Deutsche Bank National Trust Co. v. Pardo, 155 A.3d 764

Background

Deutsche Bank (plaintiff), as assignee of IMPAC/MERS, sued Carlos Pardo (defendant) in April 2014 for strict foreclosure on property securing a 2007 note; exhibits included the note, mortgage, and assignment.
Default entered against Pardo; court granted judgment of strict foreclosure (Feb 2, 2015) and set law day for May 19, 2015 (later extended once by the court).
Pardo filed a motion to open the judgment and a motion to dismiss for lack of subject matter jurisdiction on May 12, 2015, asserting the note was not a negotiable instrument because two later loan modification agreements made it conditional.
The motion to open was not heard until May 26, 2015 (after the May 19 law day); the court dismissed the motion to open as moot under Conn. Gen. Stat. § 49-15 because title had vested.
The court denied Pardo’s motion to dismiss, finding the note remained a negotiable instrument (the note did not itself reference other writings) and that Deutsche Bank was a holder with standing to foreclose.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Deutsche Bank had standing to foreclose (was a “holder”)	Deutsche Bank produced the note, assignment, and alleged it was the holder; prima facie evidence shifted burden to defendant	Note ceased to be a negotiable instrument because subsequent loan modifications made the original note "subject to" other writings, so plaintiff lacked standing	Court held Deutsche Bank was a holder; the note remained a negotiable instrument because the note itself did not state it was subject to other writings
Whether loan modifications rendered the original note non-negotiable	Plaintiff: modifications do not defeat negotiability where the original note contains no reference to other writings	Pardo: later modifications made the promise conditional under UCC § 3-106(a) and thus non-negotiable	Court held that § 3-106(a) applies only where the promise/order itself states it is subject to another writing; later unreferenced modifications do not destroy negotiability
Whether a motion to dismiss filed before law day tolled the law days and prevented vesting	Plaintiff: filing a motion to dismiss does not automatically toll law days; no authority supports tolling merely by filing such a motion	Pardo: his May 12 motion to dismiss challenged subject matter jurisdiction and therefore tolled the law days so title never vested	Court held filing a motion to dismiss does not automatically stay or toll law days; title vested and § 49-15 bars opening after vesting
Whether the motion to open the judgment could be heard after the law day	Plaintiff: once title vests after law day, no practical relief exists and motion must be dismissed as moot under § 49-15	Pardo: argued motion to dismiss tolled vesting so his motion to open remained viable	Court held the motion to open was moot because it was not heard before vesting; no practical relief was available once title vested

Key Cases Cited

Property Asset Management, Inc. v. Lazarte, 163 Conn. App. 737 (Conn. App. 2016) (burden shifts to defendant to impeach holder evidence and standing in foreclosure action)
Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341 (Conn. 1990) (motion to open must be heard before vesting of title; filing alone is not enough)
First National Bank of Chicago v. Luecken, 66 Conn. App. 606 (Conn. App. 2001) (statutory construction of § 49-15 and need for orderly foreclosure procedure)
Highgate Condominium Assn., Inc. v. Miller, 129 Conn. App. 429 (Conn. App. 2011) (a judgment of strict foreclosure may be opened after vesting only if court lacked jurisdiction when judgment entered)
Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515 (Conn. 2015) (once law days pass and title vests, owner’s redemption rights are cut off)
W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704 (Conn. 2003) (use of UCC official comments in construing state statute governing negotiability)