Aurora Loan Services, LLC v. Condron , 181 Conn. App. 248 ( 2018 )

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AURORA LOAN SERVICES, LLC v. KAREN
CONDRON ET AL.
(AC 38934)
Alvord, Elgo and Sullivan, Js.
Syllabus
The plaintiff loan service company sought to foreclose a mortgage on certain
real property owned by the defendants K and J. The plaintiff, as the
servicer of the loan at the time, had sent a letter to K and J by certified
mail, return receipt requested, notifying them that the loan was in default
and advising them of the amount required to cure the default and to
reinstate the loan as of that date. Pursuant to the mortgage deed, the
plaintiff was required to give notice of default to K and J prior to
commencing the present foreclosure action, and the written notice was
deemed to have been given to the borrower when mailed by first class
mail or when actually delivered to the notice address of K and J if sent
by other means. The plaintiff also provided notice to K and J by certified
mail of their rights under the statute (§ 8-265ee) that requires a mort-
gagee to provide specific notice to the mortgagor before it can commence
a foreclosure of a qualifying mortgage under the Emergency Mortgage
Assistance Program. K and J failed to cure the default and the plaintiff
elected to accelerate the balance due on the note, declare the note due
in full, and foreclose the mortgage deed securing the note. Thereafter,
the plaintiff assigned the mortgage to N Co. by virtue of a corporate
assignment of mortgage and N Co. was substituted as the plaintiff.
Subsequently, the trial court rendered judgment of strict foreclosure,
from which K and J appealed to this court. On appeal, they claimed
that the trial court improperly rendered judgment of strict foreclosure
because N Co. failed to satisfy a contractual condition precedent to
foreclosure, namely, compliance with the requirement of notification
by mail specified in the mortgage deed, N Co. failed to satisfy a statutory
condition precedent when it did not comply with the notice requirement
set forth in § 8-265ee, and N Co. lacked the authority to foreclose. Held:
1. K and J could not prevail on their claim that N Co. failed to demonstrate
that it had standing to foreclose, which was based on their claim that
N Co. did not own the note and that the note’s owner, W Co., did not
authorize N Co. to foreclose in its own name, as N Co. had standing to
foreclose in its own name because it was the holder of the note and it
provided sufficient evidence of its authority to foreclose: N Co. presented
the original note to the trial court at the foreclosure trial, and even
though N Co. did not own the note, it demonstrated that it had the
authority to foreclose on the mortgage deed securing the note because
N Co. presented evidence that it, as the successor in interest to the
plaintiff, was the master servicer as defined by a certain trust agreement,
pursuant to which N Co., as the master servicer, had the authority
to, inter alia, effectuate foreclosure on the property; moreover, N Co.
presented evidence that W Co., as trustee, unequivocally manifested its
intention to authorize N Co. to exercise its rights to enforce the debt
when it provided a limited power of attorney to N Co., which included
the power to execute and deliver on behalf of W Co. all documents and
instruments necessary to conduct any foreclosure.
2. Although the trial court improperly admitted the hearsay testimony of A,
a litigation resolution analyst for N Co., regarding the contents of certain
business records that were not in evidence to prove that the notice of
default letter had been sent, any error was harmless, as N Co. proved
by a preponderance of the evidence that the notice of default letter was
sent to K and J by certified mail; A’s testimony concerning the business
records was merely cumulative of properly admitted evidence demon-
strating that the default notice was sent by certified mail, as the default
letter was admitted into evidence without objection and A testified, on
the basis of his review of the file and his familiarity with industry
practice, concerning the appearance of the default letter and certain
markings on it, which indicated that it had been sent by certified mail.
3. The trial court incorrectly concluded that N Co. satisfied its burden of
proof under the mortgage deed to establish that the plaintiff complied
with the notification requirements, pursuant to which the plaintiff was
required to provide notice of a default to a mortgagee as a condition
precedent to the commencement of a foreclosure proceeding; because
the delivery of first class mail by certified mail imposes additional restric-
tions that often make actual delivery less likely, the plaintiff’s notice
by certified mail was not notice by first class mail, which was afforded
a presumption of receipt, and was properly construed as other means
of mail service, for which proof of actual delivery was required under
the mortgage deed, and because N Co. failed to submit a return receipt
or any other evidence into the record to prove that the notice of default
was actually delivered to K and J by certified mail, it failed to satisfy
its burden of proof to establish that the plaintiff complied with the
notification requirements of the mortgage deed.
4. The trial court erred by applying the doctrine of substantial compliance
and concluding that the plaintiff had substantially complied with the
notice requirements of the mortgage deed when it sent the default
letter to K and J by certified mail; although the doctrine of substantial
compliance applies in the context of reviewing the substance of a default
notice, the doctrine did not apply where, as here, there was a contractual
provision requiring proof of actual delivery for a notice of default sent
by certified mail, return receipt requested, and there was no evidence
that K and J actually received the notice of default.
5. K and J could not prevail on their claim that a statutory condition precedent
to the action failed because N Co. did not introduce into evidence the
certified mail receipt confirming that the notice required by § 8-265ee
(a) was actually delivered by certified mail; the plain language of § 8-
265ee (a) required that the plaintiff give notice to K and J by registered
or certified mail but did not require a return receipt, and the plaintiff
had satisfied that statutory condition precedent to foreclosure because
the record supported the trial court’s finding that the § 8-265ee (a) notice
was sent by certified mail.
Argued October 11, 2017—officially released April 24, 2018
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendant et al., and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the defendant National City
Bank was defaulted for failure to plead; thereafter, the
court, Mintz, J., granted the plaintiff’s motion to substi-
tute Nationstar Mortgage, LLC, as the plaintiff; subse-
quently, the court, Mintz, J., denied the substitute
plaintiff’s motion for summary judgment; thereafter, the
defendant People’s United Bank et al. were defaulted
for failure to appear; subsequently, the matter was tried
to the court, Heller, J.; judgment of strict foreclosure,
from which the named defendant et al. appealed to this
court. Reversed; judgment directed.
Christopher G. Brown, for the appellants (named
defendant et al.).
Christopher S. Groleau, with whom, on the brief, was
Jonathan Adamec, for the appellee (substitute
plaintiff).
Opinion
ELGO, J. The defendants, Karen Condron and James
L. Condron,1 appeal from the judgment of strict foreclo-
sure rendered by the trial court in favor of the plaintiff
Nationstar Mortgage, LLC.2 On appeal, the defendants
claim that the court improperly rendered judgment of
strict foreclosure because (1) the plaintiff failed to sat-
isfy a contractual condition precedent to foreclosure,
namely, compliance with the requirement of notifica-
tion by mail specified in the mortgage deed;3 (2) the
plaintiff failed to satisfy a statutory condition prece-
dent, as required by the Emergency Mortgage Assis-
tance Program (mortgage program) pursuant to the
provisions of General Statutes § 8-265ee (a); and (3)
the plaintiff lacked the authority to foreclose. The judg-
ment is reversed and the case is remanded with direc-
tion to dismiss the action.
The following facts and procedural history are rele-
vant to the present appeal. On February 16, 2007, the
defendants executed and delivered an adjustable rate
promissory note (note) payable to the order of Lehman
Brothers Bank, FSB (bank), in the original principal
amount of $980,000. The loan was secured by a mort-
gage (mortgage deed) on the property. The mortgage
deed was executed and delivered on February 16, 2007,
to Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for the bank. The bank specially
endorsed the note to Lehman Brothers Holdings, Inc.,
which endorsed the note in blank.
On March 1, 2007, Aurora Loan and Lehman Brothers
Holdings, Inc., entered into a written servicing
agreement (servicing agreement). Structured Asset
Securities Corporation, Wells Fargo Bank, N.A. (Wells
Fargo), and Aurora Loan entered into a written trust
agreement, dated March 1, 2007 (trust agreement).
Under the trust agreement, the defendants’ note and
mortgage deed became part of the trust. Wells Fargo,
as trustee, is the owner of the debt under the trust
agreement. Aurora Loan, or any successor in interest,4
is identified in the trust agreement as the master ser-
vicer and as a servicer.5 MERS, as nominee for the bank,
assigned the mortgage deed to Aurora Loan by virtue
of a corporate assignment of the mortgage deed.
The defendants have been in default on the note and
mortgage deed since at least May 1, 2009. On June 19,
2009, Aurora Loan, as the servicer of the loan at the
time, sent a letter to the defendants, by certified mail,
return receipt requested, notifying them that the loan
was in default and advising them of the amount required
to cure the default and reinstate the loan as of that
date. On the same date, Aurora Loan also provided
notice to the defendants by certified mail of their rights
under the mortgage program, pursuant to the provisions
of General Statutes §§ 8-265cc through 8-265kk. The
defendants failed to cure the default and Aurora Loan
elected to accelerate the balance due on the note,
declare the note due in full, and foreclose the mortgage
deed securing the note. Aurora Loan commenced the
present foreclosure action against the defendants on
November 19, 2009. Aurora Loan assigned the mortgage
to the plaintiff by virtue of a corporate assignment of
mortgage on June 29, 2012. On August 22, 2012, Wells
Fargo, as trustee, provided a limited power of attorney
to the plaintiff, as assignee of Aurora Loan. The plaintiff
was in possession of the note and presented it to the
court and to the defendants’ counsel for inspection at
the foreclosure trial. On April 8, 2013, Aurora Loan
moved to substitute Nationstar Mortgage, LLC, as the
plaintiff in the present action, and the court granted
the motion to substitute on May 1, 2013.
The action was tried to the court on August 25, 2015.
At trial, the defendants claimed that they did not receive
either the default notice or the mortgage program notice
from Aurora Loan. No evidence was offered by either
party to show that the mortgage program notice or the
default notice had been returned to Aurora Loan by the
United States Postal Service (USPS) with an endorse-
ment showing failure of delivery. In addition, no evi-
dence was offered of a return receipt confirming actual
delivery. In its memorandum of decision, the court con-
cluded that (1) the plaintiff had standing to prosecute
the present foreclosure action; (2) the plaintiff had
proven compliance with the notice provisions of the
mortgage deed by a preponderance of the evidence;
(3) the plaintiff had proven by a preponderance of the
evidence that the mortgage program notice was sent
to the defendants by certified mail on June 19, 2009;
and (4) the plaintiff was entitled to a judgment of strict
foreclosure against the defendants. On appeal, the
defendants challenge the propriety of that decision.
Additional facts will be provided as necessary.
I
We first address the issue of standing because an
absence of subject matter jurisdiction would deprive
this court of the opportunity to review any other matters
raised in the present appeal. See Wells Fargo Bank,
N.A. v. Henderson, 175 Conn. App. 474, 481, 167 A.3d
1065 (2017). The defendants claim that the plaintiff
failed to demonstrate that it had standing to foreclose
because the plaintiff does not own the note and the
note’s owner, Wells Fargo, as trustee, did not authorize
the plaintiff to foreclose in its own name. The plaintiff
maintains that it has standing to foreclose in its own
name because it was the holder of the note and it pro-
vided sufficient evidence of its authority to foreclose.
We agree with the plaintiff.
‘‘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 matter jurisdiction to determine the
cause. . . . Our review of this question of law is ple-
nary.’’ (Citations omitted; internal quotation marks
omitted.) J.E. Robert Co. v. Signature Properties, LLC,
309 Conn. 307, 318, 71 A.3d 492 (2013).
‘‘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 added; internal quotation marks omit-
ted.) Wells Fargo Bank, N.A. v. Henderson, supra, 175
Conn. App. 483.
‘‘[I]n defending against an action to enforce a note, a
debtor may be able to produce evidence demonstrating
that the plaintiff, who might otherwise appear to be
entitled to enforce the debt nevertheless lacks standing,
perhaps because ownership of the debt has passed to
another party.’’ J.E. Robert Co. v. Signature Properties,
LLC, supra, 309 Conn. 325. ‘‘[I]t is the foreclosing party’s
burden, when the issue of standing is raised, to demon-
strate by way of proper documentation that it has the
right to enforce the note. It may, for example, produce
documents showing a valid transfer of the right to
enforce the note between the original holder and the
foreclosing party.’’ U.S. Bank, National Assn. v. Schaef-
fer, 160 Conn. App. 138, 150–51, 125 A.3d 262 (2015).
In the present case, Aurora Loan, the original plaintiff,
was the holder of the note when it commenced the
present action in November, 2009. Aurora Loan
assigned its rights, title, and interest in the mortgage
deed to the plaintiff by a corporate assignment of the
mortgage on June 29, 2012. As a result, the court granted
Aurora Loan’s motion to substitute Nationstar Mort-
gage, LLC, as the plaintiff in the present action, and the
plaintiff is now the holder of the note endorsed in blank.
The plaintiff presented the note to the court at the
foreclosure trial. According to the trust agreement,
however, Wells Fargo is the owner of the debt.
The issue is whether the plaintiff, despite not owning
the note, demonstrated that it had the authority to fore-
close on the mortgage deed securing the note. See
American Home Mortgage Servicing, Inc. v. Reilly, 157
Conn. App. 127, 134, 117 A.3d 500, cert. denied, 317
Conn. 915, 117 A.3d 854 (2015). ‘‘[A] plaintiff, in estab-
lishing the loan servicer’s authority to enforce the
instrument, must provide sufficient evidence of such
authority to demonstrate that the principals unequivo-
cally manifested their intention to authorize [the loan
servicer] to exercise [those] rights . . . .’’ (Internal
quotation marks omitted.) J.E. Robert Co. v. Signature
Properties, LLC, supra, 309 Conn. 328 n.19.
The defendants argue that the plaintiff failed to pre-
sent evidence of an unequivocal manifestation of intent
for Wells Fargo to authorize the plaintiff to foreclose
on the mortgage deed.6 The plaintiff provided evidence
of the trust agreement, the servicing agreement, the
limited power of attorney, and the testimony of Keith
Kovalic, a litigation resolution analyst for the plaintiff.
On the basis of that evidence, the trial court held that
the plaintiff satisfied its burden of proving that it had
standing to foreclose the mortgage deed.
Our review of that evidence supports the trial court’s
findings and conclusion on the issue of standing. The
plaintiff presented to the court the trust agreement and
Kovalic testified as to the contents of the trust
agreement, which pertained to Wells Fargo’s authoriza-
tion for the plaintiff to enforce the debt.7 The trust
agreement defines ‘‘Master Servicers’’ as ‘‘[Aurora
Loan], or any successor in interest, or if any successor
master servicer shall be appointed as herein provided,
then such successor master servicer.’’ The plaintiff is,
accordingly, a ‘‘Master Servicer’’ as defined by the trust
agreement because the parties have stipulated to the
fact that the plaintiff is a successor in interest to
Aurora Loan.
Section 9.04 (a) of the trust agreement provides in
pertinent part that a Master Servicer ‘‘shall have full
power and authority (to the extent provided in the appli-
cable Servicing Agreement) to do any and all things
that it may deem necessary or desirable in connection
with the servicing and administration of the Mortgage
Loans, including but not limited to the power and
authority . . . to effectuate foreclosure or other con-
version of the ownership of the Mortgaged Property
securing any Mortgage Loan . . . .’’8
Moreover, Wells Fargo, as trustee, provided a limited
power of attorney to the plaintiff. The limited power
of attorney provided that the plaintiff has ‘‘full authority
and power to execute and deliver on behalf of the
Trustee . . . all documents and instruments necessary
to conduct any (a) foreclosure, or (b) the taking of any
deed in lieu of foreclosure, or (c) any judicial or non-
judicial foreclosure or termination, cancellation, or
rescission of any such foreclosure, or (d) any similar
procedure (collectively, as applicable, a ‘Foreclo-
sure’) . . . .’’
The record supports the trial court’s finding that
Wells Fargo unequivocally manifested its intention to
authorize the plaintiff to exercise its rights to enforce
the debt. Accordingly, we conclude that the plaintiff
had standing to maintain the foreclosure action.
II
The defendants next claim that the court improperly
determined that Aurora Loan satisfied a contractual
condition precedent to the commencement of the pre-
sent foreclosure action regarding notification by mail
because (1) Kovalic’s testimony about certain docu-
ments not in evidence was inadmissible hearsay and,
as a result, there is no proof of mailing; (2) the notice
was not sent by first class mail and, therefore, requires
proof of actual delivery; and (3) there was no substantial
compliance with the notice provision because there
was no notice at all. We address each claim in turn.
A
The defendants claim that Kovalic’s testimony regard-
ing the contents of business records that were not in
evidence is inadmissible hearsay. Kovalic testified that
he reviewed notes in the file, which indicated that the
default letter was sent.9 The notes themselves were
not introduced into evidence. As such, the defendants’
counsel objected to the testimony as inadmissible hear-
say, but was overruled. The defendants now challenge
that evidentiary ruling.
‘‘The standard under which we review evidentiary
claims depends on the specific nature of the claim pre-
sented. . . . To the extent a trial court’s admission of
evidence is based on an interpretation of [law], our
standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit evidence, if premised on a correct view of the
law, however, for an abuse of discretion. . . . In other
words, only after a trial court has made the legal deter-
mination that a particular statement is or is not hearsay,
or is subject to a hearsay exception, is it vested with
the discretion to admit or to bar the evidence based
upon relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought.’’ (Citations omitted; internal
quotation marks omitted.) State v. Smith, 289 Conn.
598, 617–18, 960 A.2d 993 (2008).
‘‘An out-of-court statement offered to prove the truth
of the matter asserted in the statement is hearsay. . . .
Unless subject to an exception, hearsay is inadmissi-
ble.’’ (Citation omitted.) Connecticut Bank & Trust Co.,
N.A. v. Reckert, 33 Conn. App. 702, 708, 638 A.2d 44
(1994). In his testimony, Kovalic referenced the content
of notes which were part of computer records that were
not offered into evidence.10 Those notes, which were
offered to prove that the default letter was sent, are
out-of-court statements offered to prove the truth of
the matter asserted. See Bell Food Services, Inc. v.
Sherbacow, 217 Conn. 476, 488–89, 586 A.2d 1157 (1991);
see also New England Savings Bank v. Bedford Realty
Corp., 238 Conn. 745, 757, 680 A.2d 301 (1996). As such,
they are inadmissible hearsay in the absence of any
exception.
That determination, however, does not end our analy-
sis. ‘‘It is well established that before a party is entitled
to a new trial because of an improper evidentiary ruling,
that party has the burden of establishing that the
improper ruling was harmful. . . . When determining
that issue in a civil case, the applicable standard is
whether the improper ruling would likely affect the
result. . . . If the improperly admitted testimony is
merely cumulative of other evidence presented in the
case, its admission does not constitute reversible error.’’
(Citations omitted; internal quotation marks omitted.)
Doe v. Thames Valley Council for Community Action,
Inc., 69 Conn. App. 850, 866–67, 797 A.2d 1146, cert.
denied, 261 Conn. 906, 804 A.2d 212 (2002).
We look to the record to determine whether Kovalic’s
testimony regarding the notation in the file likely would
have affected the outcome or whether it was merely
cumulative of properly admitted evidence that notice
was sent by certified mail. See Swenson v. Sawoska,
215 Conn. 148, 153, 575 A.2d 206 (1990). In this regard,
we note that the defendants do not contest the admissi-
bility of the default letter or Kovalic’s testimony about
the notations on the letter itself.
During trial, Kovalic reviewed the default letter and
testified that the default letter itself revealed that it was
sent by certified mail. Based on his review of the file
and his familiarity with industry practice, Kovalic testi-
fied as to the appearance of the default letter and noted
significant markings on the letter that indicated that it
was sent by certified mail. As he stated: ‘‘[Y]ou’ve got,
obviously, this was a letter that was generated to be
sent and you know it has these dotted lines that would
have been trifold, similar to say a W-2 tax form, says
it was sent by certified mail, it has a tracking number,
that tracking number is also on the flip side on the
return receipt, same tracking number, and on both the
return letter to [Aurora Loan] and to [the defendants].
So, I mean, using those three pieces of information right
there, in addition to everything I’ve reviewed on my
system, which is volumes of paperwork, thousands and
thousands of pages of internal notes from [the plaintiff],
previous notes from Aurora [Loan], all that, looking at
this letter I can say that it was sent by certified mail,
and it’s all right here, this is exactly what was sent,
what was generated, folded along the lines, and sent.’’11
In light of (1) the letter and (2) Kovalic’s testimony
regarding notations on the letter and industry practice,
we conclude that Kovalic’s testimony regarding the
notations in the file was merely cumulative. We are,
therefore, satisfied that the court’s improper admission
of Kovalic’s testimony regarding the notations in the
file was harmless and the plaintiff has proved by a
preponderance of the evidence that the notice of default
letter was sent to the defendants.
B
We next consider whether the court properly deter-
mined that Aurora Loan complied with the requirement
of notification by mail contained in the mortgage instru-
ments. In its memorandum of decision, the court con-
cluded that certified mail that is sent with a return
receipt requested qualifies as ‘‘first class mail’’ for which
notice is ‘‘deemed to have been given to Borrower when
mailed,’’ pursuant to § 15 of the mortgage deed. The
defendants now challenge the propriety of that determi-
nation.
We begin by noting that the mortgage deed contains
a condition precedent to a foreclosure proceeding. Sec-
tion 22 of the mortgage deed provides in relevant part:
‘‘Lender shall give notice to Borrower prior to accelera-
tion following Borrower’s breach of any covenant or
agreement in this Security Instrument . . . . The
notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not less than
[thirty] days from the date the notice is given to Bor-
rower, by which the default must be cured; and (d) that
failure to cure the default on or before the date specified
in the notice may result in acceleration of the sums
secured by this Security Instrument and foreclosure or
sale of the Property. . . .’’ (Emphasis added.) The
intent of such notice of default provisions is to inform
‘‘mortgagors of their rights so that they may act to
protect them.’’ Fidelity Bank v. Krenisky, 72 Conn.
App. 700, 710, 807 A.2d 968, cert. denied, 262 Conn. 915,
811 A.2d 1291 (2002).
‘‘A promissory note and a mortgage deed are deemed
parts of one transaction and must be construed together
as such.’’ (Internal quotation marks omitted.) Id., 707.
‘‘The use of shall in the note creates a condition prece-
dent that must be satisfied prior to foreclosure. . . .
The condition precedent under the note is the notice
of the default . . . .’’ (Internal quotation marks omit-
ted.) Bank of America, FSB v. Hanlon, 65 Conn. App.
577, 582, 783 A.2d 88 (2001); see also Fidelity Bank v.
Krenisky, supra, 710 (‘‘when the terms of the note and
mortgage require notice of default, proper notice is a
condition precedent to an action for foreclosure’’ [inter-
nal quotation marks omitted]). Pursuant to § 22 of the
mortgage deed, Aurora Loan was required to give notice
of default to the defendants prior to commencing the
present foreclosure action. As a result, we must deter-
mine whether the court properly determined that
Aurora Loan complied with the notice requirement.12
To answer that question, we must construe § 15 of the
mortgage deed, which governs the method of delivery
of the default notice. Section 15 provides that ‘‘[a]ll
notices given by Borrower or Lender in connection with
this Security Instrument must be in writing. Any notice
to Borrower in connection with this Security Instrument
shall be deemed to have been given to Borrower when
mailed by first class mail or when actually delivered
to Borrower’s notice address if sent by other means.’’
(Emphasis added.) Accordingly, a default notice sent
by first class mail is entitled to a presumption of receipt,
while notices sent by other means are not entitled to
such a presumption. Rather, proof of actual delivery is
required by the mortgage deed when the notice is sent
by other means.
We already have concluded that the trial court prop-
erly determined that the notice of default letter was
sent to the defendants by certified mail. See part II A of
this opinion. Throughout this litigation, the defendants
have argued that they ‘‘did not receive either the default
notice, required by the mortgage, or the [mortgage pro-
gram] notice.’’ At trial, the plaintiff did not present any
evidence of actual delivery of the default notice, nor
was the return receipt that Aurora Loan requested fur-
nished to the court. The question, then, is whether send-
ing the default notice letter by certified mail without
proof of the requested return receipt carries the pre-
sumption of receipt afforded to first class mail or
whether certified mail is notice ‘‘by other means’’ requir-
ing proof of actual delivery.
We begin with the relevant legal authority and stan-
dard of review. ‘‘It is well established that [n]otices of
default and acceleration are controlled by the mortgage
documents. Construction of a mortgage deed is gov-
erned by the same rules of interpretation that apply to
written instruments or contracts generally, and to deeds
particularly. The primary rule of construction is to
ascertain the intention of the parties. This is done not
only from the face of the instrument, but also from the
situation of the parties and the nature and object of
their transactions. . . . A promissory note and a mort-
gage deed are deemed parts of one transaction and
must be construed together as such. . . .
‘‘In construing a deed, a court must consider the
language and terms of the instrument as a whole. . . .
Moreover, the words [in the deed] are to be given their
ordinary popular meaning, unless their context, or the
circumstances, show that a special meaning was
intended. . . .
‘‘In construing a contract, the controlling factor is
normally the intent expressed in the contract, not the
intent which the parties may have had or which the
court believes they ought to have had. . . . Where . . .
there is clear and definitive contract language, the scope
and meaning of that language is not a question of fact
but a question of law. . . . In such a situation our scope
of review is plenary, and is not limited by the clearly
erroneous standard.’’ (Citations omitted; internal quota-
tion marks omitted.) Fidelity Bank v. Krenisky, supra,
72 Conn. App. 706–707.
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . If the language of the con-
tract is susceptible to more than one reasonable inter-
pretation, the contract is ambiguous.’’ (Internal
quotation marks omitted.) Perez v. Carlevaro, 158 Conn.
App. 716, 723, 120 A.3d 1265 (2015). ‘‘Ordinarily, such
ambiguity requires the use of extrinsic evidence by a
trial court to determine the intent of the parties, and,
because such a determination is factual, it is subject
to reversal on appeal only if it is clearly erroneous.’’
Bristol v. Ocean State Job Lot Stores of Connecticut,
Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007).
In the present case, even though there is arguably
some ambiguity in the mortgage deed, the record con-
tains no extrinsic evidence as to the conduct of the
parties to the mortgage instruments in question, or their
intent in agreeing thereto. Thus, the trial court’s deter-
mination of the parties’ intent was based solely on the
language of the mortgage deed and did not involve the
resolution of any evidentiary issues of credibility.13 Id.,
7–8. Accordingly, our review of the trial court’s interpre-
tation of the mortgage deed involves a question of law
over which our review is plenary. Id., 8.
At the outset, we note a critical difference between
first class and certified mail. When a letter is sent by
certified mail, there are additional steps that the recipi-
ent must perform to receive the letter compared to first
class mail.14 United States Postal Service, Domestic Mail
Manual: Mailing Standards of the United States Postal
Service 508.1.1.7 (May 11, 2009), available at https://
pe.usps.com/Archive/PDF/DMMArchive20090511/
508.pdf (last visited March 21, 2018). If the intended
recipient is not available at the time a mail carrier
attempts to deliver the letter, a notice of attempted
delivery is left at the recipient’s address and the mail
is returned to the post office. Id., 508.1.1.7. The recipient
has a limited period of time to retrieve the certified
mail letter from the post office before it is returned to
the sender. Id., 508.1.1.7.
At trial, the plaintiff’s witness, Kovalic, acknowledged
that critical distinction between certified mail and first
class mail. He stated: ‘‘[E]ven though we’re only
required to send by first class, in an effort to be more
thorough and make sure regulatory things, briefs, let-
ters, demand letters, acceleration letters, they’re only
required to be sent by first class mail, but we send them
by certified mail in order to have an extra layer of
security there. Plus, you don’t want your neighbors to
open up your mail, just throw it in your mailbox, you
want your mailman to give you something like a notice
like that personally. . . . If you have a mailbox any-
body can open your mailbox and pull your mail out.
You’re delivering something by certified mail, the mail-
man has to hand it to you or you have to go to the post
office and personally pick it up . . . an agent or the
addressee . . . are the only people that can pick it up.’’
In considering the express language of the mortgage
deed, the two types of mailings underscore what other
jurisdictions have identified as the effective difference
between the two mailings. First class mail enjoys a
presumption of actual delivery, while other mailing ser-
vices, to effect their purpose, necessarily require proof
of actual delivery. Various courts in this country have
noted such a distinction between first class and certified
mail, including the United States Supreme Court. In
Jones v. Flowers, 547 U.S. 220, 237, 126 S. Ct. 1708, 164
L. Ed. 2d 415 (2006), the United States Supreme Court
recognized that the use of certified mail for official
notices may have significant benefits for governmental
agencies, because ‘‘[u]sing certified mail provides the
State with documentation of personal delivery and pro-
tection against false claims that notice was never
received.’’ Id. Of great significance to the present appeal
is the court’s observation that ‘‘the use of certified mail
might make actual notice less likely in some cases—
the letter cannot be left like regular mail to be examined
at the end of the day, and it can only be retrieved from
the post office for a specified period of time.’’ Id., 235.
Other courts have similarly acknowledged a distinc-
tion between first class mail and certified mail. In In
re Frazier, 394 B.R. 399, 400 (Bankr. E.D. Va. 2008),
the court expounded on the method of delivery for
certified mail. It stated: ‘‘Certified mail is an additional
service available for first class mail. First class mail is
simply delivered to the address. The addressee need
not be home. In fact, the postal service does not usually
make any effort to determine whether anyone is at
home. It simply leaves the mail in the mailbox. . . .
Certified mail, return receipt requested, tends to reduce
later challenges by showing that the mail was actually
delivered to the address of record and that the defen-
dant had actual notice of the proceeding because the
defendant must sign for the mail in order to receive it.
It is understandable that plaintiffs like this additional
assurance; however, the drawback is that if the defen-
dant is not home, the summons and complaint may
never be delivered to him.’’ Id., 400–401; see also In re
Eleva, Inc., United States District Court, Docket No.
2:00CV178K (D. Utah April 17, 2000) (‘‘Because there
are differences between first class and certified mail
[i.e., certified mail requires an affirmative act by a defen-
dant to obtain an unidentified package that is being
held by the post office, and the plaintiff receives actual
notice regarding whether the defendant actually
received the package], this court finds that service by
certified mail is not sufficient, unless the defendant
actually receives the mail’’); In re Sheffer, 440 B.R. 121,
122 (Bankr. E.D. Va. 2009) (‘‘The Federal Rules of Bank-
ruptcy Procedure permit service by first class mail on
debtors. First class mail, however, is not the same as
certified mail. Certified mail imposes additional obliga-
tions and the mail may not be received timely by the
named recipient.’’).
We acknowledge that some courts do not distinguish
between certified mail and first class mail, relying on
the proposition that certified mail is a form of first class
mail. See Gossett v. Federal Home Loan Mortgage Corp.,
919 F. Supp. 2d 852, 859 (S.D. Tex. 2013) (‘‘[a]ctual
receipt of the notice is not necessary’’ [internal quota-
tion marks omitted]); Session v. Director of Revenue,
417 S.W.3d 898, 903 (Mo. App. W.D. 2014) (‘‘[c]ertified
mail is a form of first class mail and, therefore, [the
plaintiff] received notice by first class mail’’). Those
cases, however, are not persuasive to the extent that
they fail to address the manner of delivery when certi-
fied mail is utilized.
In construing the language used in § 15 of the mort-
gage deed and its requirement to show actual delivery
for services other than first class mail, we are therefore
persuaded by the cases that consider the effect of mail
sent by certified mail versus first class mail. For exam-
ple, in cases arising in the context of a foreclosure
proceeding, the Court of Appeals of Ohio held that ‘‘no
presumption of delivery arose’’ where the plaintiff failed
to comply with the notice requirement in the context
of a foreclosure proceeding because the plaintiff ‘‘did
not mail a notice of default by ordinary mail, either
contemporaneously with its certified-mail notice or
after return of the certified-mail envelope.’’ National
City Mortgage Co. v. Richards, 182 Ohio App. 3d 534,
545, 913 N.E.2d 1007 (2009). The court in National City
Mortgage Co. noted: ‘‘[The plaintiff] did not send the
notice of default via first class mail. Instead, it sent
the written notice of default by certified mail to [the
defendant] at the property address.’’ Id., 544. Courts in
other jurisdictions have also held that where a statute
or insurance policy requires that notice of cancellation
of the policy be ‘‘mailed,’’ notice sent by certified mail
or registered mail does not comply with the ‘‘mailing’’
requirement, but instead constitutes an attempt at
actual delivery, which is effective only upon receipt.
See, e.g., Cornhusker Casualty Ins. Co. v. Kachman,
514 F.3d 982, 987–88 (9th Cir. 2008) (‘‘a majority of
other jurisdictions that have considered whether certi-
fied mail qualifies as mail for purposes of notice of
insurance cancellation have held that notice sent by
certified mail, when not actually received, is insufficient
to effect cancellation’’); Cornhusker Casualty Ins. Co.
v. Kachman, 165 Wash. 2d 404, 411, 198 P.3d 505 (2008)
(‘‘Since certified mail requires more of the insured to
effect delivery of a notice of cancellation, it does not
satisfy the ‘mailed’ prong of the statute. Certified mail,
as a request of the United States post office to actually
deliver a letter to the insured, falls under the ‘actually
delivered’ prong of [the statute].’’ [Emphasis omitted.]).
We also are unpersuaded by the plaintiff’s invocation
of the mailbox rule to substantiate its construction of
the presumption contained in § 15 of the mortgage deed.
That contractual presumption appears to correspond
with the common-law presumption known as the ‘‘mail-
box rule,’’ which provides that ‘‘a properly stamped and
addressed letter that is placed into a mailbox or handed
over to the United States Postal Service raises a rebutta-
ble presumption that it will be received.’’ Echavarria
v. National Grange Mutual Ins. Co., 275 Conn. 408,
418, 880 A.2d 882 (2005). As the trial court acknowl-
edged, our court, in Daniels v. Statewide Grievance
Committee, 72 Conn. App. 203, 211–12, 804 A.2d 1027
(2002), has applied the mailbox rule to certified mail
in the context of a grievance proceeding. The plaintiff
in that case failed to respond to a grievance complaint.
Id., 207. The notice of the complaint was sent by certi-
fied mail, but there was an absence of a copy of the
return receipt in the record. Id., 208. The court held
that ‘‘the mailing of a properly addressed letter creates
a presumption of timely notice unless contrary evidence
is presented. . . . In attempting to rebut the presump-
tion, the plaintiff offered no evidence to support his
allegation that he did not receive a copy of the complaint
except his own testimony that he was having trouble
getting mail delivered and the absence of a copy of the
certified mail receipt in the record.’’ (Citations omitted.)
Id., 211–12. As such, the court held that the plaintiff
failed to overcome the presumption of timely notice.
Id., 212.
It nevertheless remains that the presumption at issue
in the present case arises in the contractual context—
namely, a mortgage agreement. It is well established
that a ‘‘contract must be viewed in its entirety, with
each provision read in light of the other provisions
. . . .’’ (Internal quotation marks omitted.) Nation-Bai-
ley v. Bailey, 316 Conn. 182, 192, 112 A.3d 144 (2015).
The plain intent of the notification requirements set
forth in §§ 15 and 22 of the mortgage deed is to provide
notice of a default to a mortgagee prior to the com-
mencement of a foreclosure proceeding. Those notifica-
tion requirements are not mere formalities but, rather,
constitute a condition precedent to the commencement
of foreclosure actions like the present case. See Fidelity
Bank v. Krenisky, supra, 72 Conn. App. 710 (‘‘when the
terms of the note and mortgage require notice of default,
proper notice is a condition precedent to an action for
foreclosure’’ [internal quotation marks omitted]). That
context distinguishes the present case from numerous
decisions, such as Daniels v. Statewide Grievance
Committee, supra, 72 Conn. App. 203, addressing the
presumption of mail delivery. When properly viewed in
that context, the additional restrictions imposed on the
delivery of first class mail by certified mail; see footnote
14 of this opinion; which make actual delivery ‘‘less
likely’’ in many cases; Jones v. Flowers, supra, 547 U.S.
235; compels the conclusion that certified mail is prop-
erly construed as ‘‘other means’’ of mail service, for
which actual delivery is required under § 15 of the mort-
gage deed. Accordingly, we conclude that the notice
sent by Aurora Loan to the defendants in 2009 was done
so ‘‘by other means.’’ Section 15 of the mortgage deed
thus indicates that the notice is ‘‘deemed to have been
given to Borrower . . . when actually delivered to Bor-
rower’s notice address . . . .’’
The plaintiff has failed to submit a return receipt or
any other evidence into the record to prove that the
notice of default was actually delivered to the defen-
dants by certified mail. The court, therefore, improperly
determined that the plaintiff satisfied its burden of proof
pursuant to § 15 of the mortgage deed to establish that
Aurora Loan complied with the notification require-
ments in the present case.
C
We next consider the plaintiff’s alternative argument
that Aurora Loan substantially complied with the notice
of default provision when it sent the notice of default
letter by certified mail. The trial court applied the doc-
trine of substantial compliance and concluded that
Aurora Loan had substantially complied with the provi-
sions of § 15 of the mortgage deed when it sent the
default letter to the defendants by certified mail. The
doctrine of substantial compliance, however, is not
appropriate in the present case.
We first set out our standard of review for the plain-
tiff’s substantial compliance claim. ‘‘To the extent that
the trial court has made findings of fact, our review is
limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Johnson
Electric Co. v. Salce Contracting Associates, Inc., 72
Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262
Conn. 922, 812 A.2d 864 (2002). ‘‘Whether a party to a
contract substantially performs its obligations thereun-
der is ordinarily a question of fact to be determined by
the fact finder. . . . Substantial performance occurs
when, although the conditions of the contract have been
deviated from in trifling particulars not materially
detracting from the benefit the other party would derive
from a literal performance, [the defendants have]
received substantially the benefit [they] expected, and
[are], therefore, bound to [perform].’’ (Citation omitted;
internal quotation marks omitted.) Pack 2000, Inc. v.
Cushman, 311 Conn. 662, 685, 89 A.3d 869 (2014).
Our Supreme Court in Pack 2000, Inc., identified the
well established principles that guide our analysis of the
plaintiff’s substantial compliance claim. ‘‘[T]he general
rule with respect to compliance with contract terms
. . . is not one of strict compliance, but substantial
compliance. . . . The doctrine of substantial compli-
ance is closely intertwined with the doctrine of substan-
tial performance. . . . The doctrine of substantial
performance shields contracting parties from the harsh
effects of being held to the letter of their agreements.
Pursuant to the doctrine of substantial performance, a
technical breach of the terms of a contract is excused,
not because compliance with the terms is objectively
impossible, but because actual performance is so simi-
lar to the required performance that any breach that
may have been committed is immaterial.’’ (Citations
omitted; internal quotation marks omitted.) Id., 675.
We recently discussed the doctrine of substantial
compliance in 21st Century North America Ins. Co. v.
Perez, 177 Conn. App. 802, 815, 173 A.3d 64 (2017), cert.
denied, 327 Conn. 995, 175 A.3d 1246 (2018). ‘‘[T]he
proper application of the doctrine of substantial perfor-
mance requires a determination as to whether the con-
tractual breach is material in nature. . . . [T]he
doctrine of substantial performance applies only where
performance of a nonessential condition is lacking, so
that the benefits received by a party are far greater than
the injury done to him by the breach of the other party.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id.
The plaintiff relies on three Appellate Court decisions
to support the proposition that the doctrine of substan-
tial compliance applies in the context of compliance
with the method of mailing identified in the notice of
default provision, i.e., the contractual condition prece-
dent to foreclosure. See Mortgage Electronic Registra-
tion Systems, Inc. v. Goduto, 110 Conn. App. 367, 955
A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420
(2008); Twenty-Four Merrill Street Condominium
Assn., Inc. v. Murray, 96 Conn. App. 616, 902 A.2d 24
(2006); Fidelity Bank v. Krenisky, supra, 72 Conn. App.
700.15 Those cases cited are factually distinguishable,
as they all involved the application of the doctrine of
substantial compliance to the contents of the notice
itself. In each instance, the notice of default was actually
received by the defendants.
In the present case, there is no evidence in the record
that the notice of default was actually received as a
result of the notice sent by certified mail. In fact, the
defendants alleged that they never received the notice.
The plaintiff now asks for us to apply the doctrine of
substantial compliance to the method of mailing and
the corresponding proof required to establish that the
notice was received by the defendants. While we
acknowledge the doctrine of substantial compliance
applies in the context of reviewing the substance of the
default notice, we decline to apply the doctrine where
there is a contractual provision requiring proof of actual
delivery for a notice of default sent by certified mail,
return receipt requested, and there is no evidence that
the defendants actually received the notice of default.
Accordingly, the plaintiff failed to satisfy the contrac-
tual condition precedent to foreclosure because it failed
to prove that the defendants received the notice of
default letter.
III
The defendants’ final claim is that a statutory condi-
tion precedent to the action failed because the plaintiff
failed to introduce into evidence the certified mail
receipt confirming that the mortgage program notice
required by § 8-265ee (a) was actually delivered by certi-
fied mail. We note that, similar to the default notice,
the defendants do not claim that the admission of the
mortgage program notice into evidence was improper.
Rather, the defendants claim that § 8-265ee (a) requires
proof of actual delivery by certified mail and the plaintiff
failed to meet that requirement. We disagree with the
defendants’ interpretation of the statute.
We begin our review with the relevant standard of
review. ‘‘To the extent that our review requires us to
construe statutory provisions, this presents a legal ques-
tion over which our review also is plenary. . . . That
review is guided by well established principles of statu-
tory interpretation. . . . As with all issues of statutory
interpretation, we look first to the language of the stat-
ute. . . . In construing a statute, common sense must
be used and courts must assume that a reasonable and
rational result was intended.’’ (Citation omitted; inter-
nal quotation marks omitted.) Washington Mutual
Bank v. Coughlin, 168 Conn. App. 278, 288, 145 A.3d
408, cert. denied, 323 Conn. 939, 151 A.3d 387 (2016).
Section 8-265ee (a) provides in relevant part: ‘‘On and
after July 1, 2008, a mortgagee who desires to foreclose
upon a mortgage which satisfies the standards con-
tained in subdivisions (1), (9), (10) and (11) of subsec-
tion (e) of section 8-265ff, shall give notice to the
mortgagor by registered, or certified mail, postage pre-
paid at the address of the property which is secured
by the mortgage. No such mortgagee may commence
a foreclosure of a mortgage prior to mailing such notice.
. . .’’ (Emphasis added.)
The defendants essentially argue that the language
of § 8-265ee (a) requires that the plaintiff submit a proof
of mailing receipt from the United States Post Office to
satisfy the statutory condition precedent to foreclosure.
The plain language of § 8-265ee (a) contains no such
requirement. Section 8-265ee (a) provides that ‘‘a mort-
gagee . . . shall give notice to the mortgagor by regis-
tered, or certified mail . . . .’’ The defendants fail to
cite case law in support of their interpretation of the
statute and we decline to extend the requirements of
the statute beyond the plain language to require proof
of actual delivery. As one Superior Court judge recently
noted, ‘‘§ 8-265ee (a) does not require the mailing by
return receipt requested.’’ Bank of America, N.A. v.
Robles, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CV-09-5011137-S (February 16,
2017).
The defendants also appear to challenge the admissi-
bility of Kovalic’s testimony regarding the ‘‘notes’’ in
the files that identified that the mortgage program
notice was sent. Similar to our analysis in part II A
of this opinion, the admission of Kovalic’s testimony
regarding his review of the record and the notes in the
file was harmless because the evidence was cumulative.
In addition, Kovalic testified as to other indications that
revealed that the mortgage program notice had been
sent, including ‘‘a tracking number for the mail under
the barcode at the top.’’ Further, Kovalic testified as
to his understanding of the mailing of the mortgage
program letter as follows:
‘‘[The Plaintiff’s Counsel]: Now, is your understand-
ing that the record of this document in DocTrack is
it—would it be generated in a similar [way] as it would
[the default notice]?
‘‘[Kovalic]: It would be the exact same thing and that’s
why the dates are important, because these letters, and
I apologize as I’m not an attorney in the state of Connect-
icut, but these letters are traditionally, to the best of
knowledge, sent at the same time and are required to
be sent at or around the same time period.
‘‘So just like the demand letter would have been gen-
erated, printed, folded by a machine, put in an envelope,
and sent. [The mortgage program notice] would have
been generated the same way. This is not a personalized
letter, per se, somebody didn’t sit and type this out
word for word just like they didn’t with the demand
letter. There’s certain information that’s put into a sys-
tem to generate this.
‘‘And on [the default notice], I mean, there’s—it basi-
cally it tells you that the mail has already been paid
for, you know, that’s usually not stamped unless it’s
been paid. So, you know, from my review of the file I
can ascertain that this went to the homeowners roughly
through that same process of being printed, of being
generated, folded in the mailroom, put in an envelope.
All this is done mechanically, and has been for years,
and was sent—was put in the mail.’’
As a result, the record supports the trial court’s find-
ing that the mortgage program notice was sent by certi-
fied mail. The statute does not require a return receipt
and the lack of a return receipt in the record does
not affect the plaintiff’s compliance with the statute.
Accordingly, the plaintiff has satisfied this statutory
condition precedent to foreclosure.
The judgment is reversed and the case is remanded
with direction to render judgment in favor of the
defendants.
In this opinion the other judges concurred.
1
Subsequent encumbrancers were also named as defendants in the trial
court including National City Bank (National City), People’s United Bank
(People’s United), formerly known as People’s Bank, and Rosenthal & Rosen-
thal, Inc. (Rosenthal). Defaults were entered against People’s United, Rosen-
thal, and National City. In this opinion, we refer to Karen Condron and
James L. Condron as the defendants.
2
Aurora Loan Services, LLC (Aurora Loan), commenced this action to
foreclose a mortgage on real property owned by the defendants and located
at 92 Chestnut Hill Road in Wilton (property). On April 8, 2013, Aurora Loan
moved to substitute Nationstar Mortgage, LLC, as the plaintiff in the present
action and the court granted the motion to substitute on May 1, 2013.
3
Section 15 of the mortgage deed provides that ‘‘[a]ll notices given by
Borrower or Lender in connection with this Security Instrument must be
in writing. Any notice to Borrower in connection with this Security Instru-
ment shall be deemed to have been given to Borrower when mailed by first
class mail or when actually delivered to Borrower’s notice address if sent
by other means.’’ (Emphasis added.)
4
The parties stipulated at trial that the plaintiff is a successor in interest
to Aurora Loan.
5
Section 9.04 (a) of the trust agreement provides in pertinent part that
the master servicer and each servicer ‘‘shall have full power and authority
(to the extent provided in the applicable Servicing Agreement) to do any
and all things that it may deem necessary or desirable in connection with
the servicing and administration of the Mortgage Loans, including but not
limited to the power and authority . . . to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mort-
gage Loan . . . .’’ Section 9.04 (a) further provides in relevant part that
‘‘[t]he Trustee shall furnish the Master Servicer or a Servicer, upon request,
with any powers of attorney prepared by the Master Servicer or such Servicer
empowering the Master Servicer or such Servicer . . . to foreclose upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or
defend in any court action relating to the Mortgage Loans or the Mortgaged
Property . . . .’’
6
The defendants claim that the plaintiff does not have authority to bring
a foreclosure action in its own name. A similar argument was rejected by
our Supreme Court in J.E. Robert Co. v. Signature Properties, LLC, supra,
309 Conn. 330–31 n.22. In J.E. Robert Co., the defendants argued that even
if the pooling agreement controlled the issue of standing, nothing in that
document or in the power of attorney conferred upon the plaintiff any right
or authority to commence a foreclosure action on its own behalf and in its
own name. Id., 330 n.22. Our Supreme Court rejected that argument by
citing to a provision in the pooling agreement that required written consent
by the note’s owner and holder to initiate the action in the plaintiff’s name.
Id., 330–31 n.22. ‘‘In fact, § 3.01 (b) of the pooling agreement provides that
the special servicer ‘shall not, without [LaSalle Bank National Association’s]
written consent . . . initiate any action, suit or proceeding solely under
[LaSalle Bank National Association’s] name without indicating . . . the
[s]pecial [s]ervicer’s . . . representative capacity. . . .’ The logical implica-
tion of this language, preceded directly by language seeking to protect the
trustee from incurring negligence as a result of actions by the special servicer
and viewed in connection with the authority otherwise vested in the special
servicer, is that the special servicer may initiate an action in its own name.’’
Id. Similarly, the trust agreement in the present case provides that the master
servicer ‘‘shall not without Trustee’s written consent . . . initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity . . . .’’ It follows that the
plaintiff may initiate an action in its own name.
7
Kovalic testified as to the provisions of the trust agreement, including the
definition of ‘‘Master Servicers’’ to include ‘‘[Aurora Loan] or any successor
in interest’’ and § 9.04 of the Trust Agreement.
8
In addition, § 9.04 (a) of the trust agreement provides that ‘‘[t]he Trustee
shall furnish the Master Servicer or a Servicer, upon request, with any powers
of attorney prepared by the Master Servicer or such Servicer empowering
the Master Servicer or such Servicer . . . to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property . . . .’’
Section 9.20 (a) of the trust agreement provides in pertinent part that
‘‘[t]he Master Servicer shall use its reasonable best efforts to, or to cause
each Servicer to, foreclose upon, repossess or otherwise comparably convert
the ownership of Mortgaged Properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory arrange-
ments can be made for collection of delinquent payments, all in accordance
with the applicable Servicing Agreement.’’
9
The following colloquy transpired: ‘‘[The Plaintiff’s Counsel]: You indi-
cated that in addition to the documents, such as [the default notice], that
there are notes that are uploaded with regard to the previous history—
‘‘[Kovalic]: Correct.
‘‘[The Plaintiff’s Counsel]: —is that correct? Have you had an opportunity
to review those notes?
‘‘[Kovalic]: Yes.
‘‘[The Plaintiff’s Counsel]: Did the notes indicate that this document
was sent?
‘‘[Kovalic]: Yes.’’
10
The computer records were sent from Aurora Loan and are contained
in a computer system titled LSAMS.
11
In addition, referencing his familiarity with the industry practice related
to the creation and distribution of the letter, Kovalic testified: ‘‘But, like I
said, just looking at [the letter] I can tell it was mailed, as is industry practice,
this letter wouldn’t even be generated unless it was mailed. General industry
practice, even at this time was, when these are generated they go through
the mailroom, they’re folded by machine, and they’re automatically put in
the mail. So when it’s sent—and it’s then sent.’’
12
To be clear, the defendants do not challenge whether the information
contained in the notice was proper. Rather, the defendants challenge
whether the method of delivery was proper.
13
Furthermore, we recognize that § 15 of the mortgage deed is a uniform
covenant contained in a Fannie Mae/Freddie Mac Uniform Instrument. See
Plaintiff’s Exhibit 2. Such uniform covenants are afforded ‘‘one uniform
meaning rather than multiple inconsistent meanings.’’ Kolbe v. BAC Home
Loans Servicing, LP, 738 F.3d 432, 436 (1st Cir. 2013); see also Johnson v.
IndyMac Mortgage Servicing, Docket No. Civil Action 12-10808-MBB, 2014
WL 1652594, *7 (D. Mass. April 22, 2014).
Moreover, ‘‘[e]xtrinsic evidence of the parties’ unique intentions regarding
a uniform clause is generally uninformative because unlike individually
tailored contracts, uniform clauses do not derive from the negotiations of
the specific parties to a contract. Instead, courts seek to determine the
uniform meaning of the clause as a matter of law . . . .’’ Kolbe v. BAC
Home Loans Servicing, LP, supra, 738 F.3d 436–37; see also Sharon Steel
Corp. v. Chase Manhattan Bank, N.A., 691 F.2d 1039, 1048 (2d Cir. 1982)
(‘‘Boilerplate provisions are thus not the consequence of the relationship
of particular borrowers and lenders and do not depend upon particularized
intentions of the parties to an indenture. There are no adjudicative facts
relating to the parties to the litigation for a jury to find and the meaning of
boilerplate provisions is, therefore, a matter of law rather than fact.’’), cert.
denied, 460 U.S. 1012, 103 S. Ct. 1253, 75 L. Ed. 2d 482 (1983); 2 Restatement
(Second), Contracts § 211 (2), pp. 119–20 (1981) (standardized agreements
are interpreted ‘‘wherever reasonable as treating alike all those similarly
situated, without regard to their knowledge or understanding of the standard
terms of the writing’’); 2 E. Farnsworth, Contracts (3d Ed. 2004) § 7.9, p.
285 (‘‘[i]nterpretation cannot turn on meanings that the parties attached if
they attached none, but must turn on the meaning that reasonable persons
in the positions of the parties would have attached if they had given the
matter thought’’). Accordingly, we seek to determine the uniform meaning
of § 15 of the mortgage deed as a matter of law.
14
First class mail and certified mail are terms defined and used in the
Code of Federal Regulations, as set forth in the United States Postal Service’s
Domestic Mail Manual. 39 C.F.R. § 111.1 (2009); see Lee v. AIG Casualty
Co., 919 F. Supp. 2d 219, 226 (D. Conn. 2013) (‘‘[t]he Domestic Mail Manual
is the authoritative document published by the administrative agency in
charge of mailing service’’); Horton v. Washington County Tax Claim
Bureau, 623 Pa. 113, 132, 81 A.3d 883 (2013) (Baer, J., dissenting) (‘‘All of
these terms—certified mail, restricted delivery, return receipt requested,
and postage prepaid—are types of mailings and services added to the mailing;
they are not burdens of evidentiary proof that may be provided by a mailer.
Indeed, they are terms contained and defined within the Code of Federal
Regulations, as incorporated by the United States Postal Service, Domestic
Mail Manual.’’).
The Domestic Mail Manual 508.1.1.7 addresses ‘‘Basic Recipient Concerns’’
including conditions placed on certified mail and return receipt requested,
and provides in relevant part:
‘‘The following conditions also apply to the delivery of Express Mail and
accountable mail (Registered Mail, Certified Mail, insured for more than
$200.00, or COD, as well as mail for which a return receipt or a return
receipt for merchandise is requested or for which the sender has specified
restricted delivery):
‘‘a. The recipient (addressee or addressee’s representative) may obtain
the sender’s name and address and may look at the mailpiece while held
by the USPS employee before accepting delivery and endorsing the deliv-
ery receipt.
‘‘b. The mailpiece may not be opened or given to the recipient before the
recipient signs and legibly prints his or her name on the delivery receipt (and
return receipt, if applicable) and returns the receipt(s) to the USPS employee.
‘‘c. Suitable identification can be required of the recipient (if not known
to the USPS employee) before delivery of the mailpiece.
‘‘d. When delivery is not restricted at the sender’s request, mail addressed
to a person at a hotel, apartment house, etc., may be delivered to any person
in a position to whom mail for that location is usually delivered.
‘‘e. USPS responsibility ends when the mailpiece is delivered to the recipi-
ent (or another party, subject to 1.1.7d and 1.0).
‘‘f. A notice is left for a mailpiece that cannot be delivered. If the piece
is not called for or redelivery is not requested, the piece is returned to the
sender after [fifteen] days ([five] days for Express Mail, [thirty] days for
COD), unless the sender specifies fewer days on the piece. . . .’’ United
States Postal Service, Domestic Mail Manual: Mailing Standards of the United
States Postal Service 508.1.1.7 (May 11, 2009), available at https://pe.usps.-
com/Archive/PDF/DMMArchive20090511/508.pdf (last visited March 21,
2018).
15
In Fidelity Bank v. Krenisky, supra, 72 Conn. App. 709–10, the plaintiff
conceded that its notice of default did not expressly set forth that the
defendants had the right to reinstate their mortgage after the debt had
been accelerated or their right to contest foreclosure in court. Nonetheless,
because the defendants had received sufficient actual notice of these rights,
and ‘‘the plaintiff’s deficient written notice caused no harm,’’ this court
concluded that the plaintiff had ‘‘substantially complied’’ with the stipulated
notice requirements. Id., 712–13.
In Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray,
supra, 96 Conn. App. 623, this court stated that although generally ‘‘contracts
should be enforced as written,’’ we will not require ‘‘mechanistic compliance’’
with the letter of notice provisions if the particular circumstances of a case
show that the actual notice received resulted in no prejudice and fairly
apprised the noticed party of its contractual rights. (Internal quotation marks
omitted.) Notably, we prefaced our analysis with the following statement:
‘‘Significantly, this is not a case in which the defendant never received notice
of the plaintiff’s decision. He merely received late notice.’’ Id., 622.
In Mortgage Electronic Registration Systems, Inc. v. Goduto, supra, 110
Conn. App. 375–76, this court held that ‘‘[a]ny possible discrepancy between
the terms of the mortgage and the plaintiff’s notices caused no harm to the
defendant because he had sixty-five days of actual notice in which to protect
his property rights. . . . [Therefore] the plaintiff substantially complied
with the notice requirements in the defendant’s mortgage.’’