Edwards v. CBD & Sons, & Twersky PLLC

PAUL EDWARDS, Plaintiff, v. CBD & SONS, and TWERSKY PLLC, Defendants.

No. 3:17-cv-00466 (SRU)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

May 21, 2018

RULING ON MOTION FOR SUMMARY JUDGMENT

Paul Edwards sued CBD & Sons ("CBD") and its attorney, Twersky PLLC ("Twersky"), in connection with a loan issued to Edwards by CBD and secured by a mortgage on two properties in Meriden, Connecticut. The defendants have moved for summary judgment against all of Edwards's claims and in favor of their two counterclaims. Edwards has moved to amend his complaint. I grant the defendants' motion with respect to all of Edwards's claims and CBD's counterclaim for breach of contract. I deny the defendants' motion with respect to Twersky's counterclaim for indemnification, and I deny Edwards's motion to amend his complaint.

I. Standard of Review

Summary judgment is appropriate when the record demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When ruling on a summary judgment motion, the court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Aldrich v. Randolph Ctrl. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is required to "resolve all ambiguities and draw all inferences in favor of the nonmoving party"). "The burden of showing that no genuine factual dispute exists rests upon the moving party." Carlton v. Mystic Transp., 202 F.3d 129, 133 (2d Cir. 2000). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient evidence supporting its position "to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

"The trial court's function at this stage is to identify issues to be tried, not decide them," Graham v. Long Island R.R. Co., 230 F.3d 34, 38 (2d Cir. 2000), and so "[o]nly when no reasonable trier of fact could find in favor of the non-moving party should summary judgment be granted." White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir. 2000). Summary judgment therefore is improper "[w]hen reasonable persons, applying the proper legal standards, could differ . . . on the basis of the evidence presented." Sologub, 202 F.3d at 178. Nevertheless,

the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.

Anderson, 477 U.S. at 247-48.

"[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial," and in such circumstances, there is "no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if it can point to an absence of evidence to support an essential element of nonmoving party's claim). To present a "genuine" issue of material fact and avoid summary judgment, the record must contain contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.

II. Background¹

On June 6, 2012, Edwards obtained a commercial promissory note from CBD in the amount of $750,000, due and payable June 1, 2013. The note was secured by an open-end commercial mortgage deed on two properties located on Colony Street in Meriden, Connecticut.

On May 31, 2013, Edwards and CBD entered into a modification agreement that extended the maturity date of the June 6, 2012 note and mortgage from June 1, 2013 to May 31, 2014. On April 4, 2014, Edwards and CBD entered into a forbearance agreement with respect to interest payments. Edwards has been in default of the note since May 31, 2014.

In May 2016, Edwards and CBD received notice of a City of Meriden tax sale to be conducted on August 3, 2016. They also were informed that following the tax sale, Edwards had a six-month right of redemption and could void the tax sale by paying his property tax delinquency by February 3, 2017.

Edwards applied for financing with Riverdale Funding ("Riverdale") in December 2016. On January 4, 2017, Edwards informed CBD that Riverdale had approved his loan request, and asked that CBD accept a discounted payoff of the amounts due on its note. CBD agreed to accept the discounted payoff. As a condition of accepting the discounted payoff, CBD required Edwards to enter into an Escrow Agreement that required Edwards to place the deed to the properties in escrow.² The agreement also provided that if either (a) the Riverdale loan was not made, or (b) the loan was not made in an amount sufficient to satisfy the discounted payoff amount of$180,000 and the $92,751.07 tax lien on the properties, then CBD would have the right to record the deed and take the properties.

On February 2, 2017, Edwards and CBD entered into an Escrow Agreement in accordance with the above terms. See id. In relevant part, the agreement provides as follows:

WHEREAS, Mortgagor and Mortgagee executed and entered into an Open End Commercial Mortgage Deed (the "Mortgage") and Commercial Promissory Note (the "Note") on or about June 6, 2012, in the principal amount of Seven Hundred and Fifty Thousand Dollars ($750,000.00), which after Mortgagor's default, has accrued interest and fees that now totals over One Million Dollars ($1,000,000.00);

* * *

WHEREAS, Mortgagor has not made any payments towards the Note and has completely defaulted;

* * *

WHEREAS, Mortgagee was forced to pay off a tax lien on the Properties in the amount of approximately Ninety Two Thousand, Seven Hundred and Fifty One Dollars and Seven Cents ($92,751.07) because Mortgagor did not pay any taxes on the Properties;

WHEREAS, Mortgagor has sought refinancing to satisfy the Note, albeit at a steep discount, and has received a soft-offer from Riverdale Funding, LLC ("Riverdale") in the amount of One Hundred and Eighty Thousand Dollars ($180,000.00), plus reimbursement for the delinquent taxes Mortgagee paid, in the amount of approximately Ninety Two Thousand, Seven Hundred and Fifty One Dollars and Seven Cents ($92,751.07), totaling a refinance amount of approximately Two Hundred and Seventy Two Thousand, Seven Hundred and Fifty One Dollars and Seven Cents ($272,751.7) (the "Riverdale Refinance");

WHEREAS, the Riverdale Refinance has not yet closed or materialized yet but Mortgagor anticipates it will close imminently;

WHEREAS, in order to facilitate Mortgagor in having additional time to close the Riverdale Refinance, and to provide additional security to Mortgagee relating to the Properties, and the Note and Mortgage they secure, the Parties have caused or will cause a certain deed to the Properties to be deposited in escrow with AARON TWERSKY, ESQ. ("Twersky") in accordance with the terms and provisions of this Escrow Agreement.

NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the undersigned agree as follows:

* * *

2. Escrow Terms:

a. This Escrow Agreement provides for Mortgagor to execute and sign a deed to the properties, conveying full and ownership of the noted Properties from Mortgagor to Mortgagee (the "Deed").

b. Aaron Twersky, Esq., of Twersky PLLC, agrees to be the Escrow Agent.

c. The Deed shall be held in Escrow by Twersky pursuant to the following terms:

i. Mortgagor has until March 22, 2017, time being of the essence, to secure, finalize and close on the Riverdale Refinance, subject to Mortgagee's exclusive and complete consent and approval to its terms and conditions.

ii. If by March 22, 2017, the Riverdale Refinance has not yet closed, completely, or the terms of the Riverdale Refinance are not satisfactory to Mortgagee in its sole discretion, Twersky, as Escrow Agent for Mortgagee, has the full right and authority to release the Deed being held in Escrow for filing and recording with the city of Meriden, Connecticut's property Register and/or Clerk's office.

iii. Mortgagor is hereby prohibited from conveying or changing the individual or entity that retains title to the noted Properties during the term of this Agreement in any way.

3. Tenancy Rights Release: If the Riverdale Refinance does not materialize for any reason and the Deed relating to the Properties is filed and recorded, Mortgagor agrees to fully give up, disclaim and release any tenancy rights he, or any of his agents, may have to the Properties and agrees to vacate the Properties within Fifteen (15) days after notice to the Mortgagor by Mortgagee. Notice to Mortgagor may be effected in oral or written form. If Mortgagor does not vacate the Properties within the noted Fifteen (15) days, Mortgagor hereby consents and authorizes Mortgagee to physicallyremove Mortgagor's property and personal belongings from the Properties and to dispose of [them] as it wishes. Mortgagor hereby further consents and authorizes Mortgagee to seek the assistance of the Marshal or Sheriff to evict Mortgagor immediately from the Properties, at the full cost and reimbursement of Mortgagor.

4. Bankruptcy Court Restriction: Mortgagor is hereby prohibited and restricted from filing any action in Bankruptcy Court or any other Court that would delay or stay the terms of this Agreement, whether intended on or not. Mortgagor consents

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