Gaudio v. Hornby, Hornby and Wilcock, No. Cv 0069163 S (Nov. 20, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This matter was reached for trial and tried on October 17, 1995 On said date, counsel for the defendant, Geoffrey A. Wilcock filed a motion to withdraw as counsel for said Wilcock and presented a letter wherein Wilcock declined to appear and defend the matter and realized that he would be defaulted if the court allowed his counsel to withdraw indeed concurred in the withdrawal of his counsel. Accordingly the court allowed counsel for that defendant to withdraw and entered a default for a failure to appear and defend against that defendant, Geoffrey Wilcock. The matter went to a contested hearing with respect to the allegations of the complaint as to the remaining two defendants John B. Hornby and Daryl L. Hornby Count Four as set forth in the Amended Complaint dated November 9, 1994 was withdrawn by plaintiff. Based upon the relevant, credible and admissible evidence presented during the course of this trial, the court makes the following findings of fact and conclusion of law.

On December 21, 1989, the defendants John B. Hornby, Geoffrey A. Wilcock and Daryl L. Hornby, executed a Commercial Mortgage Note and promised to pay to the order of the Shoreline Bank Trust Company, the sum of $225,000.00, in accordance with the tenor of the note, Exhibit One herein. The note provided that in the event the defendants failed to make full and timely payment of any payment of principal or interest amount due under the terms of the note, then the entire unpaid principal balance with accrued interest thereon would become due and payable at the option of the holder In addition the note provided for attorney's fees and costs of collection in the event such was necessary. On CT Page 13262 January 21, 1993, at which time the principal balance of said note had been reduced to $150,000.00, said note was assigned without recourse with full and unequivocal disclaimer of any and all liabilities of an indorser to the order of Barbara B. Gaudio, the name plaintiff herein. Said plaintiff is still the holder of said note. The defendants have failed to make payment in accordance with the tenor of the note and said note is in default. There remains due and owing to the plaintiff the sum of $150,000.00 as the principal amount and the sum of $29,920.85 has accrued as interest thereon. By the stipulation of the parties, attorney's fees in the amount of $3,627.75 are due and payable.

The court finds that the evidence sustains the allegations of the plaintiff. The court further finds that the defendants, John Hornby and Daryl Hornby have failed to establish by a clear and preponderance of the evidence the allegations of each of their first and second special defenses to the underlining action.

Accordingly judgment is entered in favor of the plaintiff, Barbara B. Gaudio, as against the defendants John B. Hornby, Daryl L. Hornby and Geoffrey A. Wilcock in the amount of $150,000.00 principal, $29,920.85 interest and attorney's fees in said amount of $3,627.75, for a total due and owing the plaintiff of $183,548.60.

It is so ordered.

HIGGINS, J.

Judgment in accordance with the foregoing memorandum of decision.

Deputy Chief Clerk