******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
BERKSHIRE BANK v. THE HARTFORD CLUB ET AL.

(AC 36711)

Gruendel, Alvord and West, Js.

Argued March 11—officially released July 28, 2015

(Appeal from Superior Court, judicial district of

Hartford, Vacchelli, J. [summary judgment]; Robaina,

J. [foreclosure by sale].)

John W. Larson, with whom was Eric Henzy, for the
appellant (named defendant).

Matthew T. Wax-Krell, with whom, on the brief, was

Michael D. Blumberg, for the appellee (plaintiff).
Opinion

ALVORD, J. The defendant The Hartford Club appeals

from the judgment of foreclosure by sale rendered by

the trial court in favor of the plaintiff, Berkshire Bank.1

On appeal, the defendant claims that the court improperly granted the plaintiff’s motion for summary judgment as to liability because the affidavits and exhibits

offered in support of the motion were (1) not admissible

evidence with respect to the plaintiff’s status to enforce

the negotiable instrument at issue, and (2) insufficient

to establish the absence of a genuine issue of material

fact.2 We disagree and affirm the judgment of the

trial court.

The court’s memorandum of decision and the record

reveal the following facts and procedural history. On

July 17, 2009, the defendant executed an open-end mortgage in favor of The Connecticut Bank and Trust Company (CBT) on property located on Prospect Street in

Hartford to secure the payment of a promissory note

in the principal amount of $977,000. Effective April 20,

2012, CBT merged with and into the plaintiff, under

the charter, bylaws and name of Berkshire Bank. The

plaintiff commenced the present foreclosure action

when payments of principal and interest that were due

on November 17, 2012, and thereafter, were not made

as required by the terms of the loan documents. In its

complaint dated June 17, 2013, the plaintiff sought, inter

alia, a judgment of foreclosure, a deficiency judgment

and attorney’s fees.

On August 19, 2013, the defendant filed an answer

with one special defense, which alleged that ‘‘the ownership interest of the [p]laintiff in the subject mortgage

has not been established.’’ The plaintiff filed a reply to

the defendant’s answer and special defense, in which

it denied the allegations in the special defense. On October 9, 2013, the plaintiff filed a motion for summary

judgment as to liability, claiming that a prima facie case

for foreclosure had been established and that there

were no remaining issues of fact. With its motion for

summary judgment, the plaintiff filed a memorandum

in support of the motion and the affidavit of Thomas

S. Matejek, the plaintiff’s vice president. The defendant

filed a memorandum in opposition to the plaintiff’s

motion for summary judgment on November 20, 2013.

No affidavits or documents were filed with the defendant’s memorandum. On November 21, 2013, the plaintiff filed a supplemental affidavit of Matejek in support

of its motion for summary judgment. The defendant

filed a supplemental memorandum in opposition to the

motion for summary judgment on December 11, 2013,

again, with no affidavits or documents, and a hearing

was held on December 16, 2013.

On January 13, 2014, the court issued its memorandum of decision rendering summary judgment in favor
of the plaintiff as to liability only. The plaintiff filed a

motion for a judgment of strict foreclosure on March

12, 2014. On March 18, 2014, the defendant filed a

motion for a judgment of foreclosure by sale. Thereafter, the court rendered a judgment of foreclosure by

sale. This appeal followed.

On appeal, the defendant claims that the court

improperly granted the plaintiff’s motion for summary

judgment as to liability. It argues that the court should

not have concluded that Matejek’s affidavits and the

letter from a Massachusetts banking official certifying

the merger of CBT with and into the plaintiff (certificate)3 constituted ‘‘admissible evidence regarding the

plaintiff’s ability to enforce the negotiable instrument

in question.’’ The defendant claims that the affidavits

are deficient because they (1) ‘‘do not chronicle the

chain of title of the note,’’ (2) include only Matejek’s

unsupported statement that the plaintiff owns the note,

(3) fail to include a statement that CBT was the holder

and owner of the note at the time of the merger, and

(4) fail to state the basis for Matejek’s averment that

he had personal knowledge of the statements within

the affidavits. The defendant further argues that the

certificate was not admissible evidence because it was

not the best evidence of the alleged merger. Additionally, it is the defendant’s position that, even if the challenged documents were admissible evidence, they were

insufficient to establish the right of the plaintiff to

enforce the note. According to the defendant: ‘‘What

[the plaintiff] asked the trial court to do was draw

inferences based on [the plaintiff’s] possession of the

note and evidence of doubtful admissibility of a merger

that [the plaintiff] is a nonholder in possession with the

right to enforce the note.’’

‘‘The law governing summary judgment and the

accompanying standard ofreview are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits 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. A material fact is a fact

that will make a difference in the result of the case.

. . . The facts at issue are those alleged in the pleadings. . . .

‘‘In seeking summary judgment, it is the movant who

has the burden of showing the nonexistence of any

issue of fact. The courts are in entire agreement that

the moving party for summary judgment has the burden

of showing the absence of any genuine issue as to all

the material facts, which, under applicable principles

of substantive law, entitle him to a judgment as a matter

of law. The courts hold the movant to a strict standard.

To satisfy his burden the movant must make a showing

that it is quite clear what the truth is, and that excludes

any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the

movant, the evidence must be viewed in the light most

favorable to the opponent. . . .

‘‘The party opposing a motion for summary judgment

must present evidence that demonstrates the existence

of some disputed factual issue . . . . The movant has

the burden of showing the nonexistence of such issues

but the evidence thus presented, if otherwise sufficient,

is not rebutted by the bald statement that an issue of

fact does exist. . . . To oppose a motion for summary

judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the

movant’s affidavits and documents. . . . The opposing

party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine

issue of material facttogether with the evidence disclosing the existence of such an issue. . . . The existence

of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.

. . . Our review of the trial court’s decision to grant a

motion for summary judgment is plenary.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) Deutsche Bank National Trust Co. v. Shivers,

136 Conn. App. 291, 295–96, 44 A.3d 879, cert. denied,

307 Conn. 938, 56 A.3d 950 (2012).

‘‘In order to establish a prima facie case in a mortgage

foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the

note and mortgage,4

that the defendant mortgagor has

defaulted on the note and that any conditions precedent

to foreclosure, as established by the note and mortgage,

have been satisfied. . . . Thus, a court may properly

grant summary judgment as to liability in a foreclosure

action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant

fails to assert any legally sufficient special defense.’’

(Internal quotation marks omitted.) Wells Fargo Bank,

N.A. v. Strong, 149 Conn. App. 384, 392, 89 A.3d 392,

cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014).

In the present case, the plaintiff submitted the two

Matejek affidavits. In those affidavits, Matejek averred

that he was the plaintiff’s vice president and that he had

personal knowledge of the facts stated in the affidavits.

Particularly relevant were Matejek’s following sworn

statements: (1) he reviewed the subject note and mortgage; (2) the plaintiff was the successor in interest to

CBT; (3) CBT merged with and into the plaintiff under

the plaintiff’s charter and bylaws and name effective

April 20, 2012; (4) the defendant was in default as a

result of its failure to make any principal payment due

underthe note since December 27, 2012, which payment

was for the installment that was due on October 17,

2012;(5)the plaintiff sent the defendant a letter on April

11, 2013, accelerating the entire indebtedness under the

note; (6) the defendant failed to cure its default; (7) on
July 24, 2013, the parties entered into an agreement

wherein the plaintiff represented that it would not file

any additional pleadings in the foreclosure action until

August 19, 2013, to afford the defendant the opportunity

to bring the interest current on the note, but the defendant failed to pay the requisite amount; (8) Matejek

was personally familiar with the plaintiff’s books and

records with respect to the amount owed by the defendant; and (9) the plaintiff was the owner of the subject

note, mortgage, assignment of rents and all other loan

documents executed in connection with the defendant’s

debt. The defendant did not file a counteraffidavit or

any documentary evidence at any time to contradict

the plaintiff’s evidence or to support its special defense

to the action. Instead, the defendant relied on its arguments that the Matejek affidavits and the certificate

were not admissible evidence and that, even if admissible evidence, they were insufficient to show that the

plaintiff had the right to enforce the note.

We begin with basic principles governing the enforcement of the note at issue, which the parties agree is a

negotiable instrument. The mortgage note, as a negotiable instrument, is governed by the provisions of Connecticut’s Uniform Commercial Code (UCC)

concerning negotiable instruments, General Statutes

§ 42a-3-101 et seq. Ulster Savings Bank v. 28 Brynwood

Lane, Ltd., 134 Conn. App. 699, 709, 41 A.3d 1077 (2012).

Under the UCC, a person entitled to enforce an instrument includes the holder of the instrument or a nonholder in possession of the instrument who has the

rights of a holder. General Statutes § 42a-3-301. ‘‘The

UCC’s official comment underscores that a person entitled to enforce an instrument . . . is not limited to

holders. . . . A nonholder in possession of an instrument includes a person that acquired rights of a holder

. . . under [§ 42a-3-203 (a)]. . . . Under § 42a-3-203

(b), [t]ransfer of an instrument . . . vests in the transferee any right of the transferor to enforce the instrument . . . . An instrument is transferred when it is

delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right

to enforce the instrument. General Statutes § 42a-3-203

(a).’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature

Properties, LLC, 309 Conn. 307, 319–20, 71 A.3d 492

(2013). ‘‘Accordingly, a note that is unendorsed still can

be transferred to a third party. Although that third party

technically is not a holder of the note, the third party

nevertheless acquires the right to enforce the note so

long as that was the intent of the transferor.’’ Ulster

Savings Bank v. 28 Brynwood Lane, Ltd., supra,

709–10.

Here, the note at issue is payable to CBT or order,

and it was not endorsed to the order of the plaintiff.

The plaintiff is the successorin interest to CBT by virtue

of a merger, which became effective April 20, 2012. It
is undisputed that the plaintiff was in possession of the

original note and mortgage at all relevant times. The

trial court determined that the plaintiff was not the

‘‘holder’’ of the note; see General Statutes § 42a-1-201

(b) (21) (A); because the note was not payable to bearer

or to an identified person who is the person in possession of the note. The court further determined that the

plaintiff was a nonholder in possession of the instrument who had the rights of a holder(CBT) as the ‘‘transferee’’ by merger. Through the affidavits and attached

exhibits, which were not contradicted by a counteraffidavit or any documentary evidence by the defendant,

the court concluded that the plaintiff was the owner

of the note and had documented the essential facts

supporting its right to enforce the note. We agree with

the trial court.

The claims of the defendant addressed to its argumentthatthe affidavits and certificate were not admissible evidence are not persuasive. The defendant argues

that the affidavits were deficient because they did ‘‘not

chronicle the chain of title of the note.’’ This argument

is comparable to the chain of custody argument raised

in New England Savings Bank v. Bedford Realty Corp.,

246 Conn. 594, 604–605, 717 A.2d 713 (1998). In that

case, our Supreme Court rejected the notion that a

proponent must prove a chain of custody in order to

authenticate a business record. Id. Any gap or break in

the chain of custody goes to the weight of the evidence

rather than its admissibility. Id. Our Supreme Court

provided the following policy reason for adopting such

a rule: ‘‘To require testimony regarding the chain of

custody of such documents, from the time of their creation to their introduction at trial, would create a nearly

insurmountable hurdle for successor creditors

attempting to collect loans originated by failed institutions.’’ Id., 605.

The defendant’s arguments that the affidavits were

inadmissible evidence because there was no support

for Matejek’s statement that the plaintiff owned the

note and they lacked a statement that CBT was the

holder and owner of the note at the time of the merger

likewise fail. Matejek’s averred statements that he had

reviewed the records of CBT and the plaintiff and that

CBT had merged into Berkshire Bank, together with

the undisputed fact that the plaintiff had possession of

the original note and mortgage, supported Matejek’s

statement that the plaintiff was the owner of the note.

The failure to include a statement that CBT was the

holder and owner of the note at the time of the merger

did not preclude the court from rendering summary

judgment as to liability. The defendant has provided no

more than a mere allegation that CBT may have divested

itself of the ownership of the note before the merger.

No evidence whatsoever was provided in support of

such an allegation and, significantly, the plaintiff had

possession of the original note and mortgage. Accord-
ingly, this allegation, without more, did not create a

genuine issue of material fact under the circumstances

of this case.

We also rejectthe defendant’s claim that the affidavits

were not admissible evidence because Matejek failed

to state the basis for his sworn statement that he had

personal knowledge of the information contained in the

affidavits. ‘‘The witness’ personal knowledge goes to

the weight of the evidence, not to its admissibility.’’

Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App.

369, 376, 739 A.2d 301, cert. denied, 251 Conn. 927,

742 A.2d 362 (1999). Furthermore, as previously noted,

Matejek averred that he had reviewed the business

records of the plaintiff and CBT. ‘‘The defendant provides no authority, and we know of none, that precludes

affiants from obtaining personal knowledge of underlying transactions by review of business records. Under

General Statutes § 52-180, to be competent to testify,

the affiant need only have personal knowledge of the

relevant business records.’’ (Footnote omitted; internal

quotation marks omitted.) American Home Mortgage

Servicing, Inc. v. Reilly, 157 Conn. App. 127, 136,

A.3d (2015).

With respect to the certificate, the defendant claims

that the letter from the Deputy Commissioner of Banks

and GeneralCounsel, Division of Banks ofthe Commonwealth of Massachusetts, certifying that its records indicate that the merger of CBT with and into the plaintiff

was effective April 20, 2012, was not admissible evidence. The defendant argues that the certificate was not

the best evidence of the merger and that ‘‘the relevant

merger documents’’ should have been produced. The

defendant provided no evidence whatsoever that the

merger did not take place or that the contents of the

certificate were inaccurate. Furthermore, ‘‘[t]he best

evidence rule is a preferential, rather than an exclusionary rule.’’ Cadle Co. v. Errato, 71 Conn. App. 447, 453,

802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d

861 (2002).

For the foregoing reasons, the court did not rely on

inadmissible evidence when it rendered its summary

judgment. The evidence presented by the plaintiff, as

contained in the affidavits and certificate, as well as

the fact that the plaintiff was in possession of the original note and mortgage, were sufficient to establish that

the plaintiff had the requisite authority to enforce the

note. The plaintiff’s vice president, after reviewing the

business records of the plaintiff and CBT, and upon his

personal knowledge, averred that the note signed by

the defendant was payable to CBT, that the $977,000

debt was secured by a mortgage on the defendant’s

Prospect Street property, that the plaintiff was the successor in interest to CBT by virtue of a merger that

was effective April 12, 2012, that the defendant was in

default because it failed to make payments of principal
and interest that were due on November 17, 2012, and

thereafter, that the plaintiff notified the defendant of

its default,that the plaintiff exercised its option to accelerate the entire indebtedness under the note, that the

defendant failed to cure its default, and that the plaintiff

was the owner of the note, mortgage and related

loan documents.5

It is difficult to draw any other inference from the

facts here except that the note and related loan documents were transferred from CBT to the plaintiff at the

time of the merger and that the plaintiff was the owner

of the note and mortgage when it commenced the foreclosure action. The plaintiff established an undisputed

prima facie case. Without any evidence to contradict

the plaintiff’s evidence, there was no evidentiary foundation to demonstrate the existence of a genuine issue

of materialfact. Accordingly, we conclude that the court

did not err in rendering summary judgment in favor of

the plaintiff.

The judgment is affirmed and the case is remanded

for the purpose of setting a new sale date.

In this opinion the other judges concurred.

1 Two subsequent encumbrancers also were named as defendants in this

action, but they are not parties to this appeal. We therefore refer in this

opinion to The Hartford Club as the defendant.

2 Because these two claims are interrelated, we address them together in

this opinion.

3 The certification from the Division of Banks of the Commonwealth of

Massachusetts was attached to both affidavits and provided as follows:

‘‘This letter is to certify that records currently in the possession of the

Division of Banks indicate that The Connecticut Bank and Trust Company,

Hartford, Connecticut, merged with and into Berkshire Bank, Pittsfield,

Massachusetts under the charter, by-laws and name of Berkshire Bank

effective April 20, 2012. Berkshire Bank continues to operate as a statechartered savings bank under the provisions of Massachusetts General Laws

chapter 168 and other related statutes subject to supervision and examination by the Commissioner of Banks.’’ The letter was signed by Joseph A.

Leonard, Jr., the deputy commissioner of banks and general counsel.

4 Our SupremeCourt has concluded that standing to enforce a note extends

to a holder in possession of the note, who is presumed to be the owner of

the debt unless the presumption is rebutted; RMS Residential Properties,

LLC v. Miller, 303 Conn. 224, 231–32, 32 A.3d 307 (2011), overruled in part

by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n.18,

71 A.3d 492 (2013); and to a plaintiff who is not the owner or holder of the

note and mortgage if it otherwise has established the right to enforce those

instruments. J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307,

327–28, 71 A.3d 492 (2013).

5 The affidavits additionally provided the amounts due as a result of the

defendant’s default, but the amount of the debt has not been challenged

on appeal.