Webster Bank v. Smith, No. Cv97 00569670s (Dec. 30, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT The plaintiff and the defendants herein entered into a forbearance agreement whereby the plaintiff agreed to forbear from foreclosing on defendants' property so long as they compiled with the terms of the agreement.

Among other requirements, the agreement called for the defendants to make monthly payments on the arrearage as well as the regular payments commencing April 1, 1997.

The July payment is dated July 29, 1997 but received some time thereafter. Although not made in a timely manner, the check was returned to the defendants on August 5, 1997. The check was CT Page 13968 returned because it failed to include the words denoting the amount of the check even though the numbers themselves were contained therein. It was returned on the basis that it was incomplete and that pursuant to the Commercial Code they were not authorized to insert the wording. The August 5 letter requested they insert the necessary language and return the check to the bank.

On August 7, 1997, the plaintiff sent a follow-up letter to the defendants notifying them that unless the July and August payments were made by August 15, 1997, a foreclosure would be commenced.

Payment was not made as directed and the threatened foreclosure was in fact commenced.

Regardless of whether the July payment was a valid instrument or not, it was not tendered in a timely fashion. Notwithstanding, the plaintiff gave the defendants until August 15, 1997 to bring the forbearance payments current. This they failed to do.

The court finds no triable issue of fact and therefore summary judgment may enter.

The Court

By Curran, J.