Bank of New York Mellon v. Tope ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
THE BANK OF NEW YORK MELLON v.
ACHYUT M. TOPE ET AL.
(SC 20592)
Robinson, C. J., and McDonald, D’Auria,
Mullins and Alexander, Js.
Syllabus
The plaintiff bank, N. Co., sought to foreclose a mortgage on certain real
property owned by the named defendant, T, following T’s default on a
promissory note secured by the mortgage. The note originally was exe-
cuted in favor of H Co., but, subsequently, it was specially endorsed to
J Co., and H Co. assigned its rights under the mortgage to N Co. The
trial court rendered the first judgment of foreclosure by sale in 2014.
Thereafter, T filed, and the trial court granted, multiple motions to open
the judgment and to extend the sale date. In 2016, the trial court again
rendered a judgment of foreclosure by sale. In response, T filed, among
other motions, several unsuccessful motions to dismiss, claiming that
N Co. lacked standing to bring the foreclosure action because it was
not the holder of the note, thus depriving the trial court of jurisdiction.
T again moved to open the judgment and to extend the sale date, and,
in 2017, the trial court again rendered a judgment of foreclosure by sale
and extended the sale date. Approximately three months later, T filed
a motion to open and vacate the judgment, again arguing that N Co.
lacked standing to commence the action and that the court therefore
lacked jurisdiction. The trial court denied the motion, finding, on the
basis of an affidavit of debt filed by N. Co., that N Co. was the holder
of the note and the mortgage. The Appellate Court upheld the trial
court’s denial of T’s motion to open and vacate the judgment, concluding
that that motion was an impermissible collateral attack on the judgment
of foreclosure by sale that the trial court had rendered in 2016. Accord-
ingly, the Appellate Court declined to consider T’s challenge to the trial
court’s subject matter jurisdiction, affirmed the judgment of foreclosure,
and remanded the case for the setting of a new sale date. On the granting
of certification, T appealed to this court. Held:
1. The Appellate Court incorrectly concluded that T’s motion to open and
vacate the judgment constituted a collateral attack on the trial court’s
2016 judgment of foreclosure by sale and, accordingly, improperly
declined to consider T’s challenge to the trial court’s subject matter
jurisdiction:
Although this court has recognized that an impermissible collateral attack
on a judgment may occur within the same action or proceeding in which
it was obtained if the judgment has become final and the court that
rendered the judgment no longer has jurisdiction to open it, a court that
renders a judgment of foreclosure by sale retains jurisdiction to modify
the judgment until the foreclosure sale is approved, and, when a court
opens a judgment of foreclosure by sale to change the sale date or
otherwise to modify the terms of the sale and then renders a new judg-
ment, a new, statutory ((Supp. 2022) § 52-212a) four month limitation
period for opening the judgment begins.
In the present case, the 2016 judgment of foreclosure by sale was not
a final judgment because the foreclosure sale had not been approved,
that judgment was timely opened and modified several times, including
in 2017, which triggered a new, four month limitation period under § 52-
212a during which the modified judgment could be opened, insofar as
T filed his motion to open and vacate the judgment within four months
of the 2017 judgment, the trial court had jurisdiction to open the judgment
at that time, and, accordingly, T’s motion was not a collateral attack on
the trial court’s 2016 judgment.
2. The judgment of the Appellate Court could not be affirmed on the alterna-
tive ground that the trial court properly had denied T’s motion to open
and vacate the judgment on the basis that N Co. had standing to enforce
the note:
In order to establish that N Co. had standing to enforce the note and to
foreclose the mortgage, N Co. was required to prove that it was either
the holder of the note or otherwise entitled to enforce the note, and this
court concluded that N Co. was not the holder of the note because,
contrary to the findings of the trial court, the affidavit of debt indicated
only that the loan servicer was in possession of the note and not that
N Co. was the holder of the note.
Accordingly, as a nonholder in possession of the note, which had been
specially endorsed to J Co., N Co. was required to prove that it had
acquired the rights of the holder to enforce the instrument by way of
transfer, which, in turn, required a showing that the transferor delivered
the note to N Co. intending to vest in N Co. the right to enforce the
instrument.
In the present case, because the question of N Co.’s standing turned on
questions of fact, namely, whether it had been vested with the right to
enforce the note, the trial court, instead of denying T’s motion to open
and vacate the judgment, should have conducted an evidentiary hearing
to determine whether N Co. had standing to bring the foreclosure action,
and, accordingly, this court reversed the Appellate Court’s judgment and
remanded the case for further proceedings.
Argued September 9—officially released December 20, 2022*
Procedural History
Action to foreclose a mortgage on certain of the
defendants’ real property, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the defendants were defaulted for failure
to appear; thereafter, the named defendant was
defaulted for failure to plead; subsequently, the case
was tried to the court, Hon. Thomas J. Corradino, judge
trial referee, who, exercising the powers of the Superior
Court, rendered judgment of foreclosure by sale; there-
after, the court, Hon. Thomas J. Corradino, judge trial
referee, denied the named defendant’s motion to open
and vacate the judgment, and the named defendant
appealed to the Appellate Court, Elgo and Cradle, Js.,
with Devlin, J., dissenting, which affirmed the trial
court’s judgment, and the named defendant, on the grant-
ing of certification, appealed to this court. Reversed;
further proceedings.
Thomas P. Willcutts, for the appellant (named defen-
dant).
Willaim R. Dziedzic, with whom, on the brief, was
Joseph R. Dunaj, for the appellee (plaintiff).
Opinion
MULLINS, J. The named defendant, Achyut M. Tope,1
appeals from the judgment of the Appellate Court,
which affirmed the trial court’s denial of his motion to
open and vacate the judgment of foreclosure by sale
rendered by the trial court in favor of the plaintiff, The
Bank of New York Mellon.2 In this certified appeal, the
defendant claims that the Appellate Court incorrectly
concluded that his motion to open and vacate the judg-
ment of foreclosure by sale constituted a collateral
attack on an earlier judgment. The defendant further
claims that the trial court improperly denied his motion
to open, which alleged that the plaintiff did not have
standing to bring the foreclosure action.3
We agree with the defendant that the Appellate Court
incorrectly concluded that his motion to open consti-
tuted a collateral attack on an earlier judgment. We
also reject the alternative ground that the trial court
properly denied the defendant’s motion to open, in
which he claimed that the trial court lacked subject
matter jurisdiction. Accordingly, we reverse the judg-
ment of the Appellate Court and remand the case to
that court with direction to remand to the trial court
for further proceedings consistent with this opinion.
The record reveals the following relevant factual and
procedural history. ‘‘On October 31, 2003, the defendant
executed a promissory note in the amount of $134,000,
payable to HSBC Mortgage Corporation (USA) (HSBC).
To secure that note, the defendant mortgaged property
located at 387 Sherman Avenue in New Haven (prop-
erty) to HSBC. The note was later endorsed to ‘JPMor-
gan Chase Bank, as Trustee.’ On January 15, 2014, HSBC
assigned the mortgage to the plaintiff.
‘‘On July 17, 2014, the plaintiff filed the present action
seeking to foreclose on the mortgage. The defendant
filed his appearance [as a self-represented party] on
October 9, 2014, and, on October 28, 2014, he was
defaulted for failing to plead. On November 10, 2014, the
court, Hon. Thomas J. Corradino, judge trial referee,
[rendered] a judgment of foreclosure by sale, with a
sale date set for February 7, 2015.
‘‘On January 20, 2015, the defendant filed his first
motion to open and extend the sale date. The court
granted the motion and set a new sale date for June 20,
2015. The defendant subsequently filed three additional
motions to open the foreclosure judgment—on March
9, 2015, August 31, 2015, and January 6, 2016—resulting
in further extensions of the sale date. [The sale date
was extended to September 26, 2015, February 27, 2016,
and April 30, 2016, respectively.] On March 8, 2016, the
defendant filed a fifth motion to open, claiming that
there was more than $100,000 of equity in the property
and [that] he had applied for a loan modification. On
April 11, 2016, the court granted the defendant’s motion
and vacated the foreclosure judgment.
‘‘On June 17, 2016, the plaintiff filed a motion for a
judgment of strict foreclosure. On November 21, 2016,
the court, Avallone, J., [rendered] a judgment of foreclo-
sure by sale and set a sale date for February 11, 2017.
‘‘On January 3, 2017, the defendant filed a motion to
open and stay the judgment on the ground that he had
obtained a financial audit that ‘provides strong support-
ing documentation that the plaintiff does not have
standing to pursue a foreclosure action with respect to
the property in this action.’ The defendant sought to
stay this action ‘to preserve his rights’ because he filed
a new action involving additional properties that he
owns, which, he claimed, was being removed to fed-
eral court.
‘‘On January 4, 2017, the defendant filed a motion for
summary judgment alleging, inter alia, that the plaintiff
lacked standing to bring this action because the plaintiff
failed to show ‘the proper chain of ownership, assign-
ment and control of the note and mortgage and property
with affidavits from persons with knowledge . . . .’ At
the February 6, 2017 hearing on the defendant’s motion
to open, the defendant represented to [Judge Avallone]
that the arguments in his motion to open and motion
for summary judgment were ‘generally’ the same.
Accordingly, the court allowed the defendant, at his
request, to argue his motion for summary judgment
at that hearing. Following extensive argument by the
defendant, the court denied both of his motions. The
court expressly rejected the defendant’s challenge to
the plaintiff’s standing, stating: ‘I’ve given you sufficient
opportunity to make your arguments. I don’t believe
that they hold water.’ On March 1, 2017, the defendant
filed a motion to reargue both motions, which the court
summarily denied.
‘‘On February 10, 2017, the defendant filed a motion
to dismiss, again alleging lack of subject matter jurisdic-
tion on the ground that the plaintiff did not have stand-
ing to commence this action. On February 27, 2017, the
defendant filed another motion to dismiss the action
for lack of subject matter jurisdiction, [relying on] the
arguments that he previously [had] raised in his motion
for summary judgment. On March 24, 2017, the defen-
dant filed a third motion to dismiss, ‘in addition to
and [in] further [support of]’ his prior two motions to
dismiss and his motion for summary judgment, for lack
of subject matter jurisdiction.
‘‘On April 17, 2017, [Judge Avallone] held a hearing
on the defendant’s motion to dismiss dated February
27, 2017. At the hearing, the defendant argued that he
had two copies of the note [that] were irreconcilably
different, thereby proving that the plaintiff was not the
holder of the note and therefore did not have standing.
The defendant presented those two copies to the court.
The defendant argued: ‘[T]he original note that I signed
. . . which I have asked [for] over and over and over
in . . . court, docketed in many times, many motions,
many pleadings, has not been shared. And I don’t know
whether . . . the first time when the court approved
. . . the foreclosure sale and the second time when it
did, the court must have looked at the two original
documents.’ In response, the plaintiff presented the
original note to the defendant. The defendant acknowl-
edged that his signature was on the original note.
‘‘The court then asked the defendant how the two
copies of the note that he had presented were relevant
[when] the foreclosure judgment was [rendered] on the
basis of the original note. The defendant ‘object[ed] [to]
whether Judge Corradino had possession of the original
note’ when he [rendered] the foreclosure judgment in
2014. The court explained to the defendant that it had
already heard the defendant’s arguments a ‘multitude’
of times . . . but agreed to review the proceedings that
occurred before Judge Corradino in 2014. The court
recessed briefly to do so.
‘‘Upon resuming the hearing, the court stated that it
had listened to the recording of the proceeding before
Judge Corradino in 2014 and explained that ‘[t]here is
nothing out of order . . . in Judge Corradino’s actions
in the court that day that would lead me to believe that
there is any evidence, that there is anything improper
as to the documents that were . . . filed.’ The court
explained to the defendant: ‘I’ve listened to your argu-
ments consistently. You’ve made an argument about
the notes. I don’t accept your argument that there is
anything inappropriate by there being copies, multiple
copies of a note.’ The defendant pressed his argument
regarding his claimed improprieties with the assign-
ments, and the court responded: ‘I have looked at the
original note. That’s what . . . I’m concerned with.
And I’m satisfied that there is nothing inappropriate
. . . by this court’s action or by the actions of Judge
Corradino. And you’ve presented nothing to me that
. . . would . . . make me think otherwise. And so I’ve
denied your motion to dismiss.’ The court set a new
sale date of August 19, 2017. On April 24, 2017, [Judge
Avallone] marked off the defendant’s motion to dismiss
that was filed on February 10, 2017. On May 1, 2017,
the defendant filed another motion to dismiss challeng-
ing the plaintiff’s standing to pursue this action.
‘‘On May 30, 2017, the court, Pittman, J., held a hear-
ing on the defendant’s February 10, 2017 motion to
dismiss. At that hearing, the defendant again was afforded
the opportunity to present his arguments challenging
the plaintiff’s standing, the same arguments that he
made in his previous motion to dismiss dated February
27, 2017, and his motion for summary judgment. The
defendant summarized his argument by again asserting
that the plaintiff was not the holder of the note. The
court told the parties that it would consider all of the
prior filings regarding standing and indicated that it
would issue a written decision. On June 6, 2017, [Judge
Pittman] issued a written order denying the February
10, 2017 motion to dismiss. The court explained: ‘This
motion, [docket entry] #162, was previously considered
by Judge Avallone in open court on April 24, 2017. At
that time, Judge Avallone marked this motion off, hav-
ing determined that it raised the same issues as [docket
entry] #164, which was denied by Judge Avallone on
April 17, 2017 . . . . The court will not continue to
revisit issues that have been previously decided and that
constitute the law of the case. Moreover, a judgment
has [been rendered] in this matter and a motion to
dismiss is not properly before the court in the absence
of an order granting a motion to open the judgment.’
‘‘On June 28, 2017, the defendant filed a motion to
open and to extend the sale date on the ground that
he was making progress in his efforts to sell the subject
property. The court extended the sale date to October
21, 2017.
‘‘On September 28, 2017, the defendant filed a motion
to open and to vacate the judgment of foreclosure by
sale, [in which] he again argued that the plaintiff lacked
standing to commence this action and [that], conse-
quently, the court lacked subject matter jurisdiction
over it, and asked that the action be dismissed ‘in its
entirety with prejudice.’ On October 16, 2017, [Judge
Corradino] held a hearing on the defendant’s motion,
at which the defendant again presented his argument
to the court. On October 17, 2017, [Judge Corradino]
issued an order denying the defendant’s motion to open
and vacate the foreclosure judgment.’’ (Footnotes omit-
ted.) Bank of New York Mellon v. Tope, 202 Conn. App.
540, 542–47, 246 A.3d 4 (2021).
The defendant appealed to the Appellate Court from
the trial court’s October 17, 2017 denial of his motion
to open and vacate the foreclosure judgment. Id., 547.
On appeal to that court, the defendant claimed that the
trial court incorrectly had denied his motion because
the plaintiff lacked standing to pursue foreclosure on
the note, and, thus, the trial court lacked subject matter
jurisdiction over this action. Id., 547–48.
The Appellate Court majority concluded that the
defendant’s motion to open constituted an impermissi-
ble collateral attack on the foreclosure judgment and,
therefore, declined to consider the defendant’s chal-
lenge to the court’s subject matter jurisdiction on the
merits.4 Id., 552. Therefore, the Appellate Court affirmed
the judgment of foreclosure and remanded the case for
the setting of a new sale date. Id. This appeal followed.
On appeal to this court, the defendant claims that
the Appellate Court improperly declined to consider his
challenge to the trial court’s subject matter jurisdiction
because the Appellate Court incorrectly had concluded
that the motion to open filed in September, 2017, consti-
tuted a collateral attack on the judgment of foreclosure
by sale that the trial court had rendered in November,
2016. The plaintiff responds that, pursuant to General
Statutes (Supp. 2022) § 52-212a,5 because the defen-
dant’s motion to open was not filed within four months
of the November, 2016 judgment of foreclosure by sale,
the trial court lacked jurisdiction to entertain the motion.
As a result, the plaintiff contends, the Appellate Court
properly declined to consider the merits of the defen-
dant’s motion to open because it correctly concluded
that the defendant’s motion to open was a collateral
attack on the judgment of foreclosure by sale. We agree
with the defendant.
It is undisputed that ‘‘[a] collateral attack on a judg-
ment is a procedurally impermissible substitute for an
appeal.’’ (Internal quotation marks omitted.) Joe’s
Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn.
863, 876, 675 A.2d 441 (1996). Generally, there are two
types of impermissible collateral attacks on a judgment.
First, ‘‘[a] collateral attack is an attack [on] a judgment,
decree or order offered in an action or proceeding other
than that in which it was obtained, in support of the
contentions of an adversary in the action or proceeding
. . . .’’ (Internal quotation marks omitted.) Warner v.
Brochendorff, 136 Conn. App. 24, 32 n.7, 43 A.3d 785,
cert. denied, 306 Conn. 902, 52 A.3d 728 (2012); see also
Gennarini Construction Co. v. Messina Painting &
Decorating Co., 15 Conn. App. 504, 511, 545 A.2d 579(1988). Second, this court has also recognized that an
attack on a judgment within the same action or proceed-
ing in which it was obtained can be a collateral attack
if the judgment has become final and the court that
rendered the judgment no longer has jurisdiction to
open it. See, e.g., Sousa v. Sousa, 322 Conn. 757, 763,
789, 143 A.3d 578 (2016) (denying defendant’s motion to
open and vacate modified marital dissolution judgment
four years after modification as impermissible collateral
attack); In re Shamika F., 256 Conn. 383, 398–99, 408,
773 A.2d 347 (2001) (rejecting father’s challenge to
order of temporary custody that had been issued three
years prior as impermissible collateral attack); Vogel v.
Vogel, 178 Conn. 358, 360, 364, 422 A.2d 271 (1979)
(rejecting plaintiff’s challenge to nineteen year old mari-
tal dissolution judgment as impermissible collateral
attack); Monroe v. Monroe, 177 Conn. 173, 174, 181–82,
413 A.2d 819 (rejecting plaintiff’s challenge to five year
old marital dissolution judgment as impermissible col-
lateral attack), appeal dismissed, 444 U.S. 801, 100 S.
Ct. 20, 62 L. Ed. 2d 14 (1979).
Neither party asserts that the defendant’s motion to
open is a collateral attack because it was brought in
a separate action or proceeding. Instead, the parties’
disagreement centers around whether the trial court
had jurisdiction over the July, 2017 judgment pursuant
to § 52-212a at the time the motion to open was filed on
September 28, 2017. The defendant argues that, because
title had not passed, the judgment of foreclosure by sale
rendered in November, 2016, was not a final judgment.
Therefore, the trial court had jurisdiction under § 52-
212a to address his motion to open for four months
after it opened, modified and rendered the judgment
on July 3, 2017. Given that he filed his motion to open
in September, 2017, which was within four months of
the July 3, 2017 judgment, the defendant claims that
the trial court still had jurisdiction over the judgment.
In response, the plaintiff contends that the operative
judgment is the judgment of foreclosure by sale that
the trial court rendered on November 21, 2016, not the
judgment rendered on July 3, 2017. The plaintiff asserts
that, because the July 3, 2017 judgment only modified
or altered incidental terms of the judgment, it is not the
proper judgment from which to determine the court’s
jurisdiction pursuant to § 52-212a. As a result, the plain-
tiff argues, the November, 2016 judgment of foreclosure
by sale was final and the trial court retained jurisdiction
for only four months thereafter. Therefore, because the
defendant’s motion to open was not filed within that
four month period, the trial court no longer had jurisdic-
tion to open or modify the judgment of foreclosure
by sale. Thus, the plaintiff claims, the Appellate Court
correctly concluded that the defendant’s motion to open
was an impermissible collateral attack on the Novem-
ber, 2016 judgment.
It is important to recognize that the trial court in the
present case rendered a judgment of foreclosure by
sale. In a foreclosure by sale, the court retains jurisdic-
tion to modify the judgment until the foreclosure sale
is approved. See, e.g., Wells Fargo Bank of Minnesota,
N.A. v. Morgan, 98 Conn. App. 72, 79, 909 A.2d 526(2006) (‘‘[g]enerally, once a court has approved the fore-
closure sale and the applicable appeal period has
elapsed, the mortgagor’s right of redemption is extin-
guished and the court’s jurisdiction to modify that judg-
ment ends’’); see also D. Caron & G. Milne, Connecticut
Foreclosures (4th Ed. 2004) § 9.01B, p. 203 (‘‘[a]bsent
the possibility of an appeal from [the court’s] determina-
tion, the approval of the sale generally operates to divest
the owner of his equity of redemption and consequently
places the property beyond the power of the court’’).
Notwithstanding this well established law, the plain-
tiff, in support of its claim that the November, 2016
judgment is the operative, final judgment and that the
trial court thus lost jurisdiction four months thereafter,
relies on RAL Management, Inc. v. Valley View Associ-
ates, 278 Conn. 672, 690, 899 A.2d 586 (2006). The plain-
tiff’s reliance on RAL Management, Inc., is misplaced.
In RAL Management, Inc., this court considered
whether an appeal from a judgment of strict foreclosure
had become moot because, while the appeal was pend-
ing, the judgment was opened and certain terms were
modified. See id., 674. In considering the issue, this
court reiterated the principle ‘‘that the opening and
modification of a judgment triggers a new [limitation]
period under which the modified judgment may be
opened.’’ Id., 689; see also Union & New Haven Trust
Co. v. Taft Realty Co., 123 Conn. 9, 15–16, 192 A. 268(1937) (each opening and modification of judgment to
change sale dates was new judgment for purposes of
trial court’s jurisdiction); Coxe v. Coxe, 2 Conn. App.
543, 546–48, 481 A.2d 86 (1984) (concluding that modifi-
cations to judgment ordering partition by sale of certain
real property triggered new, four month period under
§ 52-212a to file motion to open judgment).
The plaintiff seizes on our statement in RAL Manage-
ment, Inc., that, for purposes of whether the opening
and modification of a judgment has rendered a previous
judgment void and the appeal therefrom moot, there is
‘‘a substantive distinction between opening a judgment
to modify or to alter incidental terms of the judgment,
leaving the essence of the original judgment intact, and
opening a judgment to set it aside. Under the latter
circumstances, the original judgment necessarily has
been rendered void and any appeal therefrom would
be rendered moot.’’ RAL Management, Inc. v. Valley
View Associates, supra, 278 Conn. 690. Under the for-
mer circumstances, when a trial court has made an
incidental modification pursuant to a motion to open,
the essence of the judgment has not changed and the
pending appeal is not moot. Contrary to the plaintiff’s
contentions, RAL Management, Inc., addresses the
effect of a motion to open on a pending appeal; id.,684–85; it does not address the effect of modifying a
judgment on the limitation period contained in § 52-
212a.
Thus, although we agree with the plaintiff that the
difference between a modification of incidental terms
of a judgment and setting the judgment aside is relevant
to whether an appeal has become moot, we disagree
that the distinction has any impact on whether a new
limitation period under § 52-212a has begun. Indeed,
‘‘[i]t is settled law in Connecticut that when a court
opens a judgment of sale to change the sale date or
otherwise modify the terms of sale, the modified judg-
ment completely replaces the original judgment and
becomes the only valid judgment in the case. William
G. Major Construction Co. v. DeMichely, 166 Conn.
368, 374–75, 349 A.2d 827 (1974); Union & New Haven
Trust Co. v. Taft Realty Co., [supra, 123 Conn. 15–16].
The modified judgment is ‘in essence and substance a
new judgment.’ [Union & New Haven Trust Co. v. Taft
Realty Co., supra] 16. Thus, each time the judgment is
modified, ‘the case [stands] as though [the] judgment
as originally entered had never been rendered.’ Milford
Trust Co. v. Greenberg, 137 Conn. 277, 279, 77 A.2d 80(1950) [overruled on other grounds by RAL Manage-
ment, Inc. v. Valley View Associates, 278 Conn. 672,
899 A.2d 586 (2006)]; [see also] State v. Phillips, 166
Conn. 642, 645–46, 353 A.2d 706 (1974).’’ Coxe v. Coxe,
supra, 2 Conn. App. 547. Therefore, when a court opens
a judgment of foreclosure by sale to change the sale
date or otherwise to modify the terms of the sale and
renders a new judgment, a new limitation period begins
under § 52-212a.
In the present case, we conclude that the November,
2016 judgment was not final because the sale had not
been approved and that judgment had been timely
opened and modified several times up until July 3, 2017.
As a result, when the court rendered the July, 2017
judgment, a new, four month limitation period was trig-
gered, under which the modified judgment could be
opened. Therefore, at the time the defendant filed his
motion to open the judgment on September 28, 2017,
the trial court had jurisdiction to open the judgment
under § 52-212a. We thus conclude that the Appellate
Court incorrectly concluded that the defendant’s motion
to open was a collateral attack.
Having concluded that the trial court had jurisdiction
to consider the defendant’s motion to open, which he
filed on September 28, 2017, we now consider whether
the judgment of the Appellate Court can be affirmed
on the alternative ground that the trial court properly
denied the defendant’s motion to open, which chal-
lenged the subject matter jurisdiction of the court. Spe-
cifically, the defendant asserts that the plaintiff does
not have standing to enforce the note because the note
is specially endorsed to ‘‘JPMorgan Chase Bank, as
Trustee,’’ and the bank has not proven that it has the
authority to enforce the note.6
‘‘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. . . . Moreover,
[i]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any
time. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Peters v. Dept. of
Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
‘‘The issue of standing implicates [the] court’s subject
matter jurisdiction.’’ (Internal quotation marks omit-
ted.) AvalonBay Communities, Inc. v. Orange, 256
Conn. 557, 567, 775 A.2d 284 (2001). ‘‘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 standing is put
in issue, the question is whether the person whose
standing is challenged is a proper party to request an
adjudication of the issue . . . .’’ (Internal quotation
marks omitted.) Tremont Public Advisors, LLC v. Con-
necticut Resources Recovery Authority, 333 Conn. 672,
688, 217 A.3d 953 (2019). ‘‘The plaintiff has the burden
of proving standing.’’ Fink v. Golenbock, 238 Conn. 183,
199, 680 A.2d 1243 (1996).
‘‘[S]tanding to enforce [a] promissory note is [estab-
lished] by the provisions of the Uniform Commercial
Code . . . . [See] General Statutes § 42a-1-101 et seq.’’
(Internal quotation marks omitted.) Equity One, Inc.
v. Shivers, 310 Conn. 119, 126, 74 A.3d 1225 (2013).
Under the Uniform Commercial Code, a ‘‘ ‘[p]erson enti-
tled to enforce’ an instrument means (i) the holder of
the instrument, (ii) a nonholder in possession of the
instrument who has the rights of a holder, or (iii) a
person not in possession of the instrument who is enti-
tled to enforce the instrument pursuant to section 42a-
3-309 or 42a-3-418 (d).’’ General Statutes § 42a-3-301.
The Uniform Commercial Code defines ‘‘holder’’ as
‘‘(A) [t]he person in possession of a negotiable instru-
ment that is payable either to bearer or to an identified
person that is the person in possession’’; ‘‘(B) [t]he
person in possession of a negotiable tangible document
of title if the goods are deliverable either to bearer or
to the order of the person in possession’’; or ‘‘(C) [t]he
person in control of a negotiable electronic document
of title.’’ General Statutes § 42a-1-201 (b) (21).
General Statutes § 42a-3-205 further provides in rele-
vant part: ‘‘(a) If an endorsement is made by the holder
of an instrument, whether payable to an identified per-
son or payable to bearer, and the endorsement identifies
a person to whom it makes the instrument payable, it
is a ‘special endorsement’. When specially endorsed, an
instrument becomes payable to the identified person
and may be negotiated only by the endorsement of that
person. . . .
‘‘(b) If an endorsement is made by the holder of an
instrument and is not a special endorsement, it is a ‘blank
endorsement’. When endorsed in blank, an instrument
becomes payable to bearer and may be negotiated by
transfer of possession alone until specially endorsed.
. . .’’
As we explained previously, under § 42a-3-301, ‘‘[a]
person may be a person entitled to enforce the instru-
ment even though the person is not the owner of the
instrument . . . .’’ General Statutes § 42a-3-301. In J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn. 307,
71 A.3d 492 (2013), we explained that ‘‘[t]he [Uniform
Commercial Code’s] official comment underscores that
a ‘person entitled to enforce an instrument . . . is not
limited to holders. . . . A nonholder in possession of
an instrument includes a person that acquired rights of
a holder . . . under [General Statutes § 42a-3-203 (a)].’
. . . Under § 42a-3-203 (b), ‘[t]ransfer of an instrument
. . . vests in the transferee any right of the transferor
to enforce the instrument . . . .’ ‘An instrument is
transferred when it is delivered by a person other than
its issuer for the purpose of giving to the person receiv-
ing delivery the right to enforce the instrument.’ General
Statutes § 42a-3-203 (a). Thus, there are two require-
ments to transfer an instrument under § 42a-3-203 (a):
(1) the transferor must intend to vest in the transferee
the right to enforce the instrument; and (2) the trans-
feror must deliver the instrument to the transferee so
that the transferee has either actual or constructive
possession.’’ (Citation omitted; emphasis omitted.) J.E.
Robert Co. v. Signature Properties, LLC, supra, 319–20.
Accordingly, to establish standing to foreclose on the
defendant’s property, the plaintiff needed to prove that
it was the holder of the note or one who was otherwise
entitled to enforce the note.
In the present case, in its complaint, the plaintiff
alleged that the defendant and Geeta A. Joshi-Tope
owed HSBC $134,000, as evidenced by a promissory
note dated October 31, 2003. The note was not attached
to the complaint. The plaintiff also alleged in the com-
plaint that the defendant secured the note by mortgag-
ing the premises known as 387 Sherman Avenue, New
Haven, to HSBC. The plaintiff did not attach the mort-
gage, which was recorded in the New Haven land
records, to the complaint. The plaintiff further alleged
that HSBC assigned the mortgage ‘‘to the Bank of New
York Mellon, [formerly known as] The Bank of New
York, as Successor to JPMorgan Chase Bank, N.A., as
Trustee for Structured Asset Mortgage Investments II,
Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through
Certificates, Series 2004-3, by an assignment dated Janu-
ary 15, 2014, and recorded January 23, 2014, in volume
9103 at page 136 of the New Haven land records.’’ The
only exhibit that the plaintiff attached to the complaint
was the description of the property.
Thereafter, the plaintiff filed an affidavit of debt on
November 7, 2014. In that affidavit of debt, Brian Boisen,
an assistant vice president of PHH Mortgage Corpora-
tion (servicer), averred that the servicer was in posses-
sion of the original promissory note for the loan and
that payments were due and owing on the note. The
plaintiff attached the note as an exhibit to the affidavit
of debt. The note was endorsed to ‘‘JPMorgan Chase
Bank, as Trustee.’’ The plaintiff also attached the corpo-
rate assignment of mortgage as part of the exhibit to
the affidavit of debt.7
In denying the defendant’s motion to open challeng-
ing the plaintiff’s standing, the trial court reasoned:
‘‘The affidavit filed by the servicer of the loan [that]
was taken out in 2003 and on which no payments have
been made since 2013 clearly states that the plaintiff
is the holder of the note and the mortgage—this affidavit
was filed under oath in September of 2014. It was filed
under oath by a party who would have no apparent
interest in falsifying its report. . . . [A]s holder of the
note, the plaintiff has standing.’’
After reviewing the affidavit of debt, we disagree with
the trial court that the affidavit of debt states that the
plaintiff is the holder of the note. Instead, in the affidavit
of debt, Boisen averred merely that the servicer is in
possession of the note. As we have explained herein,
being in possession of the note does not make one a
‘‘holder’’ of a note when the note has a special endorse-
ment to a different party. See General Statutes § 42a-
1-201 (b) (21). The note in the present case had a special
endorsement to JPMorgan Chase Bank, as trustee.
Therefore, the plaintiff is not the holder of the note.
Accordingly, the plaintiff can enforce the note only if
it can demonstrate that it is a nonholder in possession
of the note with the rights of a holder. See General
Statutes § 42a-3-301. To do so, the plaintiff must prove
that the transferor delivered the note to the plaintiff
intending to vest in it the right to enforce the instrument.
See General Statutes §§ 42a-3-203 (a) and 42a-3-301. In
other words, as the assignee of the mortgage with a
note specially endorsed to another entity, in order to
have standing to foreclose, the plaintiff must demon-
strate that it is the holder of the note that has been
vested with the right to enforce the note.
As this court has recognized, ‘‘[w]ith respect to the
plaintiff’s ultimate burden, however, we note our agree-
ment with other courts that have recognized that [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 documenta-
tion in hand when filing suit, showing the history of
the note, so the defendant is duly apprised of the rights
of the plaintiff. . . . Therefore, in cases in which a
nonholder transferee seeks to enforce a note in foreclo-
sure proceedings, if the [defendant] dispute[s] the plain-
tiff’s right to enforce the note, the plaintiff must prove
that right.’’ (Citations omitted; internal quotation marks
omitted.) J.E. Robert Co. v. Signature Properties, LLC,
supra, 309 Conn. 325–26 n.18.
Moreover, ‘‘[a]ffidavits are insufficient to determine
the facts unless, [as with] summary judgment, they dis-
close that no genuine issue as to a material fact exists.
. . . In almost every setting [in which] important deci-
sions turn on questions of fact, due process requires
an opportunity to confront and cross-examine adverse
witnesses. . . . When issues of fact are necessary to
the determination of a court’s jurisdiction, due process
requires that a trial-like hearing be held, in which an
opportunity is provided to present evidence and to
cross-examine adverse witnesses.’’ (Citations omitted;
internal quotation marks omitted.) Standard Tallow
Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983);
see also 1 E. Stephenson, Connecticut Civil Procedure
(2d Ed. Cum. Supp. 1982) § 108 (d), p. S73.8
Because the question of the plaintiff’s standing to
bring the foreclosure action in the present case turns
on questions of fact, namely, whether the plaintiff has
been vested with the right to enforce the note, the trial
court should not have denied the motion to open but
should have conducted an evidentiary hearing to deter-
mine whether the plaintiff had standing to bring the
foreclosure action in the present case. Accordingly, we
conclude that the judgment of the Appellate Court can-
not be upheld on this alternative ground.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for further proceed-
ings consistent with this opinion.
In this opinion the other justices concurred.
* December 20, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Geeta A. Joshi-Tope also was named as a defendant in the underlying
foreclosure action, but she is not a party to this appeal. In the interest of
simplicity, we hereinafter refer to Achyut M. Tope as the defendant.
2
The full name of the plaintiff is The Bank of New York Mellon, formerly
known as The Bank of New York, as Successor to JPMorgan Chase Bank,
N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear
Stearns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2004-3.
3
We originally granted the defendant’s petition for certification to appeal
from the judgment of the Appellate Court limited to one issue, namely,
whether the Appellate Court correctly concluded that the defendant’s motion
to open constituted a collateral attack on the judgment of foreclosure by
sale. See Bank of New York Mellon v. Tope, 336 Conn. 950, 251 A.3d 618(2021). Thereafter, we superseded our previous order and certified two
issues for appeal: ‘‘1. Did the Appellate Court correctly conclude that the
. . . defendant’s challenge to the plaintiff’s standing to prosecute this action,
and, thus, the trial court’s subject matter jurisdiction to adjudicate the
matter, represented an improper collateral attack on one or more of the
earlier judgments rendered by the trial court in favor of the plaintiff?’’ And
‘‘2. [i]f the answer to the first certified question is ‘no,’ should the judgment
of the Appellate Court be affirmed on the alternative ground that the trial
court properly had denied the . . . defendant’s motion to open, in which
the . . . defendant claimed that the trial court lacked subject matter juris-
diction?’’ Bank of New York Mellon v. Tope, 339 Conn. 901, 260 A.3d 483(2021).
4
Judge Devlin dissented, concluding that the defendant’s motion to open
challenging the plaintiff’s standing was not an impermissible collateral attack
and should be considered on the merits. Bank of New York Mellon v. Tope,
supra, 202 Conn. App. 557–58 (Devlin, J., dissenting). Judge Devlin further
reasoned that, because the trial court did not make any findings of fact on
the record regarding the plaintiff’s right to enforce the note, the case should
be remanded to the trial court for further proceedings to determine the
jurisdictional issue. Id., 563 (Devlin, J., dissenting).
5
General Statutes (Supp. 2022) § 52-212a provides in relevant part: ‘‘Unless
otherwise provided by law and except in such cases in which the court has
continuing jurisdiction, a civil judgment or decree rendered in the Superior
Court may not be opened or set aside unless a motion to open or set aside
is filed within four months following the date on which the notice of judgment
or decree was sent. . . .’’
Although § 52-212a has been amended since the events at issue in this
appeal; see Public Acts 2021, No. 21-104, § 44; those amendments have no
bearing on the merits of this appeal. In the interest of simplicity, we refer
to the current version of the statute.
6
Generally, ‘‘[i]n the context of an appeal from the denial of a motion to
open [a] judgment, [i]t is well established in our jurisprudence that [when]
an appeal has been taken from the denial of a motion to open, but the
appeal period has run with respect to the underlying judgment, [this court]
ha[s] refused to entertain issues relating to the merits of the underlying
case and ha[s] limited [its] consideration to whether the denial of the motion
to open was proper. . . . When a motion to open is filed more than twenty
days after the judgment, the appeal from the denial of that motion can test
only whether the trial court abused its discretion in failing to open the
judgment and not the propriety of the merits of the underlying judgment.’’
(Internal quotation marks omitted.) Connecticut Housing Finance Author-
ity v. McCarthy, 204 Conn. App. 330, 340, 253 A.3d 494 (2021).
However, ‘‘[t]his court has often stated that the question of subject matter
jurisdiction, because it addresses the basic competency of the court, can
be raised by any of the parties, or by the court sua sponte, at any time.’’
(Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273
Conn. 434, 441–42, 870 A.2d 448 (2005). Therefore, because the defendant’s
appeal from the denial of his motion to open raises an issue of subject
matter jurisdiction, we address the merits of his subject matter jurisdiction
claim. See, e.g., Deutsche Bank National Trust Co. v. Thompson, 163 Conn.
App. 827, 831, 136 A.3d 1277 (2016) (addressing question of subject matter
jurisdiction raised for first time on appeal).
7
On the basis of the foregoing, the plaintiff established through its plead-
ings that it was in possession of the mortgage and that the mortgage had
been assigned to it. Nevertheless, it is the holder of the note that has the
right to foreclose on the property.
8
Although this court previously has presumed from a silent record that
the trial court acted properly and examined the documentation in the record
to ensure that the plaintiff had standing to enforce the note; see, e.g., Equity
One, Inc. v. Shivers, supra, 310 Conn. 132; because establishing standing
in the present case would require the plaintiff to present additional evidence
that is not contained in the record before the trial court—namely, that the
specially endorsed note was transferred to the plaintiff with the intent that
it be vested with the right to enforce it—such a presumption is not applicable
in the present case.