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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
v. ABU HASHEM MALICK ET AL.
(AC 43262)
Moll, Alexander and Bishop, Js.
Syllabus
Pursuant to the rule of practice (§ 23-18 (a)), in any action to foreclose a
mortgage, ‘‘where no defense as to the amount of the mortgage debt is
interposed,’’ the amount of the debt may be proved by the submission
of an affidavit of debt.
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant. The plaintiff filed an affidavit of debt attesting
to the amount of the mortgage debt. The defendant filed an objection
to the plaintiff’s affidavit, in which he claimed that, inter alia, the plaintiff
had overstated his municipal taxes and that it had miscalculated his
interest. Following a hearing, the trial court granted the defendant addi-
tional time to obtain and submit verified documentation to support his
contention as to those two amounts. The court thereafter held another
hearing to consider, inter alia, the defendant’s offer of proof as to his
objection, which the defendant did not attend. The court, relying on the
plaintiff’s affidavit of debt and other submissions, rendered a judgment
of strict foreclosure, and the defendant appealed to this court. Held that
the trial court erred as a matter of law when it accepted the plaintiff’s
affidavit of debt and relied on it to establish the amount of the defendant’s
indebtedness: under our Supreme Court’s decision in Burritt Mutual
Savings Bank of New Britain v. Tucker (183 Conn. 369), once the
defendant raised objections concerning the amount of the mortgage
debt set forth in the plaintiff’s affidavit, the hearsay exception provided
in Practice Book § 23-18 (a) no longer applied, and the plaintiff was
required to provide evidence of the amount of the debt.
Argued April 15—officially released September 28, 2021
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district
of Fairfield, where the defendant Shujaat Malick was
defaulted for failure to appear; thereafter, the court,
Bruno, J., granted the plaintiff’s motion for summary
judgment as to liability; subsequently, the matter was
tried to the court, Bruno, J.; judgment of strict foreclo-
sure, from which the named defendant appealed to this
court. Reversed; further proceedings.
Roy W. Moss, for the appellant (named defendant).
Brian D. Rich, with whom, on the brief, was Anthony
E. Loney, for the appellee (plaintiff).
Opinion
ALEXANDER, J. The defendant Abu Hashem Malick1
appeals from the judgment of strict foreclosure ren-
dered by the trial court in favor of the plaintiff, JPMor-
gan Chase Bank, National Association. On appeal,
Malick claims that the court erred as a matter of law
when, despite his objections to some of the calculations
set forth in the plaintiff’s affidavit of debt, it accepted
the affidavit and relied on it to establish the amount of
the defendant’s indebtedness. Because we are bound
by our Supreme Court’s decision in Burritt Mutual
Savings Bank of New Britain v. Tucker, 183 Conn. 369,
374–75, 439 A.2d 396 (1981), we reverse the judgment
of the trial court.
The following facts inform our review. The defendant
is the owner of real property in Fairfield (property). In
a complaint dated January 9, 2018, the plaintiff alleged
that the defendant had executed and delivered to Wash-
ington Mutual Bank, N.A., its predecessor in interest,2
a note in the principal amount of $417,000, of which
the plaintiff became the holder, secured by a mortgage
on the property. The plaintiff further alleged that the
defendant was in default on the note and that it had
elected to accelerate the debt. The plaintiff sought a
judgment of foreclosure. The defendant filed an answer
in which he alleged in part that he had ‘‘no monetary
obligations’’ to the plaintiff.
On January 24, 2019, the plaintiff filed a motion for
summary judgment as to liability, which was granted
by the court on April 4, 2019. The defendant, on April 12,
2019, filed a motion requesting that the court reconsider
and vacate its summary judgment as to liability, which
the court denied on May 14, 2019. On May 28, 2019, the
defendant filed two identical motions in which he again
requested that the court reconsider and vacate its sum-
mary judgment as to liability.
On June 20, 2019, the plaintiff filed an affidavit of
debt, signed by Nicole L. Smiley, an ‘‘[a]uthorized
[s]igner’’ of the plaintiff, attesting that the defendant
owed the plaintiff $749,420.60 as of June 13, 2019. On
June 21, 2019, the plaintiff filed a motion seeking a
judgment of strict foreclosure. On July 3, 2019, the plain-
tiff updated its affidavit of debt to include the interest
that had accumulated since its June 20, 2019 affidavit.
Thereafter, on July 5, 2019, the defendant filed a
‘‘brief’’ in support of (1) his April 12, 2019 motion to
reconsider and vacate, which motion the court already
had denied on May 14, 2019, and (2) his May 28, 2019
motions to reconsider and vacate the summary judg-
ment as to liability. The defendant also filed an objec-
tion to the plaintiff’s affidavit of debt on the grounds
that it contained hearsay and inaccurate calculations
as to the defendant’s municipal tax liability and the
interest owed on his loan. On July 8, 2019, the court
held a hearing on the plaintiff’s motion for judgment
of strict foreclosure, and the court issued an order
granting the defendant additional time, specifically,
until a hearing on July 15, 2019, to obtain and submit
verified documentation to support his contention that
the plaintiff had miscalculated the outstanding interest
due, as well as the defendant’s municipal tax liability.3
The defendant thereafter filed another objection to the
plaintiff’s affidavit in which he claimed that according
to ‘‘town records,’’ the plaintiff had overstated his
municipal taxes by $4208.83, and that it had miscalcu-
lated his interest by ‘‘tens of thousands of dollars.’’ The
defendant also claimed an offset for damages in the
amount of $5,810,000.
On July 15, 2019, the court held another hearing on
the plaintiff’s motion for strict foreclosure and to con-
sider the defendant’s offer of proof as to his objection
to the amount of the mortgage debt set forth in the
plaintiff’s affidavit of debt. The defendant did not attend
the July 15, 2019 hearing, which had been rescheduled
for the purpose of allowing him the opportunity to
obtain verified documentation to support his allegations
that the plaintiff’s affidavit contained erroneous calcula-
tions. Relying on the plaintiff’s affidavit of debt and
other submissions, the court rendered a judgment of
strict foreclosure, setting a law day of September 17,
2019. The present appeal followed.
The defendant claims that the court improperly ren-
dered a judgment of strict foreclosure after he had
articulated specific objections to the amount of the
mortgage debt set forth in the plaintiff’s affidavit of
debt. He argues that ‘‘[t]his appeal ultimately concerns
the applicability of the hearsay exception provided in
Practice Book § 23-18 . . . .’’ We conclude, on the basis
of Burritt Mutual Savings Bank of New Britain v.
Tucker, supra, 183 Conn. 374–75, that, once the defen-
dant raised objections ‘‘concerning the amount of the
mortgage debt’’; id., 375; set forth in the plaintiff’s
updated affidavit of debt, the hearsay exception pro-
vided by § 23-18 (a) no longer applied, and the plaintiff
was required to provide evidence of the amount of the
debt. Accordingly, the court erred as a matter of law.
‘‘[T]he scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. . . . [T]he proper characterization of the
trial court’s ruling is clarified by examining the nature
of an affidavit of debt and the function of Practice
Book § 23-18 (a) in foreclosures. Without question, an
affidavit of debt is hearsay evidence because it is an
out-of-court statement, by an absent witness, that is
offered to prove the truth of the amount of the debt
averred in the affidavit. . . . As is relevant here, the
purpose of § 23-18 (a) is to serve as an exception to
the general prohibition of hearsay evidence when
appropriate circumstances arise, namely, that the
amount of the debt is not in dispute. . . . Therefore,
the defendant’s claim that the trial court erred in
determining that § 23-18 (a) applies is most properly
characterized as challenging the trial court’s determina-
tion that an exception to the general prohibition of
hearsay applies to the affidavit of debt.
‘‘A trial court’s decision to admit evidence, if prem-
ised 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 the legal deter-
mination that a particular statement . . . is subject to
a hearsay exception, is it [then] vested with the discre-
tion to admit or to bar the evidence based upon rele-
vancy, prejudice, or other legally appropriate grounds
related to the rule of evidence under which admission
is being sought. . . . 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.’’ (Citations omitted; emphasis in original;
footnote omitted; internal quotation marks omitted.)
Bank of America, N.A. v. Chainani, 174 Conn. App.
476, 483–84, 166 A.3d 670 (2017).
‘‘Practice Book § 23-18 (a) provides that in any fore-
closure action ‘where no defense as to the amount of
the mortgage debt is interposed,’ the amount of the
debt may be proved by submission of an affidavit exe-
cuted by an affiant familiar with the details of the debt.’’
Id., 486. ‘‘In a mortgage foreclosure action, a defense
to the amount of the debt must be based on some
articulated legal reason or fact. . . . The case law is
clear that a defense challenging the amount of the debt
must be actively made in order to prevent the applica-
tion of § 23-18 (a).’’ (Citation omitted; internal quotation
marks omitted.) Id.
In Burritt Mutual Savings Bank of New Britain v.
Tucker, supra, 183 Conn. 374, the defendant had raised
an objection to the plaintiff’s affidavit of debt, specifi-
cally disputing ‘‘the amounts shown thereon for princi-
pal, interest, taxes, and late charges.’’ Our Supreme
Court explained that once ‘‘a defense concerning the
amount of the mortgage debt’’ set forth in the plaintiff’s
updated affidavit of debt was raised, ‘‘[t]he rule [Prac-
tice Book § 527, now § 23-18] . . . was inapplicable
and the general prohibition against hearsay evidence
precluded the use of the affidavit.’’ Id., 375; see also
National City Mortgage Co. v. Stoecker, 92 Conn. App.
787, 798–99, 888 A.2d 95 (when defendant sets forth
articulated challenge to amount of mortgage debt set
forth in plaintiff’s affidavit of debt, ‘‘the use of Practice
Book § 23-18 to introduce the affidavit is prohibited,
and the hearsay rules apply’’ (internal quotation marks
omitted)), cert. denied, 277 Conn. 925, 895 A.2d 799
(2006).
In the present case, the defendant objected to the
plaintiff’s affidavit of debt, raising ‘‘a defense concern-
ing the amount of the mortgage debt’’ set forth therein.
Burritt Mutual Savings Bank of New Britain v. Tucker,
supra, 183 Conn. 375. Specifically, he objected in rele-
vant part on the ground that the taxes shown in the
municipal tax records differed from those set forth in
the plaintiff’s affidavit by the amount of $4208.83 and
that the plaintiff’s calculations did not contain the prop-
erty tax abatement that he had received from the munic-
ipality. He also objected on the ground that he had a
variable interest rate on his loan and that the plaintiff’s
interest rate calculation was incorrect.
Although the defendant’s answer alleging that he had
‘‘no monetary obligations’’ to the plaintiff would be
insufficient to result in the preclusion of Practice Book
§ 23-18 (a) to establish the amount of the debt; see U.S.
Bank National Assn. v. Bennett, 195 Conn. App. 96,
111, 223 A.3d 381 (2019) (‘‘[a] defense or a counterclaim
does not affect the applicability of Practice Book § 23-
18 (a) unless it actually challenges in some manner the
amount of the debt alleged by the plaintiff’’ (emphasis
added; internal quotation marks omitted)); Connecticut
National Bank v. N. E. Owen II, Inc., 22 Conn. App.
468, 471–75, 578 A.2d 655 (1990) (defendant’s claim that
he had no knowledge as to correctness of amount of
debt is insufficient to raise challenge that requires evi-
dentiary hearing); the defendant’s objections ‘‘concern-
ing the amount of the mortgage debt’’; Burritt Mutual
Savings Bank of New Britain v. Tucker, supra, 183
Conn. 375; set forth in the plaintiff’s affidavit render
improper the application of § 23-18 (a) in establishing
the amount of the debt.4 See id., 374–75; Bank of
America, N.A. v. Chainani, supra, 174 Conn. App. 486;
National City Mortgage Co. v. Stoecker, supra, 92 Conn.
App. 798–99. Accordingly, the court erred as a matter
of law.
The judgment is reversed and the case is remanded
for further proceedings.
In this opinion the other judges concurred.
1
The defendant also is known as Abu Hashem W.Q. Malick. Also named
as defendants in the trial court were Shujaat Malick and HOP Energy, LLC,
neither of whom is a party to this appeal.
2
The plaintiff alleged that it acquired Washington Mutual Bank, N.A., on
or about September 25, 2008.
3
The court also denied the defendant’s May 28, 2019 motion to vacate
the court’s denial of his motion to reconsider and vacate the court’s summary
judgment as to liability.
4
We offer no comment on the merits of the defendant’s defenses or
objections. In this case, the court committed legal error by accepting the
affidavit of debt.