Bartomeli v. Brackett, No. Cv94 048702s (Feb. 9, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION In the summer of 1989, the defendants needed money for certain matters. They had no credit so they asked the plaintiffs to help them out. Through the intervention of a third person, the parties made contact with the State Street Mortgage Co. of Bridgeport, which agreed to loan money to the plaintiffs.

The court notes that many of the documents involved in this case were signed by Melody Mackey, who, in fact, is Melody Bartomeli.

The closing statement between the State Street Mortgage Co. and the plaintiffs is dated August 14, 1989 and states that the amount of the loan involved in this matter is $40,000. From that amount, $4,000 was deducted which left $36,000 as the amount financed. Then from the $36,000 was deducted $1,178.14 for certain charges, leaving $34,821.86 as the amount in fact borrowed.

The note signed by the plaintiffs is also dated August 14, 1989. In it, the plaintiffs promised to pay the State Street Mortgage Co. $40,000 with interest from August 14, 1989 on any unpaid balance. Interest shall be paid on the first day of each month. The amount of interest due September 1, 1989 was $235.33. The amount of interest thereafter was to be $550.00 a month. If any payment was not made as required, a late charge of 5% of the due payment shall also be paid

The note was not signed by the defendants.

Exhibit F is an undated, unsigned letter from the defendants which states that on approximately August 30, 1989, the defendants received $11,500 from the plaintiff Melody Mackey and in mid to late September 1989, the defendants received a second CT Page 1420-A check from Melody Mackey for $17,000. The letter also stated that "Total Funds Borrowed = $24,000."

Exhibit I is a three page document showing other months or specific dates, interest billed, interest paid, penalties assessed, penalties paid and balance of loan which remained at $40,000 for all dates listed up to December 13, 1991 the last date on the document.

From the above facts, it is apparent that Melody Mackey took some of the money available at the State Street Mortgage Co. and gave it to the defendants in two lump sums. The defendants then used this money to pay to Melody Mackey the interest due which she in turn gave to the State Street Mortgage Co. The first check from the defendants — Exhibit B — is for $577.50 which is the total of the monthly amount due of $550.00 plus the late charge of $27.50. Exhibit B contains 13 checks all made out by the defendant Lisa Brackett to Melody Mackey, all of which are noted in Exhibit I. The last check in this group of checks is dated October 1, 1990. The court finds that Melody Mackey took each check to the State Street Mortgage Co. to pay the interest then due.

Exhibit A contains 41 checks signed by the defendant Lisa Bracket and made out to the State Street Mortgage Co. The "memo" line on the checks contain various notations such as: "M. Bartomeli (Loan)"; "For Melody Bartomeli"; "Bartomeli Loan"; "Bartomeli"; "Oct.-Nov."; and "Dec." The court notes that a notation on check #295 reads "Extend Loan 1/2 yr.". All of those checks are noted "Loan #40923" or "40923". Exhibit I states that account number of the State Street Mortgage Co. on the interest portion is "40923". The court notes that all the checks in Exhibit A except for check #1253 dated May 21, 1994 have loan account number 40923 on them. The court also notes that check #737 has a stamp placed on it reading "Returned Not Paid — Because — NSF" and that check #898 has a stamp placed on it reading "N.S.F." in a box.

The court notes that the last entry in Exhibit I contains the date December 11, 1991 for "interest paid" — "550". Also, Exhibit A contains 27 checks dated 1992, 1993 and 1994, made out by the defendant Lisa Brackett payable to the State Street Mortgage Co.

The court notes that Exhibit K contains four checks of Melody CT Page 1420-B Bartomeli payable to State Street Mortgage Co. each for $1100 and dated respectively March 1, 1995, May 1, 1995 and August 4, 1995 with one undated but processed April 19, 1995. The "memo" on check #1204 states "Lisa's Loan" and the "memo" on check #1283 reads "Andy" and "Lisa".

The court finds as a fact that the plaintiffs did not take any part of the money which the State Street Mortgage Co. made available to the plaintiffs and the defendants took $24,000 of this money for their own use.

The court finds as a fact that by their actions in accepting the money from the State Street Mortgage Co., and also by their action in paying interest on the total money available to them for borrowing, the defendants have accepted all the obligations set out in the note dated August 14, 1989. Therefore, the court finds that the defendants agreed to pay interest not only on the money they actually borrowed, but also on the entire amount they could have borrowed.

In other words, the court finds that the defendants took over and are the primary obligors for the entire amount of money available for borrowing from the State Street Mortgage Co.

Hence, the defendants shall reimburse the plaintiffs for any interest the plaintiffs may have paid to the State Street Mortgage Co. and also shall reimburse the plaintiffs for any money they have paid to the State Street Mortgage Co. in reduction of the entire amount of money available from the State Street Mortgage Co. on the note, plus interest on any money which the plaintiffs have paid to the State Street Mortgage Co., plus costs.

Thomas O'Sullivan Trial Referee