Bargas v. Griffin et al

Filing 49

Findings of Fact and Conclusions of Law. See attached, 11 pages. Signed by Judge Donna F. Martinez on 5/24/13.(Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROSE BARGAS,

:
:
Plaintiff,
:
:
v.
:
:
SUSAN B. GRIFFIN, NANCY
:
JANKOVSKY, and DAVID M.
:
BARGAS, as CO-PERSONAL
:
REPRESENTATIVES OF THE ESTATE :
OF JOHN BARGAS, DECEASED,
:
:
Defendants.
:

CASE NO.

3:11cv1854(DFM)

MEMORANDUM OF DECISION
The plaintiff, Rose Bargas, brings this diversity action
seeking to foreclose mortgages given to her by her now-deceased
brother-in-law, John Bargas.

The defendants are Susan Griffin,

Nancy Jankovsky and David Bargas, John Bargas's children and the
co-representatives of the Estate of John Bargas.

They have filed

counterclaims seeking discharge of the mortgages. (Doc. #11.)
court held a bench trial in December 2012.1

The

Upon consideration of

the arguments and evidence presented at trial and in the post-trial
submissions, the court concludes that the plaintiff is entitled to
foreclose the mortgages. Pursuant to Fed. R. Civ. P. 52, following
are the court's findings of fact and conclusions of law.

1

The parties consented to the jurisdiction of the undersigned
for all purposes, including trial, pursuant to 28 U.S.C. § 636(c).
(Doc. #35.) See Fed. R. Civ. P. 73.

I.

Findings of Fact
The plaintiff, Rose Bargas, is married to Chris Bargas, who is

not a party.
deceased.

Chris Bargas had a younger brother, John Bargas, now

In the 1980s, the brothers were involved in real estate

development and, as a result, money flowed between them.
76.)

(Tr. at

At the heart of this case are loans totalling $580,000 the

plaintiff Rose Bargas and her husband Chris made to John Bargas.
(Doc. #30, Stip. ¶1.)
payable to

the

John Bargas executed four demand notes

plaintiff

and

secured

them

with

mortgages

as

follows:
(1) On February 25, 1993, John Bargas executed a demand note
in the amount of $400,000, with interest as provided in the note.
(Doc. #37, Stip. ¶1.) To secure the note, John Bargas mortgaged to
the plaintiff all of his right, title and interest in the property
known as 10 Midwood Trail and North Trail, Stratford, Connecticut
(the "Oronoque property").2

(Doc. #37, Stip. ¶2.)

(2) Also on February 25, 1993, John Bargas executed a second
demand note in the amount of $100,000, without interest.
#37, Stip. ¶4.)
Oronoque property.

(Doc.

He secured the note with a mortgage to the
(Doc. #37, Stip. ¶5.)

(3) On March 15, 1993, John Bargas executed a third demand
note in the amount of $50,000, with interest as provided in the

2

John and Chris Bargas (with others) owned the Oronoque
property. The property generated income for the owners.
2

note and again secured the note with a mortgage.

(Doc. #37, Stip.

¶9.)
(4) On May 12, 1993, John Bargas executed a demand note in the
amount of $30,000, with interest as provided in the note.
#37, Stip. ¶10.)

(Doc.

Again, he secured the note by executing a

mortgage to the plaintiff on the Oronoque property.

(Doc. #37,

Stip. ¶11.)
The plaintiff is the owner and holder of the notes and
mortgages.

(Doc. #37, Stip. ¶19.)

The parties agree that the

notes and mortgages were valid when made.

(Doc. #30 at 10.)

mortgages were duly recorded in the Stratford land records.
#37, Stip. ¶¶3, 6, 9, 12.)
costs

of

collection

and

The

(Doc.

The notes entitle the plaintiff to

expenses,

including

attorney's

fees,

incurred by the plaintiff to collect the indebtedness due under the
notes and in foreclosing the mortgage deeds securing the notes.
(Doc. #37, Stip. ¶13.)
John Bargas did not make any payments of interest or principal
on the notes.

Over the years, he made various comments in which he

acknowledged the debt and conceded that he had signed the notes and
mortgages.

See Tr. 58, 65-66, 83, 122.

notes or mortgages were invalid.

He never said that the

(Tr. at 122, 134-35.)

However,

John Bargas was of the opinion that his brother Chris Bargas "owed"
him more money than he owed Chris.

(Tr. at 65, 83, 122.)

Meanwhile, Chris Bargas told his family that if he predeceased

3

his brother John, they should defer collecting the notes until John
died because he wanted his brother, who was in poor health, to
continue to receive income from the Oronoque property. (Tr. at 70,
71, 74.)

Chris Bargas told his family not to interrupt the income

stream to John "until [John] died and then collect the money from
the estate."

(Tr. at 72.)

John Bargas died on June 28, 2011.

(Doc. #37, Stip. ¶14.)

The defendants succeeded to John Bargas's interest in the property.
(Doc. #37, Stip. ¶16.)
On October 7, 2011, the plaintiff demanded payment of the
notes.

(Doc. #37, Stip. ¶18.)

Stip. ¶20.)

No payment was made.

In November 2011, the plaintiff filed this action

seeking foreclosure of the four mortgages.
if

the

(Doc. #37,

court

determines

that

the

The parties agree that

mortgages

are

enforceable,

interest is due in accordance with the rates set forth in the
notes.

(Doc. #37, Stip. ¶22.)

As of December 19, 2012, the

mortgage debt was $1,277,874.90, plus costs and attorney's fees.
II.

Conclusions of Law
A mortgage "is [a] conveyance of title to property that is

given as security for the payment of a debt."
Conn.

App.

500,

505–06

(2009).

"A

Clark v. Clark, 115

mortgage

is

a

separate

instrument from the promissory note creating the debt, itself."
Id. at 506.

A mortgagee "is entitled to pursue its remedy at law

on the notes, or to pursue its remedy in equity upon the mortgage,

4

or to pursue both.
separate

A note and a mortgage given to secure it are

instruments,

executed

for

different

purposes

and

in

[Connecticut] [an] action for foreclosure of the mortgage and upon
the note are regarded and treated, in practice, as separate and
distinct causes of action, although both may be pursued in a
foreclosure suit." Hartford National Bank & Trust Co. v. Kotkin,
185 Conn. 579, 581 (1981) (internal quotation marks omitted).
"A foreclosure action is an equitable proceeding."
Bank Nat. Trust Co. v. Angle, 284 Conn. 322, 326 (2007).

Deutsche
To make

out a prima facie case, the plaintiff, as the foreclosing party,
has to prove by a preponderance of the evidence that she is the
owner of the notes and mortgages and that the mortgagor defaulted
on the notes.
(1999).

Webster Bank v. Flanagan, 51 Conn. App. 733, 750–51

It is undisputed that the plaintiff is the owner of the

notes and mortgages and no payments have been made on the notes.
Therefore, the plaintiff has established a prima facie case for
foreclosure.
The defendants argue that the mortgages are unenforceable and
should be discharged by virtue of Conn. Gen. Stat. § 49-13.
Conn. Gen. Stat. § 49-13, entitled "Petition for discharge of
mortgage or of ineffective attachment, lis pendens or lien,"
provides in pertinent part:
(a) When the record title to real property is encumbered
(1) by any undischarged mortgage, and . . . (B) the
promissory note or other written evidence of the
indebtedness secured by the mortgage is payable on demand
5

and seventeen years have passed without any payment on
account of such note or other written evidence of
indebtedness . . . the person owning the property, or the
equity in the property, may bring a petition to the
superior court for the judicial district in which the
property is situated, setting forth the facts and
claiming a judgment as provided in this section. . . .
(c) Such notice having been given according to the order
and duly proven, the court may proceed to a hearing of
the cause at such time as it deems proper, and, if no
evidence is offered of any payment on account of the debt
secured by the mortgage within a period set out in
subsection (a) of this section, or of any other act
within such a period as provided in said subsection (a)
in recognition of its existence as a valid mortgage, . .
. the court may render a judgment reciting the facts and
its findings in relation thereto and declaring the
mortgage, foreclosure judgment, attachment, lis pendens
or other lien invalid as a lien against the real estate
. . . . (emphasis added.)
The defendants contend that § 49-13 applies here because
(1) the notes were payable on demand and (2) seventeen years passed
without any payment or "any other act . . . in recognition" of the
existence of a valid mortgage.

(Doc. #46 at 3.)

The defendants

argue that the evidence introduced at trial shows that John Bargas
"did not act to recognize the subject mortgages as valid" and that
as a result, "the court should declare the mortgages invalid."
(Doc. #46 at 7.)

The plaintiff responds that § 49-13 is not a

defense to a foreclosure action where, as here, the parties dispute
the invalidity of the mortgages and in any event, under the facts
of this case, the statute does not apply.

The court agrees.

Conn. Gen. Stat. § 49-13 is "not a Statute of Limitations."
Simonelli v. Fitzgerald, 156 Conn. 49, 53 (1968).
6

"The statute

does not declare that a mortgage upon which no payment has been
made for a period of seventeen years or which has not been
recognized as a valid mortgage within that period is unenforceable,
but it gives the court the right to declare it invalid."
54.

Id. at

The statute's purpose "is to provide a simple method whereby

a mortgage, the invalidity of which is undisputed, may be declared
invalid by the court and removed as a cloud on the title to the
property."

Gordon v. Tufano, 188 Conn. 477, 483 (1982).

The

statute does not give the court jurisdiction to determine the
validity or invalidity of a disputed mortgage.

Id. (holding that

the "trial court lacked jurisdiction to discharge the mortgage
pursuant to § 49–13 because based on the evidence the validity of
the mortgage was in dispute.")

See Simonelli v. Fitzgerald, 156

Conn. 49, 53–54 (1968) ("The statute [§ 49–13] gives the court no
jurisdiction to determine the validity or invalidity of a disputed
mortgage of long standing.") "Where there is a controversy between
the parties as to the validity and effect of a mortgage of this
class, there are other ways of settling it. This statute is not
applicable to such cases. . . .

It authorizes an action in which

affirmative relief may be granted if and only if the conditions
specified in it are met."
omitted).

Gordon, 188 Conn. at 483 (footnote

See Martino v. Scalzo, 113 Conn. App. 240, 249 n.7

(2009)("It is well settled that § 49-13 allows a court to remove a
mortgage which is undisputed and does not empower a court to

7

determine the validity of a disputed mortgage. . . . "); Montfort
v. Cilento, No. CV065000758S, 2007 WL 575438, at *2 (Conn. Super.
Ct.

Jan.

29,

2007)

("Where

there

is

a

mortgage

of

disputed

validity, this court cannot use § 49-13 as a procedural vehicle to
determine the validity or invalidity of the mortgage. Thus, if the
holder of

the

mortgage

appears

and

offers

evidence

that the

mortgage is valid, this court is without authority to exercise the
powers conferred by § 49-13."); Fountain Pointe, LLC v. Calpitano,
No. CV106004936, 2011 WL 6989873, at *9 (Conn. Super. Ct. Dec. 20,
2011) ("Based upon the evidence presented, the validity of the
mortgages is in dispute. The court is without jurisdiction to
render judgment declaring the mortgages invalid pursuant to General
Statutes § 49–31.")
Conn. Gen. Stat. § 49-13 does not apply because the validity
of the mortgages is in dispute.

Under these circumstances, the

defendants' attempt to declare the mortgages invalid pursuant to
Conn. Gen. Stat. § 49-13 is unavailing.

See Gordon v. Tufano, 188

Conn. 477 (1982); Simonelli v. Fitzgerald, 156 Conn. 49 (1968).
Moreover, Conn. Gen. Stat. § 49-13 does not provide relief if
there is evidence of "an act [within the seventeen year period] in
recognition of its existence as a valid mortgage act."
Stat. § 49-13(c).

Conn. Gen

The evidence adduced at trial demonstrates that

John Bargas acknowledged the loans within the seventeen year
period.

See Tr. 58, 65-66, 83, 122, 134-35.

8

This evidence

"sufficiently put into issue the continued validity of the mortgage
so that § 49–13 cannot be relied upon to afford the [defendants]
the relief [they] seek."

Gordon, 188 Conn. at 484.

In light of

the record evidence, the court is without authority to discharge
the mortgages under § 49-13 as the defendants request.
The defendant next argues that the plaintiff's claims are
barred by the doctrine of laches.

(Doc. #46 at 11.)

"Because a mortgage foreclosure is an equitable proceeding .
. . a defendant who is demonstrably prejudiced by a plaintiff's
delay in filing a motion for a deficiency judgment may invoke the
equitable

defense

of

laches."

Baybank

Connecticut,

N.A.

Thumlert, 222 Conn. 784, 791-92 (1992)(citation omitted).

v.

"The

determination of what equity requires in a particular case, the
balancing of the equities, is a matter of discretion of the trial
court."

Connecticut

Community

Bank,

N.A.

v.

Six

Hundred

Twenty-Three Steamboat, LLC, No. FSTCV126013283, 2013 WL 1010646,
at *4 (Conn. Super. Ct. Feb. 15, 2013).
The defense of "[l]aches consists of two elements.

First,

there must have been a delay that was inexcusable, and, second,
that delay must have prejudiced the defendant."

LaSalle National

Bank v. Shook, 67 Conn. App. 93, 98-99 (2001).

See Cummings v.

Tripp, 204 Conn. 67, 88 (1987) ("[L]aches does not apply unless
there is an unreasonable, inexcusable, and prejudicial delay in
bringing suit. . . . Delay alone is not sufficient to bar a

9

right.") (citations omitted). "The burden is on the party alleging
laches to establish that defense. . . .

The mere lapse of time

does not constitute laches . . . unless it results in prejudice to
the [opposing party] . . . as where, for example, the [opposing
party] is led to change his position with respect to the matter in
question."

Jarvis v. Lieder, 117 Conn. App. 129, 149 (2009).

As to the first prong, the defendants claim that the plaintiff
intentionally delayed making a demand on the notes and mortgages
until after John Bargas died.

(Doc. #46 at 11.)

As to the second

prong, the defendants argue that as a result of the delay, they are
"handicapped in the defense of this action because John Bargas is
not available to testify."

(Doc. #46 at 11-12.)

The record demonstrates that the plaintiff did not foreclose
earlier because Chris Bargas wanted his brother, who was elderly
and in poor health, to be able to enjoy the income stream from the
Oronoque property.

Given this credible evidence, the court does

not find the plaintiff's delay in commencing a foreclosure action
"unreasonable" or "inexcusable."

Cummings v. Tripp, 204 Conn. 67,

88 (1987). Moreover, the court is not persuaded that "the delay is
'unduly prejudicial' to the defendant[s]."

Id.

III. Conclusion
The plaintiff is entitled to foreclose the mortgages (counts
1-4). The parties agree that the plaintiff is entitled to interest
in accordance with the rates set forth in the notes and costs and
attorney's fees incurred to foreclose the mortgages.
Stip. ¶22.)

(Doc. #37,

The parties are encouraged to calculate these figures
10

and come to an agreement on their own.

The parties also shall

attempt to resolve the method of foreclosure and to draft a
proposed judgment. A telephonic status conference is scheduled for
June 28, 2013 at 11:15 a.m.
SO

ORDERED

this

24th

day

of

May

2013,

at

Hartford,

Connecticut.
/s/
Donna F. Martinez
United States Magistrate Judge

11