196 Conn.App. 1
Conn. App. Ct.2020Background
- 2007: Pawel Toczek executed an $880,000 promissory note and a mortgage on property also signed by defendant Aleksandra Toczek; payments ceased in July 2008.
- Wachovia (later acquired by Wells Fargo) accelerated the debt, filed foreclosure proceedings in 2009, and moved for strict foreclosure and summary judgment on liability.
- Wachovia/Wells Fargo submitted an affidavit from Thomas Hermann (vice president of loan documentation) attaching copies of the note and mortgage and asserting possession of the note; defendant filed no opposition to the summary judgment motion.
- Trial court granted summary judgment as to liability (treated as unopposed) and, after delays, granted judgment of strict foreclosure in 2018; defendant moved to reargue, claiming lack of standing (note nonnegotiable) and violation of the Practice Book § 23-18 five‑day filing rule.
- Trial court denied reargument; on appeal the Connecticut Appellate Court affirmed, holding the standing challenge went to the merits, the plaintiff established a prima facie case, § 23‑18’s five‑day requirement was satisfied, and denial of reargument was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / subject‑matter jurisdiction | Wells Fargo was the holder/assignee and had right to foreclose (possession of note). | Note is nonnegotiable (not for fixed amount; governed by federal law), so plaintiff lacks standing. | Challenge to negotiability/holder status goes to merits, not jurisdiction; standing claim fails. |
| Summary judgment as to liability | Hermann affidavit + copies of note and mortgage established prima facie case; defendant filed no opposition. | Note nonnegotiable; plaintiff therefore could not prove holder status. | Plaintiff met prima facie burden; summary judgment proper because defendant did not rebut. |
| Compliance with Practice Book § 23‑18 (five‑day affidavit rule) | Plaintiff filed a preliminary statement in 2009 and subsequent affidavits of debt (including 2018); rule requires a preliminary statement no less than five days before hearing. | Most recent affidavit was filed fewer than five days before hearing (June 18, 2018), rendering hearing procedurally defective. | § 23‑18 requires a preliminary statement be on file at least five days before hearing; plaintiff had filed one in 2009 and later affidavits updating debt — court did not abuse discretion. |
| Denial of motion to reargue | Court already had all affidavits and statements; defendant offered no new evidence or legal theory the court overlooked. | Court overlooked mandatory five‑day rule and failure to inform defendant of debt to date of hearing. | Denial of reargument was not an abuse of discretion; no new evidence or misapprehension shown. |
Key Cases Cited
- Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384 (2014) (distinguishes standing from merits; challenges to holder/owner status go to merits)
- U.S. Bank, Nat’l Assn. v. Fitzpatrick, 190 Conn. App. 773 (2019) (prima facie elements for foreclosure and summary judgment standard)
- Bank of New York Mellon v. Horsey, 182 Conn. App. 417 (2018) (discusses multiple affidavits of debt and timing issues under Practice Book § 23‑18)
- Gianetti v. Gerardi, 122 Conn. App. 126 (2010) (standards for motions to reargue and limits on "second bite" requests)