CITIBANK, N.A., TRUSTEE v. LAURA A. STEIN ET AL.
(AC 40199)
Connecticut Appellate Court
November 27, 2018
Lavine, Sheldon and Bright, Js.
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Syllabus
The plaintiff bank, C Co., sought to foreclose a mortgage on certain real property owned by the defendant B and his former wife, the defendant L. Prior to trial, B filed a motion to dismiss, claiming that C Co. lacked standing to pursue the action against him. The trial court, which heard and decided the motion to dismiss in connection with the merits of the foreclosure action, denied the motion to dismiss and rendered a judgment of strict foreclosure. Thereafter, B filed postjudgment motions for a new trial and for reconsideration of the denial of his motion to dismiss. Subsequently, the trial court granted C Co.‘s motion to substitute W Co. as the plaintiff, and B filed a motion for reconsideration of the substitution of W Co. as the plaintiff. After the trial court opened the record to hear additional testimony from C Co.‘s witness, N, to determine the identity of the trustee in June, 2015, the identity of the loan servicer on that date, and whether N was familiar with the books of the mortgage servicer, the trial court denied all three of B‘s postjudgment motions and opened the judgment of strict foreclosure previously entered for the purpose of setting the law days. On B‘s appeal to this court, held:
- B could not prevail on his claim that the trial court improperly denied his motion to dismiss and found that C Co. had standing to bring the foreclosure action: that court found that C Co. was the holder of the note at the time the foreclosure action was commenced, as C Co. presented a photocopy of the note secured by the mortgage and the court, which credited testimony of the servicing authority that C Co. was the holder of the note endorsed in blank, did not find any evidence that C Co. was not in possession of the note when the present action commenced, B did not present any evidence to contradict that finding, and although B claimed that C Co. was not the trustee at the time of trial and that W Co. had been substituted thereafter, an assignee may continue litigation in the name of the original plaintiff and W Co. was substituted prior to the court‘s opening the judgment of strict foreclosure for the purpose of resetting the law days; moreover, the court did not abuse its discretion by opening the record to take additional evidence, as the court opened the record to address B‘s jurisdictional claims and not to give C Co. a second bite at the apple, and even if the court abused its discretion by opening the record in response to B‘s motion for reconsideration, claims of error will not be reviewed when they have been induced by the party claiming error on appeal.
- B‘s claim that the trial court abused its discretion by failing to consider certain documents that he claimed disputed C Co.‘s purported ownership of the note and authority to prosecute the foreclosure action was not reviewable, B having failed to brief the claim adequately, as B did not identify where in the record the court issued the ruling with which he took issue, and his brief did not cite any law or analyze the facts pursuant to the law on which he purportedly relied.
- B could not prevail on his claim that the foreclosure action was deficient and false, which was based on his claim that the mortgagor did not default on the note; although B claimed that L was a nontitle owner of the property and could not mortgage the property, L stipulated at trial that the note she signed was in default and that the signatures on the mortgage appeared to be her signature and that of B, and because B, who was the owner of the property and pledged the property as security for the note signed by L, did not challenge L‘s stipulation or otherwise dispute that his signature was on the mortgage, he was a mortgagor in default.
- B‘s claim that C Co. failed to meet its burden to prove its right to bring the present action as a nonholder in possession of the note was unavailing; the trial court‘s findings that C Co. was the holder of the note entitled to bring the action against B and that N Co. was the servicer as of 2014 and through the time of trial were supported by the record, and, therefore, the court properly determined that C Co. met the requirements to prosecute the foreclosure action.
Argued September 7—officially released November 27, 2018
Procedural History
Action to foreclose a mortgage on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Stamford and tried to the court, Heller, J.; judgment of strict foreclosure; thereafter, the court granted the plaintiff‘s motion to substitute Wilmington Trust, N.A., as the plaintiff, and the defendant Brian Stein appealed to this court. Affirmed.
Brian Stein, self-represented appellant (defendant Brian Stein).
Crystal L. Cooke, for the appellee (substitute plaintiff).
LAVINE, J. The present appeal concerns the foreclosure of real property located at 983 New Norwalk Road in New Canaan (property). The self-represented defendant, Brian Stein,1 appeals from the judgment of strict foreclosure rendered in favor of the substitute plaintiff, Wilmington Trust, N.A. (Wilmington Trust), as successor trustee to the plaintiff, Citibank, N.A. (Citibank), as trustee of the holders of Bear Stearns Alt-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6. On appeal, the defendant claims that the trial court, Heller, J., (1) erred by denying his motion to dismiss, (2) abused its discretion by denying his motion to reargue and for reconsideration, (3) abused its discretion by refusing to consider, after the June 2015 trial, documents the defendant considered newly discovered evidence, (4) erred in finding that the mortgagor had defaulted on the note and default notice, and (5) erred under J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013), in concluding that Citibank had proven its right as a nonholder in possession to bring the foreclosure action.2 We affirm the judgment of the trial court.
In its memoranda of decision issued on January 7, 2016, and on February 21,
The court also found, pursuant to paragraph 3 (A) of the note, that Laura Stein was to make monthly payments of interest only on the first day of each month, commencing on September 1, 2006. She and the defendant last made a monthly payment on the note on July 16, 2008. On September 16, 2008, Home Loans, which was the servicer of the loan on behalf of the holder of the note at that time, sent a letter to Laura Stein advising her that the loan was in default and of the amount required to cure the default and reinstate
The defendant and Laura Stein filed an answer and special defenses on March 19, 2010. Their special defenses alleged that Citibank lacked standing as a trustee under
On September 27, 2010, Citibank filed a motion for summary judgment as to liability only. The defendant and Laura Stein objected to the motion for summary judgment on the ground that there were genuine issues of material fact as to whether Citibank was the holder of the note and mortgage. The court, Mintz, J., sustained the defendant‘s objection to the motion by granting additional time for discovery on the issue of Citibank‘s standing and ordering that the motion for summary judgment be set down for argument on November 17, 2014. Judge Heller found that Citibank‘s motion for summary judgment was never argued.
On September 10, 2014, Laura Stein filed a motion to dismiss in which she contended, among other things, that Citibank lacked standing to pursue the present action under
On June 19, 2015, five days before trial, the defendant filed a motion to dismiss on the ground that Citibank lacked standing to pursue the action against him. After hearing from counsel for the parties, Judge Heller determined that she would
On January 19, 2016, the defendant filed a motion for a new trial and on January 27, 2016, filed a motion for reargument and reconsideration of the court‘s ruling on his motion to dismiss. Citibank objected to both motions. The court granted the motion for reargument, and counsel for Citibank and the defendant appeared for argument before the court on February 16, 2016.10 The court reserved reconsideration of its ruling on the motion to dismiss and determined to open the record and take additional testimony from Citibank‘s witness, Johnny Nguyen of Nationstar Mortgage LLC (Nationstar), the servicer of the subject mortgage.11
On August 29, 2016, Citibank filed a motion to substitute Wilmington Trust as the plaintiff because the mortgage had been assigned to Wilmington Trust after the present action was commenced. On August 30, 2016, the court heard additional testimony from Nguyen. Before commencing the hearing, the court granted Citibank‘s motion to substitute Wilmington Trust as the plaintiff. On September 19, 2016, the defendant filed a motion for reargument and reconsideration of Citibank‘s motion to substitute Wilmington Trust as the plaintiff. The court heard argument from counsel on the defendant‘s motion for reargument and reconsideration on November 28, 2016.12 On February 1, 2017, counsel for the defendant filed a memorandum in further support of his motion to reargue the motion to substitute, and the defendant submitted a statement and memorandum of his own. Wilmington Trust filed an objection to the motion to reargue on February 15, 2017.
On February 21, 2017, the court issued a memorandum of decision on the defendant‘s three pending motions before it, to wit, his motion for a new trial, filed on January 19, 2016; his motion for reargument on his motion to dismiss, filed on January 27, 2016; and his motion for reargument on Citibank‘s motion to substitute Wilmington Trust as the plaintiff, filed on September 19, 2016. The court denied all three of the defendant‘s
I
The defendant first claims that the court erred in finding that Citibank had standing to bring this foreclosure action against him and, thus, that it had subject matter jurisdiction over the action. Specifically, he claims that the court (1) erred by denying his motion to dismiss because Citibank lacked standing to commence the action and (2) abused its discretion by failing to grant his motion to reargue and for reconsideration of his motion to dismiss.13 We reject the defendant‘s claims.
The defendant‘s claims require us to examine the court‘s memoranda of decision in detail. The court‘s decisions set forth the following facts and legal analyses.
Prior to the start of trial in June, 2015, the defendant filed a motion to dismiss claiming that he had a good faith belief that Citibank lacked standing to pursue the action. In its January 7, 2016 memorandum of decision, the trial court found that the defendant had argued that Citibank lacked standing because (i) it was not the owner of the note and the debt at issue and/or it was not the holder of the note and (ii) it was not authorized by the owner of the note and the debt to prosecute the action on behalf of the owner. The defendant also argued that Citibank lacked standing under
The court credited the uncontroverted testimony of Nguyen that Citibank was the holder of the note that had been endorsed in blank. The court cited the statutory and common-law definitions of “holder.”
The defendant further argued that Nguyen‘s testimony alone was insufficient to prove that Citibank was authorized to commence and pursue the action without the relevant business records, particularly the pooling and service agreement, being offered into evidence. The court found that the defendant offered no evidence to contradict Nguyen‘s testimony, which was predicated on his personal knowledge of Nationstar‘s business records. It disagreed that Citibank was required to produce its business records to support its claim. “Appellate courts in this state have held that [the evidentiary] burden is satisfied when the mortgagee includes in its submission to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action.” GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 176, 73 A.3d 742 (2013).
The court also concluded that Citibank had standing to prosecute the foreclosure action as holder of the note and as a trustee.15
“The relevance of securitization documents on a lender‘s standing to foreclose a mortgage is questionable. Simply put, a borrower has a contract—the note and mortgage—with the owner or holder of the loan documents. The borrower, however, is not a party to the pooling and servicing agreement, commonly referred to as a ‘trust’ document. . . . It is a basic tenet of contract law that only parties to an agreement may challenge its enforcement. . . . [C]lose scrutiny of trust documents and challenges to their veracity appear to offer little benefit to the court in determining the owner or holder of a note in a particular case. If admissible evidence of holder status has been presented, a borrower must then challenge those facts by competent evidence addressed to the delivery of the loan documents. In most instances, a borrower‘s challenge to the content of trust documents or other borrower claims appear to have little relevance to the issue of standing.” (Internal quotation marks omitted.) Id., 393-94.
The court continued quoting that “[t]he law of trusts limits the ability of a borrower to challenge whether conditions in the pooling and servicing agreement were satisfied. . . . [A] stranger to a trust, when sued by the Trustee, cannot set up
As previously stated, the defendant filed a motion for reargument and reconsideration of his motion to dismiss. The defendant contended that following the hearing on the motion to dismiss and the foreclosure trial, he discovered new evidence to the effect that Citibank was not the owner of the note and debt at issue and had not been for some time. According to the defendant, Wilmington Trust was the owner. The defendant first raised the argument in his posttrial memorandum filed on August 24, 2015, in which he asked the court to take judicial notice of certain public documents that purportedly demonstrated that Wilmington Trust had succeeded Citibank as trustee for the Holders of Bear Stearns Alt-A Trust 2006-6. The court declined to do so, noting that even if it took judicial notice, as requested, the information would not have afforded a basis for dismissing the action. See footnote 15 of this opinion. The defendant also claimed that Wells Fargo Bank was the servicer of the mortgage, not Nationstar, thus calling into question the veracity of Nguyen‘s testimony.
The court granted reargument on February 16, 2016, but reserved decision on reconsideration of the motion to dismiss. On May 26, 2016, the court decided to open the record to take further testimony from Nguyen to determine whether Citibank, Wilmington Trust, or some other entity was the trustee of the trust on June 25, 2015, when Nguyen testified at the foreclosure trial; whether Nationstar, Wells Fargo, or some other entity was the mortgage servicer for the defendant‘s mortgage when Nguyen testified; and if an entity other than Nationstar was the mortgage servicer, whether Nguyen was familiar with the books and records of such mortgage servicer at the time of trial and was authorized to testify on its behalf.
The court heard further testimony from Nguyen on August 30, 2016. The court issued its decision in a memorandum of decision on February 21, 2017. The court credited Nguyen‘s testimony and made the following additional findings of fact. Nationstar has been the primary servicer of the mortgage since the beginning of 2014 and was the servicer on June 25, 2015, when Nguyen testified at the foreclosure trial and it continued to be the mortgage servicer. Citibank was the trustee and the holder of the note at the time the foreclosure complaint was served in 2009 and had authority to commence the action. Wilmington Trust became the trustee in 2012, was the trustee on June 25, 2015, and remained the trustee. It also was the holder of the note in June, 2015. Two assignments of the mortgage were admitted into evidence. Citibank assigned it to Nationstar on May 4, 2016, and Nationstar assigned it to Wilmington Trust on March 30, 2016.
“Newly discovered evidence may warrant reconsideration of a court‘s decision. However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 656, 905 A.2d 1256 (2006). The court found that the evidence the defendant offered fell short of this standard. In fact, the court stated, the defendant never sought to open the record to introduce evidence that Wilmington Trust was the successor trustee to Citibank. It was the court that ordered further testimony from Nguyen to respond to the issues raised by the defendant.
The court found that the defendant, in his posttrial brief, had represented that he had learned through a Lexis case search and a search of public records that Wilmington Trust had replaced Citibank as the trustee in late 2012. The defendant reported that he had learned of the transfer of the trust from a Moody‘s rating service, pleadings in other lawsuits alleging that Wilmington Trust had succeeded Citibank, and a Schedule A to a document described as a limited power of attorney dated November 18, 2013, and recorded in county records in Salt Lake City, Utah. The court found, however, that although the evidence may have been newly discovered by the defendant, it had been available publicly on the Moodys.com website, in the New York federal bankruptcy court files, and the Utah land records for years. A Lexis case search and a search of the public records months before the foreclosure trial would have revealed the information regarding the change of trustee. The court, therefore, declined to reconsider its ruling denying the defendant‘s motion to dismiss.16 The court set new law days and the defendant appealed.
A
We now turn to the defendant‘s central claim that the court erred when it denied his motion to dismiss because the court lacked subject matter jurisdiction due to Citibank‘s lack of standing. We disagree.
“The issue of standing implicates the trial court‘s subject matter jurisdiction and therefore presents a threshold issue for our determination. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . We have long held that because [a] determination regarding a trial court‘s subject matter jurisdiction is a question of law, our review is plenary. . . . In addition, because standing implicates the court‘s subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time. . . . [T]he plaintiff ultimately bears the burden of establishing standing.” (Citations omitted; internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong, supra, 149 Conn. App. 397-98.
“[W]here legal conclusions of the [trial] court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. . . . Thus, our review of the trial court‘s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Torres, supra, 149 Conn. App. 29.17
The
Our review of the record, including the exhibits and trial testimony, supports the court‘s factual findings and is consistent with our law of negotiable instruments and foreclosure. “[Section] 49-17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him. . . . The statute codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage. . . . Our legislature, by adopting
“Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is commenced, be entitled to enforce the promissory note that is secured by the property. . . . The plaintiff‘s possession of a note endorsed in blank is prima facie evidence that it is a holder and is entitled to enforce the note, thereby conferring standing to commence a foreclosure action. . . . After the plaintiff has presented this prima facie evidence, the burden is on the defendant to impeach the validity of [the] evidence that [the plaintiff] possessed the note at the time that it commenced the . . . action or to rebut the presumption that [the plaintiff] owns the underlying debt.” (Internal quotation marks omitted.) Bank of America, N.A. v. Kydes, 183 Conn. App. 479, 487, 183 A.3d 1217, cert. denied, 330 Conn. 925, 194 A.3d 1191 (2018).
“The rules for standing in foreclosure actions when the issue of standing is raised may be succinctly summarized as follows. When a holder seeks to enforce a note through foreclosure, the holder must produce the note. The note must be sufficiently endorsed so as to demonstrate that the foreclosing party is a holder, either by a specific endorsement to that party or by means of a blank endorsement to bearer. If the foreclosing party shows that it is a valid holder of the note and can produce the note, it is presumed that the foreclosing party is the rightful owner of the debt. That presumption may be rebutted by the defending party, but the burden is on the defending party to provide sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt had passed to another party. It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt. In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note.” (Emphasis in original.) U.S. Bank, National Assn. v. Schaeffer, 160 Conn. App. 138, 150, 125 A.3d 262 (2015).
“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The statute authorizing standing in this [foreclosure] case is
Citibank alleged in the complaint that it was the holder of the note and in possession of the mortgage. A bank that “alleged that it possessed the note at the time it commenced [the] action, [is] entitled to reply upon that allegation unless the defendant present[s] facts to the contrary . . . .” Bank of America, N.A. v. Kydes, supra, 183 Conn. App. 489. The court did not find evidence that Citibank was not in possession of the note when the present action was commenced. The defendant has not pointed us to any evidence that disputes, let alone contradicts, the court‘s conclusion that Citibank was the holder of the note at the time the foreclosure action was commenced. At trial, Citibank presented a photocopy of the note secured by the mortgage. The defendant failed to provide any evidence to counter Citibank‘s claim. The defendant‘s principal argument seems to be that Citibank was not the trustee at the time of trial in June, 2015, and that Wilmington Trust was not substituted as the plaintiff until August, 2016. An assignee may continue litigation in the name of the original plaintiff. Jacobson v. Robington, supra, 139 Conn. 539.
In the present case, Laura Stein signed the note in favor of Countywide Bank, which endorsed the note in favor of Home Loans, which endorsed the note in blank and provided it to Citibank. The court concluded that Citibank was the trustee and holder of the note when the action was commenced, and therefore, it had standing to do so. The court thus had subject matter jurisdiction. During trial, Citibank transferred the note to Wilmington Trust, which authorized Nationstar, its server, to prosecute the action in the name of Citibank. Wilmington Trust was substituted as the plaintiff prior to the court‘s opening the judgment of strict foreclosure for the purpose of setting the law days. See Jacobson v. Robington, supra, 139 Conn. 539 (assignee may prosecute in name of assignor). The court, therefore, had subject matter jurisdiction to adjudicate the action, and the defendant‘s claim fails.
B
The defendant further claims that the court abused its discretion by opening the record to hear additional testimony from Citibank‘s witness. By opening the record and receiving more testimony from Nguyen, the defendant claims that the court gave Citibank a second bite at the apple. The defendant further claims that the court compounded the error by denying him the right to conduct further discovery. We disagree.
“Whether the trial court has jurisdiction to open a judgment of strict foreclosure is generally dependent on whether title has vested in the encumbrancer. See
In the present case, after the court rendered judgment in favor of Citibank in its January 7, 2016 memorandum of decision, the defendant filed a motion for reargument and reconsideration of the motion to substitute Wilmington Trust as the plaintiff. In the motion, the defendant alleged that Citibank and Wilmington Trust are not the investors or servicing authority for the loan, that the note is not in the BALTA 2006-6 Trust and that Nationstar has no current servicing authority. The court stated that it opened the record to take further testimony from Nguyen to determine the identity of the trustee on June 25, 2015, the identity of the servicer on that date, and whether Nguyen was familiar with the books of the mortgage servicer, and whether he was authorized to testify on its behalf. It is obvious that the court opened the record to address the defendant‘s jurisdictional claims, and not to give Citibank a second bite at the apple.
We conclude that the court did not abuse its discretion by opening the record to take more evidence. Even if the trial court had abused its discretion by opening the record in response to the defendant‘s motion for reargument and reconsideration, this court has held that it will not review claims of error, if any, when they have been induced by the party claiming error on appeal. LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 698, 1 A.3d 157 (2010). “[T]he appellate courts of this state have made it clear that a party cannot take a path at trial and change tactics on appeal. Furthermore, no party has the right to induce or invite error, if any, on the part of the trier of fact and seek reversal on appeal.” Moran v. Media News Group, Inc., 100 Conn. App. 485, 501, 918 A.2d 921 (2007).19
For the foregoing reasons, the defendant‘s claim that the court erred by denying his motions to dismiss and for reconsideration fails.
II
The defendant claims that the court abused its discretion by failing to consider documents that he claims dispute the witness’ servicing authority, as well as Citibank‘s purported ownership of the note and authority to prosecute the foreclosure. We agree with Wilmington Trust that this claim is inadequately briefed.
Wilmington Trust points out that the defendant‘s brief on this issue is rambling and that it is not possible to determine the documents to which the defendant is referring. We have noted that the brief contains no references to a transcript from which Wilmington Trust, or this court, can infer how or when the defendant sought to introduce the documents he claims the court failed to consider. See footnote 2 of this opinion. We acknowledge that the defendant is representing himself and that we
Appellate courts “are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than [mere] abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) McClancy v. Bank of America, N.A., 176 Conn. App. 408, 414, 168 A.3d 658, cert. denied, 327 Conn. 975, 174 A.3d 195 (2017). The defendant has not brought to our attention where in the record the court issued the ruling with which he takes issue. His brief cites no law and does not analyze the facts pursuant to the law on which he purportedly relies. We, therefore, are unable to review the claim.
III
The defendant claims that Citibank‘s foreclosure action is deficient and false because the mortgagor did not default on the note. The defendant‘s argument is that Laura Stein is a nontitle owner of the property and, therefore, she could not mortgage the property. The fallacy in the defendant‘s argument is that he is the owner of the property and that he pledged the property as security for the note signed by Laura Stein, who admitted that the note is in default.
The mortgage, which is in evidence, states, among other things: “Borrower is Laura A. Stein and Brian M. Stein . . . Borrower is the mortgagor under this Security Instrument.” “A mortgage is a contract of sale executed, with power to redeem. . . . The condition of a mortgage may be the payment of a debt, the indemnity of a surety, or the doing or not doing [of] any other act.” Cook v. Bartholomew, 60 Conn. 24, 25, 22 A. 444 (1891). Black‘s Law Dictionary defines mortgagor as “[o]ne who, having all or some part of the title to property, by written instrument pledges that property for some particular purpose such as security for a debt. That party to a mortgage who gives legal title or a lien to the mortgagee to secure the mortgage loan.” Black‘s Law Dictionary (5th Ed. 1979). Also “[o]ne who mortgages property; the mortgage-debtor, or borrower.” Black‘s Law Dictionary (9th Ed. 2004).
“It has long been established at common law that [t]he mortgage is an incident only to the debt, which is the principal; it cannot be detached from [the debt]; distinct from the debt, it has no determinate value; and the assignee must hold it, at the will and disposal of the creditor, who has the note or bond, for which it is a collateral security.” (Internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, supra, 309 Conn. 318.20
At
IV
The defendant‘s final claim is that Citibank failed to meet its burden under J.E. Robert Co. v. Signature Properties, LLC, supra, 309 Conn. 307,22 to prove its right to bring the present action as a nonholder in possession of the note. He argues that Citibank never appeared in court, and that its alleged servicer, who is not identified in the note, failed to prove the transfers by which it acquired the note. We do not agree.
The issue in J.E. Robert Co. concerned the “standing of parties other than the lender to bring [foreclosure] actions . . . [s]pecifically . . . whether a loan servicer for the owner and holder of a note and mortgage can have standing in its own right to institute a foreclosure action against the mortgage as transferee of the holder‘s rights under the Uniform Commercial Code (UCC),
Our Supreme Court explained that “[s]ecuritization starts when a mortgage originator sells a mortgage and its note to a buyer, who is typically a subsidiary of an investment bank. . . . The investment bank bundles together the multitude of mortgages it purchased into a special purpose vehicle, usually in the form of a trust, and sells the income rights to other investors. . . . A pooling and servicing agreement establishes two entities that maintain the trust: a trustee, who manages the loan assets, and a servicer, who communicates with and collects monthly payments from the mortgagors.” (Citations omitted; internal quotation marks omitted.) Id., 313 n.4. “The pooling agreement also designates another entity as [m]aster [s]ervicer, whose general responsibility is to administer mortgage loans other than those designated as specially serviced loans due to certain events such as imminent or actual default.” (Internal quotation marks omitted.) Id., 313 n.5.
“A plaintiff‘s right to enforce a promissory note may be established under the UCC.” Id., 319. See
“[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under
As to the plaintiff‘s burden of proof, “[i]t is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff.” Id., 325–26 n.18. “The transferee does not enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument, and so the transferee must account for possession of the [unendorsed] instrument by providing the transaction through which the transferee acquired it.” (Internal quotation marks omitted.) Id., 326 n.18. “If there are multiple prior transfers, the transferee must prove each prior transfer. . . . Once the transferee establishes a successful transfer from a holder, he or she acquires the enforcement rights of that holder. Therefore, in cases in which a nonholder transferee seeks to enforce a note in foreclosure proceedings, if the defendants dispute the plaintiff‘s right to enforce the note, the plaintiff must prove that right.” (Citations omitted; internal quotation marks omitted.) Id.
As set forth in part I of this opinion, the court found that Citibank was the holder of the note and, therefore, that it had standing to bring the action against the
The judgment is affirmed and the case is remanded for the purpose of setting new law days.
In this opinion the other judges concurred.
Notes
The defendant is a self-represented party. “[I]t is the established policy of the Connecticut Courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party . . . we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Darin v. Cais, 161 Conn. App. 475, 481, 129 A.3d 716 (2015). We have held, however, that an appellant may not raise new arguments for the first time in a reply brief as doing so deprives the appellee of an opportunity to respond to them. See State v. Myers, 178 Conn. App. 102, 106, 174 A.3d 197 (2017). In the present case, the defendant‘s belated efforts to provide an adequate record do not appear to have interfered with the rights of Wilmington Trust, and Wilmington Trust makes no such claim.
The failure of the defendant to cite to the record and portions of the transcript in his brief, as required by our rules, however, presents the court with a different problem. It requires the court, in its discretion, to search the record and transcript with respect to the defendant‘s representations of fact. Such review is time-consuming, and without citations, the court inadvertently may fail to find evidence that supports a party‘s representation or may be unable to review the claim. See part II of this opinion.
The record discloses that several days prior to the start of trial on June 24, 2015, the defendant filed a motion to dismiss and the plaintiff filed two motions in limine. The court heard from counsel as to the bases of the parties’ motions, which included multiple discovery issues regarding the production of documents and the parties’ failure to comply with the court‘s standing orders. Thereafter, the court stated: “Well, I think we‘re going to proceed because I think we are starting this hearing, we have the motion to dismiss that is still on the table. We are past the point of conducting discovery. I think that based on Judge Povodator‘s order, it appears the parties were not in compliance with the standing orders and here we are, so we are going forward.”
Although counsel for the defendant agreed to go forward with evidence, he repeated his request for the court to order Citibank to produce certain documents. In reply, the court stated: “I think you had the trial date and the trial was not continued. It had been continued, previously, but not continued in anticipation of any of the discovery that you are looking for now. The motion for protective order was denied. The motion to dismiss has been filed. There‘s not been a motion to continue the trial, and as I said when we started we‘re not going to continue the trial because the evidence in the trial will, you know, the plaintiff has the burden of proof, and if the plaintiff doesn‘t have standing, then the plaintiff can‘t go forward. So the evidence is going to address your motion as well.”
Following trial, the court issued its memorandum of decision on January 7, 2016. In its decision, the court determined that Citibank had standing to pursue the action, which is the principal issue in the present appeal. Although the defendant is correct that a court, generally, is required to determine whether a party has standing before it considers the merits of a case, under the circumstances of the present matter, the timing of the court‘s determination does not constitute legal error. The evidence that Citibank would have had to present to prove standing was the same evidence that it was required to present to prove its case-in-chief. In 2015, the case had been pending for six years and the parties had been arguing over the production of documents for an extended period of time. Judge Mintz sustained the defendant‘s objection to Citibank‘s motion for summary judgment as to liability in order to permit the defendant to conduct discovery. Judge Mintz ordered that Citibank‘s motion for summary judgment was to be argued on November 17, 2014, but it was not argued on that date or ever. The discovery issue languished until June, 2015, when the case was set down for trial. The defendant could have secured a ruling on the issue of standing by pursuing discovery and arguing the motion for summary judgment on November 17, 2014. Judge Heller noted that the defendant took no action to compel discovery.
On appeal, the defendant has not demonstrated that he was harmed by Judge Heller‘s decision to hear the motion to dismiss and the plaintiff‘s case simultaneously. “When the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.” Conboy v. State, 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009).
The trial court is empowered to manage its own docket. See Ill v. Manzo-Ill, 166 Conn. App. 809, 824-25, 142 A.3d 1176 (2016) (court has power to manage its dockets to prevent undue delays in disposition of pending cases). Under the procedural and factual circumstances of the present case, we cannot conclude that the court committed legal error or abused its discretion by pragmatically and flexibly proceeding with respect to the defendant‘s motion to dismiss. See Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc., 173 Conn. App. 321, 333-34 n.15 (2017) (court does not abuse discretion by adhering to scheduling order), appeal dismissed, 330 Conn. 342, 194 A.3d 282 (2018).
“[The Plaintiff‘s counsel]: In this instance, was [Citibank] in physical possession of the note prior to the commencement of the action?
“[Nguyen]: Yes.
“[The Plaintiff‘s counsel]: And was the note sent to my law firm?
“[Nguyen]: It was.”