U.S. Bank, N.A. v. Foote ( 2014 )

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U.S. BANK, N.A., TRUSTEE v. DONNA L. FOOTE
(AC 35632)
DiPentima, C. J., and Beach and Keller, Js.
Argued March 11—officially released July 22, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J. [motion for summary
judgment, strict foreclosure judgment]; Domnarski, J.
[summary judgment].)
Christopher G. Brown, for the appellant (defendant).
Fletcher W. Moore, for the appellee (plaintiff).
Opinion
KELLER, J. The defendant, Donna L. Foote, appeals
from the judgment of strict foreclosure rendered by
the trial court following the granting of a motion for
summary judgment in favor of the plaintiff, U.S. Bank,
N. A., as trustee. On appeal, the defendant claims that
the trial court erred in granting the plaintiff’s motion
for summary judgment because (1) the action is barred
by the doctrines of res judicata and collateral estoppel;
(2) the plaintiff failed to establish a prima facie case
for foreclosure; and (3) a prior judgment of dismissal
against the plaintiff created a genuine issue of material
fact as to the plaintiff’s status as holder of the note
at the time the present action was commenced. The
defendant further claims that, because the plaintiff was
not entitled to summary judgment, the court improperly
rendered judgment of strict foreclosure in favor of the
plaintiff. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On October 20,
2006, the defendant executed an adjustable rate note
in the principal amount of $528,000, payable to the order
of AmTrust Funding Services (AmTrust). Appended to
the note was an allonge1 endorsed in blank. As security
for the note, the defendant conveyed by way of mort-
gage deed her interest in real property located at 474
Main Street in Old Saybrook to Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for
AmTrust and its ‘‘successors and assigns.’’2 On Decem-
ber 17, 2010, MERS assigned the mortgage to the plain-
tiff, as trustee for MASTR Adjustable Rate Mortgages
Trust 2007-1, Mortgage Pass-Through Certificates,
Series 2007-1. The assignment was recorded in the Old
Saybrook land records on December 28, 2010.
On May 29, 2012, the plaintiff commenced this fore-
closure action seeking reformation of the mortgage and
a judgment of foreclosure.3 In its complaint, the plaintiff
alleged, inter alia, that it was the holder and owner of
the note and mortgage, and that the note was in default
because the plaintiff had failed to make payments.
Accordingly, the plaintiff sought to accelerate the bal-
ance due and foreclose on the mortgage.
The defendant filed a motion for summary judgment
on August 31, 2012, in which she referred to a previous
foreclosure action brought by the same plaintiff against
the same defendant, involving the same note and mort-
gage. See U.S. Bank, N.A. v. Foote, Superior Court,
judicial district of Middlesex, Docket No. CV-11-6004322
(January 5, 2012). In that case, the court, Abrams, J.,
granted the defendant’s motion to dismiss on the ground
that the plaintiff lacked standing. Specifically, the court
concluded that the plaintiff had failed to sustain its
evidentiary burden of establishing that it was the holder
of the note at the time the action was commenced
because the plaintiff’s witness could not unequivocally
state that the plaintiff or one of its agents was in posses-
sion of the note at the time the action was commenced.
Id. In the present case, the defendant argued in her
motion for summary judgment that because the note
at issue in the present action was the subject of a prior
foreclosure action brought by the same plaintiff against
same the defendant, the present foreclosure action
therefore was barred by the doctrines of res judicata
and collateral estoppel. The court, Aurigemma, J., dis-
agreed and denied the defendant’s motion.
Thereafter, the defendant filed an answer in which
she conceded that she ‘‘did not make certain of the
payments contemplated by the Note . . . .’’ She also
pleaded five special defenses. The first and second spe-
cial defenses invoked the doctrines of res judicata and
collateral estoppel.4
On January 23, 2013, the plaintiff filed a motion for
summary judgment as to liability, as well as a supporting
memorandum of law, on the grounds that there was an
‘‘absence of a legally sufficient defense, or material
issue of fact,’’ and because it had established a prima
facie case for foreclosure. In support of its motion,
the plaintiff submitted copies of the note, the allonge
endorsed in blank, the mortgage deed, the assignment
of mortgage, and the notice of default sent to the defen-
dant. The plaintiff also submitted an affidavit from
Attorney Martha Croog, the managing member of the
plaintiff’s attorney and bailee, Martha Croog, LLC (law
firm), and an affidavit of debt from Gerhard Hecker-
mann, an assistant secretary of the plaintiff’s attorney-
in-fact and servicer, Homeward Residential, Inc.
(Homeward).
The defendant filed an objection to the plaintiff’s
motion for summary judgment in which she reasserted
her contention that the action was barred by the doc-
trines of res judicata and collateral estoppel. She also
claimed that the plaintiff failed to establish a prima
facie case for foreclosure. The defendant did not file
any affidavits or exhibits in support of her opposition,
and instead relied on ‘‘all papers and proceedings . . .
that were filed . . . in connection with the prior
action’’ between the parties. The court, Domnarski,
J., heard oral argument on the motion for summary
judgment as to liability on March 11, 2013. The court
subsequently granted the plaintiff’s motion on March 15,
2013. Thereafter, the court, Aurigemma, J., rendered
judgment of strict foreclosure in favor of the plaintiff
on April 15, 2013. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the present foreclo-
sure action is barred by the doctrines of res judicata
and collateral estoppel. The issue of whether the doc-
trines of res judicata and collateral estoppel apply to
the facts of this case presents a question of law. Our
review, therefore, is plenary. Bruno v. Geller, 136 Conn.
App. 707, 720, 46 A.3d 974, cert. denied, 306 Conn. 905,
52 A.3d 732 (2012).
‘‘Claim preclusion (res judicata) and issue preclusion
(collateral estoppel) have been described as related
ideas on a continuum. [C]laim preclusion prevents a
litigant from reasserting a claim that has already been
decided on the merits. . . . [I]ssue preclusion . . .
prevents a party from relitigating an issue that has been
determined in a prior suit. . . . The doctrines of res
judicata and collateral estoppel protect the finality of
judicial determinations, conserve the time of the court,
and prevent wasteful relitigation.’’ (Citation omitted;
internal quotation marks omitted.) Id., 720–21. In its
order granting the plaintiff’s motion for summary judg-
ment, the court found that although the plaintiff did
not satisfy its burden of establishing that it was the
holder of the note at the time the prior action was
commenced, neither res judicata nor collateral estoppel
precluded the plaintiff from commencing a new action
and demonstrating its holder status at the time that the
present action was commenced. We agree with the
court.
A
We first discuss the defendant’s res judicata claim.
The defendant argues that ‘‘there can be no credible
dispute that the dismissal of the prior action for lack of
subject matter jurisdiction was rendered on the merits’’
and therefore has a preclusive effect on the present
action. We disagree.
‘‘[T]he doctrine of res judicata, or claim preclusion,
[provides that] a former judgment on a claim, if ren-
dered on the merits, is an absolute bar to a subsequent
action on the same claim. . . . The doctrine of res judi-
cata applies if the following elements are satisfied: the
identity of the parties to the actions are the same; the
same claim, demand or cause of action is at issue; the
judgment in the first action was rendered on the merits;
and the parties had an opportunity to litigate the issues
fully.’’ (Citation omitted; internal quotation marks omit-
ted.) Farmington Valley Recreational Park, Inc. v.
Farmington Show Grounds, LLC, 146 Conn. App. 580,
588, 79 A.3d 95 (2013). ‘‘Judgments based on the follow-
ing reasons are not rendered on the merits: want of
jurisdiction; pre-maturity; failure to prosecute; unavail-
able or inappropriate relief or remedy; lack of stand-
ing.’’ (Emphasis added; internal quotation marks
omitted.) Bruno v. Geller, supra, 136 Conn. App. 725.
Relying on this principle, this court has held that the
dismissal of an earlier action for lack of standing is not a
judgment on the merits and does not have a res judicata
effect. See, e.g., Cayer v. Komertz, 91 Conn. App. 202,
203–204, 881 A.2d 368 (2005); Cayer Enterprises, Inc.
v. DiMasi, 84 Conn. App. 190, 194, 852 A.2d 758 (2004).
In her main and reply briefs before this court, the
defendant acknowledges that the court’s judgment in
the prior action implicated the subject matter jurisdic-
tion of the court and was a decision regarding the plain-
tiff’s standing. ‘‘ ‘[S]tanding to enforce [a] promissory
note is [established] by the provisions of the Uniform
Commercial Code . . . . [See] General Statutes § 42a-
1-101 et seq. Under [the Uniform Commercial Code],
only a ‘‘holder’’ of an instrument or someone who has
the rights of a holder is entitled to enforce the instru-
ment. General Statutes § 42a-3-301. The ‘‘holder’’ is the
person or entity in possession of the instrument if the
instrument is payable to bearer. General Statutes § 42a-
1-201 (b) (21) (A).5 When an instrument is endorsed
in blank, it ‘‘becomes payable to bearer and may be
negotiated by transfer of possession alone . . . .’’ Gen-
eral Statutes § 42a-3-205 (b).’ ’’6 (Footnote omitted.)
Equity One, Inc. v. Shivers, 310 Conn. 119, 126, 74 A.3d
1225 (2013).
As noted previously, the allonge was endorsed in
blank. In the prior action, the court noted that ‘‘the
plaintiff’s witness could not [un]equivocally state that
[the plaintiff] possessed the note at the time the foreclo-
sure commenced.’’ U.S. Bank, N.A. v. Foote, supra,
Superior Court, Docket No. CV-11-6004322. It therefore
concluded that the ‘‘plaintiff did not prove by a prepon-
derance of the evidence that it was the holder of the
note at the time the action was commenced,’’ and,
accordingly, granted the defendant’s motion to dismiss.
Id. That judgment, pertaining to whether the plaintiff
was in possession of the note and therefore was the
holder, was a dismissal for lack of standing. That plainly
is not a judgment on the merits7 and the doctrine of
res judicata, therefore, does not apply.
B
We now turn to the defendant’s claim that the doc-
trine of collateral estoppel prevents the plaintiff from
relitigating the issue of whether it is the holder of the
note that was the subject of the prior foreclosure action.
‘‘Collateral estoppel . . . is that aspect of res judi-
cata which prohibits the relitigation of an issue when
that issue was actually litigated and necessarily deter-
mined in a prior action between the same parties upon a
different claim.’’ (Emphasis omitted; internal quotation
marks omitted.) Farmington Valley Recreational Park,
Inc. v. Farmington Show Grounds, LLC, supra, 146
Conn. App. 588. ‘‘Collateral estoppel means simply that
when an issue of ultimate fact has once been deter-
mined by a valid and final judgment, that issue cannot
again be relitigated between the same parties in any
future lawsuit. . . . Issue preclusion arises when an
issue is actually litigated and determined by a valid and
final judgment, and that determination is essential to
the judgment. . . . Collateral estoppel may be invoked
against a party to a prior adverse proceeding or against
those in privity with that party.’’ (Citation omitted; inter-
nal quotation marks omitted.) Byars v. Berg, 116 Conn.
App. 843, 846, 977 A.2d 734 (2009).
In rejecting the defendant’s claim that collateral
estoppel bars the present action, the court concluded:
‘‘[The finding] that the plaintiff had not established that
it was the owner of the note at the time the [prior]
action was commenced . . . is not binding upon this
court under . . . collateral estoppel because the dates
of commencement of the [prior] action, January 11,
2011, and this action, May 29, 2012, are not the same.’’
We agree with the court.
We must determine whether the issues raised by the
plaintiff in the present case were in substance already
litigated and determined in the earlier action. In its brief
to this court, the defendant asserts that the issue of
whether the plaintiff was the holder of the note was
actually litigated, essential to the judgment of dismissal,
and determined in a prior action. The defendant, how-
ever, does not provide any support or argument as to
whether the issues decided in the two actions were, in
fact, the same, such that the same issue was being
relitigated. The defendant appears to broadly frame the
issue simply as whether the plaintiff was the holder of
the note that was the subject of the original foreclosure
action. We, however, take a more narrow view that is
appropriately guided by the pleadings.
In deciding the defendant’s motion to dismiss, the
court confronted the issue of whether the ‘‘plaintiff
demonstrated by a preponderance of the evidence at
the [evidentiary] hearing that it was the holder of the
note at the time this action commenced.’’ (Emphasis
added.) U.S. Bank, N.A. v. Foote, supra, Superior Court,
Docket No. CV-11-6004322. That is, the court deter-
mined whether the evidence demonstrated that the
plaintiff was the holder of the note on January 11, 2011.
In the present case, however, the only issue before the
court was whether the plaintiff was the holder of the
note at the time the present action was commenced on
May 29, 2012. Consequently, collateral estoppel has no
application in the absence of an identical issue to be
decided by the court.
II
We next address the defendant’s claim that the plain-
tiff was not entitled to summary judgment as to liability
because it failed to establish a prima facie case for
foreclosure. The defendant contends that the plaintiff
did not demonstrate a prima facie case because it failed
to satisfy its burden of establishing the absence of a
genuine issue of material fact as to whether it was the
holder of the note at the time the present action was
commenced. We disagree.
As a preliminary matter, we set forth our standard
of review and other legal principles relevant to evaluat-
ing a court’s decision to grant a motion for summary
judgment. ‘‘On appeal, [w]e must decide whether the
trial court erred in determining that there was no genu-
ine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. . . .
Because the trial court rendered judgment for the [plain-
tiff] as a matter of law, our review is plenary and we
must decide whether [the trial court’s] conclusions are
legally and logically correct and find support in the
facts that appear in the record. . . .
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . .
‘‘A material fact is a fact that will make a difference
in the outcome of the case. . . . Once the moving party
has presented evidence in support of the motion for
summary judgment, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book § [17-45]. . . .
The movant has the burden of showing the nonexis-
tence of such issues but the evidence thus presented,
if otherwise sufficient, is not rebutted by the bald state-
ment that an issue of fact does exist. . . . To oppose
a motion for summary judgment successfully, the non-
movant must recite specific facts . . . which contra-
dict those stated in the movant’s affidavits and
documents.’’ (Internal quotation marks omitted.) Fidel-
ity Bank v. Krenisky, 72 Conn. App. 700, 704–705, 807
A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291
(2002).
In her objection to the plaintiff’s motion for summary
judgment, the defendant argued that the plaintiff failed
to establish a prima facie case for foreclosure. ‘‘In order
to establish a prima facie case in a mortgage foreclosure
action, the plaintiff must prove by a preponderance of
the evidence that it is the owner of the note and mort-
gage, that the defendant mortgagor has defaulted on
the note and that any conditions precedent to foreclo-
sure, as established by the note and mortgage, have
been satisfied. . . . Thus, a court may properly grant
summary judgment as to liability in a foreclosure action
if the complaint and supporting affidavits establish an
undisputed prima facie case and the defendant fails to
assert any legally sufficient special defense.’’8 (Citations
omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn. App.
165, 176, 73 A.3d 742 (2013).
‘‘A mortgagee that seeks summary judgment in a fore-
closure action has the evidentiary burden of showing
that there is no genuine issue of material fact as to any
of the prima facie elements, including that it is the
owner of the debt. Appellate courts in this state have
held that that burden is satisfied when the mortgagee
includes in its submissions to the court a sworn affidavit
averring that the mortgagee is the holder of the promis-
sory note in question at the time it commenced the
action. . . . The evidentiary burden of showing the
existence of a disputed material fact then shifts to the
defendant. It is for the maker of the note to rebut the
presumption that a holder of the note is also the owner
of it.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 177. ‘‘[T]he party moving for summary judg-
ment . . . is required to support its motion with
supporting documentation, including affidavits.’’ (Inter-
nal quotation marks omitted.) Romprey v. Safeco Ins.
Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726
(2013). Likewise, ‘‘[t]he existence of the genuine issue
of material fact must be demonstrated by counteraffida-
vits and concrete evidence.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Little v. Yale University,
92 Conn. App. 232, 235, 884 A.2d 427 (2005), cert. denied,
276 Conn. 936, 891 A.2d 1 (2006).
Furthermore, ‘‘[t]he possession by the bearer of a
note indorsed in blank imports prima facie that [it]
acquired the note in good faith for value and in the
course of business, before maturity and without notice
of any circumstances impeaching its validity. The pro-
duction of the note establishes [its] case prima facie
against the makers and [it] 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.) RMS Residential Properties, LLC v.
Miller, 303 Conn. 224, 232, 32 A.3d 307 (2011). A mort-
gagee is not obligated to produce the original note in
order to meet the mortgagee’s burden at summary judg-
ment; ‘‘that burden is satisfied when the mortgagee
includes in its submissions to the court a sworn affidavit
averring that the mortgagee is the holder of the promis-
sory note in question at the time it commenced the
action.’’ GMAC Mortgage, LLC v. Ford, supra, 144 Conn.
App. 177.
We begin our analysis by noting that the defendant
does not challenge two of the three elements of the
plaintiff’s prima facie case. Specifically, the defendant
does not contest that she has defaulted on the note or
that conditions precedent to foreclosure, as established
by the note and mortgage, have been satisfied. The
defendant instead challenges only the first element of
the plaintiff’s prima facie case, that is, that it was the
holder of the note at the time the action was com-
menced.
In the present case, the plaintiff had submitted to
the trial court a memorandum of law accompanied by
copies of the adjustable rate note, allonge endorsed in
blank,9 and mortgage deed. As the note was endorsed
in blank, the plaintiff must demonstrate that it is the
holder—that is, in possession10—of the note in order
to import a prima facie case for foreclosure and satisfy
its burden at summary judgment. The defendant argues
that the documentation, including the affidavits, submit-
ted by the plaintiff do not establish that the plaintiff
was in possession of the note at the time it commenced
the action. We disagree.
The plaintiff pleaded that it is the holder of the note
upon which the defendant defaulted as well as the
owner of the underlying debt. Further, the plaintiff
offered the sworn affidavit of Attorney Croog, who
averred that the law firm of which she is the managing
member is the bailee and attorney for the plaintiff. She
further attested that the law firm ‘‘receives originally
executed mortgage loan documents from mortgage loan
servicers and mortgage lenders,’’ and that upon receipt
of those documents, the law firm ‘‘acknowledges
receipts of those documents in a bailee letter that
accompanies the original documents so received by
[the law firm], as bailee.’’ The affiant stated that she
received the original note, allonge endorsed in blank,
and mortgage deed, and acknowledged receipt of those
documents in a bailee letter, which the affiant attached
to her affidavit as an exhibit. Finally, she averred that
the law firm, as bailee, continuously ‘‘has retained the
original note, executed by [the defendant], together
with the allonge endorsed in blank, and mortgage, exe-
cuted by [the defendant], in its custody since . . . Feb-
ruary 22, 2011.’’ (Emphasis added.)
In his affidavit of debt Heckermann averred that he
was an assistant secretary of the plaintiff’s servicer
and attorney-in-fact, Homeward. He further stated that
‘‘Homeward maintains records for the subject loan on
behalf of the [plaintiff]’’ and that the plaintiff ‘‘is entitled
to enforce the Note.’’ He also calculated the total due
to the plaintiff as a result of the defendant’s default.
The defendant argues that the affidavits do not dem-
onstrate that the law firm ‘‘possessed the note for the
plaintiff.’’ We are not persuaded. Attorney Croog specifi-
cally averred, as managing member of the law firm, that
it, in its capacity as the plaintiff’s bailee, received and
continuously retained the original note, allonge
endorsed in blank, and mortgage, that had been exe-
cuted by the defendant. She averred that these docu-
ments had been in its possession since February 22,
2011, some three months prior to the date the present
action was commenced. As previously noted, a mortgag-
ee’s burden at summary judgment ‘‘is satisfied when
the mortgagee includes in its submissions 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, supra, 144 Conn. App. 177. By way of the Croog
affidavit, which averred that the law firm, on behalf of
the plaintiff, retained the note, the plaintiff satisfied its
burden at summary judgment of establishing a prima
facie case for foreclosure. Accordingly, the plaintiff,
‘‘by way of its possession of an instrument payable to
[the] bearer, is a valid holder of the instrument and,
therefore, is entitled to enforce it.’’ Chase Home
Finance, LLC v. Fequiere, 119 Conn. App. 570, 577,
989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d
564 (2010).
The defendant offered no evidence to counter the
plaintiff’s sworn statement that it, through its bailee,
was in possession of the note at the time it served the
complaint. In sum, the plaintiff submitted numerous
documents that establish its status as holder of the note
and an absence of any genuine issue of material fact.
It was then incumbent on the defendant to rebut the
plaintiff’s presumption of ownership. Having failed to
submit any evidence in opposition to the plaintiff’s
motion for summary judgment, that presumption pre-
vails. Accordingly, we conclude that the court properly
determined that there was no genuine issue of material
fact and that the plaintiff was entitled to judgment as
to liability.
III
The defendant next claims that the existence of the
prior judgment of dismissal, at the very least, created
a genuine issue of material fact as to whether the plain-
tiff was the holder of the note at the time the present
action was commenced. In light of this purported issue
of fact, the defendant argues that the court erred by
granting the plaintiff’s motion for summary judgment.
We disagree.
‘‘[T]o establish the existence of a material fact, it is
not enough for the party opposing summary judgment
to assert the existence of a disputed issue. . . . Such
assertions are insufficient regardless of whether they
are contained in a complaint or a brief.’’ (Internal quota-
tion marks omitted.) Tuccio Development, Inc. v. Neu-
mann, 111 Conn. App. 588, 594, 960 A.2d 1071 (2008).
The defendant has provided us with no authority, nor
are we aware of any, that supports his suggestion that
the prior action, resulting in dismissal, creates a genuine
issue of material fact.
The court in the prior action found that the plaintiff
failed to prove by a preponderance of the evidence that
it was the holder of the note at the time that action
commenced, because the plaintiff’s sole witness ‘‘could
not [un]equivocally state that [the plaintiff] possessed
the note at the time the foreclosure commenced.’’ U.S.
Bank, N.A. v. Foote, supra, Superior Court, Docket No.
CV-11-6004322. In the present case, the court deter-
mined, on the basis of the documentation and affidavits
before it, that the plaintiff was in possession of and the
holder of the note at the time the present action was
commenced. The defendant provided no authority for
the proposition that the mere existence of a prior judg-
ment of dismissal rendered against a plaintiff creates
a genuine issue of fact, for the purposes of a motion
for summary judgment, as to an issue in subsequent
litigation. The court found, on the basis of the affidavits
and documents before it, no genuine issue of material
fact. The fact that a court in a prior action rendered a
judgment adverse to the plaintiff on a different issue,
on the basis of a witness’s testimony in that case, does
not inevitably or inherently create a genuine issue of
material fact in a future action.
In sum, on the basis of our plenary review of the
pleadings and documentary submissions, we conclude
that the court properly determined that there were no
genuine issues of material fact and that the plaintiff
was entitled to judgment as to liability on its foreclosure
complaint. Moreover, because we conclude that the
court properly granted the plaintiff’s motion for sum-
mary judgment as to liability, we further must reject
the defendant’s claim that the trial court improperly
rendered judgment of strict foreclosure in favor of
the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
An allonge is ‘‘[a] slip of paper sometimes attached to a negotiable
instrument for the purpose of receiving further indorsements when the
original paper is filled with indorsements.’’ Black’s Law Dictionary (9th
Ed. 2009).
2
‘‘As one court has explained, MERS does not originate, lend, service, or
invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee
for the loans owned by its members. The MERS system is designed to allow
its members, which include originators, lenders, servicers, and investors,
to assign home mortgage loans without having to record each transfer in
the local land recording offices where the real estate securing the mortgage
is located. . . .
‘‘The benefit of naming MERS as the nominal mortgagee of record is that
when the member transfers an interest in a mortgage loan to another MERS
member, MERS privately tracks the assignment within its system but remains
the mortgagee of record. According to MERS, this system saves lenders
time and money, and reduces paperwork, by eliminating the need to prepare
and record assignments when trading loans. . . .
‘‘If, on the other hand, a MERS member transfers an interest in a mortgage
loan to a non-MERS member, MERS no longer acts as the mortgagee of
record and an assignment of the security instrument to the non-MERS
member is drafted, executed, and typically recorded in the local land
recording office.’’ (Internal quotation marks omitted.) Chase Home Finance,
LLC v. Fequiere, 119 Conn. App. 570, 572 n.2, 989 A.2d 606, cert. denied,
295 Conn. 922, 991 A.2d 564 (2010).
3
The plaintiff sought reformation to exclude certain specified real prop-
erty from the mortgage in order to conform to the intentions of the parties.
4
The three additional special defenses pleaded by the plaintiff were: (1)
denial of the ‘‘authenticity of, and the authority to make, each signature on,
or any paper affixed to, the original Note’’; (2) the action was ‘‘precluded
by Connecticut statutes and the express terms of the Mortgage’’; and (3)
the action was barred by the doctrine of unclean hands. These special
defenses are not relevant to this appeal.
5
‘‘General Statutes § 42a-1-201 (b) provides in relevant part: ‘(21)
‘‘Holder’’ means:
‘(A) The person in possession of a negotiable instrument that is payable
either to bearer or to an identified person that is the person in possession
. . . .’ ’’ Equity One, Inc. v. Shivers, 310 Conn. 119, 126 n.4, 74 A.3d 1225
(2013).
6
‘‘General Statutes § 42a-3-205 provides in relevant part: ‘(b) If an endorse-
ment is made by the holder of an instrument and is not a special endorsement,
it is a ‘blank endorsement’. When endorsed in blank, an instrument becomes
payable to bearer and may be negotiated by transfer of possession alone
until specially endorsed. . . .’ ’’ Equity One, Inc. v. Shivers, 310 Conn. 119,
126 n.5, 74 A.3d 1225 (2013).
7
We note that in support of her position that the action is barred by res
judicata, the defendant principally relies on this court’s decision in Rosen-
field v. Cymbala, 43 Conn. App. 83, 681 A.2d 999 (1996). The defendant’s
reliance on that case, however, is misguided. In Rosenfield, this court
affirmed the trial court’s decision to render the summary judgment sought
by the defendant against the plaintiffs on the basis that the foreclosure
action was barred by res judicata. The prior judgment in that case, however,
dismissed the plaintiff’s action because the plaintiff had failed to make out
a prima facie case for foreclosure. Id., 84–85. It was not dismissed merely
because the plaintiff failed to satisfy its evidentiary burden that it was
in possession of the note at the time the action commenced, as in the
present case.
In Rosenfield, this court observed that in the prior action, ‘‘the trial court
found that the plaintiff failed to establish that consideration for the note
and mortgage deed was given by the plaintiff’s assignor . . . to the defen-
dant. The trial court also determined that the plaintiff failed to produce any
evidence as to an appraisal of the mortgaged property or its current market
value. Furthermore, the plaintiff did not present evidence of any default of
payment . . . nor the amount of any alleged debt presently due and owing
from the plaintiff to anyone who had an interest in [the] underlying note. . . .
Moreover . . . the trial court characterized the extent of the proceedings as
a trial of the issues. The plaintiff had an opportunity to present his case as
though the trial would go to conclusion.’’ (Internal quotation marks omitted.)
Id., 92. In the present action, the prior judgment was decided solely on the
ground of standing, and, specifically, the issue of whether the plaintiff had
established its possession of the note at the relevant time. Therefore, it was
not a final judgment on the merits.
8
We concluded in part I of this opinion that the special defenses asserted
by the plaintiff—the doctrines of res judicata and collateral estoppel—were
legally insufficient and did not bar the present action.
9
The allonge contains a special endorsement that states ‘‘PAY TO THE
ORDER OF: American Brokers Conduit WITHOUT RECOURSE,’’ and is
signed by a senior vice president of AmTrust. A second endorsement also
appears on the allonge in which American Brokers Conduit, through its
assistant secretary, endorsed the note in blank and without recourse.
10
‘‘A holder is the entity, or person, in possession of the instrument if the
instrument is payable to the bearer.’’ RMS Residential Properties, LLC v.
Miller, supra, 303 Conn. 231.