154 Conn.App. 265
Conn. App. Ct.2014Background
- In 2003 Farina executed a $115,000 promissory note to People’s United Bank secured by a mortgage on his Plainville residence.
- The note was specially endorsed from People’s Bank to Countrywide Document Custody Services, then to Countrywide Home Loans, Inc., and ultimately endorsed in blank.
- BAC Home Loans Servicing, LP (later substituted by Bank of America after a merger) filed this foreclosure in June 2009, alleging it was holder of the note and mortgage and that payments were in default.
- Farina filed an answer, affirmative defenses, counterclaims, and a motion to dismiss; counterclaims were stricken and the dismissal motion denied.
- Plaintiff moved for summary judgment in February 2012, submitting affidavits and the mortgage/note; at the hearing the court inspected the original note and found it bore Farina’s original signature.
- The trial court granted summary judgment (March 2012) and later entered a judgment of strict foreclosure (September 2013); Farina appealed, principally arguing lack of standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose | BAC, as possessor of the original note endorsed in blank, is a holder entitled to enforce the note | Farina: BAC lacked standing because it was not the actual owner/holder of the original note | Court held BAC possessed the original note endorsed in blank and therefore had standing to enforce and foreclose |
| Authenticity of note at summary judgment | Court inspected original note and treated it as authentic evidence supporting summary judgment | Farina challenged authenticity and argued plaintiff did not possess the original note | Court rejected Farina’s challenge, noting it had viewed the original note at argument |
| Entitlement to summary judgment on liability | Plaintiff argued no genuine issues of material fact and thus was entitled to judgment as a matter of law | Farina argued factual disputes remained, including standing and note possession | Court granted summary judgment, finding documentation and the original note demonstrated no genuine issue on liability |
| Substitution of party plaintiff after merger | Plaintiff requested substitution (Bank of America) following corporate merger | Not contested by Farina on appeal | Trial court permitted substitution; appellate decision affirms foreclosure judgment (substitution noted but not central) |
Key Cases Cited
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011) (possession of an instrument payable to bearer makes possessor a valid holder entitled to enforce it)
- J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (2013) (loan servicer for the owner of legal title to a note can have standing in its own right to foreclose)
- Equity One, Inc. v. Shivers, 310 Conn. 119 (2013) (discussing UCC principles and statutory authority for note holders to enforce and foreclose)