Solomon v. Gilmore
| Decision Date | 10 March 1998 |
| Docket Number | No. 16087,16087 |
| Citation | 48 Conn.App. 80,707 A.2d 746 |
| Parties | Alan SOLOMON et al. v. William C. GILMORE et al. |
| Court | Connecticut Court of Appeals |
William C. Gilmore, pro se, the appellant (named defendant).
Frank S. Marcucci, Meriden, with whom, on the brief, was Lawrence S. Hillman, Hamden, for appellee (named plaintiff).
Christopher J. McCarthy, Glastonbury, for appellee (plaintiff Mary Ellen Tomeo).
Before FOTI, SPEAR and CRETELLA, JJ.
The defendant, William C. Gilmore, 1 appeals from the judgment of strict foreclosure, rendered following the granting of the motions for summary judgment filed by the plaintiffs Alan Solomon and Mary Ellen Tomeo. Although the defendant has raised twelve separate issues on appeal, 2 the primary issue to be addressed is whether the trial court properly granted the plaintiffs' motions for summary judgment. We affirm the judgment of the trial court.
The plaintiffs commenced this action by a complaint alleging that they had loaned the defendants $55,000, which loan was memorialized by a promissory note dated May 30, 1989, and was secured by a second mortgage encumbering property known as 44 Bradford Corner Road in the town of Woodstock. The plaintiffs alleged that the defendants failed (1) to pay monthly installments on the loan after May 5, 1993, (2) to keep the property insured, and (3) to pay property taxes. As a result of these alleged breaches of the mortgage agreement, the plaintiffs accelerated payment of the debt.
The defendants filed an answer denying that any money was owed to the plaintiffs. The defendants also filed seven special defenses 3 and a six count counterclaim. 4 Pursuant to General Statutes § 52-97, 5 the trial court granted a motion to bifurcate the trial. Thereafter, the plaintiffs filed separate motions for summary judgment. The plaintiff Solomon submitted a supplemental affidavit in support of his motion for summary judgment. On April 26, 1996, the trial court, Sferrazza, J., issued a memorandum of decision granting, in part, both plaintiffs' motions. On June 3, 1996, the issues not disposed of by way of summary judgment were tried to the court, Loiselle, J., and a judgment of strict foreclosure was entered.
As a preliminary matter, we note that the first issue raised by the defendant on appeal is not one that may be properly addressed on its merits. The defendant claims that the trial court improperly allowed the foreclosure action to proceed because the action was brought by Steven Tomeo, 6 who the defendant claims had been his attorney and to whom he had gone for assistance in obtaining the mortgage sought to be foreclosed. The defendant alleges that Tomeo had a conflict of interest because his wife, the plaintiff Mary Ellen Tomeo, and Solomon, who was also an attorney, furnished the mortgage. Steven Tomeo is not a party to this action; therefore, we cannot address any claim alleging his adverse representation or unethical behavior.
The defendant further alleges that the trial court improperly granted summary judgment based on an affidavit submitted in bad faith by one of the plaintiffs for the obvious purpose of misleading the court. The following facts are necessary for the proper disposition of this claim.
On April 1, 1996, Solomon filed a supplemental affidavit in which he stated:
General Statutes § 36a-512 provides that the following persons are exempt from the licensing requirements for secondary mortgage lenders: "(5) persons granting five or fewer secondary mortgage loans within any twelve consecutive months, provided (A) the aggregate total of such loans does not exceed one hundred thousand dollars, (B) each individual loan does not exceed twenty thousand dollars and (C) such loans are written in compliance with section 36a-521...." (Emphasis added.) The affidavit of the plaintiff Solomon, who is an attorney, conveniently omitted that part of the statute that excludes him from the exemption from the licensing requirements, i.e., the loan involved exceeded $20,000.
We are aware that "[a]n action of foreclosure is peculiarly equitable and the court may entertain all questions which are necessary to be determined in order that complete justice may be done between the parties." Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 175, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). We cannot, however, speculate as to whether the court would have acted differently in the exercise of its equitable powers had a full and accurate supplemental affidavit been filed.
We are bound by the law as applicable to this appeal. We note the standard of review of a trial court decision granting a motion for summary judgment. "Practice Book § 384 mandates 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." Mullen v. Horton, 46 Conn.App. 759, 763, 700 A.2d 1377 (1997). "A material fact is a fact that will make a difference in the result of the case." Budris v. Allstate Ins. Co., 44 Conn.App. 53, 56, 686 A.2d 533 (1996), quoting Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn.App. 219, 222, 678 A.2d 1005 (1996), aff'd, 240 Conn. 544, 692 A.2d 1254 (1997). While there exists a genuine issue of fact as to whether the plaintiffs were exempt from the licensing requirements for lenders of secondary mortgage loans, the question remains as to whether this fact is material. In other words, does the fact that the plaintiffs may not have been properly licensed to issue secondary mortgage loans pursuant to § 36a-511 7 transform the transaction into either a nullity or an illegal act, so as to relieve the defendants of their obligations under the note and mortgage?
Our review of the relevant statutes discloses that administrative sanctions and certain civil actions are available for violations of the license requirement statute. See, e.g., General Statutes § 36a-50 (b). 8 The defendant can provide no legal authority to support his claim that noncompliance with the licensing statute precludes a foreclosure action by rendering the loan or the mortgage illegal or unenforceable. Since the absence of a license on the part of the plaintiffs would make no difference in the result of the case, it is not a material fact for purposes of summary judgment. (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 255, 654 A.2d 748 (1995).
We have thoroughly reviewed the record and briefs as to the defendant's other claims and have considered the oral arguments made by the defendant. We find these claims to be without merit.
The judgment is affirmed and the case is remanded for the purpose of setting new law days.
In this opinion SPEAR, J., concurred.
I must dissent from the majority on one determinative issue. In my opinion, the plaintiffs were not entitled to a judgment of strict foreclosure as a matter of law. I agree that there were no material issues of fact in dispute. Furthermore, there was no dispute, material or not, that the plaintiffs were not exempt from the licensing requirements of General Statutes § 36a-511 since the loan of $55,000 exceeded $20,000 and thus required that the plaintiffs, as second mortgage lenders, be licensed. The issue of law to be determined is whether a second mortgage may be foreclosed when the mortgagee has violated § 36a-511.
In deciding the plaintiffs' motion for summary judgment, the trial court considered each count of the complaint and each count of the special defenses. In its discussion of the defendants' third special defense, the court discussed only that portion of it relating to the issue of agency and the fiduciary relationship of Attorney Steven Tomeo. The court ignored and did not rule on the allegations of paragraphs twelve and thirteen of the third special defense, which alleged that the plaintiffs were not licensed to give second mortgages. General Statutes § 36a-511 (formerly General Statutes § 36-224b). Appellate review of a matter of law is de novo, and we may therefore consider the plaintiffs' lack of a license as raised in the third special defense. Squeglia v. Squeglia, 234 Conn. 259, 263, 661 A.2d 1007 (1995); Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 395-96, 655 A.2d 759 (1995). It is on the licensing violation that I base my dissent. If the lack of a license rendered the second mortgage unenforceable as a matter of law, summary judgment in favor of the plaintiffs cannot be affirmed.
The license issue was raised again on appeal, with the defendants arguing that the plaintiff's failure to be licensed rendered the mortgage unenforceable. The majority opinion concludes that the plaintiffs' mortgage is good and enforceable and that there exists no authority to support the claim of the defendants that any foreclosure is precluded. The majority states that the loan is not illegal or unenforceable and with that statement I agree. 1 It is not...
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