Citibank, N.A. v. Stein , 186 Conn. App. 224 ( 2018 )

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CITIBANK, N.A., TRUSTEE v. LAURA A. STEIN ET AL.
(AC 40199)
Lavine, Sheldon and Bright, Js.
Syllabus
The plaintiff bank, C Co., sought to foreclose a mortgage on certain real
property owned by the defendant B and his former wife, the defendant
L. Prior to trial, B filed a motion to dismiss, claiming that C Co. lacked
standing to pursue the action against him. The trial court, which heard
and decided the motion to dismiss in connection with the merits of the
foreclosure action, denied the motion to dismiss and rendered a judg-
ment of strict foreclosure. Thereafter, B filed postjudgment motions for
a new trial and for reconsideration of the denial of his motion to dismiss.
Subsequently, the trial court granted C Co.’s motion to substitute W Co.
as the plaintiff, and B filed a motion for reconsideration of the substitu-
tion of W Co. as the plaintiff. After the trial court opened the record to
hear additional testimony from C Co.’s witness, N, to determine the
identity of the trustee in June, 2015, the identity of the loan servicer on
that date, and whether N was familiar with the books of the mortgage
servicer, the trial court denied all three of B’s postjudgment motions
and opened the judgment of strict foreclosure previously entered for
the purpose of setting the law days. On B’s appeal to this court, held:
1. B could not prevail on his claim that the trial court improperly denied
his motion to dismiss and found that C Co. had standing to bring the
foreclosure action: that court found that C Co. was the holder of the note
at the time the foreclosure action was commenced, as C Co. presented
a photocopy of the note secured by the mortgage and the court, which
credited testimony of the servicing authority that C Co. was the holder
of the note endorsed in blank, did not find any evidence that C Co. was
not in possession of the note when the present action commenced, B
did not present any evidence to contradict that finding, and although
B claimed that C Co. was not the trustee at the time of trial and that
W Co. had been substituted thereafter, an assignee may continue litiga-
tion in the name of the original plaintiff and W Co. was substituted prior
to the court’s opening the judgment of strict foreclosure for the purpose
of resetting the law days; moreover, the court did not abuse its discretion
by opening the record to take additional evidence, as the court opened
the record to address B’s jurisdictional claims and not to give C Co. a
second bite at the apple, and even if the court abused its discretion by
opening the record in response to B’s motion for reconsideration, claims
of error will not be reviewed when they have been induced by the party
claiming error on appeal.
2. B’s claim that the trial court abused its discretion by failing to consider
certain documents that he claimed disputed C Co.’s purported ownership
of the note and authority to prosecute the foreclosure action was not
reviewable, B having failed to brief the claim adequately, as B did not
identify where in the record the court issued the ruling with which he
took issue, and his brief did not cite any law or analyze the facts pursuant
to the law on which he purportedly relied.
3. B could not prevail on his claim that the foreclosure action was deficient
and false, which was based on his claim that the mortgagor did not
default on the note; although B claimed that L was a nontitle owner of
the property and could not mortgage the property, L stipulated at trial
that the note she signed was in default and that the signatures on the
mortgage appeared to be her signature and that of B, and because B,
who was the owner of the property and pledged the property as security
for the note signed by L, did not challenge L’s stipulation or otherwise
dispute that his signature was on the mortgage, he was a mortgagor
in default.
4. B’s claim that C Co. failed to meet its burden to prove its right to bring
the present action as a nonholder in possession of the note was unavail-
ing; the trial court’s findings that C Co. was the holder of the note
entitled to bring the action against B and that N Co. was the servicer
as of 2014 and through the time of trial were supported by the record,
and, therefore, the court properly determined that C Co. met the require-
ments to prosecute the foreclosure action.
Argued September 7—officially released November 27, 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 and tried to the court, Heller, J.; judgment
of strict foreclosure; thereafter, the court granted the
plaintiff’s motion to substitute Wilmington Trust, N.A.,
as the plaintiff, and the defendant Brian Stein appealed
to this court. Affirmed.
Brian Stein, self-represented appellant (defendant
Brian Stein).
Crystal L. Cooke, for the appellee (substitute
plaintiff).
Opinion
LAVINE, J. The present appeal concerns the foreclo-
sure of real property located at 983 New Norwalk Road
in New Canaan (property). The self-represented defen-
dant, Brian Stein,1 appeals from the judgment of strict
foreclosure rendered in favor of the substitute plaintiff,
Wilmington Trust, N.A. (Wilmington Trust), as succes-
sor trustee to the plaintiff, Citibank, N.A. (Citibank), as
trustee of the holders of Bear Stearns Alt-A Trust 2006-
6, Mortgage Pass-Through Certificates, Series 2006-6.
On appeal, the defendant claims that the trial court,
Heller, J., (1) erred by denying his motion to dismiss,
(2) abused its discretion by denying his motion to rear-
gue and for reconsideration, (3) abused its discretion
by refusing to consider, after the June 2015 trial, docu-
ments the defendant considered newly discovered evi-
dence, (4) erred in finding that the mortgagor had
defaulted on the note and default notice, and (5) erred
under J.E. Robert Co. v. Signature Properties, LLC,
309 Conn. 307, 71 A.3d 492 (2013), in concluding that
Citibank had proven its right as a nonholder in posses-
sion to bring the foreclosure action.2 We affirm the
judgment of the trial court.
In its memoranda of decision issued on January 7,
2016, and on February 21, 2017, the trial court set forth
the following relevant facts and procedural history. On
July 7, 2006, Laura A. Stein, the defendant’s then wife,3
executed and delivered an interest only adjustable rate
note to Countrywide Bank, N.A. (Countrywide Bank), in
the principal amount of $1,650,000. Countrywide Bank
endorsed the note to Countrywide Home Loans, Inc.
(Home Loans). Home Loans, thereafter, endorsed the
note in blank and provided it to Citibank. To secure
the note, the defendant and Laura Stein executed in
duplicate a mortgage4 on the property and delivered it
to Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for Countrywide Bank. MERS
assigned the mortgage to Citibank on November 25,
2009.
The court also found, pursuant to paragraph 3 (A)
of the note, that Laura Stein was to make monthly
payments of interest only on the first day of each month,
commencing on September 1, 2006. She and the defen-
dant last made a monthly payment on the note on July
16, 2008. On September 16, 2008, Home Loans, which
was the servicer of the loan on behalf of the holder of
the note at that time, sent a letter to Laura Stein advising
her that the loan was in default and of the amount
required to cure the default and reinstate the loan.5
Laura Stein and the defendant failed to cure the default.
Citibank elected to accelerate the balance due on the
note, declare the note due in full, and foreclose the
mortgage securing the note.6 Citibank commenced the
present foreclosure action by service of process on July
13, 2009.7 The complaint alleges, in relevant part, that
Citibank, as trustee, is the holder of the note and
mortgage.
The defendant and Laura Stein filed an answer and
special defenses on March 19, 2010. Their special
defenses alleged that Citibank lacked standing as a
trustee under General Statutes § 52-106, but that if Citi-
bank had standing, it was required to modify the mort-
gage pursuant to an agreement between the
Connecticut Attorney General and Countrywide Bank.
They also alleged that Citibank did not provide the
original note, and, therefore, could not commence the
action, and that the complaint failed to establish that
Citibank was the current holder and owner of the note
and mortgage. Citibank pleaded a general denial in
response to the special defenses.
On September 27, 2010, Citibank filed a motion for
summary judgment as to liability only. The defendant
and Laura Stein objected to the motion for summary
judgment on the ground that there were genuine issues
of material fact as to whether Citibank was the holder
of the note and mortgage. The court, Mintz, J., sus-
tained the defendant’s objection to the motion by grant-
ing additional time for discovery on the issue of
Citibank’s standing and ordering that the motion for
summary judgment be set down for argument on
November 17, 2014. Judge Heller found that Citibank’s
motion for summary judgment was never argued.
On September 10, 2014, Laura Stein filed a motion
to dismiss in which she contended, among other things,
that Citibank lacked standing to pursue the present
action under General Statutes §§ 42a-3-301 and 52-106.
She withdrew her motion to dismiss, however, on the
first day of trial, stipulated to certain facts, and con-
sented to the entry of summary judgment against her
as to liability only.8
On June 19, 2015, five days before trial, the defendant
filed a motion to dismiss on the ground that Citibank
lacked standing to pursue the action against him. After
hearing from counsel for the parties, Judge Heller deter-
mined that she would hear and decide the defendant’s
motion to dismiss at the same time and, in connection
with, the merits of Citibank’s foreclosure case. The
parties, all represented by counsel, appeared before the
court for trial on June 24, 25 and 26, 2015.9 On January
7, 2016, after the parties had submitted posttrial briefs,
the court issued a memorandum of decision in which
it denied the defendant’s motion to dismiss and ren-
dered a judgment of strict foreclosure in favor of
Citibank.
On January 19, 2016, the defendant filed a motion for
a new trial and on January 27, 2016, filed a motion for
reargument and reconsideration of the court’s ruling
on his motion to dismiss. Citibank objected to both
motions. The court granted the motion for reargument,
and counsel for Citibank and the defendant appeared
for argument before the court on February 16, 2016.10
The court reserved reconsideration of its ruling on the
motion to dismiss and determined to open the record
and take additional testimony from Citibank’s witness,
Johnny Nguyen of Nationstar Mortgage LLC
(Nationstar), the servicer of the subject mortgage.11
On August 29, 2016, Citibank filed a motion to substi-
tute Wilmington Trust as the plaintiff because the mort-
gage had been assigned to Wilmington Trust after the
present action was commenced. On August 30, 2016, the
court heard additional testimony from Nguyen. Before
commencing the hearing, the court granted Citibank’s
motion to substitute Wilmington Trust as the plaintiff.
On September 19, 2016, the defendant filed a motion for
reargument and reconsideration of Citibank’s motion
to substitute Wilmington Trust as the plaintiff. The court
heard argument from counsel on the defendant’s motion
for reargument and reconsideration on November 28,
2016.12 On February 1, 2017, counsel for the defendant
filed a memorandum in further support of his motion
to reargue the motion to substitute, and the defendant
submitted a statement and memorandum of his own.
Wilmington Trust filed an objection to the motion to
reargue on February 15, 2017.
On February 21, 2017, the court issued a memoran-
dum of decision on the defendant’s three pending
motions before it, to wit, his motion for a new trial,
filed on January 19, 2016; his motion for reargument
on his motion to dismiss, filed on January 27, 2016;
and his motion for reargument on Citibank’s motion to
substitute Wilmington Trust as the plaintiff, filed on
September 19, 2016. The court denied all three of the
defendant’s reargument motions and opened the judg-
ment of strict foreclosure previously entered for the
purpose of setting the law days. The defendant timely
appealed to this court.
I
The defendant first claims that the court erred in
finding that Citibank had standing to bring this foreclo-
sure action against him and, thus, that it had subject
matter jurisdiction over the action. Specifically, he
claims that the court (1) erred by denying his motion to
dismiss because Citibank lacked standing to commence
the action and (2) abused its discretion by failing to
grant his motion to reargue and for reconsideration of
his motion to dismiss.13 We reject the defendant’s
claims.
The defendant’s claims require us to examine the
court’s memoranda of decision in detail. The court’s
decisions set forth the following facts and legal
analyses.
Prior to the start of trial in June, 2015, the defendant
filed a motion to dismiss claiming that he had a good
faith belief that Citibank lacked standing to pursue the
action. In its January 7, 2016 memorandum of decision,
the trial court found that the defendant had argued that
Citibank lacked standing because (i) it was not the
owner of the note and the debt at issue and/or it was
not the holder of the note and (ii) it was not authorized
by the owner of the note and the debt to prosecute
the action on behalf of the owner. The defendant also
argued that Citibank lacked standing under General
Statutes § 52-106. Citibank contended that it had stand-
ing as both the holder of the note and as trustee.
The court credited the uncontroverted testimony of
Nguyen that Citibank was the holder of the note that
had been endorsed in blank. The court cited the statu-
tory and common-law definitions of ‘‘holder.’’ General
Statutes § 42a-3-104 (a) provides, in relevant part, that
a holder is ‘‘[t]he person in possession of a negotiable
instrument that is payable either to bearer or to an
identified person that is the person in possession.’’ ‘‘The
holder is the person or entity in possession of the instru-
ment if the instrument is payable to bearer. . . . When
an instrument is endorsed in blank, it becomes payable
to bearer and may be negotiated by transfer of posses-
sion alone . . . .’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Equity One, Inc. v.
Shivers, 310 Conn. 119, 126, 74 A.3d 1225 (2013). The
court concluded, therefore, that because Citibank was
the holder of the note, it had proved that it was the
owner because ‘‘the note holder is presumed to be the
owner of the debt, and unless the presumption is rebut-
ted, may foreclose the mortgage under [General Stat-
utes] § 49-17.’’ (Internal quotation marks omitted.)
American Home Mortgage Servicing, Inc. v. Reilly, 157
Conn. App. 127, 133–34, 117 A.3d 500, cert. denied,
317 Conn. 915, 117 A.3d 854 (2015). Citing Anderson v.
Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985),14
for the law regarding the burden necessary to rebut the
presumption of ownership, the court found that the
defendant had failed to offer sufficient and persuasive
contradictory evidence to disprove the presumption
that Citibank was the holder of the note.
The defendant further argued that Nguyen’s testi-
mony alone was insufficient to prove that Citibank was
authorized to commence and pursue the action without
the relevant business records, particularly the pooling
and service agreement, being offered into evidence. The
court found that the defendant offered no evidence to
contradict Nguyen’s testimony, which was predicated
on his personal knowledge of Nationstar’s business
records. It disagreed that Citibank was required to pro-
duce its business records to support its claim. ‘‘Appel-
late courts in this state have held that [the evidentiary]
burden is satisfied when the mortgagee includes in its
submission to the court a sworn affidavit averring that
the mortgagee is the holder of the promissory note in
question at the time it commenced the action.’’ GMAC
Mortgage, LLC v. Ford, 144 Conn. App. 165, 176, 73
A.3d 742 (2013).
The court also concluded that Citibank had standing
to prosecute the foreclosure action as holder of the
note and as a trustee.15 Section 52-106 provides, ‘‘[a]n
executor, administrator, or trustee of an express trust
may sue or be sued without joining the persons repre-
sented by him and beneficially interested in the action.’’
‘‘[T]he trustee’s standing to sue arises out of its legal
title to the trust res.’’ (Internal quotation marks omit-
ted.) Chase Home Finance, LLC v. Fequiere, 119 Conn.
App. 570, 580, 989 A.2d 606, cert. denied, 295 Conn. 922,
991 A.2d 564 (2010). Moreover, ‘‘[o]ur appellate courts
have not required a foreclosure plaintiff to produce
evidence of ownership deriving from a pooling and ser-
vicing agreement in making its prima facie case . . . .’’
Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384,
399, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d
1202 (2014).
‘‘The relevance of securitization documents on a lend-
er’s standing to foreclose a mortgage is questionable.
Simply put, a borrower has a contract—the note and
mortgage—with the owner or holder of the loan docu-
ments. 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 admissi-
ble evidence of holder status has been presented, a
borrower must then challenge those facts by competent
evidence addressed to the delivery of the loan docu-
ments. In most instances, a borrower’s challenge to the
content of trust documents or other borrower claims
appear to have little relevance to the issue of standing.’’
(Internal quotation marks omitted.) Id., 393–94.
The court continued quoting that ‘‘[t]he law of trusts
limits the ability of a borrower to challenge whether
conditions in the pooling and servicing agreement were
satisfied. . . . [A] stranger to a trust, when sued by the
Trustee, cannot set up as a defense a violation of the
rights of the Trust by the Trustee. . . . Generally, the
parties to a pooling and servicing agreement are the
certificate holders, who own interests in the mortgages,
a trustee, a depositor of the assets, and a servicer.
Borrowers, however, have no contractual privity with
the parties to a pooling and servicing agreement.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
394. The court found that Citibank had standing to pros-
ecute the present action and that the action was not
barred by any of the defendant’s remaining special
defenses. The court, therefore, denied the defendant’s
motion to dismiss. After hearing appraisal evidence and
the amount of debt, the court found that the debt far
exceeded the fair market value of the property. It issued
a judgment of strict foreclosure in favor of Citibank
and set law days.
As previously stated, the defendant filed a motion
for reargument and reconsideration of his motion to
dismiss. The defendant contended that following the
hearing on the motion to dismiss and the foreclosure
trial, he discovered new evidence to the effect that
Citibank was not the owner of the note and debt at
issue and had not been for some time. According to
the defendant, Wilmington Trust was the owner. The
defendant first raised the argument in his posttrial mem-
orandum filed on August 24, 2015, in which he asked the
court to take judicial notice of certain public documents
that purportedly demonstrated that Wilmington Trust
had succeeded Citibank as trustee for the Holders of
Bear Stearns Alt-A Trust 2006-6. The court declined to
do so, noting that even if it took judicial notice, as
requested, the information would not have afforded a
basis for dismissing the action. See footnote 15 of this
opinion. The defendant also claimed that Wells Fargo
Bank was the servicer of the mortgage, not Nationstar,
thus calling into question the veracity of Nguyen’s tes-
timony.
The court granted reargument on February 16, 2016,
but reserved decision on reconsideration of the motion
to dismiss. On May 26, 2016, the court decided to open
the record to take further testimony from Nguyen to
determine whether Citibank, Wilmington Trust, or some
other entity was the trustee of the trust on June 25,
2015, when Nguyen testified at the foreclosure trial;
whether Nationstar, Wells Fargo, or some other entity
was the mortgage servicer for the defendant’s mortgage
when Nguyen testified; and if an entity other than
Nationstar was the mortgage servicer, whether Nguyen
was familiar with the books and records of such mort-
gage servicer at the time of trial and was authorized to
testify on its behalf.
The court heard further testimony from Nguyen on
August 30, 2016. The court issued its decision in a mem-
orandum of decision on February 21, 2017. The court
credited Nguyen’s testimony and made the following
additional findings of fact. Nationstar has been the pri-
mary servicer of the mortgage since the beginning of
2014 and was the servicer on June 25, 2015, when Ngu-
yen testified at the foreclosure trial and it continued to
be the mortgage servicer. Citibank was the trustee and
the holder of the note at the time the foreclosure com-
plaint was served in 2009 and had authority to com-
mence the action. Wilmington Trust became the trustee
in 2012, was the trustee on June 25, 2015, and remained
the trustee. It also was the holder of the note in June,
2015. Two assignments of the mortgage were admitted
into evidence. Citibank assigned it to Nationstar on May
4, 2016, and Nationstar assigned it to Wilmington Trust
on March 30, 2016.
With respect to the defendant’s motion for reconsid-
eration of his motion to dismiss, the court stated that
the ground of the defendant’s motion for reconsidera-
tion was newly discovered evidence. The court cited
the controlling law. ‘‘A party who wishes to reargue a
decision or order rendered by the court shall, within
twenty days from the issuance of notice of the rendition
of the decision or order, file a motion to reargue setting
forth the decision or order which is the subject of the
motion, the name of the judge who rendered it, and the
specific grounds for reargument upon which the party
relies.’’ Practice Book § 11-12 (a). ‘‘[T]he purpose of
reargument is . . . to demonstrate to the court that
there is some decision or some principle of law which
would have a controlling effect, and which has been
overlooked, or that there has been a misapprehension
of facts. . . . [Reargument] also may be used to
address alleged inconsistencies in the trial court’s mem-
orandum of decision as well as claims of law that the
[movant] claimed were not addressed by the court.’’
(Citation omitted; internal quotation marks omitted.)
Opoku v. Grant, 63 Conn. App. 686, 692–93, 778 A.2d
981 (2001).
‘‘Newly discovered evidence may warrant reconsider-
ation of a court’s decision. However, [f]or evidence to
be newly discovered, it must be of such a nature that
[it] could not have been earlier discovered by the exer-
cise of due diligence.’’ (Internal quotation marks omit-
ted.) Durkin Village Plainville, LLC v. Cunningham,
97 Conn. App. 640, 656, 905 A.2d 1256 (2006). The court
found that the evidence the defendant offered fell short
of this standard. In fact, the court stated, the defendant
never sought to open the record to introduce evidence
that Wilmington Trust was the successor trustee to
Citibank. It was the court that ordered further testimony
from Nguyen to respond to the issues raised by the
defendant.
The court found that the defendant, in his posttrial
brief, had represented that he had learned through a
Lexis case search and a search of public records that
Wilmington Trust had replaced Citibank as the trustee
in late 2012. The defendant reported that he had learned
of the transfer of the trust from a Moody’s rating service,
pleadings in other lawsuits alleging that Wilmington
Trust had succeeded Citibank, and a Schedule A to a
document described as a limited power of attorney
dated November 18, 2013, and recorded in county
records in Salt Lake City, Utah. The court found, how-
ever, that although the evidence may have been newly
discovered by the defendant, it had been available pub-
licly on the Moodys.com website, in the New York fed-
eral bankruptcy court files, and the Utah land records
for years. A Lexis case search and a search of the public
records months before the foreclosure trial would have
revealed the information regarding the change of
trustee. The court, therefore, declined to reconsider its
ruling denying the defendant’s motion to dismiss.16 The
court set new law days and the defendant appealed.
A
We now turn to the defendant’s central claim that
the court erred when it denied his motion to dismiss
because the court lacked subject matter jurisdiction
due to Citibank’s lack of standing. We disagree.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the [plain-
tiff] cannot as a matter of law and fact state a cause
of action that should be heard by the court. . . . [It]
tests, inter alia, whether on the face of the record, the
court is without jurisdiction. . . . The issue of standing
implicates subject matter jurisdiction and is therefore
a basis for granting a motion to dismiss.’’ (Citation omit-
ted; internal quotation marks omitted.) Deutsche Bank
National Trust Co. v. Torres, 149 Conn. App. 25, 29, 88
A.3d 570 (2014).
‘‘The issue of standing implicates the trial court’s
subject matter jurisdiction and therefore presents a
threshold issue for our determination. . . . Standing is
the legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court
unless he [or she] has, in an individual or representative
capacity, some real interest in the cause of action, or
a legal or equitable right, title or interest in the subject
matter of the controversy. . . . [When] a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . In addition,
because standing implicates the court’s subject matter
jurisdiction, the issue of standing is not subject to
waiver and may be raised at any time. . . . [T]he plain-
tiff ultimately bears the burden of establishing stand-
ing.’’ (Citations omitted; internal quotation marks
omitted.) Wells Fargo Bank, N.A. v. Strong, supra, 149
Conn. App. 397–98.
‘‘[W]here legal conclusions of the [trial] court are
challenged, we must determine whether they are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision. . . .
Thus, our review of the trial court’s ultimate legal con-
clusion and resulting [denial] of the motion to dismiss
will be de novo.’’ (Internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Torres, supra, 149
Conn. App. 29.17
The basis of the defendant’s multiple claims appears
to stem from the securitization of the note and its trans-
fer from one trustee or holder to another. The defen-
dant’s claims are fact based,18 as he does not take
exception to the law cited by the court in its memoranda
of decision. The resolution of the present appeal turns
on the entity legally entitled to commence the present
action and the authority to prosecute the action at trial
in June, 2015. The trial court found that Citibank was
the holder of the debt and the trustee with authority
to commence the action. The court also found that at
the time of trial, Nationstar was the primary servicer
of the mortgage and was authorized to prosecute the
foreclosure action. Wilmington Trust became the
trustee in 2012 and was the trustee and holder of the
note in June, 2015. Citibank assigned the mortgage to
Nationstar, which assigned it to Wilmington Trust in
2016.
Our review of the record, including the exhibits and
trial testimony, supports the court’s factual findings and
is consistent with our law of negotiable instruments
and foreclosure. ‘‘[Section] 49-17 permits the holder of
a negotiable instrument that is secured by a mortgage
to foreclose on the mortgage even when the mortgage
has not yet been assigned to him. . . . The statute codi-
fies the common-law principle of long standing that the
mortgage follows the note, pursuant to which only the
rightful owner of the note has the right to enforce the
mortgage. . . . Our legislature, by adopting § 49-17,
has provide[d] an avenue for the holder of the note to
foreclose on the property when the mortgage has not
been assigned to him.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Chase
Home Finance, LLC v. Fequiere, 119 Conn. App. 570,
576–77, 989 A.2d 606, cert. denied, 295 Conn. 922, 991
A.2d 564 (2010).
‘‘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, A.3d ,
cert. denied, 330 Conn. 925, A.3d (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.) U.S. Bank, National
Assn. v. Schaeffer, 160 Conn. App. 138, 150, 125 A.3d
262 (2015).
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The statute authorizing
standing in this [foreclosure] case is General Statutes
§ 52-118, which provides in relevant part that an
assignee . . . may sue . . . in his own name . . . .
The legislature’s use of the word may in the statute
indicates that an assignee merely has the option to sue
in his name. Conversely, as the Supreme Court has
stated, an assignee also has the option to maintain [an]
action in the name of his assignor. Jacobson v. Rob-
ington, 139 Conn. 532, 539, 95 A.2d 66 (1953).’’ (Internal
quotation marks omitted.) Dime Savings Bank of Wall-
ingford v. Arpaia, 55 Conn. App. 180, 184, 738 A.2d
715 (1999); see also Washington Mutual Bank, F.A. v.
Walpuck, 134 Conn. App. 446, 447, 43 A.3d 174, cert.
denied, 305 Conn. 902, 43 A.3d 663 (2012) (Dime Sav-
ings Bank of Wallingford is dispositive).
Citibank alleged in the complaint that it was the
holder of the note and in possession of the mortgage.
A bank that ‘‘alleged that it possessed the note at the
time it commenced [the] action, [is] entitled to reply
upon that allegation unless the defendant present[s]
facts to the contrary . . . .’’ Bank of America, N.A. v.
Kydes, supra, 183 Conn. App. 489. The court did not
find evidence that Citibank was not in possession of
the note when the present action was commenced. The
defendant has not pointed us to any evidence that dis-
putes, let alone contradicts, the court’s conclusion that
Citibank was the holder of the note at the time the
foreclosure action was commenced. At trial, Citibank
presented a photocopy of the note secured by the mort-
gage. The defendant failed to provide any evidence to
counter Citibank’s claim. The defendant’s principal
argument seems to be that Citibank was not the trustee
at the time of trial in June, 2015, and that Wilmington
Trust was not substituted as the plaintiff until August,
2016. An assignee may continue litigation in the name
of the original plaintiff. Jacobs v. Robington, supra, 139
Conn. 539.
In the present case, Laura Stein signed the note in
favor of Countywide Bank, which endorsed the note in
favor of Home Loans, which endorsed the note in blank
and provided it to Citibank. The court concluded that
Citibank was the trustee and holder of the note when
the action was commenced, and therefore, it had stand-
ing to do so. The court thus had subject matter jurisdic-
tion. During trial, Citibank transferred the note to
Wilmington Trust, which authorized Nationstar, its
server, to prosecute the action in the name of Citibank.
Wilmington Trust was substituted as the plaintiff prior
to the court’s opening the judgment of strict foreclosure
for the purpose of setting the law days. See Jacobson
v. Robington, supra, 139 Conn. 539 (assignee may prose-
cute in name of assignor). The court, therefore, had
subject matter jurisdiction to adjudicate the action, and
the defendant’s claim fails.
B
The defendant further claims that the court abused
its discretion by opening the record to hear additional
testimony from Citibank’s witness. By opening the
record and receiving more testimony from Nguyen, the
defendant claims that the court gave Citibank a second
bite at the apple. The defendant further claims that the
court compounded the error by denying him the right
to conduct further discovery. We disagree.
‘‘Whether the trial court has jurisdiction to open a
judgment of strict foreclosure is generally dependent
on whether title has vested in the encumbrancer. See
General Statutes § 49-15 (a) (1) (upon written motion
by interested person, court may open and modify any
judgment of strict foreclosure as it deems reasonable,
provided no such judgment shall be opened after the
title has become absolute in any encumbrancer).’’
(Emphasis omitted; internal quotation marks omitted.)
Real Estate Mortgage Network, Inc. v. Squillante, 184
Conn. App. 356, 360–61, A.3d (2018).
In the present case, after the court rendered judgment
in favor of Citibank in its January 7, 2016 memorandum
of decision, the defendant filed a motion for reargument
and reconsideration of the motion to substitute Wil-
mington Trust as the plaintiff. In the motion, the defen-
dant alleged that Citibank and Wilmington Trust are
not the investors or servicing authority for the loan,
that the note is not in the BALTA 2006-6 Trust and that
Nationstar has no current servicing authority. The court
stated that it opened the record to take further testi-
mony from Nguyen to determine the identity of the
trustee on June 25, 2015, the identity of the servicer on
that date, and whether Nguyen was familiar with the
books of the mortgage servicer, and whether he was
authorized to testify on its behalf. It is obvious that the
court opened the record to address the defendant’s
jurisdictional claims, and not to give Citibank a second
bite at the apple.
We conclude that the court did not abuse its discre-
tion by opening the record to take more evidence. Even
if the trial court had abused its discretion by opening
the record in response to the defendant’s motion for
reargument and reconsideration, this court has held
that it will not review claims of error, if any, when
they have been induced by the party claiming error on
appeal. LPP Mortgage, Ltd. v. Lynch, 122 Conn. App.
686, 698, 1 A.3d 157 (2010). ‘‘[T]he appellate courts of
this state have made it clear that a party cannot take
a path at trial and change tactics on appeal. Further-
more, no party has the right to induce or invite error,
if any, on the part of the trier of fact and seek reversal
on appeal.’’ Moran v. Media News Group, Inc., 100
Conn. App. 485, 501, 918 A.2d 921 (2007).19
For the foregoing reasons, the defendant’s claim that
the court erred by denying his motions to dismiss and
for reconsideration fails.
II
The defendant claims that the court abused its discre-
tion by failing to consider documents that he claims
dispute the witness’ servicing authority, as well as Citi-
bank’s purported ownership of the note and authority
to prosecute the foreclosure. We agree with Wilmington
Trust that this claim is inadequately briefed.
Wilmington Trust points out that the defendant’s brief
on this issue is rambling and that it is not possible to
determine the documents to which the defendant is
referring. We have noted that the brief contains no
references to a transcript from which Wilmington Trust,
or this court, can infer how or when the defendant
sought to introduce the documents he claims the court
failed to consider. See footnote 2 of this opinion. We
acknowledge that the defendant is representing himself
and that we generally grant self-represented litigants
some latitude so long as it does not interfere with the
rights of other parties. See Darin v. Cais, 161 Conn.
App. 475, 481, 129 A.3d 716 (2015). The defendant’s
briefing of the present claim is an instance, however,
in which the plaintiff is at a disadvantage in replying
to the defendant’s arguments.
Appellate courts ‘‘are not required to review issues
that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than
[mere] abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . We do not reverse the judgment of a trial
court on the basis of challenges to its rulings that have
not been adequately briefed.’’ (Internal quotation marks
omitted.) McClancy v. Bank of America, N.A., 176
Conn. App. 408, 414, 168 A.3d 658, cert. denied, 327
Conn. 975, 174 A.3d 195 (2017). The defendant has not
brought to our attention where in the record the court
issued the ruling with which he takes issue. His brief
cites no law and does not analyze the facts pursuant
to the law on which he purportedly relies. We, therefore,
are unable to review the claim.
III
The defendant claims that Citibank’s foreclosure
action is deficient and false because the mortgagor did
not default on the note. The defendant’s argument is
that Laura Stein is a nontitle owner of the property and,
therefore, she could not mortgage the property. The
fallacy in the defendant’s argument is that he is the
owner of the property and that he pledged the property
as security for the note signed by Laura Stein, who
admitted that the note is in default.
The mortgage, which is in evidence, states, among
other things: ‘‘Borrower is Laura A. Stein and Brian M.
Stein . . . Borrower is the mortgagor under this Secu-
rity Instrument.’’ ‘‘A mortgage is a contract of sale exe-
cuted, with power to redeem. . . . The condition of a
mortgage may be the payment of a debt, the indemnity
of a surety, or the doing or not doing [of] any other
act.’’ Cook v. Bartholomew, 60 Conn. 24, 25, 22 A. 444
(1891). Black’s Law Dictionary defines mortgagor as
‘‘[o]ne who, having all or some part of the title to 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.’’
Black’s Law Dictionary (9th Ed. 2004).
‘‘It has long been established at common law that
[t]he mortgage is an incident only to the debt, which
is the principal; it cannot be detached from [the debt];
distinct from the debt, it has no determinate value; and
the assignee must hold it, at the will and disposal of
the creditor, who has the note or bond, for which it is a
collateral security.’’ (Internal quotation marks omitted.)
J.E. Robert Co. v. Signature Properties, LLC, supra,
309 Conn. 318.20
At trial, Laura Stein stipulated that the note she signed
was in default. She also stipulated that the signatures
on the mortgage appeared to be hers and the defen-
dant’s. The defendant has not challenged the stipulation
or otherwise disputed that his signature is on the mort-
gages. The defendant, therefore, is a mortgagor in
default and his claim fails.21
IV
The defendant’s final claim is that Citibank failed to
meet its burden under J.E. Robert Co. v. Signature
Properties, LLC, supra, 309 Conn. 307,22 to prove its
right to bring the present action as a nonholder in pos-
session of the note. He argues that Citibank never
appeared in court, and that its alleged servicer, who is
not identified in the note, failed to prove the transfers
by which it acquired the note. We do not agree.
The issue in J.E. Robert Co. concerned the ‘‘standing
of parties other than the lender to bring [foreclosure]
actions . . . [s]pecifically . . . whether a loan ser-
vicer for the owner and holder of a note and mortgage
can have standing in its own right to institute a foreclo-
sure action against the mortgage as transferee of the
holder’s rights under the Uniform Commercial Code
(UCC), General Statutes §§ 42a-3-203 and 42a-3-301.’’
Id., 310–11. Our Supreme Court determined that
‘‘through the pooling agreement, J.E. Robert had stand-
ing as a transferee . . . to enforce the note and mort-
gage in accordance with §§ 42a-3-203 and 42a-3-301’’;
id., 318; and as servicer, it had authority to institute the
foreclosure action in its own name. Id., 311.
Our Supreme Court explained that ‘‘[s]ecuritization
starts when a mortgage originator sells a mortgage and
its note to a buyer, who is typically a subsidiary of an
investment bank. . . . The investment bank bundles
together the multitude of mortgages it purchased into
a special purpose vehicle, usually in the form of a trust,
and sells the income rights to other investors. . . . A
pooling and servicing agreement establishes two enti-
ties that maintain the trust: a trustee, who manages the
loan assets, and a servicer, who communicates with
and collects monthly payments from the mortgagors.’’
(Citations omitted; internal quotation marks omitted.)
Id., 313 n.4. ‘‘The pooling agreement also designates
another entity as [m]aster [s]ervicer, whose general
responsibility is to administer mortgage loans other
than those designated as specially serviced loans due
to certain events such as imminent or actual default.’’
(Internal quotation marks omitted.) Id., 313 n.5.
‘‘A plaintiff’s right to enforce a promissory note may
be established under the UCC.’’ Id., 319. See General
Statutes §§ 42a-3-203 (a) and (b). ‘‘Consistent with these
provisions, our appellate case law has recognized that,
to enforce a note, one need not be the owner of the
note; see, e.g., Ninth RMA Partners, L.P. v. Krass, 57
Conn. App. 1, 7, 746 A.2d 826 . . . cert. denied, 253
Conn. 918, 755 A.2d 215 (2000); or even the holder of
the note. See, e.g., Ulster Savings Bank v. 28 Brynwood
Lane, Ltd., 134 Conn. App. 699, 709–10, 41 A.3d 1077
(2012).’’ J.E. Robert Co. v. Signature Properties, LLC,
supra, 309 Conn. 320 n.14. Under § 42a-3-203 (a), there
are two requirements to transfer an instrument: ‘‘(1)
the transferor must intend to vest in the transferee the
right to enforce the instrument; and (2) the transferor
must deliver the instrument to the transferee so that
the transferee has either actual or constructive posses-
sion.’’ Id., 320.
Section 49-17 permits ‘‘the person entitled to receive
the money secured [by a mortgage] but to whom the
legal title to the mortgaged premises has never been
conveyed’’ to bring a foreclosure action. (Emphasis
omitted; internal quotation marks omitted.) Id., 324.
The statute ‘‘simply requires a party to prove that [it
is] the person entitled to receive the money secured
[by the mortgage], and such a party may be someone
other than the owner of the note.’’ (Internal quotation
marks omitted.) Id., 325. ‘‘[A] loan servicer entitled to
receive money and otherwise administer a loan under
the terms of a pooling and service agreement would
not necessarily need to be the owner or holder of the
note in order to institute a foreclosure action against
the debtor.’’ Id., 326.
‘‘[A] holder of a note is presumed to be the owner
of the debt, and unless the presumption is rebutted,
may foreclose the mortgage under § 49-17.’’ (Internal
quotation marks omitted.) Id., 325 n.18. If the presump-
tion is rebutted, the burden shifts ‘‘back to the plaintiff
to demonstrate that the owner has vested it with the
right to receive the money secured by the note.’’ Id.
As to the plaintiff’s burden of proof, ‘‘[i]t is a funda-
mental precept of the law to expect a foreclosing party
to actually be in possession of its claimed interest in the
note, and have the proper supporting documentation
in hand when filing suit, showing the history of the
note, so the defendant is duly apprised of the rights of
the plaintiff.’’ Id., 325–26 n.18. ‘‘The transferee does not
enjoy the statutorily provided assumption of the right to
enforce the instrument that accompanies a negotiated
instrument, and so the transferee must account for pos-
session of the [unendorsed] instrument by providing
the transaction through which the transferee acquired
it.’’ (Internal quotation marks omitted.) Id., 326 n.18.
‘‘If there are multiple prior transfers, the transferee
must prove each prior transfer. . . . Once the trans-
feree establishes a successful transfer from a holder,
he or she acquires the enforcement rights of that holder.
Therefore, in cases in which a nonholder transferee
seeks to enforce a note in foreclosure proceedings, if
the defendants dispute the plaintiff’s right to enforce
the note, the plaintiff must prove that right.’’ (Citations
omitted; internal quotation marks omitted.) Id.
As set forth in part I of this opinion, the court found
that Citibank was the holder of the note and, therefore,
that it had standing to bring the action against the defen-
dant.23 The court also found that Nationstar was the
servicer of the loan at the time of trial in June, 2015.
Contrary to the defendant’s argument that Citibank was
required to present documentary evidence that Citibank
was the holder of the note and that Nationstar was the
servicer, Wells Fargo Bank, N.A. v. Strong, supra, 149
Conn. App. 392–93, holds otherwise. In the present mat-
ter, the court found that Citibank was the holder of the
note entitled to bring the action against the defendant
and that Nationstar was the servicer as of 2014 and
through the time of trial. Our review of the record and
the court’s memoranda of decision supports the court’s
findings and, therefore, we conclude that the court
properly determined that Citibank met the requirements
of J.E. Robert Co. to prosecute the foreclosure action.
Moreover, Wilmington Trust, which also acquired the
mortgage, was substituted as the plaintiff prior to the
court’s opening the judgment of strict foreclosure for
the purpose of setting the law days.
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
Laura A. Stein, JPMorgan Chase Bank, N.A., the state of Connecticut,
and Standard Oil of Connecticut, Inc., also were served as defendants, but
they are not parties to this appeal. The defendants, other than Laura Stein,
were defaulted. In this opinion, we refer to Brian Stein, also known as Brian
M. Stein, as the defendant.
2
Wilmington Trust claims that the defendant has failed to provide an
adequate record for review as required by Practice Book § 61-10 (‘‘responsi-
bility of the appellant to provide an adequate record for review’’). Specifically
it claims that the defendant failed to provide copies of certain memoranda
of law and portions of the transcript. We agree that the defendant failed to
provide an adequate record in his principal brief or appendix. In his reply
brief, however, he has included some of the documents omitted from his
opening brief as noted by Wilmington Trust. Although the defendant provided
a complete transcript of the June, 2015 trial and the August 30, 2016 hearing,
he failed to include in his brief citations to the transcript that support his
representation of facts as required by Practice Book § 67-4 (c). The defendant
did not provide transcripts of oral arguments at the hearings on the various
motions at issue in this appeal.
The defendant is a self-represented party. ‘‘[I]t is the established policy
of the Connecticut Courts to be solicitous of [self-represented] litigants and
when it does not interfere with the rights of other parties to construe the
rules of practice liberally in favor of the [self-represented] party . . . we
are also aware that [a]lthough we allow [self-represented] litigants some
latitude, the right of self-representation provides no attendant license not
to comply with relevant rules of procedural and substantive law.’’ (Internal
quotation marks omitted.) Darin v. Cais, 161 Conn. App. 475, 481, 129 A.3d
716 (2015). We have held, however, that an appellant may not raise new
arguments for the first time in a reply brief as doing so deprives the appellee
of an opportunity to respond to them. See State v. Myers, 178 Conn. App.
102, 106, 174 A.3d 197 (2017). In the present case, the defendant’s belated
efforts to provide an adequate record do not appear to have interfered with
the rights of Wilmington Trust, and Wilmington Trust makes no such claim.
The failure of the defendant to cite to the record and portions of the
transcript in his brief, as required by our rules, however, presents the court
with a different problem. It requires the court, in its discretion, to search
the record and transcript with respect to the defendant’s representations
of fact. Such review is time-consuming, and without citations, the court
inadvertently may fail to find evidence that supports a party’s representation
or may be unable to review the claim. See part II of this opinion.
3
The court found that the defendant and Laura Stein were divorced during
the pendency of the present action. Their separation agreement (agreement)
was incorporated in the March 12, 2013 judgment of dissolution. Pursuant
to paragraph 2.1 of the agreement, the defendant retained ownership of the
property free and clear of any claims by Laura Stein. Paragraph 9.5 of the
agreement provides that both the defendant and Laura Stein are responsible
for the first and second mortgages on the property.
4
The property is located partially in New Canaan and partially in Norwalk.
The mortgage was recorded in the land records of both New Canaan and
Norwalk.
5
Paragraph 15 of the mortgage provides that all notices were to be in
writing and that any notice to the borrower ‘‘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. Notice to any one
Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly requires otherwise . . . .’’
6
On June 15, 2009, Citibank notified the defendant and Laura Stein of
their rights under the Emergency Mortgage Assistance Program. See General
Statutes § 8-265cc et seq.
7
The marshal served all defendants, except the defendant and Laura Stein,
whom the marshal was unable to locate. On December 2, 2009, Citibank
filed a motion to cite in the defendant and Laura Stein. The court, Mintz,
J., granted the motion to cite in and abode service was effectuated on
January 13, 2010.
8
Laura Stein stipulated that she attended the closing and signed numerous
documents, but she could not recall what documents she had signed. She
agreed that the signature on the documents that were shown to her appears
to be hers. Those documents were the loan application, a HUD-1 form, the
note, a mortgage that was recorded in the New Canaan land records, a
mortgage that was recorded in the Norwalk land records, and a notice of
a right to cancel. Laura Stein recognized what appeared to be the defendant’s
signature on the HUD-1 form, the New Canaan mortgage, and the Norwalk
mortgage. She stipulated that the loan is in default. She did not recall
receiving a demand letter dated September 6, 2008.
9
On June 25, 2015, Citibank moved to default the defendant for failing
to file a trial memorandum containing a statement of law and legal theories
as required by the trial management order. The court denied the motion for
default but limited the defendant to proceeding on the defenses he had
alleged in his special defenses and motion to dismiss.
10
The defendant failed to provide a copy of the transcript of the February
16, 2016 argument.
11
The court issued its order on the defendant’s motion for a new trial on
May 26, 2016, stating ‘‘the court has opened the record and will take addi-
tional testimony from [Citibank’s] witness at the foreclosure trial . . . Ngu-
yen . . . regarding the following: whether . . . Citibank, Wilmington Trust
. . . or some other entity was the trustee of the trust on June 25, 2015 when
. . . Nguyen testified before this court; whether Nationstar, Wells Fargo
Bank . . . or some other entity was the mortgage servicer for the defen-
dant’s mortgage when . . . Nguyen testified; and if an entity other than
Nationstar was the mortgage servicer, whether . . . Nguyen was familiar
with the books and records of such mortgage servicer at that time and was
authorized to testify on its behalf.’’
12
The defendant did not provide a transcript of the oral argument.
13
The record clearly demonstrates that the court granted the defendant’s
reargument on his motion to dismiss. We will not address that portion of
the defendant’s claim further.
14
‘‘A presumption in favor of a party, that a particular fact is true, shifts
the burden of persuasion to the proponent of the invalidity of that fact, and
that burden is met when, by the particular quantum of proof, the validity
of the fact has been rebutted.’’ Anderson v. Litchfield, supra, 4 Conn. App. 28.
15
In a footnote, the court addressed the defendant’s claim raised in his
posttrial brief that Wilmington Trust had succeeded Citibank as trustee.
The court declined to take judicial notice of the transfer as the defendant
requested. It concluded that even if it had taken judicial notice of the transfer,
the change of trustee would not be a basis to dismiss the action, citing
Washington Mutual Bank, F.A. v. Walpuck, 134 Conn. App. 446, 447, 43
A.3d 174 (assignee has option to pursue litigation in its own name or in
name of its assignor), cert. denied, 305 Conn. 902, 43 A.3d 663 (2012).
16
The court also addressed at length the defendant’s motion for a new
trial, distinguishing the deference between a motion for a new trial and a
petition for a new trial. The denial of the defendant’s motion for a new trial
is not at issue in this appeal.
17
In conjunction with this claim that the court erred by denying his motion
to dismiss, the defendant argues that the court erred, as a matter of law,
by failing to determine whether it had subject matter jurisdiction before
permitting Citibank to present its case. ‘‘It is axiomatic that once the issue
of subject matter jurisdiction is raised, it must be immediately acted upon
by the court. . . . Our Supreme Court has explained that once raised, either
by a party or by the court itself, the question [of subject matter jurisdiction]
must be answered before the court may decide the case. . . . [e]verything
else screeches to a halt whenever a non-frivolous jurisdictional claim is
asserted.’’ (Citations omitted; emphasis omitted; internal quotation marks
omitted.) Fennelly v. Norton, 103 Conn. App. 125, 136–37, 931 A.2d 269,
cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
The record discloses that several days prior to the start of trial on June
24, 2015, the defendant filed a motion to dismiss and the plaintiff filed two
motions in limine. The court heard from counsel as to the bases of the
parties’ motions, which included multiple discovery issues regarding the
production of documents and the parties’ failure to comply with the court’s
standing orders. Thereafter, the court stated: ‘‘Well, I think we’re going to
proceed because I think we are starting this hearing, we have the motion
to dismiss that is still on the table. We are past the point of conducting
discovery. I think that based on Judge Povodator’s order, it appears the
parties were not in compliance with the standing orders and here we are,
so we are going forward.’’
Although counsel for the defendant agreed to go forward with evidence,
he repeated his request for the court to order Citibank to produce certain
documents. In reply, the court stated: ‘‘I think you had the trial date and
the trial was not continued. It had been continued, previously, but not
continued in anticipation of any of the discovery that you are looking for
now. The motion for protective order was denied. The motion to dismiss
has been filed. There’s not been a motion to continue the trial, and as I said
when we started we’re not going to continue the trial because the evidence
in the trial will, you know, the plaintiff has the burden of proof, and if the
plaintiff doesn’t have standing, then the plaintiff can’t go forward. So the
evidence is going to address your motion as well.’’
Following trial, the court issued its memorandum of decision on January
7, 2016. In its decision, the court determined that Citibank had standing to
pursue the action, which is the principal issue in the present appeal. Although
the defendant is correct that a court, generally, is required to determine
whether a party has standing before it considers the merits of a case,
under the circumstances of the present matter, the timing of the court’s
determination does not constitute legal error. The evidence that Citibank
would have had to present to prove standing was the same evidence that
it was required to present to prove its case-in-chief. In 2015, the case had been
pending for six years and the parties had been arguing over the production
of documents for an extended period of time. Judge Mintz sustained the
defendant’s objection to Citibank’s motion for summary judgment as to
liability in order to permit the defendant to conduct discovery. Judge Mintz
ordered that Citibank’s motion for summary judgment was to be argued on
November 17, 2014, but it was not argued on that date or ever. The discovery
issue languished until June, 2015, when the case was set down for trial. The
defendant could have secured a ruling on the issue of standing by pursuing
discovery and arguing the motion for summary judgment on November 17,
2014. Judge Heller noted that the defendant took no action to compel dis-
covery.
On appeal, the defendant has not demonstrated that he was harmed by
Judge Heller’s decision to hear the motion to dismiss and the plaintiff’s
case simultaneously. ‘‘When the jurisdictional facts are intertwined with the
merits of the case, the court may in its discretion choose to postpone
resolution of the jurisdictional question until the parties complete further
discovery or, if necessary, a full trial on the merits has occurred.’’ Conboy
v. State, 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009).
The trial court is empowered to manage its own docket. See Ill v. Manzo-
Ill, 166 Conn. App. 809, 824–25, 142 A.3d 1176 (2016) (court has power to
manage its dockets to prevent undue delays in disposition of pending cases).
Under the procedural and factual circumstances of the present case, we
cannot conclude that the court committed legal error or abused its discretion
by pragmatically and flexibly proceeding with respect to the defendant’s
motion to dismiss. See Suntech of Connecticut, Inc. v. Lawrence Brunoli,
Inc., 173 Conn. App. 321, 333–34 n.15 (2017) (court does not abuse discretion
by adhering to scheduling order), appeal dismissed, 330 Conn. 342, A.3d
(2018).
18
To the extent that the defendant claims that Nguyen was not a credible
witness, he cannot prevail. ‘‘[A]s a general rule, appellate courts do not
make credibility determinations. [I]t is within the province of the trial court,
when sitting as the fact finder, to weigh the evidence presented and deter-
mine the credibility and effect to be given the evidence. . . . Credibility
must be assessed . . . not by reading the cold printed record, but by observ-
ing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate
court must defer to the trier of fact’s assessment of credibility because [i]t
is the [fact finder] . . . [who has] an opportunity to observe the demeanor
of the witnesses and the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary inferences from them.’’
(Internal quotation marks omitted.) Zilkha v. Zilkha, 167 Conn. App. 480,
487–88, 144 A.3d 447 (2016).
19
The defendant also claims that by opening the record and taking addi-
tional testimony from Nguyen, he was denied due process and the right to
conduct further discovery. The claim is not reviewable, as the defendant
did not preserve it in the trial court. Moreover, the defendant failed to
identify what efforts he made to pursue posttrial discovery or how the
trial court prevented him from pursuing additional discovery. ‘‘[I]t is well
established that [w]e will not decide an appeal on an issue that was not
raised before the trial court. . . . To review claims articulated for the first
time on appeal and not raised before the trial court would be nothing more
than a trial by ambuscade of the trial judge.’’ (Internal quotation marks
omitted.) In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949,
cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). The defendant has not asked
us to review the claim under any of the extraordinary remedy doctrines.
20
The common-law rule has been codified in General Statutes § 49-17,
which provides: ‘‘When any mortgage is foreclosed by the person entitled
to receive the money secured thereby but to whom the legal title to the
mortgaged premises has never been conveyed, the title to such premises
shall, upon the expiration of the time limited for redemption and on failure
of redemption, vest in him in the same manner and to the same extent as
such title would have vested in the mortgagee if he had foreclosed, provided
the person so foreclosing shall forthwith cause the decree of foreclosure
to be recorded in the land records in the town in which the land lies.’’
21
The defendant also claims that Citibank failed to comply with the notice
provisions of the mortgage as the default notice was sent to Laura Stein,
who is not a mortgagor. Because Laura Stein and the defendant signed the
mortgage, the claim fails.
22
In J.E. Robert Co., the defendants appealed from the judgment of strict
foreclosure and a deficiency judgment ‘‘predicated on the standing of the
original plaintiff, loan servicer J.E. Robert Company, Inc. . . . and the sub-
stitute plaintiff, Shaw’s New London, LLC.’’ J.E. Robert Co. v. Signature
Properties, LLC, supra, 309 Conn. 311. The underlying facts concerning the
transfers of notes and mortgages and assignment of rights are recounted
in the opinion; see id., 313–14; but are not relevant to the present appeal.
23
Nguyen testified, in part, as follows:
‘‘[The Plaintiff’s counsel]: In this instance, was [Citibank] in physical
possession of the note prior to the commencement of the action?
‘‘[Nguyen]: Yes.
‘‘[The Plaintiff’s counsel]: And was the note sent to my law firm?
‘‘[Nguyen]: It was.’’