150 Conn.App. 660
Conn. App. Ct.2014Background
- In June 2007 Tarzia executed a $1,334,000 note secured by a mortgage on 138 North Lake Drive, Stamford.
- Wells Fargo (as trustee for a mortgage-backed trust) sued in February 2009, alleging it was the holder of the note and mortgage and that Tarzia defaulted.
- Tarzia answered, denying holder status and asserting special defenses; he argued a "holder" allegation alone is insufficient to foreclose.
- Wells Fargo moved for summary judgment (with copies of the note, mortgage and assignment); Tarzia did not oppose. The court granted summary judgment "as to liability only."
- Wells Fargo then sought a judgment of strict foreclosure; the trial court granted it, rejecting Tarzia’s arguments that (1) pleading holder status was inadequate and (2) summary judgment as to liability could not support strict foreclosure.
- Tarzia appealed; the Appellate Court affirmed the strict foreclosure judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pleading that plaintiff is the holder of the note/mortgage states a proper foreclosure claim | Holder status creates a prima facie case; holder presumed owner and may foreclose | Holder allegation alone is insufficient; plaintiff must plead it is owner of the debt | Held: Pleading/establishing holder status is sufficient; presumption of ownership applies and defendant did not rebut it |
| Whether summary judgment "as to liability only" can supply the predicate for strict foreclosure | Summary judgment as to liability is proper where prima facie case and no sufficient defense; it may be followed by foreclosure proceedings | No authority permits summary judgment as to liability only in foreclosure actions; Practice Book §17-50 does not authorize it | Held: Court may grant summary judgment as to liability in foreclosure when the prima facie case is undisputed and no legally sufficient special defense exists; such judgment can be a predicate for strict foreclosure |
| Effect of J.E. Robert decision on RMS presumption | RMS presumption that holder = owner remains applicable unless rebutted; J.E. Robert does not require dismissal where a third-party owner exists if plaintiff shows the right to enforce | J.E. Robert undermines RMS, so mere holder allegation is insufficient | Held: J.E. Robert’s limiting language does not alter outcome here because defendant never rebutted the presumption; RMS presumption applies |
| Preservation / appealability of claims attacking prior summary judgment when appealing strict foreclosure | Claims challenging prior summary judgment may be raised on appeal from final foreclosure judgment | Summary judgment as to liability is not a final appealable judgment | Held: Appeal from final strict foreclosure judgment properly presents the claimed errors; summary judgment as to liability only is not independently final |
Key Cases Cited
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (holder of note presumed owner of debt; may foreclose unless presumption rebutted)
- J.E. Robert Co., Inc. v. Signature Properties, LLC, 309 Conn. 307 (clarifies RMS; burden shifts if another owns note and plaintiff must show enforcement right)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (court may grant summary judgment as to liability in foreclosure when prima facie case is undisputed and no sufficient defense)
- Countrywide Home Loans Servicing, LP v. Creed, 145 Conn. App. 38 (applies RMS presumption)
- Deutsche Bank Nat’l Trust Co. v. Shivers, 136 Conn. App. 291 (applies RMS presumption)
- People’s United Bank v. Bok, 143 Conn. App. 263 (standard of review for strict foreclosure)
- Essex Savings Bank v. Frimberger, 26 Conn. App. 80 (summary judgment as to liability only not a final appealable judgment)