JPMorgan Case Bank, National Assn. v. Simoulidis ( 2015 )

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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
v. CHRISTOS SIMOULIDIS ET AL.
(AC 36681)
Lavine, Mullins and Borden, Js.
Argued March 16—officially released November 10, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial
referee.)
Peter V. Lathouris, with whom, on the brief, was
Richard M. Breen, for the appellant (named defendant).
Laura Pascale Zaino, with whom, on the brief, was
Brian D. Rich, for the appellee (plaintiff).
Opinion
LAVINE, J. ‘‘As the securitization of mortgage loans
has become increasingly favored by financial lenders,
and as arrangements for the administration of these
loans have become increasingly complex, the relation-
ship between the debtors/mortgagors and the owners
of these debts has become more attenuated. Conse-
quently, in foreclosure actions across the country on
loans subject to these arrangements, challenges to the
standing of parties other than the lender to bring such
actions have been on the rise.’’ J.E. Robert Co. v. Signa-
ture Properties, LLC, 309 Conn. 307, 310, 71 A.3d 492
(2013).
The present case is one of a number of foreclosure
actions in which the loan originated with the now failed
Washington Mutual Bank, FA (bank).1 As in many fore-
closure actions, the borrowers in the present case
sought to avoid foreclosure by filing a motion to dis-
miss, claiming that the court lacked subject matter juris-
diction. The trial court, Hon. Kevin Tierney, judge trial
referee, denied the motion to dismiss. Thereafter, the
court, Mintz, J., rendered a judgment of strict foreclo-
sure in favor of the plaintiff, JPMorgan Chase Bank,
National Association. The defendant Christos Simou-
lidis2 appealed claiming that Judge Tierney improperly
denied the motion to dismiss because (1) the plaintiff
lacked standing and (2) the promissory note and mort-
gage deed are nullities under our contract law. We
affirm the judgment of strict foreclosure.
We begin by setting forth the standard of review
governing motions to dismiss. ‘‘Our standard of review
of a trial court’s findings of fact and conclusions of law
in connection with a motion to dismiss is well settled.
A finding of fact will not be disturbed unless it is clearly
erroneous. . . . [W]here the legal conclusions of the
court are challenged, we must determine whether they
are legally and logically correct and whether they find
support in the facts . . . . Thus, our review of the trial
court’s ultimate legal conclusion and resulting [denial]
of the motion to dismiss will be de novo. . . .
‘‘A motion to dismiss admits all facts well pleaded
and invokes any record that accompanies the motion,
including supporting affidavits that contain undisputed
facts.’’ (Internal quotation marks omitted.) Henriquez
v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).
The following procedural history and factual findings,
as found by Judge Tierney, are relevant to our resolution
of the claims on appeal. On February 22, 2007, the
defendant obtained a $415,000 loan from the bank and
signed a $415,000 promissory note (note) to the bank
secured by a first mortgage on real property at 50 Win-
field Street, Norwalk. The defendant and Despina
Simoulidis executed the mortgage deed.
action in February, 2010. Paragraph 5 of the complaint
alleges in part: ‘‘Said Note is in default and the Plaintiff
. . . as the holder of said Mortgage and Note has
elected to accelerate the balance due on said Note, to
declare said Note to be due in full and to foreclose the
Mortgage securing said note.’’ The defendant did not
file an answer, special defense, counterclaim or set off.
The parties engaged in a substantial period of mediation
but failed to resolve the matter.
On July 10, 2013, approximately three and one-half
years after the action had been commenced, the defen-
dant filed a motion to dismiss, alleging that the court
lacked subject matter jurisdiction due to the plaintiff’s
lack of standing. The defendant stated three reasons
why he believed the plaintiff lacked standing: ‘‘It is not
the owner of the debt evidenced by the promissory note
set forth in the complaint . . . . The promissory note
relied upon by [p]laintiff is not a negotiable instrument
and therefore could not be negotiated to the [p]laintiff
nor could [p]laintiff attain the status of ‘holder’. . . .
The promissory note and mortgage deed relied upon
by [p]laintiff are nullities, in that they are made payable,
legally speaking, to a nonentity, which consequently
lacked legal capacity to enter into them or to enforce
them in our courts.’’
The plaintiff objected to the defendant’s claims,
arguing that it had standing in that the bank was the
original lender; the bank failed; the Federal Deposit
Insurance Corporation (FDIC) was appointed receiver;
on September 25, 2008, the plaintiff acquired the assets
of the bank from the FDIC pursuant to a purchase and
assumption agreement; a copy of the note bears a blank
endorsement executed by Cynthia Riley, bank vice pres-
ident;3 and the plaintiff has possession of the note and
had possession of it prior to commencing the action in
February, 2010. The plaintiff alleged its status as a
holder, relying on RMS Residential Properties, LLC
v. Miller, 303 Conn. 224, 228–29, 32 A.3d 307 (2011),
overruled in part by J.E. Robert Co. v. Signature Proper-
ties, LLC, supra, 309 Conn. 325 n.18, and the presump-
tion that the holder of a note is the owner of the debt.
The plaintiff also argued that the documents that the
defendant submitted in support of his motion to dismiss
were insufficient to rebut the presumption that it was
the owner of the debt.
After reviewing the complaint, the parties’ memo-
randa of law, and relevant documents,4 the court made
extensive and detailed findings concerning the bank’s
many changes in name, charter, mergers, corporate
relocations, and dealings with the Office of Thrift Super-
vision, the predecessor to the United States Comptroller
of the Currency.5
The court found that on September 25, 2008, the bank
was closed by the Office of Thrift Supervision and the
FDIC was appointed receiver of the bank. The FDIC
declared the bank a failed bank. On that same day, the
FDIC, as the receiver, and the plaintiff, as the assuming
bank, executed a purchase and assumption agreement,
which states in part that the FDIC conveyed to the
plaintiff all right, title and interest of the FDIC in the
assets of the bank. The court also found that on July
20, 2009, the FDIC, as receiver for the bank, filed a
petition in the Land Court of the state of Hawaii for an
order to change the home office of the bank and appoint
the FDIC as receiver of the bank. The petition was
accepted by the Land Court, which issued an order
stating in part that documents executed by the FDIC
as receiver of the bank were accepted for filing in the
Land Court, including documents ‘‘filed or recorded in
the Office of the Assistant Registrar of the Land Court
under the name of Washington Mutual Bank or Wash-
ington Mutual Bank, F.A.’’ (Emphasis added.)
After making the foregoing factual findings, the trial
court considered the three reasons the defendant
claimed the plaintiff lacked standing to foreclose the
mortgage: (1) the plaintiff is not the owner of the debt,
(2) the subject note is not a negotiable instrument, and
(3) the note and mortgage are nullities. The defendant
grounded his claim that the plaintiff is not the owner
of the debt on the deposition testimony of Wilkin Rodri-
guez, a home lending research officer in the plaintiff’s
employ. Rodriguez testified that the plaintiff was the
holder of the note, servicer, and mortgagee, and that
Freddie Mac was the investor of the debt. The defendant
claimed that that testimony constituted an admission
on the part of the plaintiff that it did not own the debt.
In response to the motion to dismiss, the plaintiff
presented the court with the original note endorsed
in blank, mortgage, and the purchase and assumption
agreement dated September 25, 2008, by which the
FDIC, as receiver of the bank, conveyed loans to the
plaintiff.
In ruling on the motion to dismiss, the court stated
that ‘‘Connecticut law holds that the submission of the
original note and mortgage deed to this foreclosing trial
court with an undated blank endorsement by the lender
is sufficient to establish standing to the foreclosing
party. Countrywide Home Loans Servicing, LP v.
Creed, 145 Conn. App. 38, 42–43, 47, [75 A.3d 38, cert.
denied, 310 Conn. 936, 79 A.3d 889] (2013).’’ It found
that no court has found Rodriguez’ testimony credible
and binding on the court that the plaintiff is not the
holder of the note. Rodriguez did not define what an
investor is, he did not testify that the plaintiff is not
the owner of the debt; he testified that the plaintiff was
the holder of the note. The court concluded that, as
holder of the note, the plaintiff had standing to foreclose
the mortgage and, moreover, that it was in possession
of the note prior to commencing the action. The court
concluded that the defendant had failed to rebut the
holder presumption articulated in RMS Residential
Properties, LLC v. Miller, supra, 303 Conn. 234–35, that
the holder of the note is the owner of the debt.
With respect to its second reason why the motion to
dismiss should be granted, the defendant claimed that
the note was not a negotiable instrument pursuant to
General Statutes § 42a-1-201 (b) (27), which defines
person, and General Statutes § 42a-1-201 (b) (21), which
defines holder. The defendant argued that the lender,
Washington Mutual Bank, FA, on February 22, 2007,
was only a trade name and therefore was neither a
person nor a holder. After analyzing several sections of
the Uniform Commercial Code (UCC), General Statutes
§ 42a-1-101 et seq., and finding no case law holding that
a trade name is not a person or that the UCC has
declared that a trade name is not a person under § 42a-
1-201 (b) (27), the court concluded that the defendant
had failed to rebut the presumption that the note is a
negotiable instrument and that the plaintiff as holder
of the note has standing.
As to the third reason the defendant asserted to dis-
miss the action, he contended that the note and mort-
gage are nullities, legally speaking, as they were made
payable to a nonentity. The court found this reason to
be the heart of the defendant’s motion to dismiss. The
essence of the defendant’s claim is that the bank, Wash-
ington Mutual Bank, FA, as lender, did not exist because
on April 4, 2005, it was eliminated by corporate name
change to Washington Mutual Bank. More specifically,
the defendant argued that (1) there was no entity known
as Washington Mutual Bank, FA, on February 22, 2007,
(2) the use of a trade name in violation of General
Statutes § 35-1 voids the mortgage transaction, and (3)
a trade name is not a legal entity and cannot com-
mence litigation.
The court found that pursuant to the bank’s April 4,
2005 bylaws, and with the approval of the Office of
Thrift Supervision, the bank had the right to do business
under the name of Washington Mutual Bank or Washing-
ton Mutual Bank, FA. The court found that the bank’s
name was ‘‘Washington Mutual Bank also known as
Washington Mutual Bank, FA,’’ at all times after April
4, 2005, and that both names are existing legal entities.
The court also found that no trade name is in use in
the present litigation as the bank did not commence
the present litigation and is not a party to it. The present
foreclosure action was commenced by the plaintiff, and
the defendant failed to produce any evidence that
JPMorgan Chase Bank, National Association, is a trade
name. For the foregoing reasons, the court denied the
defendant’s motion to dismiss.
After Judge Mintz rendered a judgment of strict fore-
closure on behalf of the plaintiff,6 the defendant
appealed. Additional facts will be set forth as needed.
I
The defendant claims that the trial court improperly
denied his motion to dismiss because the court’s finding
that he failed to rebut the presumption that the plaintiff,
as the holder of the note, is the owner of the debt is
clearly erroneous. We disagree.
‘‘The issue of standing implicates [the] court’s subject
matter jurisdiction. . . . 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 contro-
versy. . . . When standing is put in issue, the question
is whether the person whose standing is challenged is
a proper party to request an adjudication of the issue
. . . .’’ (Citations omitted; internal quotation marks
omitted.) AvalonBay Communities, Inc. v. Orange, 256
Conn. 557, 567–68, 775 A.2d 284 (2001). ‘‘Because stand-
ing implicates the court’s subject matter jurisdiction,
the plaintiff ultimately bears the burden of establishing
standing.’’ Seymour v. Region One Board of Education,
274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S.
1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).
‘‘Because a determination regarding the trial court’s
subject matter jurisdiction raises a question of law,
[the standard of] review is plenary.’’ (Internal quotation
marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn.
206, 214, 982 A.2d 1053 (2009). ‘‘Standing is established
by showing that the party claiming it is authorized by
statute to bring suit or is classically aggrieved.’’ (Inter-
nal quotation marks omitted.) St. Paul Travelers Cos. v.
Kuehl, 299 Conn. 800, 809, 12 A.3d 852 (2011). ‘‘Statutory
aggrievement exists by legislative fiat, not by judicial
analysis of the particular facts of the case. In other
words, in cases of statutory aggrievement, particular
legislation grants standing to those who claim injury
to an interest protected by that legislation.’’ (Internal
quotation marks omitted.) Andross v. West Hartford,
285 Conn. 309, 322, 939 A.2d 1146 (2008).
Very recently this court summarized the jurispru-
dence with respect to standing in foreclosure matters
in U.S. Bank, National Assn. v. Schaeffer, 160 Conn.
App. 138, A.3d (2015). In Connecticut, one may
enforce a note pursuant to the UCC. Id., 146. General
Statutes § 42a-3-301 provides in relevant part that a
‘‘[p]erson entitled to enforce an instrument means . . .
the holder of the instrument . . . .’’7 (Internal quotation
marks omitted.) When a note is endorsed in blank, the
note is payable to the ‘‘bearer’’ of the note. See General
Statutes § 42a-3-205 (b); see also RMS Residential Prop-
erties, LLC v. Miller, supra, 303 Conn. 231. A person
in possession of a note endorsed in blank, is the valid
holder of the note. See General Statutes § 42a-1-201 (b)
(21) (A). Therefore, a party in possession of a note,
endorsed in blank and thereby made payable to its
bearer, is the valid holder of the note, and is entitled
to enforce the note. See RMS Residential Properties,
LLC v. Miller, supra, 231.
In RMS Residential Properties, LLC v. Miller, supra,
303 Conn. 231, our Supreme Court stated that to enforce
a note through foreclosure, a holder must demonstrate
that it is the owner of the underlying debt.8 The holder
of a note, however, is presumed to be the rightful owner
of the underlying debt, and unless the party defending
against the foreclosure action rebuts that presumption,
the holder has standing to foreclose the mortgage.9 Id.,
231–32. A holder only has to produce the note to estab-
lish that presumption. ‘‘The production of the note
establishes his case prima facie against the [defendant]
and he may rest there. . . . It [is] for the defendant to
set up and prove the facts [that] limit or change the
plaintiff’s rights.’’ (Emphasis added; internal quotation
marks omitted.) Id., 232; see also American Home Mort-
gage Servicing, Inc. v. Reilly, 157 Conn. App. 127, 133,
A.3d (2015).
In J.E. Robert Co. v. Signature Properties, LLC,
supra, 309 Conn. 323–25, our Supreme Court articulated
its analysis of standing stated in RMS Residential Prop-
erties, LLC. First, the court clarified that when it stated
in RMS Residential Properties, LLC, that a holder is
the rightful owner of the debt, it intended to ‘‘address
the situation in which ownership of the note and owner-
ship of the mortgage rest in different hands at the time
the foreclosure action commenced.’’ Id., 323. J.E.
Robert Co. emphasized that the purpose of RMS Resi-
dential Properties, LLC, was not to restrict those cases
in which ownership of the note and ownership of the
debt was in the same hands. Id., 324–25. Instead, our
Supreme Court put forth a means by which ‘‘a debtor
may be able to produce evidence demonstrating that
the [foreclosing party], who might otherwise appear to
be entitled to enforce the debt [by way of possessing
the note,] nevertheless lacks standing, perhaps because
ownership of the debt has passed to another party.’’
(Emphasis added.) Id., 325.
J.E. Robert Co. further clarified that, even if a defen-
dant in a foreclosure action were able to demonstrate
that the debt was owned by a party other than the one
bringing the foreclosure action, or by other means was
able to rebut the presumption that the holder of the
note was the owner of the debt, the result was not an
automatic dismissal of the action due to lack of stand-
ing. Rather, the burden shifts back to the party bringing
the foreclosure action to demonstrate that the rightful
owner had in some way vested in it the right to collect
the debt on the owner’s behalf. Id., 325 n.18.10
U.S. Bank, National Assn. v. Schaeffer, supra, 160
Conn. App. 146–47, also summarized the law more suc-
cinctly: The holder of a note seeking to enforce the
note through foreclosure must produce the note. The
note must be endorsed so as to demonstrate that the
foreclosing party is a holder, either by a specific
endorsement to that party or by means of a blank
endorsement to bearer. Id., 150. If the foreclosing party
produces a note demonstrating that it is a valid holder
of the note, the court is to presume that the foreclosing
party is the rightful owner of the debt. Id. The defending
party may rebut the presumption that the holder is the
rightful owner of the debt, but bears the burden to
prove that the holder of the note is not the owner
of the debt. Id. This may be done, for example, by
demonstrating that ownership of the debt had passed
to another party. Id. The defending party does not carry
its burden by merely identifying some documentary
lacuna in the chain of title that might give rise to the
possibility that a party other than the foreclosing party
owns the debt. Id. To rebut the presumption that the
holder of a note endorsed specifically or to bearer is
the rightful owner of the debt, the defending party must
prove that another party is the owner of the note and
debt. Id. Without such proof, the foreclosing party may
rest its standing to foreclose the mortgage on its status
as the holder of the note.
In the present case, the plaintiff presented the court
with the original note and mortgage deed both dated
February 22, 2007. Page 5 of the note is an undated
endorsement in blank. See footnote 3 of this opinion.
In addition to the note that is endorsed in blank, the
plaintiff presented the court with the purchase and
assumption agreement. Section 3.1 of that agreement
states in relevant part: ‘‘the [plaintiff] hereby purchases
from the [FDIC] and the [FDIC] herby sells, assigns,
transfers conveys, and delivers to the [plaintiff,] all
right, title, and interest of the [FDIC] in and to all of
the assets (real, personal and mixed, wherever located
and however acquired) including all subsidiaries, joint
ventures, partnerships, and any and all other business
combinations or arrangements, whether active, inac-
tive, dissolved or terminated, of the Failed Bank
whether or not reflected on the books of the Failed
Bank as of Bank Closing.’’ Also in evidence for the
court’s consideration were the listing of the subsidiaries
of Washington Mutual, Inc., and an inventory spread-
sheet of Freddie Mac loans.
On appeal, the defendant claims that he successfully
rebutted the presumption that the plaintiff is the owner
of the subject debt on the basis of Rodriguez’ deposition
testimony.11 The court found, and we agree, that Rodri-
guez’ testimony did not rebut the presumption that the
plaintiff is the owner of the debt. The court further
found, and we agree, that the purchase and assumption
agreement dated September 25, 2008, conveyed from
the FDIC for the bank all loans to the plaintiff.
‘‘[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. . . .
The production of the note establishes his case prima
facie against the makers and he may rest there. . . .
It [is] for the defendant to set up and prove the facts
which limit or change the plaintiff’s rights.’’ (Internal
quotation marks omitted.) Countrywide Home Loans
Servicing, LP v. Creed, 145 Conn. App. 38, 48, 75 A.3d
38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). On
the basis of the evidence presented to it, the court
found, and we agree, that the defendant had failed to
rebut the presumption that the plaintiff, as the holder
of the note, was the owner and had standing to bring
the action.12
II
The defendant also raises several claims predicated
on his belief that Washington Mutual Bank, FA, is a
trade name. Specifically, the defendant claims that a
trade name (1) is not a person capable of negotiating
a negotiable instrument payable to bearer, (2) lacks the
legal capacity to enter into a contract consisting of the
note and mortgage deed, and (3) lacks standing to bring
a civil action to enforce the note. We disagree.
Our review of the record and the court’s memoran-
dum of decision reveals that the court found on the
basis of the bank’s corporate filings and bylaws, that
Washington Mutual Bank, FA, is not a trade name. Sig-
nificantly, the court found that on April 4, 2005, ‘‘the
bank’s Federal State Charter (No. 4539) as amended and
‘Washington Mutual Bank, FA,’ changed its corporate
name to ‘Washington Mutual Bank.’ ’’ Section 1 of the
bylaws states: ‘‘Corporate Title and Name. The full cor-
porate title of the savings bank is Washington Mutual
Bank. The savings bank also may do business under
the name of Washington Mutual Bank, FA.’’ The court
also found that the Office of Thrift Supervisors
approved the change of the bank’s corporate name and
the bank’s right to do business under its new name,
Washington Mutual Bank, or its former name Washing-
ton Mutual Bank, FA.
We thoroughly have reviewed the court’s memoran-
dum of decision and the undisputed evidence regarding
the bank’s history and corporate name changes. See
footnote 5 of this opinion. We agree with the court’s
conclusion that Washington Mutual Bank, FA, is not a
trade name. For that reason, we decline to address the
defendant’s several claims asserted on the mistaken
ground that Washington Mutual Bank, FA, is a trade
name.
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
See, e.g., JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn. App. 260,
263, 73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889 (2013); Washington
Mutual Bank, F.A. v. Walpuck, 134 Conn. App. 446, 43 A.3d 174, cert. denied,
305 Conn. 902, 43 A.3d 663 (2012).
2
Despina Simoulidis, Wachovia Bank, National Association, and State of
Connecticut, Department of Revenue Services are also defendants, but they
have not participated in this appeal. In this opinion, we refer to Christos
Simoulides as the defendant.
3
The blank endorsement is undated and states: ‘‘Pay to the order of
Without Recourse. WASHINGTON MUTUAL BANK, FA By
CYNTHIA RILEY, VICE PRESIDENT’’
4
The parties opted to have the court decide the motion to dismiss on the
basis of the allegations in the complaint and undisputed facts. Judge Tierney
noted: ‘‘[I]f the complaint is supplemented by undisputed facts established
by affidavits submitted in support of the motion to dismiss . . . other types
of undisputed evidence . . . and/or public records of which judicial notice
may be taken . . . the trial court, in determining the jurisdictional issue,
may consider these supplementary undisputed facts and need not conclu-
sively presume the validity of the allegations of the complaint.’’ (Internal
quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education,
303 Conn. 402, 422–23 n.17, 35 A.3d 188 (2012).
The parties submitted the following documents to the court: a five page
promissory note from the defendant to the bank; a sixteen page open end
mortgage securing the note on 50 Winfield Street in Norwalk; a one page
Federal Home Loan Mortgage Corporation (Freddie Mac) regulation § 66.20;
a one page Freddie Mac regulation § 66.17; a September 25, 2008 purchase
and assumption agreement between the FDIC as receiver of the bank and
the plaintiff; a one page spreadsheet of inventory of Freddie Mac loans; a
one page document line report spreadsheet; a one page Securities and
Exchange Commission website printout listing the subsidiaries of the bank;
a forty-two page transcript of Wilkin Rodriguez’ deposition; seven pages of
correspondence from the Office of the Comptroller of the Currency to the
plaintiff’s attorney dated May 24, 2012; and twenty-five pages of certified
documents from the state of Hawaii, Office of Assistant Registrar, dated
August 20, 2009.
5
The court found that the bank was founded in 1889 as Washington Mutual
Savings Bank and was organized under the laws of the state of Washington
to transact business as a state savings bank. On November 30, 1994, the bank
was renamed Washington Mutual Bank. On December 20, 2004, Washington
Mutual Bank was converted from a state chartered savings bank in the state
of Washington to a federally chartered savings bank under the corporate
title of Washington Mutual Bank.
Moreover, ‘‘[o]n June 28, 2005, Washington Mutual Bank referring to itself
as the ‘Association’ by William L. Lynch, its secretary, notified the Office
of Thrift Supervision . . . by letter that the proposed amendment to Section
2 of the Association’s Federal Stock Charter (No. 4539) would state: ‘Section
2. Office. The home office shall be located in Henderson, Nevada.’ Article
1, Section 2 of the Association’s bylaws would also be amended to state:
‘Section 2. Home Office. The home of the savings bank shall be at Henderson,
the County of Clark, in the state of Nevada.’ Those amendments were noted
in that June 28, 2005 letter to become effective as of September 23, 2005.
These two amendments were approved by the Association (bank). The
amendment to the Federal Stock Charter (No. 4539) and the amendment
to the bylaws were date stamped as being received by the [Office of Thrift
Supervision] on July 22, 2005, confirming the same information.’’
6
On March 10, 2014, Judge Mintz found the debt to be $558,768.06, plus
attorney’s fees and costs.
7
General Statutes § 42a-3-301 provides: ‘‘ ‘Person entitled to enforce’ an
instrument means (i) the holder of the instrument, (ii) a nonholder in posses-
sion of the instrument who has the rights of a holder, or (iii) a person not
in possession of the instrument who is entitled to enforce the instrument
pursuant to section 42a-3-309 or 42a-3-418(d). A person may be a person
entitled to enforce the instrument even though the person is not the owner
of the instrument or is in wrongful possession of the instrument.’’
8
In U.S. Bank, National Assn. v. Schaeffer, supra, 160 Conn. App. 147
n.5, Justice Borden stated: ‘‘Although in many, if not most, cases, the party
seeking enforcement of the note will also be the owner of the debt, our
jurisprudence has not specifically defined what that distinction means. We
construe ownership of the underlying debt to refer to the person or entity
to whom money is ultimately payable. For example, a mere servicer of the
note may seek enforcement of it, although ultimately the money would be
payable to some other entity. See, e.g., J.E. Robert Co. v. Signature Proper-
ties, LLC, [supra, 309 Conn. 313] (J.E. Robert Company was servicer of
note, but debt was owned by JP Morgan Chase Bank, N.A., to whom money
was ultimately payable).’’
9
General Statutes § 49-17 ‘‘codifies the well established common-law prin-
ciple 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, created a statutory right for the rightful owner of a
note to foreclose on real property regardless of whether the mortgage has
been assigned to him.’’ (Citations omitted.) RMS Residential Properties,
LLC v. Miller, supra, 303 Conn. 230.
10
In footnote 18 of J.E. Robert Co., our Supreme Court laid out an alterna-
tive test for cases where the party commencing a foreclosure action was
not the holder of the note. J.E. Robert Co. v. Signature Properties, LLC,
supra, 309 Conn. 325 n.18. In cases where a nonholder transferee seeks to
enforce a note in a foreclosure proceeding, the transferee must demonstrate
by means of proper supporting documents, its right to foreclose. Id. The
transferee must account for possession of the note by proving the transaction
through which it acquired the note from the holder. Id., 326 n.18.
11
Although the defendant does not say so specifically, he implies that
Rodriguez’ testimony constitutes a judicial admission on the part of the
plaintiff. The trial court properly determined that Rodriguez’ testimony was
not conclusive of the issue of whether the plaintiff is a holder entitled to
bring the present action. See O & G Industries, Inc. v. All Phase Enterprises,
Inc., 112 Conn. App. 511, 523 n.5, 963 A.2d 676 (2009) (distinguishing between
judicial and evidentiary admission).
12
The defendant does not claim that the plaintiff was not in possession
of the note at the time it commenced the present action.