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

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U.S. BANK, N.A., TRUSTEE v. LESLEY UGRIN ET AL.
(AC 35266)
Bear, Keller and Harper, Js.*
Argued December 2, 2013—officially released May 27, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hartmere, J.)
David Eric Ross, for the appellant (named
defendant).
Benjamin T. Staskiewicz, for the appellee (plaintiff).
Opinion
HARPER, J. The defendant Lesley Ugrin appeals from
the judgment of foreclosure by sale rendered in favor of
the plaintiff, U.S. Bank, N.A., as trustee.1 The defendant
claims that the court erred by failing to conduct an
additional evidentiary hearing, and thereby improperly
denied his motion to dismiss. We affirm the judgment
of the trial court.
The record contains the following relevant facts and
procedural history. On November 1, 2006, the defendant
executed a note in the amount of $1,787,500, payable
to the order of Chevy Chase Bank, F.S.B. (Chevy Chase
Bank), and secured by a mortgage on property at 57
Warner Hill Road in Fairfield. On September 10, 2008,
the plaintiff, the then owner of the note, commenced
the present action alleging that the note was in default
and seeking to foreclose the mortgage securing the
note.2 The court granted the plaintiff’s motion for a
default judgment for failure to plead, and, on September
21, 2009, the court rendered a judgment of foreclosure
by sale. The defendant filed a motion to dismiss on
February 10, 2012,3 arguing that the plaintiff did not
have standing to bring the present action, and therefore
the court lacked subject matter jurisdiction. On May 2,
2012, the court held a hearing on the motion to dismiss.
At the hearing, the plaintiff presented the court with
the original note.4 The defendant argued that the note
had been altered, and, as a result, there was an issue
of fact as to whether the plaintiff was the holder of the
note at the time the present action was commenced.
In support of this claim, the defendant called Maria
Tomasky, his stepdaughter and the person who pos-
sessed his power of attorney.5 She testified regarding
her contact with the defendant.
Tomasky testified that she received a letter from the
law firm of Hunt Leibert Jacobson, P.C. (Hunt), dated
April 22, 2008, stating that the firm represented Chevy
Chase Bank and that the defendant owed an outstanding
balance on the note. Tomasky then requested proof of
the debt, and in response, Hunt sent a letter dated July
26, 2008. The caption of the July 26 letter contained the
same loan number as in the previous letter, but did not
reference Chevy Chase Bank. Instead, the letter stated
that it was regarding ‘‘U.S. Bank NA as Trustee v. Lesley
Ugrin,’’ but the letter did confirm the validity of the
debt. Hunt enclosed with the July 26 letter a copy of
the note endorsed in blank.6 Tomasky conceded that
she had received this letter, along with a copy of the
note endorsed in blank, prior to the commencement of
the present action. Furthermore, she stated that she
had no evidence that the plaintiff was not the owner
of the note when the action was commenced.
In support of its objection to the motion to dismiss,
the plaintiff submitted an affidavit from Thaddeus Lari-
mer, an employee of Specialized Loan Servicing, LLC,
the loan servicing agent for the plaintiff.7 Larimer
affirmed, on the basis of the servicer’s business records,
that Chevy Chase Bank specially endorsed the note
over to the plaintiff and that the plaintiff was the holder
of the note prior to when the present action commenced
on September 10, 2008.8 Attached to the affidavit was
a copy of the note. Unlike the copy of the note enclosed
with the July 26 letter to Tomasky, however, the copy of
the note appended to the Larimer affidavit was specially
endorsed to the plaintiff. The defendant argued that
this is evidence of an ‘‘illegal’’ alteration because the
note was endorsed in blank when it was sent to
Tomasky and specially endorsed to the plaintiff in Lari-
mer’s records. Therefore, the defendant claimed, genu-
ine issues of fact remained regarding who had the
authority to alter the note, and whether the plaintiff
was the holder of the note at the time the present action
was commenced.9
After the defendant raised this argument, the plaintiff
requested that the court order supplemental briefing
on the issue of whether a note endorsed in blank subse-
quently could be specially endorsed. The court granted
the request from the bench, set a briefing schedule,
and the parties filed posthearing memoranda of law. In
doing so, the court noted: ‘‘[The plaintiff’s counsel] has
already asked for time to file a supplemental memoran-
dum, which will of course be granted. But we may
well be back here. There’s a court reporter problem,
as everyone is aware . . . . We have a court reporter
until 11 a.m. for this legal argument. So counsel are
free to take as long as they want, just understand in all
likelihood we’ll all be back here in any event on this.’’
At approximately 11 a.m., the defendant raised an addi-
tional issue regarding whether an accurate property
description was attached to the complaint, which he
claimed also implicated the court’s subject matter juris-
diction.10 The court stated that this was a new issue
and indicated that more time was needed to hear the
arguments. The defendant, however, suggested that he
‘‘include that [issue] in [his posthearing] brief here, that
would give [the plaintiff] the opportunity to respond to
it.’’ The court then stated: ‘‘You can put that in your
brief . . . and [the plaintiff] can reply. And if we need
anything else on it, we’ll address that when necessary.
. . . So I will await the briefs on this matter.’’
On August 2, 2012, three months after the previous
hearing and two months after the posthearing briefs
had been filed, the court subsequently denied the defen-
dant’s motion to dismiss. The court found that the plain-
tiff demonstrated that it was the holder of the note.
The court specifically found that the defendant failed
to present evidence to contradict this finding. The court
denied the defendant’s motion to reargue his motion
to dismiss, and this appeal followed.11
On appeal, the defendant claims that the court
improperly denied his motion to dismiss for lack of
subject matter jurisdiction because it ‘‘failed to conduct
and complete a full evidentiary hearing on [the matter].’’
Specifically, the defendant contends that the court
erred by failing to conduct an additional evidentiary
hearing because (1) the court stated that it was going
to conduct a future hearing, and (2) the defendant raised
a ‘‘material factual dispute’’ with respect to the plain-
tiff’s standing and therefore was entitled to a second
evidentiary hearing. We disagree.
We first address the defendant’s argument that the
court stated that it was going to hold an additional
hearing, and therefore was required to do so. At the
hearing on the motion to dismiss, the court noted that
the hearing could be cut short because the court
reporter was available only until 11 a.m. Around that
time, the defendant raised a new issue regarding
whether an accurate property description was attached
to the complaint. Although the court stated that more
time would be needed to argue the issue, the defendant
then suggested that the issue could be addressed suffi-
ciently in the parties’ posthearing briefs.
After a careful review of the record, we conclude
that the court’s statements at the evidentiary hearing did
not indicate that the court was ordering a subsequent
hearing on the matter. On the contrary, the defendant
suggested that there was no need for a future hearing
because any remaining issues could be addressed suffi-
ciently in posthearing briefs. Because the defendant
encouraged the court to rely on the parties’ briefs alone
without the need for an additional evidentiary hearing,
we will not conclude that the court erred by following
the defendant’s suggestion. See State v. Coward, 292
Conn. 296, 305 n.12, 972 A.2d 691 (2009) (‘‘[i]t is well
established that a party who induces an error cannot
be heard to later complain about that error’’ [internal
quotation marks omitted]).
The defendant did request an additional evidentiary
hearing in his posthearing brief, arguing that he had
raised an issue of fact regarding the plaintiff’s stand-
ing.12 He claims on appeal that due to the existence of
an issue of fact, the court improperly denied this request
to hold a second hearing before determining whether
the plaintiff had standing to commence the foreclosure
action. ‘‘Standing is the legal right to set judicial machin-
ery in motion. One cannot rightfully invoke the jurisdic-
tion of the court unless he [or she] has . . . 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] a party is found to lack standing,
the court is consequently without subject matter juris-
diction to determine the cause.’’ (Citation omitted; inter-
nal quotation marks omitted.) Equity One, Inc. v.
Shivers, 310 Conn. 119, 125, 74 A.3d 1225 (2013). ‘‘[S]ub-
ject matter jurisdiction involves the authority of the
court to adjudicate the type of controversy presented
by the action before it . . . .’’ (Internal quotation marks
omitted.) Duetsche Bank National Trust Co. v. Bia-
lobrzeski, 123 Conn. App. 791, 798, 3 A.3d 183 (2010).
‘‘[W]here a jurisdictional determination is dependent
on the resolution of a critical factual dispute, it cannot
be decided on a motion to dismiss in the absence of
an evidentiary hearing to establish jurisdictional facts.’’
(Internal quotation marks omitted.) Id., 799. ‘‘[O]ur
review of the trial court’s ultimate legal conclusion and
resulting [denial] of the motion to dismiss will be de
novo. . . . Factual findings underlying the court’s deci-
sion, however, will not be disturbed unless they are
clearly erroneous.’’ (Internal quotation marks omitted.)
Id., 795.
Generally, in order to have standing to bring a foreclo-
sure action the plaintiff must, at the time the action is
commenced, be entitled to enforce the promissory note
that is secured by the property. Equity One, Inc. v.
Shivers, supra, 310 Conn. 127; but see J.E. Robert Co.
v. Signature Properties, LLC, 309 Conn. 307, 318, 71
A.3d 492 (2013) (loan servicer entitled to enforce note
pursuant to rights acquired under pooling and servicing
agreement). Whether a party is entitled to enforce a
promissory note is determined by the provisions of
the Uniform Commercial Code, as codified in General
Statutes § 42a-1-101 et seq. Equity One, Inc. v. Shivers,
supra, 126. ‘‘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.’’ Id. When a note is endorsed in blank, any person
in possession of the note is a holder and is entitled to
enforce the instrument. General Statutes §§ 42a-1-201
(b) (21) (A), 42a-3-205 (b) and 42a-3-301. If an endorse-
ment makes a note payable to an identifiable person,
it is a ‘‘special endorsement,’’ and only the identified
person in possession of the instrument is entitled to
enforce the instrument. General Statutes §§ 42a-1-201
(b) (21) (A), 42a-3-205 (a) and 42a-3-301.13
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 com-
mence a foreclosure action. RMS Residential Proper-
ties, LLC v. Miller, 303 Conn. 224, 231–32, 32 A.3d 307
(2011). After the plaintiff has presented this prima facie
evidence, the burden is on the defendant ‘‘to impeach
the validity of [the] evidence that [the plaintiff] pos-
sessed the note at the time that it commenced the . . .
action or to rebut the presumption that [the plaintiff]
owns the underlying debt . . . .’’ Id., 232. The ‘‘defen-
dant [must] set up and prove the facts which limit or
change the plaintiff’s rights.’’ (Internal quotation marks
omitted.) Id.
At the hearing on the motion to dismiss, the defendant
argued that there was a factual dispute as to whether
the plaintiff was the holder of the note when the present
action commenced because the plaintiff did not explain
who had the authority to take the note endorsed in
blank and specially endorse it over to the plaintiff.
According to the defendant, the appearance of a special
endorsement on the note raised an issue of fact which
required the court to conduct a second evidentiary hear-
ing. We conclude that the May 2, 2012 hearing was
sufficient for the court to decide the merits of the defen-
dant’s motion to dismiss.
Our Supreme Court recently considered in Equity
One, Inc. v. Shivers, supra, 310 Conn. 123–24, whether
a full evidentiary hearing was necessary to determine
if the plaintiff was the holder of a note and therefore
had standing to bring a foreclosure action. In that case,
during a hearing on a motion to reopen and reenter the
judgment of foreclosure, ‘‘the court reviewed a certified
copy of the original mortgage . . . and the assignment
of the note and mortgage . . . to the plaintiff.’’ Id., 130.
At no time did the defendant offer any evidence to
support his claim that the plaintiff did not possess the
note when the action was commenced. Id., 133. Our
Supreme Court concluded that the hearing was ade-
quate for purposes of determining the plaintiff’s stand-
ing. Id., 136. The court specifically noted that the
plaintiff had produced a copy of the original note and
an assignment to the plaintiff dated prior to the date
the action was commenced. Id., 131. The court also
noted that the defendant had failed to present evidence
that either refuted the validity of the note or contra-
dicted the evidence that the plaintiff possessed it at the
time the action was commenced. Id., 133. We interpret
our Supreme Court’s holding in Equity One, Inc., to
stand for the proposition that a court is not required
to order a full evidentiary hearing to determine standing
to bring a foreclosure action if, after being presented
with the original note, the court finds that there is evi-
dence that the plaintiff possessed the note at the time
the action was commenced and the defendant has not
offered any evidence to the contrary.
We conclude that the defendant in the present action
has not presented any evidence to refute the plaintiff’s
claim that it was the holder of the note at the time
the present action was commenced, and, therefore, the
court did not err by failing to hold an additional eviden-
tiary hearing. The plaintiff presented the court with the
original note specially endorsed to the plaintiff.14 The
defendant’s own evidence demonstrated that the plain-
tiff possessed the note, endorsed in blank, prior to the
commencement of the present action. Tomasky testi-
fied that she received a copy of the note endorsed in
blank from Hunt before the action was commenced.
The letter accompanying the note indicated that it was
sent on behalf of the plaintiff. Based on this evidence,
it was not clearly erroneous for the court to conclude
that the plaintiff possessed the note endorsed in blank
prior to the time the action was commenced.
The defendant’s claim that the note was altered when
it specifically was endorsed to the plaintiff does not
refute the plaintiff’s prima facie evidence, and does not
create a genuine issue of fact that would affect the
plaintiff’s standing. A person in possession of a note
endorsed in blank is a holder, and therefore is author-
ized to specially endorse the note. General Statutes
§§ 42a-1-201 (b) (21) (A) and 42a-3-205 (c) (‘‘[t]he holder
may convert a blank endorsement that consists of only
a signature into a special endorsement by writing, above
the signature of the endorser, words identifying the
person to whom the instrument is made payable’’) An
‘‘alteration,’’ on the other hand, is ‘‘an unauthorized
change in an instrument that purports to modify in any
respect the obligation of a party . . . .’’ General Stat-
utes § 42a-3-407 (a) (i). Although the endorsement on
the note in question has changed, this fact alone is
insufficient to demonstrate that the note was altered.15
Anyone who possessed the note was authorized to spe-
cially endorse it. General Statutes § 42a-3-205 (c). For
this reason, the defendant’s claim that the lack of an
explanation for the special endorsement on the note
gives rise to an issue of fact requiring an evidentiary
hearing must fail. We conclude that the defendant has
not presented any evidence that refutes the plaintiff’s
prima facie showing that it was the holder of the note
at the time the action was commenced and therefore
had standing to bring the present action.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
In this opinion the other judges concurred.
* The listing of the judges reflects their seniority status on this court as
of the date of oral argument.
1
The following parties also have interests in the subject property and
were named in the complaint as defendants, but are not parties to this
appeal: National City Bank, the Department of Revenue Services, and the
United States Internal Revenue Service. Throughout this opinion we refer
to Ugrin as the defendant.
2
‘‘Our legislature, by adopting [General Statutes] § 49-17, created a statu-
tory right for the rightful owner of a note to foreclose on real property
regardless of whether the mortgage has been assigned to him.’’ RMS Residen-
tial Properties, LLC v. Miller, 303 Conn. 224, 230, 32 A.3d 307 (2011).
‘‘Section 49-17 codifies the well established common-law principle that the
mortgage follows the note . . . .’’ Id.
3
The court granted several motions to open the judgment and extend the
sale date for reasons not relevant to this appeal.
4
The defendant does not claim that the plaintiff did not present the original
note to the court or that the court did not inspect the note that the plaintiff
presented. We presume that the court acted properly by relying on the
plaintiff’s representations and inspecting the original note when rendering
the prior judgment of foreclosure, and before deciding the merits of the
defendant’s motion to dismiss. See Equity One, Inc. v. Shivers, 310 Conn.
119, 131–33, 74 A.3d 1225 (2013).
5
Tomasky is an attorney admitted to practice in this state.
6
The definitions of the terms blank endorsement and special endorsement
are relevant to the defendant’s claims. ‘‘If an endorsement is made by the
holder of an instrument . . . and the endorsement identifies a person to
whom it makes the instrument payable, it is a ‘special endorsement’. When
specially endorsed, an instrument becomes payable to the identified person
and may be negotiated only by the endorsement of that person. . . . If an
endorsement is made by the holder of an instrument and is not a special
endorsement it is a ‘blank endorsement’. When endorsed in blank, an instru-
ment becomes payable to bearer and may be negotiated by transfer of
possession alone until specially endorsed.’’ General Statutes § 42a-3-205 (a)
and (b).
7
A loan servicer ‘‘communicates with and collects monthly payments
from the mortgagors.’’ (Internal quotation marks omitted.) J.E. Robert Co.
v. Signature Properties, LLC, 309 Conn. 307, 313 n.4, 71 A.3d 492 (2013).
8
Because the plaintiff does not claim that it is the holder of the note by
virtue of a pooling and servicing agreement, but that the note was endorsed
to it directly, we disagree with the defendant’s claim that any purported
agreement needed to be entered into evidence before the court could decide
the motion to dismiss. See J.E. Robert Co. v. Signature Properties, LLC,
309 Conn. 307, 317–18, 71 A.3d 492 (2013).
9
The defendant argues that an additional evidentiary hearing was neces-
sary to afford him the opportunity to cross-examine Larimer. We note that
the plaintiff filed the Larimer affidavit with its objection to the defendant’s
motion to dismiss more than two months before the May 2, 2012 hearing,
and the defendant does not indicate that he made any unsuccessful discovery
requests regarding Larimer during that time. See Practice Book § 13-1 et seq.
10
The defendant does not pursue this claim on appeal.
11
The defendant also claims on appeal that the court improperly denied
his motion to reargue. We disagree. The defendant’s motion to reargue relied
largely on this court’s opinion in Equity One, Inc. v. Shivers, 125 Conn.
App. 201, 9 A.3d 379 (2010), which subsequently was reversed by our
Supreme Court. Equity One, Inc. v. Shivers, 310 Conn. 119, 74 A.3d 1225
(2013). Furthermore, in his motion to reargue, the defendant did not claim
that the court misapprehended the facts. ‘‘[T]he purpose of a 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.’’ (Internal
quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69,
94 n.28, 952 A.2d 1 (2008). Because the defendant’s motion to reargue was
based on law that is no longer controlling, we conclude that any error in
the court’s ruling was harmless, and, therefore, the court’s decision to deny
the motion was not improper.
12
In his posthearing reply brief, the defendant stated: ‘‘In light of the
documents before the court, showing discrepancies as to questionable
endorsements, as well as the defendant’s arguments that the plaintiff had
not demonstrated that it was the holder of the note when this complaint
was filed, the defendant respectfully requests a hearing to ascertain the
plaintiff’s status as the owner or holder of the subject note at the time the
action was commenced . . . .’’
13
See also footnote 6 of this opinion.
14
See footnote 4 of this opinion.
15
Moreover, we note that the defendant has not pleaded, alleged, or pre-
sented any evidence that the note was lost or stolen, and as a result the
defendant is not obligated to pay the instrument. See General Statutes § 42a-
3-305 (c). The defendant merely asserts that there is no explanation for
why the note became specially endorsed, which does not explain why the
defendant should be relieved of his obligation to pay the note. He has not,
for example, presented the court with evidence that another individual
claims that he lost the note or that it was stolen from him, and therefore
someone other than the plaintiff is entitled to enforce the note. See General
Statutes § 42a-3-309.