Goshen Mortgage, LLC v. Androulidakis ( 2021 )

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GOSHEN MORTGAGE, LLC v. ANDREAS D.
ANDROULIDAKIS ET AL.
(AC 43002)
Elgo, Alexander and DiPentima, Js.
Syllabus
The plaintiff G Co. sought to foreclosure a mortgage on certain real property
owned by the defendant J. The defendant A, J’s now former husband,
had executed a note for a loan that was used to purchase the property
that secured the mortgage, and that loan was now in default. Prior to
the commencement of the foreclosure action, A quitclaimed his interest
in the property to J as part of a separation agreement. G Co. alleged in
its complaint that it was the holder of the note and mortgage. G Co.
thereafter filed a motion to substitute T Co. as the plaintiff, explaining
that, since the commencement of the action, it had assigned the note
and mortgage to T Co. Four days prior to commencing the foreclosure
action, however, G Co. assigned the mortgage to T Co. J objected to
the motion, claiming that G Co. lacked standing to litigate the action
because it had not proven that it was the holder of the note at the time
it commenced the action. The trial court granted the motion to substitute.
Thereafter, J filed two motions to dismiss arguing that G Co. lacked
standing to initiate the foreclosure because the note and mortgage had
been assigned before the commencement of the action, which the court
denied. Subsequently, T Co. filed a motion for summary judgment as to
liability only, which the court granted, and, thereafter, the court rendered
a judgment of strict foreclosure. J filed a motion to open the judgment,
which the court denied, and J appealed to this court. Held:
1. This court found unavailing J’s claim that G Co. lacked standing to initiate
the foreclosure action: G Co. was in possession of the note, endorsed
in blank, when it commenced the action and, therefore, had standing
to do so; the trial court correctly determined that the note was endorsed
in blank, and G Co. alleged in its complaint that it was the holder of
the note and, although the mortgage was assigned prior to the com-
mencement of the action, there is no indication in the record that the
note itself changed hands, as the only evidence before the court indicated
that G Co. was in possession of the note when the action was com-
menced, and it was of no consequence that the mortgage was assigned
before the action commenced.
2. The trial court did not abuse its discretion in granting the motion to
substitute T Co. as the plaintiff: although the court mischaracterized
the nature of the assignment in granting the motion to substitute when
it stated that G Co. assigned both the note and mortgage after the
commencement of the action, the substitution had no substantive effect
on the proceedings because the note, endorsed in blank, remained in
possession of G Co., and, thus, the cause of action itself was not assigned
to a legally distinct party, the substitution only having served to clarify
that G Co. was bringing the foreclosure action in its capacity as trustee
for T Co., and in no way prejudiced J’s ability to make payments or
defend against the claims brought; moreover, the court correctly deter-
mined that, contrary to J’s claim, the rule of practice (§ 9-20) that allows
for the substitution of a plaintiff when an action has been commenced
in the name of the wrong plaintiff to cure the lack of standing of the
original plaintiff, was inapplicable because G Co. had standing as holder
of the note, and it was not the wrong plaintiff.
3. The trial court properly denied J’s motions to dismiss; the court made
an express factual finding that G Co. held the note endorsed in blank
at the time the action commenced and J failed to submit any evidence
in support of her motions to dismiss that called into question G Co.’s
status as holder of the note.
4. The trial court properly granted T Co.’s motion for summary judgment:
a. T Co. established a prima facie case for foreclosure; the supporting
documentation submitted by T Co. in support of its motion for summary
judgment established that it was the holder of the note and assignee of
the mortgage as well as the terms of the note and mortgage, that A and
J were in default, and that T Co. or its predecessor were in compliance
with the condition precedent to the institution of the action and, J failed
to provide an affidavit or exhibit that raised a genuine issue of material
fact to counter T Co.’s documentation.
b. J’s alleged special defenses were without merit and did not rebut T
Co.’s prima facie case; contrary to J’s claim, this court has rejected
arguments that trust documents or pooling and servicing agreements
are relevant to the issue of standing, and, although it may not have been
entirely accurate for G Co. to state that it had assigned the mortgage
since the commencement of the action, the assignment had no substan-
tive effect on the litigation, and it was not an abuse of the trial court’s
discretion to decline to characterize this statement as wilful misconduct,
the court properly concluded that no statute of limitations applied to
the action, and the court properly concluded that a divorce decree
between A and J, which stated that J was not assuming any liability on
the mortgage, had no effect on the mortgage, which J signed, and was
a contract between J and G Co.
5. J’s claim that the trial court improperly rendered a judgment of strict
foreclosure because it never resolved the issue of standing and should
have held an evidentiary hearing to determine when G Co. acquired the
note was unavailing, this court having previously determined that G
Co. was the holder of the note at the time the foreclosure action was
commenced and had standing.
6. The trial court did not abuse its discretion in denying J’s motion to open
the judgment as the grounds put forth in the motion have been resolved
in favor of T Co.
Argued January 20—officially released June 1, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant Jameela Androulidakis,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
named defendant was defaulted for failure to appear;
thereafter, Goshen Mortgage, LLC, as Separate Trustee
for GDBT I Trust 2011-1, was substituted as the plaintiff;
subsequently, the court, Genuario, J., granted the sub-
stitute plaintiff’s motion for summary judgment as to
liability; thereafter, the court, Genuario, J., rendered
judgment of strict foreclosure; subsequently, the court
denied the motion to open filed by the defendant
Jameela Androulidakis, and the defendant Jameela
Androulidakis appealed to this court. Affirmed.
Jameela Androulidakis, self-represented, the appel-
lant (defendant).
Christopher J. Picard, for the appellee (substitute
plaintiff).
Opinion
DiPENTIMA, J. The self-represented defendant,
Jameela Androulidakis,1 appeals from the judgment of
strict foreclosure rendered by the trial court in favor
of the substitute plaintiff, Goshen Mortgage, LLC, as
Separate Trustee for GDBT I Trust 2011-1. On appeal,
the defendant claims that the court improperly (1)
determined that the plaintiff, Goshen Mortgage, LLC,2
had standing to bring the foreclosure action, and thus
erred by granting the plaintiff’s motion to substitute
and denying the defendant’s motion to dismiss, (2)
granted the substitute plaintiff’s motion for summary
judgment, (3) rendered a judgment of strict foreclosure
for the substitute plaintiff, and (4) failed to grant the
defendant’s motion to open the judgment.3 We affirm
the judgment of the trial court.
The following facts, viewed in the light most favor-
able to the defendant, and procedural history are rele-
vant to our resolution of the defendant’s appeal. In July,
2007, Andreas D. Androulidakis (Andreas) executed and
delivered to Chase Bank USA, N.A. (Chase Bank), a
note for a loan in the original principal amount of
$649,999. The loan was used to purchase property
located at 73 Devils Garden Road in Norwalk (prop-
erty). Only Andreas signed the note for the loan. On
the same date, Andreas and the defendant executed
and delivered to Chase Bank a mortgage on the prop-
erty. The mortgage subsequently was recorded on the
land records of the town of Norwalk. On October 9,
2009, ownership of the property was transferred to the
defendant from Andreas by quitclaim deed as part of
a separation agreement. The terms of that agreement
stated that ‘‘transfer of the property to the [defendant]
shall not result in her assumption of any liability of the
mortgage securing the property.’’ Andreas thereafter
failed to make payments on the mortgage and eventually
declared bankruptcy.
Chase Bank assigned the mortgage to JP Morgan
Chase Bank, N.A. (JP Morgan), on September 3, 2009,
and assigned the note to JP Morgan by way of an allonge
affixed to the note dated November 4, 2009.4 JP Morgan
subsequently endorsed the note in blank. The note and
mortgage were then transferred multiple times between
2009 and 2016, before ultimately being transferred to
the plaintiff on June 29, 2016.5
On October 28, 2016, the plaintiff commenced this
foreclosure action, naming both the defendant and
Andreas, and alleged that the defendant was the owner
of the property. In its complaint, the plaintiff alleged,
inter alia, that it was the holder of the note and mort-
gage, that the note was in default, and that it was elect-
ing to accelerate the balance due on the note and to
foreclose on the mortgage securing the note. Further,
the plaintiff alleged that the defendant had been pro-
vided written notice of the default and had failed to
cure the default.
Four days before this foreclosure action was com-
menced, however, the plaintiff assigned the mortgage to
the substitute plaintiff and the assignment subsequently
was recorded on March 27, 2017. The plaintiff then filed
a motion to substitute the plaintiff on October 13, 2017,
explaining that ‘‘since the commencement of the above
entitled action, it has assigned the subject mortgage
deed and note, and the cause of action, to Goshen
Mortgage, LLC, as Separate Trustee for GDBT I Trust
2011-1 by written instrument . . . .’’ The plaintiff
attached as an exhibit to the motion the notarized
assignment of mortgage, bearing a seal indicating that
the document had been recorded with the town clerk
of Norwalk. The defendant objected to the substitution,
arguing that the plaintiff had not proven adequately that
it was the holder of the note at the time of commence-
ment of the action and, thus, did not have standing to
litigate the action. The court granted the motion to
substitute.6
The defendant then filed a motion to dismiss on
December 4, 2017, arguing again that the plaintiff lacked
standing to initiate the foreclosure action because the
note and mortgage had been assigned before the com-
mencement of the action. The court denied the motion.
The defendant filed a second motion to dismiss on
April 24, 2018, arguing, again, that the plaintiff lacked
standing to pursue the action, and specifically claiming
that the plaintiff was not the owner of the note. The
court denied the second motion to dismiss.
On July 31, 2018, the substitute plaintiff filed a motion
for summary judgment as to liability under the note
and mortgage, attaching as exhibits the note endorsed
in blank and each of the prior assignments of the mort-
gage. In response, the defendant argued, inter alia, that
(1) the plaintiff was not registered with the Securities
and Exchange Commission (SEC), (2) a statute of limi-
tations prevented the plaintiff from initiating the action,
(3) the plaintiff was not in possession of the note ‘‘at the
time it brought this current suit’’ and thus the substitute
plaintiff lacked standing to pursue the suit brought by
the plaintiff, (4) the foreclosure suit should be pursued
against ‘‘the nonappearing defendant, Andreas’’ and (4)
her due process rights had been violated. The court
granted the motion for summary judgment on October
3, 2018, concluding that ‘‘the affidavit and attachments
in support of the motion establish that the [substitute]
plaintiff is the holder of the note and the assignee of
the mortgage, as well as the terms of the note and
mortgage.’’ The court subsequently rendered a judg-
ment of strict foreclosure, setting a law day of July
9, 2019.
On March 21, 2019, the defendant filed a motion to
open the judgment, which she amended on April 24,
2019, arguing, again, that the statute of limitations
barred the plaintiff’s action and that the plaintiff did
not have possession of the mortgage and note at the
time that it brought this action. The substitute plaintiff
filed an objection to the motion to open the judgment,
which the court sustained. The court thus denied the
motion to open the judgment. This appeal followed.
Additional facts will be set forth as necessary.
I
We first address the defendant’s claims regarding
standing. Specifically, the defendant claims that the
court erred in finding that the plaintiff had standing to
bring this foreclosure action against her and, thus, that
it had subject matter jurisdiction over the action.7 She
further contends, as a result of that alleged lack of
standing, that the court improperly granted the plain-
tiff’s motion to substitute and improperly denied her
first and second motions to dismiss. We reject the defen-
dant’s arguments.
The following undisputed facts are relevant to these
claims. The note in question was endorsed in blank by
JP Morgan. The plaintiff alleged in its complaint, dated
October 24, 2016, that it had been assigned the mortgage
on June 29, 2016, and that it ‘‘is the holder of said note.’’
That same day, the plaintiff assigned the mortgage to
the substitute plaintiff. Service was then effectuated on
October 28, 2016, thus commencing the action.8 Almost
one year later, the plaintiff represented in its motion
to substitute, dated October 13, 2017, that ‘‘since the
commencement of the above entitled action, it has
assigned the subject mortgage deed and note, and the
cause of action, to [the substitute plaintiff] by written
instrument, a copy of which is attached hereunto as
Exhibit A.’’
A
We first address whether the plaintiff had standing
to initiate the foreclosure action, as many of the defen-
dant’s claims on appeal revolve around the argument
that the plaintiff lacked standing to do so. The defendant
argues that because the mortgage was assigned prior
to October 28, 2016, the date this action was com-
menced, the plaintiff lacked standing to commence the
action. We are not persuaded.
We begin by setting forth the law of standing in the
context of foreclosure actions. ‘‘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. . . . Where a party is found to lack
standing, the court is consequently without subject mat-
ter jurisdiction to determine the cause. . . . Our
review of this question of law is plenary.’’ (Citations
omitted; internal quotation marks omitted.) J.E. Robert
Co. v. Signature Properties, LLC, 309 Conn. 307, 318,
71 A.3d 492 (2013).
‘‘Generally, in order to have standing to bring a fore-
closure 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 pre-
sented 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 presump-
tion that [the plaintiff] owns the underlying debt.’’
(Internal quotation marks omitted.) Bank of America,
N.A. v. Kydes, 183 Conn. App. 479, 487, 193 A.3d 110,
cert. denied, 330 Conn. 925, 194 A.3d 291 (2018).
‘‘The rules for standing in foreclosure actions when
the issue of standing is raised may be succinctly summa-
rized 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 demon-
strate 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 pro-
vide 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; footnote omitted.) U.S.
Bank, National Assn. v. Schaeffer, 160 Conn. App. 138,
150, 125 A.3d 262 (2015).
In the present case, the court determined that the
note was endorsed in blank. The evidence in the record
before us supports this finding. The defendant repeat-
edly claims that JP Morgan is the party entitled to
enforce the note because the allonge is on the last page
of the note: ‘‘this alleged blank endorsement is not the
current endorsement because there is a subsequent spe-
cial endorsement made specially to JP Morgan by Chase
Bank . . . by way of an allonge permanently affixed
to the end of the note.’’ This argument is unavailing.
The document clearly demonstrates that the note was
specially endorsed to JP Morgan then subsequently
endorsed in blank from JP Morgan. The court correctly
determined that the note was endorsed in blank.9
Accordingly, whether or not the plaintiff had standing
to initiate the action depends on whether it had physical
possession of the note on October 28, 2016. ‘‘When an
instrument is endorsed in blank, it becomes payable to
bearer and may be negotiated by transfer of possession
alone. . . . General Statutes § 42a-3-205 (b).’’ (Internal
quotation marks omitted.) Chase Home Finance, LLC
v. Fequiere, 119 Conn. App. 570, 577, 989 A.2d 606, cert.
denied, 295 Conn. 922, 991 A.2d 564 (2010). Regardless
of the timing of the assignment of the mortgage, the
undisputed facts demonstrate that the plaintiff pos-
sessed the note at the time of the commencement of
this action.
Prior to the commencement of the action, the plaintiff
assigned the mortgage to the substitute plaintiff, and
this assignment was not recorded until March 27, 2017,
but the note itself never changed hands. Because the
plaintiff transferred the note to itself as trustee,10 the
physical possession of the note never changed.
It is well established that the holder of a note has
standing to enforce a mortgage even if the mortgage is
not assigned to that party. ‘‘General Statutes § 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 princi-
ple 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 § 49-17, has provide[d] an ave-
nue for the holder of the note to foreclose on the prop-
erty when the mortgage has not been assigned to him.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Chase Home Finance, LLC v. Fequiere,
supra, 119 Conn. App. 576–77. ‘‘This principle is
intended to address the situation in which ownership of
the note and ownership of the mortgage rest in different
hands at the time the foreclosure action commenced.’’
J.E. Robert Co. v. Signature Properties, LLC, supra,309 Conn. 323.
The plaintiff alleged in its complaint that it was the
holder of the note and in possession of the mortgage.
Before the action actually was commenced, the mort-
gage was assigned to the substitute plaintiff, but there
is no indication that possession of the note changed.
A plaintiff that ‘‘alleged that it possessed the note at
the time it commenced [the] action, [is] entitled to rely
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 only evidence
before the court indicated that the plaintiff was in pos-
session of the note when the present action was com-
menced. The defendant has not pointed us to any evi-
dence that disputes the court’s conclusion that the
plaintiff was the holder of the note at the time the
foreclosure action was commenced, other than the fact
that the mortgage had been assigned prior to the com-
mencement, which has no bearing on possession of the
note. See HSBC Bank USA, N.A. v. Navin, 129 Conn.
App. 707, 711–12, 22 A.3d 647 (plaintiff had standing to
commence foreclosure action where defendant offered
no evidence contesting plaintiff’s affidavit asserting that
note endorsed in blank was delivered to plaintiff prior
to commencement of action), cert. denied, 302 Conn.
948, 31 A.3d 384 (2011). Additionally, we note that coun-
sel for both the plaintiff and the substitute plaintiff,
which remained the same throughout the proceedings,
repeatedly represented to the court, both before and
after the motion to substitute had been granted, that it
had possession of the note at all relevant times. See
Equity One, Inc. v. Shivers, 310 Conn. 119, 132–33, 74
A.3d 1225 (2013) (explaining that ‘‘it [is] proper for [a]
court . . . to rely on the representation of the plain-
tiff’s counsel that the note he produced . . . was the
note that the plaintiff held at the time of the commence-
ment of the action . . . [and that] [i]n the absence of
any fact based challenge to counsel’s representation,
such reliance was proper . . . because the plaintiff’s
counsel is an officer of the court’’).
The defendant’s principal argument is that the mort-
gage had been assigned before commencement of the
action, and that the substitution of the plaintiff did not
occur until October, 2017. Because the plaintiff was the
holder of the note when the action began, it is of no
consequence to an analysis of standing that the mort-
gage was assigned before the proceeding commenced.11
‘‘It is well settled that the holder of a note secured by
a mortgage has standing to commence a foreclosure
action, regardless of whether it also holds the mort-
gage.’’ GMAC Mortgage, LLC v. Ford, 144 Conn. App.
165, 174, 73 A.3d 742 (2013). ‘‘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.’’
(Internal quotation marks omitted.) Bank of America,
N.A. v. Kydes, supra, 183 Conn. App. 487. Put another
way, that the named plaintiff on the complaint does not
match the name on the assignment of mortgage at the
time of commencement does not affect whether the
plaintiff is entitled to foreclose on the mortgage. The
plaintiff was in possession of the note, endorsed in
blank, when it commenced the present foreclosure
action and therefore it had standing to do so. Accord-
ingly, the court had subject matter jurisdiction to adjudi-
cate the action, and the defendant’s claim fails.
B
Having resolved the plaintiff’s standing to initiate the
action, we next address whether the court erred in
granting the plaintiff’s motion to substitute. The defen-
dant argues that the court made erroneous findings of
fact and relied on an incorrect rule of practice in grant-
ing the motion. We are not persuaded.
On October 13, 2017, pursuant to Practice Book § 9-
16,12 the plaintiff filed a motion to substitute the plaintiff.
The defendant objected, arguing that Practice Book § 9-
2013 was the applicable rule of practice because the
mortgage had been assigned prior to commencement
of the action and hence the plaintiff lacked standing
to initiate the action. The court granted the motion,
explaining that the plaintiff ‘‘assigned the mortgage
deed and note . . . after commencement of the fore-
closure action. . . . [The] [d]efendant claims that Prac-
tice Book [§] 9-20 applies. That section provides that
the court may allow a substitute plaintiff only if the
‘wrong plaintiff’ was named in the first instance. The
original plaintiff is not the ‘wrong plaintiff.’ [Practice
Book §] 9-16 rather than [§] 9-20 applies. Additionally,
the defendant alleges no facts inviting prejudice to [her]
defense.’’
We first set forth the applicable standard of review.
‘‘Practice Book § 9-16 confers authority on a trial court
judge to substitute a new plaintiff as the sole plaintiff
in a pending action as long as the substitution does
not prejudice the defense of the action. The decision
whether to grant a motion for the [substitution] of a
party to pending legal proceedings rests generally in
the sound discretion of the trial court. . . . Our review
is limited to a determination of possible abuse of discre-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) Trevek Enterprises, Inc. v. Victory Contracting
Corp., 107 Conn. App. 574, 578–79, 945 A.2d 1056 (2008).
‘‘In reviewing the trial court’s exercise of that discre-
tion, every reasonable presumption should be indulged
in favor of its correctness . . . and only if its action
discloses a clear abuse of discretion is our interference
warranted.’’ (Internal quotation marks omitted.) Joblin
v. LaBow, 33 Conn. App. 365, 367, 635 A.2d 874 (1993),
cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994).
‘‘Our rules of practice . . . permit the substitution
of parties as the interests of justice require.’’ Federal
Deposit Ins. Corp. v. Retirement Management Group,
Inc., 31 Conn. App. 80, 84, 623 A.2d 517, cert. denied,
226 Conn. 908, 625 A.2d 1378 (1993). ‘‘As long as [the]
defendant is fully apprised of a claim arising from speci-
fied conduct and has prepared to defend the action,
his ability to protect himself will not be prejudicially
affected if a new plaintiff is added.’’ (Internal quotation
marks omitted.) Rana v. Terdjanian, 136 Conn. App.
99, 110, 46 A.3d 175, cert. denied, 305 Conn. 926, 47
A.3d 886 (2012).
In the present case, the court stated that ‘‘[the plain-
tiff] assigned the mortgage deed and note in the cap-
tioned matter to [the substitute plaintiff] after com-
mencement of the foreclosure action.’’ The defendant
argues that the assignment of mortgage is dated before
the commencement of the action, so the court’s factual
findings are clearly erroneous and Practice Book § 9-
16 was inapplicable to the facts of the case. Although
the court may have mischaracterized the nature of the
assignment, we conclude that the court did not abuse
its discretion in granting the motion to substitute.
Practice Book § 9-16 ‘‘provides for the substitution
of a plaintiff when the cause of action itself is assigned
to a different party.’’ (Emphasis added.) Hudson City
Savings Bank v. Hellman, 196 Conn. App. 836, 847,
231 A.3d 182 (2020). In that case, the original plaintiff
merged into the substitute plaintiff approximately two
years after a foreclosure action had been initiated. Id.,
841. The original plaintiff, Hudson City Savings Bank
(HCSB), commenced the foreclosure action on Decem-
ber 4, 2013. Id., 839. HCSB then moved for summary
judgment as to liability on August 4, 2017, which the
court subsequently granted. Id., 839–41. Then, on
November 28, 2017, HCSB filed a motion to substitute
Manufacturers and Traders Trust Company (M&T) as
the plaintiff, revealing that HCSB had merged into M&
T as of November 1, 2015, twenty-one months before
HCSB had filed the motion for summary judgment. Id.,
841. The motion to substitute was predicated, in part,
on Practice Book § 9-16. Id., 847. This court, however,
found that no assignment of the underlying cause of
action had actually occurred, because no assignment
was necessary, as HSBC’s assets, including the note
and the cause of action, automatically had vested in
M&T by operation of law as a result of the merger. Id.This court concluded that even though no assignment
of the cause of action had occurred, the substitution
‘‘had no substantive effect’’ because, irrespective of the
substitution, the surviving entity subsumes all claims
and assets of the other party to the merger. Id., 845–47.
This court thus concluded that § 9-16 was an appro-
priate vehicle to allow substitution. Id., 842–47. Simi-
larly, in the present case, because the note, which was
endorsed in blank, remained in the possession of the
plaintiff, the cause of action itself was not assigned to
a legally distinct party. See part I A of this opinion. The
substitution here, much like the one in Hudson City
Savings Bank, ‘‘had no substantive effect’’ on the pro-
ceedings. Hudson City Savings Bank v. Hellman,
supra, 846.
Additionally, the defendant claimed in her objection
to the motion that Practice Book § 9-20 should have
applied to the motion to substitute. Section 9-20 is
intended to ‘‘[cure] the lack of standing of the original
plaintiff’’; (internal quotation marks omitted) Fairfield
Merritview Ltd. Partnership v. Norwalk, 320 Conn. 535,
553, 133 A.3d 140 (2016); and ‘‘allow[s] a substituted
plaintiff to enter a case [w]hen any action has been
commenced in the name of the wrong person as [the]
plaintiff.’’ (Emphasis added; internal quotation marks
omitted.) Id., 552. Because the plaintiff had standing,
as holder of a note endorsed in blank, it was not the
wrong plaintiff. The court correctly determined that
§ 9-20 was inapplicable to the facts of the case.
Finally, Practice Book § 9-16 provides that substitu-
tion should not be granted if it would ‘‘prejudice the
defense of the action as it stood before such change
of parties.’’ The court correctly stated that that the
defendant failed to allege any facts that would prejudice
her defense. The defendant maintains on appeal that
‘‘because [§ 9-16] is inapplicable [the defendant] did not
need to allege prejudice.’’ Even if the defendant was
not required to allege prejudice, we agree with the court
that the defendant did not suffer any prejudice from
the substitution. The substitution only served to clarify
that the plaintiff was bringing the foreclosure action in
its capacity as trustee for GDBT I Trust 2011-1. This,
in no way, prejudiced the defendant’s ability to make
payments on the mortgage or to defend against the
claims brought. See Hudson City Savings Bank v. Hell-
man, supra, 196 Conn. App. 846–48 (granting substitu-
tion under § 9-16 after merger involving plaintiff as
merger would have no substantive effect on proceed-
ings).
We iterate that granting a motion to substitute should
be found improper only if there is a clear abuse of
discretion and that ‘‘every reasonable presumption
should be indulged in favor of its correctness . . . .’’
(Internal quotation marks omitted.) Joblin v. LaBow,
supra, 33 Conn. App. 367. It was not a clear abuse of
discretion for the court to allow the substitution.14
C
We next address the defendant’s two motions to dis-
miss. The defendant maintains that the court improp-
erly denied her motions to dismiss because the plaintiff
lacked standing to initiate the foreclosure action, the
substitute plaintiff improperly was allowed to maintain
the action, the court failed to inspect the note, and the
court should have conducted an evidentiary hearing to
determine when the plaintiff obtained possession of the
note. We are not persuaded.
We first set forth the standard of review for a motion
to dismiss. ‘‘In ruling [on] whether a complaint survives
a motion to dismiss, a court must take the facts to be
those alleged in the complaint, including those facts
necessarily implied from the allegations, construing
them in a manner most favorable to the pleader. . . .
If . . . the plaintiff’s standing does not adequately
appear from all materials of record, the complaint must
be dismissed.’’ (Citation omitted; internal quotation
marks omitted.) Burton v. Dominion Nuclear Connect-
icut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
Because the lack of standing implicates the trial
court’s subject matter jurisdiction, it properly is raised
by way of a motion to dismiss. See May v. Coffey, 291
Conn. 106, 113, 967 A.2d 495 (2009). ‘‘Our standard of
review of a trial court’s findings of fact and conclusions
of law in connection with a motion to dismiss is well
settled. A finding of fact will not be disturbed unless it
is clearly erroneous. . . . [If] the legal conclusions of
the court are challenged, we must determine whether
they are legally and logically correct and whether they
find support in the facts. . . . Thus, our review of the
trial court’s ultimate legal conclusion and resulting
[denial] of the motion to dismiss will be de novo.’’ (Inter-
nal quotation marks omitted.) JP Morgan Chase Bank,
N.A. v. Simoulidis, 161 Conn. App. 133, 135–36, 126
A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d
266 (2016).
After the court granted the motion to substitute, the
defendant filed a revised motion to dismiss on Decem-
ber 4, 2017, arguing that the plaintiff lacked standing
to initiate the action. The substitute plaintiff objected
to the motion, stating that ‘‘[t]he plaintiff attests that it
and/or its agents have been in possession of the original
note, dated July 23, 2007, and have been since before
the inception of this action. The note is endorsed in
blank.’’ The substitute plaintiff included a copy of the
note with the objection. The court denied the motion,
concluding that ‘‘[t]he defendant is unable to show that
the plaintiff did not have standing. . . . At the time the
action commenced on October 28, 2016, the plaintiff
held the note endorsed in blank. The defendant is
unable to rebut the presumption that the holder of the
note is also the owner of the debt and entitled to enforce
the note.’’ The defendant filed a second motion to dis-
miss on April 24, 2018, arguing, again, that the plaintiff
lacked standing to initiate the action and that the substi-
tute plaintiff lacked standing to maintain the action.15
The court denied the second motion to dismiss.
We have determined previously that the plaintiff, as
possessor of a note endorsed in blank, had standing to
initiate the action and that it was proper for the court
to allow substitution. The defendant, again, contends
that there is no evidence that the court ever examined
the note to determine if it was endorsed in blank. The
note, however, was provided with the substitute plain-
tiff’s objection to the motion to dismiss and the court
appropriately concluded that the note was endorsed in
blank. We will not presume that the court came to this
conclusion without examining the note. See State v.
Mills, 80 Conn. App. 662, 670, 837 A.2d 808 (2003), cert.
denied, 268 Conn. 914, 847 A.2d 311 (2004).
The defendant also claims that the court should have
conducted an evidentiary hearing to determine when
the plaintiff obtained possession of the note, pursuant
to LaSalle Bank, N.A. v. Bialobrzeski, 123 Conn. App.
781, 783, 3 A.3d 176 (2010), in which this court held
that it could not rule on the issue of standing without
a finding from the trial court as to when the plaintiff
acquired the note. This court remanded the case for a
hearing to determine whether the plaintiff held the note
when the action was commenced, explaining that ‘‘[w]e
cannot review this claim because the court made no
factual finding as to when the plaintiff acquired the
note. Without that factual determination, we are unable
to say whether the court improperly denied the defen-
dant’s motion to dismiss.’’ Id., 788. Unlike LaSalle Bank,
N.A., in the present case the court made an express
factual finding that the plaintiff held the note endorsed
in blank at the time the action commenced. The defen-
dant can point to no facts or evidence that rebut this
finding, other than her repeated contention that the note
was assigned prior to commencement. As we explained,
the record contains no evidence of such an assignment.
Our review of the record confirms that the defendant
failed to submit any evidence in support of her motions
to dismiss that called into question the plaintiff’s status
as the holder of the note. We conclude, therefore, that
the court properly denied the defendant’s motions to
dismiss.
II
Next, we address the defendant’s claim that the court
improperly granted the substitute plaintiff’s motion for
summary judgment. The substitute plaintiff responds
that the documents provided with its motion for sum-
mary judgment appropriately demonstrated the
absence of any genuine issue of material fact and that
the defendant failed to present any evidence that ade-
quately rebutted the substitute plaintiff’s prima facie
case. We agree with the substitute plaintiff and, accord-
ingly, reject the defendant’s claim.
We first set forth the standard of review for summary
judgment in a foreclosure action. ‘‘Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) GMAC Mortgage, LLC v. Ford, supra, 144 Conn.
App. 175. ‘‘[I]n seeking summary judgment, it is the
movant who has the burden of showing . . . the
absence of any genuine issue as to all the material facts
[that], under applicable principles of substantive law,
entitle him to a judgment as a matter of law.’’ (Internal
quotation marks omitted.) Id.‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant summary judgment as to liability in a foreclosure
action if the complaint and supporting affidavits estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense.’’
(Citations omitted.) Id., 176.
A party opposing summary judgment ‘‘must provide
an evidentiary foundation to demonstrate the existence
of a genuine issue of material fact. . . . A party may
not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary
judgment.’’ (Emphasis omitted; internal quotation
marks omitted.) Little v. Yale University, 92 Conn. App.
232, 234, 884 A.2d 427 (2005), cert. denied, 276 Conn.
936, 891 A.2d 1 (2006). In other words, ‘‘[d]emonstrating
a genuine issue [of material fact] requires a showing of
evidentiary facts or substantial evidence outside the
pleadings from which material facts alleged in the plead-
ings can be warrantably inferred. . . . A material fact
is one that will make a difference in the result of the
case. . . . To establish the existence of a [dispute as
to a] material fact, it is not enough for the party opposing
summary judgment merely to assert the existence of a
disputed issue. Such assertions are insufficient regard-
less of whether they are contained in a complaint or a
brief. . . . Further, unadmitted allegations in the
pleadings do not constitute proof of the existence of a
genuine issue as to any material fact . . . . The issue
must be one which the party opposing the motion is
entitled to litigate under [its] pleadings and the mere
existence of a factual dispute apart from the pleadings is
not enough to preclude summary judgment.’’ (Citations
omitted; internal quotation marks omitted.) New Mil-
ford Savings Bank v. Roina, 38 Conn. App. 240, 244–45,
659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d
609 (1995).
A
We first address the defendant’s claim that the substi-
tute plaintiff failed to establish an undisputed prima
facie case. Specifically, the defendant argues that JP
Morgan is the party entitled to enforce the note, based
on the allonge attached to the last page of the note,
and, again, that the plaintiff lacked standing at the com-
mencement of the action. As discussed previously in
this opinion, these arguments are meritless. The note
was endorsed in blank and possessed by the original
plaintiff at the time of commencement and then by the
substitute plaintiff after the motion to substitute was
granted. See part I A of this opinion. The substitute
plaintiff attached an affidavit from its loan servicing
agent to its motion for summary judgment that set forth
the status of the note and the various transfers of the
mortgage. The court appropriately relied on this docu-
ment and concluded that there was no genuine issue
of material fact, stating: ‘‘In the instant action the affida-
vit and attachments in support of the motion establish
that the [substitute] plaintiff is the holder of the note
and the assignee of the mortgage, as well as the terms
of the note and mortgage. They also establish the defen-
dants’ default and the [substitute] plaintiff’s (or its pre-
decessor’s) compliance with the condition precedent
to the institution of this action. The defendant, while
filing a memorandum, has provided nothing to counter-
act the import of the [substitute] plaintiff’s affidavit and
exhibits. The defendant does not provide an affidavit
or exhibit which raises a genuine issue of material fact.’’
The substitute plaintiff’s supporting documentation,
which was not countered by the defendant, was suffi-
cient to establish its undisputed prima facie case.
B
We next address the defendant’s argument that the
court improperly concluded that her special defenses
did not apply. Specifically, the defendant claimed that
the plaintiff was not registered with the SEC, and thus
lacked standing, that the doctrine of unclean hands
should have barred summary judgment, that a statute
of limitations barred the plaintiff’s action, and that the
defendant could not be liable for the debt pursuant to
a divorce decree.16 The court did not explicitly address
any of the special defenses, but explained that ‘‘[the
defendant] [did not] file any affidavit or exhibits sup-
porting the allegations that she set forth in her special
defenses’’ and declined to explicitly discuss the special
defenses. We agree with the court that all of the alleged
special defenses are without merit.
1
The defendant first argues that the court erred in
failing to consider her argument that the plaintiff ‘‘is
not registered as a trustee with the [SEC] . . . .’’ In
support of this claim the defendant attached attesta-
tions from the SEC that the plaintiff did not appear
in a search of their records. This court has rejected
arguments from defendants that trust documents or
pooling and servicing agreements are relevant to the
issue of standing.17
As this court has explained, a foreclosure plaintiff is
not required ‘‘to produce evidence of ownership deriv-
ing from a pooling and servicing agreement in making its
prima facie case . . . . The relevance of securitization
documents [to] a lender’s standing to foreclose a mort-
gage is questionable. Simply put, a borrower has a con-
tract—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.’’ (Citation omitted; internal quotation
marks omitted.) Bank of New York Mellon v. Horsey,
182 Conn. App. 417, 443, 190 A.3d 105, cert. denied,
330 Conn. 928, 194 A.3d 1195 (2018). ‘‘A fundamental
problem with the examination of standing is the confu-
sion resulting from a failure to distinguish the loan
documents being enforced from the securitization docu-
ments that are not directly involved in the foreclosure.
To have standing in a mortgage foreclosure, the plaintiff
must have some interest in the note secured by the
mortgage. Possession of the original note . . . can pro-
vide a basis to confer standing.’’ (Footnote omitted.)
D. Caron & G. Milne, Connecticut Foreclosures (9th
Ed. 2019) § 30-3, pp. 467–68. Accordingly, the court did
not err in declining to address the defendant’s argu-
ments concerning the plaintiff’s status with the SEC.
2
The defendant next claims that the doctrine of
unclean hands should have barred summary judgment
because the plaintiff was misleading when it stated that
the mortgage had been assigned since commencement
of the action. ‘‘Our Supreme Court has recognized that
the [a]pplication of the doctrine of unclean hands rests
within the sound discretion of the trial court. . . . The
exercise of [such] equitable authority . . . is subject
only to limited review on appeal. . . . The only issue on
appeal is whether the trial court has acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
[the trial court’s] action. . . . Whether the trial court
properly interpreted the doctrine of unclean hands,
however, is a legal question distinct from the trial
court’s discretionary decision whether to apply it.’’
(Internal quotation marks omitted.) Wells Fargo Bank,
N.A. v. Lorson, 183 Conn. App. 200, 221, 192 A.3d 439,
cert. granted on other grounds, 330 Conn. 920, 193 A.3d
1214 (2018). ‘‘The party seeking to invoke the clean
hands doctrine to bar equitable relief must show that
his opponent engaged in wilful misconduct with regard
to the matter in litigation. . . . The trial court enjoys
broad discretion in determining whether the promotion
of public policy and the preservation of the courts’
integrity dictate that the clean hands doctrine be
invoked.’’ (Internal quotation marks omitted.) Id., 222–
23.
The defendant devoted one sentence in her objection
to the motion for summary judgment to her argument
that unclean hands should bar summary judgment and
offered no evidence or exhibits demonstrating wilful
misconduct on the part of the plaintiff other than the
claim that ‘‘[the plaintiff] explicitly stated an untruth,
i.e., that the assignment of mortgage had occurred
‘since’ its suit had ‘commenced,’ when in fact it had
occurred prior to it.’’ As discussed previously, it may
not have been entirely accurate for the plaintiff to state
that it had assigned the mortgage since commencement
of the action, but it was not an abuse of the court’s broad
discretion to decline to characterize this statement as
wilful misconduct, particularly because the assignment
had no substantive effect on the litigation and resulted
in no prejudice to the defendant.
3
The defendant next argues that the statute of limita-
tions set forth in General Statutes § 42a-3-118 should
have barred enforcement of the mortgage. This court
previously has rejected the argument that § 42a-3-118
applies to a mortgage foreclosure. See Federal Deposit
Ins. Corp. v. Owen, 88 Conn. App. 806, 814–15, 873 A.2d
1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005);
see also D. Caron & G. Milne, supra, § 32-3:14, p. 622
(‘‘[s]ince a foreclosure is an action sounding in equity,
there is no statute of limitations defense to a mortgage
foreclosure’’). Accordingly, the court correctly con-
cluded that no statute of limitations applied to the
action.
4
Lastly, the defendant argues that the plaintiff could
not bring a foreclosure action against her because she
was not personally liable for the debt secured by the
mortgage pursuant to a divorce decree. The divorce
decree, a copy of which the defendant included in her
objection to the motion for summary judgment, states
in relevant part: ‘‘As part of the division of property,
the [h]usband shall execute a [quitclaim] deed to [the
defendant] of [the property] within ten days of the date
hereof. . . . The transfer of the property to [the defen-
dant] shall not result in her assumption of any liability
of the mortgage securing the property.’’
Although the defendant did not sign the note, her
argument fails because she is the record owner of the
property and she signed the mortgage above the line
marked ‘‘borrower.’’ The first page of the document
states that ‘‘ ‘[b]orrower is Andreas D. Androulidakis
and [the defendant]. . . . Borrower is the mortgagor
. . . .’’ The mortgage states on the signature page: ‘‘By
signing below, [b]orrower accepts and agrees to the
terms and covenants contained in this [s]ecurity
[i]nstrument . . . .’’ ‘‘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 indem-
nity of a surety, or the doing or not doing [of] any other
act. . . . Black’s Law Dictionary defines mortgagor as
‘[o]ne who, having all or some part of the title to prop-
erty, 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 mort-
gages property; the mortgage-debtor, or borrower.’
. . .
‘‘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.’’ (Citations omitted; internal quota-
tion marks omitted.) Citibank, N.A. v. Stein, 186 Conn.
App. 224, 249, 199 A.3d 57 (2018), cert. denied, 331
Conn. 903, 202 A.3d 373 (2019). The defendant may not
be personally liable for the note, but her status as a
mortgagor of the property entitles the plaintiff to bring a
foreclosure proceeding against her. The court correctly
concluded that the divorce decree, which incorporated
a contract between the defendant and Andreas, has no
effect on the mortgage, which is a contract between
the plaintiff and the defendant. See id., 249–50.
III
The defendant next claims that the court improperly
rendered a judgment of strict foreclosure in favor of
the substitute plaintiff. We do not agree.
‘‘We review a judgment of strict foreclosure to deter-
mine whether the trial court abused its discretion. . . .
In determining whether the trial court has abused its
discretion, we must make every reasonable presump-
tion in favor of the correctness of its action. . . . Our
review of a trial court’s exercise of the legal discretion
vested in it is limited to the questions of whether the
trial court correctly applied the law and could reason-
ably have reached the conclusion that it did.’’ (Internal
quotation marks omitted.) Wells Fargo Bank, N.A. v.
Tarzia, 150 Conn. App. 660, 664, 92 A.3d 983, cert.
denied, 314 Conn. 905, 99 A.3d 635 (2014).
The defendant’s grounds for this claim are that the
issue of the substitute plaintiff’s standing was never
resolved by the court and that the court should have
conducted an evidentiary hearing to determine when
the plaintiff acquired the note. Because we have
resolved these issues in favor of the substitute plaintiff,
we conclude that the court properly rendered a judg-
ment of strict foreclosure.
IV
Lastly, the defendant claims that the court improperly
denied her motion to open the judgment of strict fore-
closure because she was not a party to the note.18 Specif-
ically, the defendant claimed that the foreclosure pro-
ceedings violated her due process rights because ‘‘as a
non-obligor on the note’’ she could not properly chal-
lenge the standing of the plaintiff. The defendant’s
actions at the trial court and on appeal belie her argu-
ment. The defendant raised multiple challenges to the
plaintiff’s standing and each challenge was addressed
by the court.
Further, because a motion to open a judgment is
reviewed for an abuse of discretion, we only consider
the arguments that were placed before the court. ‘‘A
motion to open a judgment of strict foreclosure is
addressed to the discretion of the trial court . . . and
unless that discretion was abused or was based upon
some error in law, the denial of the motion must stand.’’
(Internal quotation marks omitted.) Countrywide
Home Loans Servicing, L.P. v. Peterson, 171 Conn.
App. 842, 848–49, 158 A.3d 405 (2017). The defendant
advanced two grounds in her motion to open the judg-
ment, claiming that ‘‘the original plaintiff filed this fore-
closure suit . . . after the expiration of the statute of
limitations . . . [and] the original plaintiff did not have
possession of the mortgage and note at the time that
it brought the suit.’’ We have resolved these issues in
favor of the plaintiff. Accordingly, the court did not
abuse its discretion in denying the defendant’s motion
to open the judgment.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
The complaint named as defendants Jameela Androulidakis and her
erstwhile husband Andreas D. Androulidakis (Andreas). Jameela Androuli-
dakis received title to the property in question as part of a divorce decree
in 2009. Andreas never appeared and the court granted a motion for default
for failure to appear as to Andreas on June 2, 2017. He is not involved in
this appeal. As subsequent encumbrancers of the property, Hop Energy,
LLC and Petro, Inc., also were named as defendants but are not involved
in this appeal. Therefore, we refer to Jameela Androulidakis as the defendant
throughout this opinion.
2
This action was commenced by the plaintiff, Goshen Mortgage, LLC. On
October 13, 2017, Goshen Mortgage, LLC, filed a motion to substitute, claim-
ing that it had assigned the mortgage and note to Goshen Mortgage, LLC,
as Separate Trustee for GDBT I Trust 2011-1. The court granted the motion
to substitute. In this opinion, we refer to Goshen Mortgage, LLC, as the
plaintiff, and to Goshen Mortgage, LLC, as Separate Trustee for GDBT I
Trust 2011-1, as the substitute plaintiff.
3
At oral argument before this court, the defendant also argued that service
of process was insufficient. This issue was not raised before the trial court
nor was it briefed on appeal. We therefore decline to review it. ‘‘We generally
do not consider claims raised for the first time at oral argument.’’ Zenon v.
Mossy, 114 Conn. App. 734, 736 n.2, 970 A.2d 814 (2009); see also Alexander
v. Tyson, 122 Conn. App. 493, 494 n.1, 999 A.2d 830 (declining to review
issues ‘‘that were not considered or decided by the trial court’’), cert. denied,
298 Conn. 928, 5 A.3d 488 (2010). Further, any claim of lack of jurisdiction
over the person or insufficiency of service of process is waived if not raised
by a motion to dismiss filed within thirty days of filing an appearance. See
Practice Book § 10-32.
4
An allonge is defined as ‘‘[a] slip of paper sometimes attached to a
negotiable instrument for the purpose of receiving further indorsements
when the original paper is filled with indorsements.’’ Black’s Law Dictionary
(11th Ed. 2019), p. 95.
5
The plaintiff provided the complete chain of title in its complaint; the
substitute plaintiff also provided the complete chain of title in an affidavit
provided with its motion for summary judgment, and in exhibits provided
with the motion for summary judgment.
6
The court initially granted this motion and several others without expla-
nation. On July 1, 2019, after filing her appeal, the defendant filed several
notices pursuant to Practice Book § 64-1 requesting a memorandum of deci-
sion for several of the court’s rulings. In response to the defendant’s § 64-
1 notices, the court subsequently issued memoranda of decision as to the
order granting the motion to substitute the plaintiff, the order denying the
defendant’s first motion to dismiss, the order granting the substitute plain-
tiff’s motion for summary judgment as to liability, and the order granting
the substitute plaintiff’s motion for judgment of strict foreclosure. We refer
to these articulated orders when reviewing the court’s rulings throughout
this opinion.
The defendant’s notices filed pursuant to Practice Book § 64-1 also sought
a memorandum of decision regarding her second motion to dismiss. The
court issued an order stating that the denial of the defendant’s second
motion to dismiss was not within the scope of § 64-1. On August 9, 2019,
the defendant filed a motion for review, in which she requested that this
court order the trial court to issue a memorandum of decision as to the
order denying her second motion to dismiss. This court granted the defen-
dant’s motion for review, but denied the relief requested therein, agreeing
with the trial court that the denial of the motion to dismiss was not within
the scope of § 64-1, as it did not represent a final judgment. See Sasso v.
Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985). Regardless, given that the
defendant made identical arguments in her first and second motions to
dismiss and the court has issued a memorandum of decision as to the order
denying the first motion to dismiss, our ability to properly review these
rulings is not impeded. See part I C of this opinion.
7
In its brief, the substitute plaintiff construed the defendant’s claim as
an attack on this court’s jurisdiction over the appeal. While neither party
explicitly argues that this court lacks jurisdiction, we note that the trial
court’s judgment of strict foreclosure is an appealable final judgment and
the defendant is aggrieved by that judgment. Consequently, this court has
jurisdiction over the defendant’s appeal under General Statutes § 52-263.
Further, an appellate court has jurisdiction to determine whether the trial
court had subject matter jurisdiction to hear the case, and a determination
that the trial court lacked jurisdiction does not deprive an appellate court
of its jurisdiction over an appeal. See State v. Martin M., 143 Conn. App.
140, 143–44 n.1, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013);
Gemmell v. Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996); Augeri v.
Planning & Zoning Commission, 18 Conn. App. 722, 728 n.6, 560 A.2d
985 (1989).
8
‘‘It has long been the law in this state that an action is deemed to be
commenced on the date service is made on the defendant.’’ Stingone v.
Elephant’s Trunk Flea Market, 53 Conn. App. 725, 729, 732 A.2d 200 (1999).
9
The defendant also argues that the court never actually inspected the
note to determine whether it was endorsed in blank. While the court did
not explicitly state that it had examined the note in the memorandum
granting the motion to substitute, the court later stated during a hearing on
the motion for a judgment of strict foreclosure that ‘‘[t]he court has reviewed
the original note as well as its endorsements and allonges, finds that the
plaintiff is the holder of the note. The court has also reviewed certified
copies of the mortgage and six assignments and finds that the plaintiff is
the assignee of the mortgage.’’
10
Because the defendant’s arguments on appeal are largely based on the
plaintiff’s status as a trustee for a loan pool, we provide a summary of loan
pools and the role of trustees. ‘‘Typically, mortgage loans are placed into
asset pools or ‘securities’ based upon various criteria. Loan pools are formed
based upon certain factors, including credit ratings, loan-to-value ratios,
conforming and non-conforming loans, and other indicia of volatility. One
major advantage of placing mortgage loans into pools sold as mortgage-
backed securities is that these securities are designed to reduce or reallocate
certain risks inherent in the assets, thereby making them less volatile and
more appealing to investors. . . . A servicing agent, either a bank or a
mortgage company, operates to collect loan payments, escrows for taxes
and insurance, and to communicate with the borrower. The servicers and
trustees of the pools are then rated on the quality of servicing and the
application of various credit enhancements to guard against risk and to
maintain stability within the pool. [The] levels and layers of entities can
involve multiple parties, including the trustee of the pooling and servicing
agreement, a servicer of the pooling agreement, and sometimes a sub-servic-
ing entity . . . .’’ (Footnote omitted.) D. Caron & G. Milne, Connecticut
Foreclosures (9th Ed. 2019) § 30-2, pp. 458–59. ‘‘The borrower, however, is
not a party to the pooling and servicing agreement, commonly referred to
as a ‘trust’ document. The parties to a pooling and servicing agreement are
usually: (1) the trustee, who acts on behalf of the bondholders, (2) a master
servicer, who collects payments for the trust, and (3) the initial depositor
that establishes the trust.’’ Id., p. 470.
11
Additionally, we note that it would have been legally permissible for
the plaintiff to bring the action in the name of Goshen Mortgage, LLC,
notwithstanding the assignment of the mortgage, as General Statutes § 52-
106 allows a trustee plaintiff to sue or be sued without joining the persons
represented by him and beneficially interested in the action. See Chase
Home Finance, LLC v. Fequiere, supra, 119 Conn. App. 579 (explaining that
trustee has statutory right to bring action in its own capacity where trustee
has legal title to trust res).
12
Practice Book § 9-16 provides: ‘‘If, pending the action, the plaintiff
assigns the cause of action, the assignee, upon written motion, may either
be joined as a coplaintiff or be substituted as a sole plaintiff, as the judicial
authority may order; provided that it shall in no manner prejudice the defense
of the action as it stood before such change of parties.’’
13
Practice Book § 9-20 provides: ‘‘When any action has been commenced
in the name of the wrong person as plaintiff, the judicial authority may, if
satisfied that it was so commenced through mistake and that it is necessary
for the determination of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff.’’
14
‘‘Even assuming that Practice Book § 9-16 was not the appropriate basis
to bring about the substitution, we underline the wide discretion afforded
to courts for the substitution of parties given our state’s policy of ensuring
that a real party of interest is added as a party to the underlying action.’’
Hudson City Savings Bank v. Hellman, supra, 196 Conn. App. 847 n.8.
To support her argument that Practice Book § 9-16 was not an appropriate
vehicle to allow substitution, the defendant repeatedly cites Ion Bank v.
J.C.C. Custom Homes, LLC, 189 Conn. App. 30, 35 n.3, 206 A.3d 208 (2019),
in which this court stated that ‘‘[b]ecause the plaintiff assigned the note to
[the substitute plaintiff] prior to the commencement of the action, rather
than during its pendency as contemplated by Practice Book § 9-16, this rule
is inapplicable.’’ In Ion Bank, this court held that the trial court appropriately
denied the plaintiff’s efforts to substitute the assignee as plaintiff. Id., 41–42.
Because the efforts to substitute the plaintiff were ineffectual, this court
agreed with the trial court’s ultimate determination ‘‘that the plaintiff lacked
standing to bring the action because, prior to commencing it, the plaintiff
had assigned its interest in the underlying promissory note to [the substitute
plaintiff].’’ (Emphasis added). Id., 33. The note in Ion Bank, however, was
not endorsed in blank, and thus had to be expressly assigned to the substitute
plaintiff. Id., 34. The plaintiff assigned the note one day before the action
was commenced. Id. As such, there was a clear assignment of the cause of
action occurring before commencement—the exact opposite of the situation
contemplated by § 9-16. In the present case, the note was endorsed in blank
and payable to the possessor, and the note never changed hands.
15
The defendant included several other arguments in both motions to
dismiss, including that the plaintiff was not registered to do business in the
state, the statute of limitations should have barred the action, and the
plaintiff had committed numerous violations of the federal Truth in Lending
Act. These arguments have not been advanced on appeal and are deemed
abandoned.
16
The defendant also argued in her objection to the substitute plaintiff’s
motion for summary judgment, that the plaintiff was not registered to do
business in the state of Connecticut and that her due process rights had
been violated by the plaintiff not complying with ‘‘federal and state laws
regarding notification of assignments . . . and service of process.’’ These
arguments have not been advanced on appeal and are deemed abandoned.
17
‘‘A pooling and servicing agreement establishes two entities that main-
tain the trust: a trustee, who manages the loan assets, and a servicer, who
communicates with and collects monthly payments from the mortgagors.’’
(Internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties,
LLC, supra, 309 Conn. 313 n.4; see footnote 10 of this opinion.
18
The defendant, again, claims that the court should have granted her
motion because the issue of the plaintiff’s standing was never resolved.
Additionally, the defendant repeats her argument that she was not the proper
party for the foreclosure action due to the divorce decree and the fact that
only Andreas signed the note. We decline to address these issues again.