American Tax Funding, LLC v. Basher

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AMERICAN TAX FUNDING, LLC v. ABRAHAM
JOSEPH BASHER ET AL.
(AC 35340)
Gruendel, Lavine and Bishop, Js.
Argued October 30, 2013—officially released January 14, 2014
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Thomas J. Flanagan, for the appellant (defendant
Abraham F. Basher).
Gary Greene, with whom, on the brief, was Walter
M. Spader, Jr., for the appellee (substitute plaintiff).
Opinion
LAVINE, J. This appeal from the trial court’s judgment
of strict foreclosure concerns the apportionment of
moneys paid for past due real property taxes. On appeal,
the defendant Abraham F. Basher,1 claims that the court
improperly (1) construed an agreement between the
parties and (2) granted summary judgment as to his
liability because there was a genuine issue of material
fact with regard to the parties’ agreement. We affirm
the judgment of the trial court.
The record reveals the following procedural history.
On January 3, 2008, the plaintiff, American Tax Funding,
LLC,2 commenced a foreclosure action for real property
taxes due and owing for 35 Spring Street (property) in
the city of Danbury (city).3 The complaint alleged, in
part, that Abraham Joseph Basher and Helen Basher
were the owners of the property and that they had
failed to pay taxes for the years 2001 through 2005. The
complaint contained a count for each year in which
taxes had not been paid. The defendant filed an appear-
ance as a self-represented party.
The plaintiff filed a motion for judgment of strict
foreclosure. A subsequent lien holder, the defendant,
Danbury Hospital, filed a motion for foreclosure by sale.
On April 11, 2011, the court ordered a judgment of
foreclosure by sale and set the sale date as October
15, 2011.
On October 5, 2011, the plaintiff filed a motion to
cite in additional parties, in which it represented that
Abraham Joseph Basher and Helen Basher had died in
1993 and 2003 respectively, and that their heirs were
necessary parties to the action. On December 2, 2011,
the plaintiff filed an amended complaint alleging that
the heirs of Abraham Joseph Basher and Helen Basher
were the owners of the property and that they owed
the city taxes that had been assessed for the years 2001
through 2005. Counsel appeared for the defendant and
filed an answer. Thereafter, court granted the plaintiff’s
motion to open the judgment of foreclosure by sale.
On July 20, 2012, the plaintiff filed a motion for sum-
mary judgment as to liability pursuant to Practice Book
§ 10-70.4 In its memorandum of law, the plaintiff repre-
sented that there were no genuine issues as to any
material fact as it had proved ownership of the property
at the time the taxes were assessed, that the city prop-
erly had assigned the tax liens to the plaintiff, that
certificates of the continuing liens properly were filed,
and that other encumbrances on the property were
alleged in the complaint. The plaintiff claimed that it
was entitled to summary judgment as to liability.
The defendant objected to the plaintiff’s motion for
summary judgment claiming that he had paid at least
a portion of each of the tax liens purchased by the
plaintiff. In his affidavit opposing summary judgment,5
he attested that he had paid more than $12,500 for taxes
due and owing and that he understood, and that it was
his intention, that the moneys he paid would be applied
proportionately to all of the liens. He contended that
Practice Book § 10-70 provides that ‘‘in any action to
foreclose a municipal tax . . . lien the plaintiff need
. . . allege and prove . . . that no part of [the assessed
tax] has been paid,’’ and that he paid moneys toward the
satisfaction of all of the liens sought to be foreclosed.
He argued that because the parties disagree as to the
application of the moneys he paid, there was a genuine
issue of material fact and summary judgment should
not be granted.
The plaintiff replied to the defendant’s objection,
arguing that the defendant had misconstrued the lan-
guage of Practice Book § 10-70. The plaintiff repre-
sented that the defendant had paid $12,549, which the
plaintiff applied to the 2001 and 2002 liens and a portion
of the 2003 lien as provided by General Statutes § 12-
144b.6 The plaintiff argued that the defendant’s intention
as to the apportionment of the moneys paid violated
§ 12-144b and that taxes remained due and owing for
2003, 2004, and 2005. It further argued that its apportion-
ment of moneys paid raised a question of law, not fact,
and that summary judgment should be granted in its
favor.
On November 7, 2012, the court issued a written order
denying in part and granting in part the plaintiff’s motion
for summary judgment. The court found that the defen-
dant had conceded that taxes were owed the city, but
that he believed that the payments he made would be
applied in equal portions to each year’s deficiency. The
defendant had provided no document to support his
belief. The court quoted language from § 12-144b that
provides ‘‘[e]ach tax payment made to a municipality
for taxes due on any specific property shall be applied
by the municipality toward payment of the oldest out-
standing tax levied on such property with the interest
thereon . . . .’’ The court also found that the tax liens
on the property for 2001 and 2002 were satisfied, and
denied the motion for summary judgment as to counts
one and two of the amended complaint. The court
denied summary judgment as to count three, which
pertained to 2003, finding that there was a genuine issue
of fact pertaining to the payment of the taxes owed for
that year. The court found that there was no factual
dispute that that the tax liens for 2004 and 2005 had
not been paid. The court, therefore, granted summary
judgment as to liability with respect to counts four and
five of the amended complaint. Thereafter, the plaintiff
withdrew counts one through three and, on December
19, 2012, filed a motion for strict foreclosure on the
basis of the remaining counts. The court granted the
motion for strict foreclosure on January 7, 2013, and
rendered judgment thereon. The defendant appealed.
On appeal, the defendant claims that the court
improperly granted the plaintiff’s motion for summary
judgment as to liability with respect to counts four
and five of the amended complaint because the court
misconstrued the parties’ agreement. We disagree.
Practice Book § 17-49 provides that summary judg-
ment ‘‘shall be rendered forthwith if the pleadings, affi-
davits 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.’’
‘‘The party seeking summary judgment has the burden
of showing the absence of any genuine issue [of] mate-
rial facts which, under applicable principles of substan-
tive law, entitle him to judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact.’’ (Citation omitted;
internal quotation marks omitted.) Doty v. Mucci, 238
Conn. 800, 805–806, 679 A.2d 945 (1996).
An appellate court’s review of a trial court’s decision
to grant a party’s motion for summary judgment is ple-
nary. See Neuhaus v. DeCholnoky, 280 Conn. 190, 199,
905 A.2d 1135 (2006).
On the basis of our review of the record and the
trial court’s order granting the plaintiff’s motion for
summary judgment as to liability with regard to counts
four and five of the amended complaint, we conclude
that the court properly determined that there was no
genuine issue of material fact. The defendant conceded
that he was the owner of the property and that there
were taxes due as alleged in the amended complaint.
He, however, disputed the manner in which the plaintiff
apportioned the moneys he had paid. He claims, there-
fore, that he had raised a genuine issue of fact sufficient
to deny the plaintiff’s motion for summary judgment.
We disagree that the defendant’s affidavit provided a
sufficient evidentiary basis on which to deny summary
judgment. The defendant relied on his understanding
of an agreement he supposedly had with the plaintiff. He
provided no evidence, however, supporting his position
beyond an averment as to his belief and his intention.
‘‘While the court must view the inferences to be
drawn from the facts in the light most favorable to the
party opposing the motion . . . . a party may not rely
on mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judg-
ment.’’ (Citation omitted; internal quotation marks omit-
ted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49
Conn. App. 582, 591, 715 A.2d 807 (1998). ‘‘[W]ith respect
to questions of motive, intent and good faith, the party
opposing summary judgment must present a factual
predicate for his argument in order to raise a genuine
issue of fact.’’ Waida Enterprises, Inc. v. Hirschfeld,
224 Conn. 240, 250, 618 A.2d 506 (1999).7 The court,
therefore, properly granted the plaintiff’s motion for
summary judgment as to the defendant’s liability.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
When the action was commenced, Abraham Joseph Basher, Helen
Basher, the City of Danbury, Danbury Hospital, John Doe, and Jane Doe
were named as defendants. They are not parties to this appeal. In this
opinion, we refer to Abraham F. Basher, who was cited in, as the defendant.
2
Pursuant to General Statutes § 12-195h, the city previously had assigned
the five liens on the property to American Tax Funding, LLC. During the
course of the proceedings, American Tax Funding, LLC, assigned the liens
to ATFH Real Property, LLC, which was substituted as the party plaintiff.
Immediately prior to argument before this court, the liens were assigned
to VMF TL1, LLC, which was substituted as the party plaintiff.
3
John Doe and Jane Doe were served at the property.
4
Practice Book § 10-70 (a) provides in relevant part: ‘‘In any action to
foreclose a municipal tax . . . lien the plaintiff need only allege and prove:
(1) the ownership of the liened premises on the date when the same went
into the tax list, or when said assessment was made; (2) that thereafter a
tax in the amount specific in the list, or such assessment in the amount
made, was duly and properly assessed upon the property and became due
and payable; (3) . . . that thereafter a certificate of lien for the amount
thereof was duly and properly filed and recorded in the land records of the
said town on the date stated; (4) that no part of the same has been paid;
and (5) other encumbrances as required . . . .’’
5
The defendant averred, in part, as follows in his affidavit in opposition
to summary judgment:
‘‘2. Subsequent to the commencement of this action, I entered into an
agreement with the Plaintiff to pay the monies due under the tax liens that
had been sold to the Plaintiff by the City of Danbury.
‘‘3. Pursuant to that agreement, I have paid the Plaintiff more than $12,500.
‘‘4. It was my understanding and intention that the monies would be
applied to all the liens that had been purchased by the Plaintiff.’’
The affidavit does not refer to a written manifestation of the agreement,
and the record contains none.
6
General Statutes § 12-144b provides: ‘‘Each tax payment made to a munic-
ipality for taxes due on any specific property shall be applied by the munici-
pality toward payment of the oldest outstanding tax levied on such property
with the interest thereon; provided, if there is litigation pending between
the municipality and the party liable for the oldest outstanding tax on such
property concerning such oldest outstanding tax, such tax payment shall
only be applied to the oldest outstanding tax on such property which is not
involved in such litigation, provided this section shall not apply to tax
payments tendered by third parties pursuant to contract or by operation
of law.’’
7
The defendant has argued on appeal that the plaintiff was not bound by
§ 12-144b because it is not a municipality. We need not decide that question,
as the defendant failed to demonstrate that he and the plaintiff had an
agreement that the moneys he paid would be apportioned equally to all of
the tax liens.