Webster Bank v. Flanagan

51 Conn. App. 733

725 A.2d 975

WEBSTER BANK v. CHARLES FLANAGAN ET AL.

(AC 17530)

Appellate Court of Connecticut.

Submitted on briefs October 29, 1998.

Officially released February 16, 1999.

O'Connell, C. J., and Foti and Spear, Js. Paul N. Gilmore filed a brief for the appellant (defendant D.A.N. Joint Venture, A Limited Partnership).

Richard B. Cramer filed a brief for the appellee (plaintiff).

Opinion

FOTI, J.

The defendant D.A.N. Joint Venture, A Limited Partnership (D.A.N.),¹ appeals from a judgment of strict foreclosure rendered by the trial court. The plaintiff, Webster Bank (Webster),² commenced this action to foreclose a mortgage from the defendant Charles A. Flanagan by way of a complaint filed on November 19, 1996. The trial court granted Webster's motion to cite in D.A.N. on January 8, 1997. D.A.N. argues on appeal that the trial court improperly (1) made numerous evidentiary rulings and (2) granted Webster's motion for strict foreclosure because Webster had failed to prove the essential elements of its case.³ We hold that the trial court's evidentiary rulings were proper and that it properly found that Webster had proved its case. Accordingly, we affirm the judgment of the trial court.

Webster, through documents and testimony by Lisa Siedlarz-Jones, residential legal manager of Webster, introduced the following facts into evidence. On January 12, 1989, Flanagan executed an adjustable rate note with First Constitution Bank for $127,000 plus interest secured by an open-ended mortgage on Flanagan's property at 127 Whitney Avenue in Hamden. The mortgage was recorded in the Hamden land records on January 20, 1989.

On October 1, 1992, First Constitution Bank was declared insolvent by the Superior Court and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver. That order was also recorded in the Hamden land records. On October 2, 1992, the FDIC entered into a purchase and assumption agreement assigning to First Federal Bank (First Federal) all "right, title, and interest of the Receiver in and to certain assets of First Constitution...." The FDIC prepared a notice of transfer listing all of the properties located in Hamden as to which it was transferring its interest as receiver to First Federal. This notice of transfer was executed on December 17, 1992, and was duly recorded in the Hamden land records.

On November 1, 1995, First Federal merged with Webster. As a result, Webster became the holder of all of First Federal's assets, including its mortgages. A change of name certificate declaring that First Federal had merged with Webster and officially changed its name to Webster Bank was filed in the Hamden land records on December 27, 1995. Webster initiated the present proceeding because Flanagan defaulted on his obligations under the First Constitution Bank note.

I

D.A.N. argues that the trial court made six improper evidentiary rulings. The rulings relate to the admission of (1) the adjustable rate note, (2) the open-ended mortgage deed, (3) the notice of transfer, (4) the change of name certificate, (5) a computer printout of Flanagan's loan history and (6) an affidavit of debt prepared by Siedlarz-Jones. We disagree with D.A.N. that the admissions were improper.

"It is well settled that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference.... [T]he trial court has broad discretion in ruling on the admissibility ... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. ... State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Citations omitted; emphasis in original; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

A

D.A.N. argues that the adjustable rate note was improperly admitted because Webster failed to establish its authenticity. D.A.N. contends that Webster failed to authenticate the signature on the adjustable rate note as that of Flanagan. For a writing to be admitted into evidence, it must first be authenticated. A writing may be authenticated by identifying the signature contained in the document. Hamilton v. Smith, 74 Conn. 374, 379, 50 A. 884 (1902); Nichols v. Alsop, 10 Conn. 262, 267 (1834). "[W]here a writing is not witnessed, its authentication ordinarily requires proof merely of the signature of the writer." Shulman v. Shulman, 150 Conn 651, 657, 193 A.2d 525 (1963). A signature can be authenticated by a signatory to the document by acknowledgment. A signature can additionally be proved by a witness to the execution of the document or by a witness who is familiar with the signature in question and attests that it is genuine. See Tyler v. Todd, 36 Conn. 218, 222 (1869); Lyon v. Lyman, 9 Conn. 55, 59 (1831).

In the present case, Siedlarz-Jones was familiar with Flanagan's signature. D.A.N. objected on the ground that the witness did not have personal knowledge of Flanagan's signature. Siedlarz-Jones testified that she became familiar with Flanagan's signature by reviewing other documents. Siedlarz-Jones testified that she saw Flanagan's signature on the mortgage and on a notarized affidavit.⁴

D.A.N. further argues that Webster was required to present to the court the exemplars on which the comparison of Flanagan's signature was based. It is true that comparison specimens must be proven. Hayward v. Maroney, 86 Conn. 261, 263, 85 A. 379 (1912). Here, however, Webster sought to prove the authenticity of Flanagan's signature on the note through the testimony of Siedlarz-Jones, not by comparison of that signature with exemplars. It is of no moment that Siedlarz-Jones was not a handwriting expert, as anyone familiar with the signature in question may testify as to its authenticity. Hamilton v. Smith, supra, 74 Conn. 379-80. "Adequate familiarity may be present if the witness has seen the person write, or if he has seen writings purporting to be those of the person in question under circumstances indicating their genuineness." (Emphasis in original.) 2 C. McCormick, Evidence (4th Ed. 1992) § 221, p. 41. Siedlarz-Jones viewed Flanagan's signature under such circumstances. As noted above, she testified that she saw his signature on a notarized affidavit. An acknowledgment before a notary public "serves to authenticate the instrument by furnishing formal proof, through the action of the public official taking the acknowledgment, that the instrument was actually executed by the person whose signature appears upon it." Commercial Credit Corp. v. Carlson, 114 Conn. 514, 517, 159 A. 352 (1932). Given such strong indication that the signature on the affidavit was genuine, we cannot find that the trial court abused its discretion in crediting Siedlarz-Jones' authentication testimony and in admitting the adjustable rate note.

B

D.A.N. next claims that the trial court improperly admitted the open-ended mortgage deed, arguing that the mortgage lacked sufficient authentication. We hold that the reasoning of part I A also applies to the mortgage.

D.A.N. also argues that because Connecticut is a title theory state, Webster was required to produce the original mortgage at trial and to authenticate it through a subscribing witness to the mortgage. D.A.N. claims that Webster failed to authenticate the mortgage properly. D.A.N. relies on Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960), for this proposition. See also Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 797, 716 A.2d 141 (1998). The trial court, however, had a proper foundation to admit the mortgage. The mortgage was subscribed by two witnesses as required by General Statutes § 47-5. Additionally, the mortgage was attested to by Flanagan in the presence of a commissioner of the Superior Court. An acknowledgment "serves to authenticate the instrument by furnishing formal proof, through the action of the public official taking the acknowledgment, that the instrument was actually executed by the person whose signature appears upon it." Commercial Credit Corp. v. Carlson, supra, 114 Conn. 517.

"It is difficult to explain why there should be a requirement for both subscribing witnesses and an acknowledgment, since the taking of an acknowledgment and the use of a subscribing witness both accomplish the same purpose—assuring that the conveyance is genuine and not fraudulent. The voluntary use of witnesses at common law predated the development of the acknowledgment, and certainly was a valuable tool to prove a document, especially when general illiteracy caused many signatures to be made with marks. Today, with the ready availability of notaries public, the objective of establishing genuineness can usually be accomplished with an `official witness,' the notarial officer. In any event, it seems redundant to require both witnesses and an acknowledgment." 14 R. Powell, Powell on Real Property (1998) § 898 (1) (h), p. 8173. We believe that the acknowledgment takes the place of the testimony or proof of the unavailability of a subscribing witness. The trial court was within its bounds in admitting the mortgage.

C

D.A.N. next claims that the trial court improperly admitted the notice of transfer, arguing that the notice does not comply with General Statutes §§ 47-5, 47-10 and 49-10 and therefore is inadmissible. We are unpersuaded.

Section 47-5 provides in relevant part: "(a) All conveyances of land shall be: (1) In writing; (2) if the grantor... is a corporation, limited liability company or partnership, subscribed by a duly authorized person; (3...