a judgment of strict foreclosure was
premature. It was not until after the court granted the plaintiff’s motion for
summary judgment and the plaintiff submitted the necessary foreclosure
documents previously mentioned that the court rendered judgment of fore-
closure by sale.
4
The defendants’ argument, however, presumes that the affiant relied on
documentation from a third party in calculating the starting balance of the
note. That presumption, however, is not supported by evidence in the record.
We will present in this opinion a more robust discussion of this point.
5
In Jenzack Partners, LLC, the plaintiff presented a witness at trial to
establish the amount of the debt due on the note. Jenzack Partners, LLC
v. Stoneridge Associates, LLC, supra, 183 Conn. App. 141. The witness
admitted during voir dire that his knowledge of the starting balance due on
the note, as reflected in the exhibit the plaintiff was trying to introduce into
evidence, came from data provided by the prior lender when the plaintiff
purchased the loan. Id. The trial court admitted the exhibit over the defen-
dant’s hearsay objection. Id., 140–41. The Appellate Court reversed in part
the judgment of strict foreclosure, finding that a business record introduced
as evidence to establish the starting balance of the debt due on a note,
which the testifying witness acknowledged was made on records received,
rather than made, failed to satisfy § 52-180 and was inadmissible hearsay.
Id., 143. We will present in this opinion a fuller discussion of Jenzack
Partners, LLC.
6
‘‘If part of the data was provided by another business, as is often the
case with loan records in connection with the purchase and sale of debt,
the proponent does not have to lay a foundation concerning the preparation
of the data it acquired but must simply show that these data became part
of its own business record as part of a transaction in which the provider
had a business duty to transmit accurate information.’’ Jenzack Partners,
LLC v. Stoneridge Associates, LLC, supra, 334 Conn. 391.