Countrywide Home Loans Servicing, LP v. Diane Creed
145 Conn. App. 38
| Conn. App. Ct. | 2013Background
- Foreclosure action against Diane Creed; MERS as nominee for American Brokers Conduit held the mortgage; note endorsed in blank and later transferred to Countrywide, then to Aurora Loan Services via substitution.
- Countrywide filed the initial foreclosure, later transferred possession of the note to Aurora; MERS assigned the mortgage to Aurora in June 2008 and the court granted substitution on July 14, 2008.
- Plaintiff moved for summary judgment in April 2010; court denied due to a genuine issue about applying payments.
- May 2, 2011 hearing: plaintiff produced original note, two cancelled endorsements to Countrywide, and an endorsement in blank; judge found plaintiff holder and granted strict foreclosure.
- Post-judgment, defendant challenged standing and jurisdiction; multiple stays and motions occurred; Judge Taylor opened judgment in Feb 2012 and reentered strict foreclosure in March 2012; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an evidentiary hearing was required on standing | Plaintiff had standing as holder of the note; no factual dispute necessitated a hearing | Standing issues required a trial-like evidentiary hearing | No evidentiary hearing required; plaintiff held prima facie standing based on the note and presumption as holder |
| Whether plaintiff had standing to pursue foreclosure | Countrywide/then plaintiff possessed the note endorsed in blank; statute permits holder to foreclose | Discrepancies in endorsements and land-records undermine standing | Court correctly held plaintiff had standing to foreclose |
Key Cases Cited
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011) (holder presumption; holder may foreclose before assignment of mortgage)
- Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570 (2010) (holder of instrument; possession and bearer status confer standing)
- Deutsche Bank National Trust Co. v. Shivers, 136 Conn. App. 291 (2012) (standing and bearer instrument considerations)
- F.P., Inc. v. Collegium & Wethersfield Ltd. Partnership, 33 Conn. App. 826 (1994) (substitution of plaintiff transfers the right to proceed)
- Park National Bank v. 3333 Main, LLC, 127 Conn. App. 774 (2011) (jurisdictional analysis when standing is questioned)
- GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264 (2007) (due process and hearings when jurisdictional facts are in dispute)