ELAINE ALBOM BRAFFMAN et al. v. BANK OF AMERICA CORPORATION, SC 18342

Judicial District of New Haven

 Banking; Burden of Proof; Whether Trial Court Improperly Placed Burden of Proof on Plaintiffs to Prove that Defendant Bank had not Paid Them Principal and Accrued Interest in Their Accounts.  The plaintiffs, Elaine and Gerald Braffman, as custodians for their minor children, opened two passbook investment savings accounts with Society for Savings.  One account was opened in 1987 and was funded with a deposit of $33,079.37.  The other account was opened in 1988 and was funded with a deposit of $100,000.  The plaintiffs claim that they made no transactions or had any communications with the bank concerning the accounts from the time that they opened the accounts until 2004.  In 2004, the plaintiffs presented the passbooks to the defendant Bank of America Corporation, which is the successor in interest to Society for Savings, and requested payment of the principal and accrued interest in the accounts.  The defendant refused to make the payment because it had no record of the continued existence of either account.  As a result, the plaintiffs brought this action, seeking to recover the money deposited into the accounts, plus interest and costs.  The defendant alleged, as a special defense, that it had already made payment to the plaintiffs in full.  At trial, the plaintiffs claimed that they established a prima facie case of nonpayment when they had presented the uncancelled passbooks and that the burden of proof and persuasion then shifted to the defendant to prove payment.  The trial court disagreed, noting that in Schiavone v. Bank of America, N.A., 102 Conn. App. 301 (2007), which involved a nonpayment claim, the court did not apply a burden shifting analysis but, rather, weighed all of the evidence, including an uncancelled passbook, the bank's policies, and the plaintiff's conduct and circumstances prior to the demand for payment.  The court in the present case found that the testimony presented by the parties was credible but that the plaintiffs had not provided persuasive evidence that the accounts had not been paid by the defendant or its predecessor.  Based on all of the evidence presented, the court concluded that the plaintiffs had not sustained their burden of proof with regard to their nonpayment claim.  The plaintiffs appeal, claiming that the trial court improperly placed the burden on them to prove that the defendant had not made payment.  The plaintiffs also claim that Schiavone is factually distinguishable from the present case.  Additionally, the plaintiffs argue that although General Statutes § 36a-40 permits banks to destroy records after seven years and provides immunity from liability to banks for the act of destroying the records after that period of time, the statute should not be used to immunize banks from liability for nonpayment claims brought after the bank has chosen to destroy old records and, as a result, cannot produce the records.