Wells Fargo Bank, N.A. v. Strong , 149 Conn. App. 384 ( 2014 )

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WELLS FARGO BANK, N.A., TRUSTEE v.
ROBERT S. STRONG ET AL.
(AC 35253)
Lavine, Beach and Bear, Js.
Argued November 15, 2013—officially released April 15, 2014
(Appeal from Superior Court, judicial district of New
London, Devine, J. [motion for summary judgment];
Cosgrove, J. [judgment of strict foreclosure].)
Jeffrey Gentes, with whom was Pamela A. Heller, for
the appellant (defendant Diane Strong).
Marissa I. Delinks, for the appellee (plaintiff).
Opinion
BEAR, J. The defendant Diane Strong1 appeals from
the summary judgment as to liability and the subsequent
judgment of strict foreclosure rendered by the trial
court in favor of the plaintiff, Wells Fargo Bank, N. A.,
as trustee. On appeal, the defendant claims that the
court erred because (1) it granted summary judgment
even though there were genuine issues of material fact
about the plaintiff’s status as owner of the note and
mortgage, which implicated the plaintiff’s standing, and
(2) it denied her request for an evidentiary hearing
regarding the plaintiff’s affidavit of debt, upon which
it relied in granting the plaintiff’s motion for judgment
of strict foreclosure. We affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of the present appeal.
The plaintiff commenced the present action by service
of process on November 3, 2009. It made the following
allegations in its complaint. The Strongs promised to
pay $177,100 to the order of H&R Block Mortgage Cor-
poration (H&R Block) by an adjustable rate note dated
December 12, 2003. To secure the note, the Strongs
mortgaged a parcel of land located at 111 Heather Glen
Lane in Mystic to H&R Block. H&R Block later assigned
the note and mortgage to Sand Canyon Corporation,
formerly known as Option One Mortgage Corporation
(Option One), by an instrument dated March 5, 2004.
Option One in turn assigned its interest in the note and
mortgage to the plaintiff, as trustee for SABR-2004OP1
Mortgage Pass-Through Certificates, Series 2004-OP1
(mortgage pool),2 through the plaintiff’s servicer and
attorney-in-fact, American Home Mortgage Servicing,
Inc., by an instrument dated May 26, 2006. The plaintiff
owns the indebtedness evidenced by the note and
secured by the mortgage, and it was the holder of the
note and owner of the debt when it commenced the
present action. The Strongs failed to make payments
in accordance with the note, and the defendant there-
fore is in default under the note and the first paragraph
of the mortgage. As a result of the default, the plaintiff
accelerated the note and declared the principal balance
of the note due and payable.
The Strongs filed an answer and special defense on
February 9, 2011. They alleged in their special defense
that the plaintiff lacked standing to foreclose on their
property because ownership of their indebtedness was
not transferred to the plaintiff in accordance with the
terms of the pooling and servicing agreement
(agreement) that governs the mortgage pool, and, con-
sequently, the plaintiff was not the valid owner of the
note and mortgage at the time that it commenced the
present action. The plaintiff filed a reply to the Strongs’
answer and special defense on October 28, 2011, in
which it denied their special defense.
The plaintiff moved for summary judgment as to lia-
bility only on March 9, 2012, on the ground that it had
established a prima facie case for foreclosure, and the
defendant’s special defense failed to raise a genuine
issue of material fact. In support of its motion, the
plaintiff submitted copies of the note with an attached
allonge indorsed in blank, the mortgage, the two assign-
ments of mortgage, and the notice of default sent to
the Strongs, as well as an affidavit given by a vice
president of American Home Mortgage Servicing, Inc.,
who attested that the plaintiff held the defendant’s note
and owned her debt before it filed the present action.
The defendant filed her objection on March 21, 2012,
in which she repeated and elaborated upon her special
defense of lack of standing. The court, Devine, J.,
granted the plaintiff’s motion for summary judgment in
a memorandum of decision dated June 20, 2012.
The plaintiff filed an affidavit of debt on July 20, 2012,
in support its motion for judgment of strict foreclosure,
filed on November 27, 2009. The affiant, Gerhard Heck-
ermann, averred that he was a vice president of the
plaintiff’s successor servicer and attorney-in-fact,
Homeward Residential, Inc. (Homeward). The defen-
dant filed an objection to the motion for judgment of
strict foreclosure on July 20, 2012, arguing, inter alia,
that ‘‘a simple Internet search’’ established that Hecker-
mann is a Jacksonville, Florida-based notary, not a vice
president of Homeward, and that his signature on his
personal website is different from the signature on the
affidavit. On the basis of this argument, the defendant
requested that the court hold an evidentiary hearing
in order to determine whether Heckermann is a vice
president at Homeward, whether he is competent to
testify to the matters contained in the affidavit, and
whether he actually executed the affidavit.
The court, Cosgrove, J., heard oral argument on the
motion for judgment of strict foreclosure on September
17, 2012. It subsequently ‘‘rejected the defendant’s chal-
lenge to the affidavit of debt as being without an eviden-
tiary basis’’ and granted the motion for judgment of
strict foreclosure, in an order dated November 21, 2012.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
A
The defendant claims that the court erred in granting
summary judgment because there was a genuine issue
of material fact about whether the plaintiff validly held
the note and owned the mortgage when it commenced
the present foreclosure action. The defendant more spe-
cifically argues that she demonstrated the plaintiff’s
failure to meet its burden as movant and overcame her
own burden as nonmovant by submitting a copy of the
agreement, which provides that (1) all transfers to the
trustee under the agreement are to be made by the
depositor; (2) any mortgage note in the mortgage pool
that is transferred and delivered to the plaintiff must
contain a complete chain of endorsement from the origi-
nator to the last endorsee; (3) all of the mortgage loans
to be conveyed to the plaintiff under the agreement
must be transferred concurrently with the execution
and delivery of the agreement; and (4) the plaintiff’s
rights and responsibilities as trustee are strictly limited
by New York trust law and the ‘‘policy and intention
of the Trust to acquire only Mortgage Loans meeting
the requirements set forth in th[e] [a]greement . . . .’’
The copy of the note submitted by the plaintiff in
support of its motion for summary judgment did not
contain a complete chain of endorsement. Furthermore,
the assignment of mortgage upon which the plaintiff
relies to establish its receipt of the mortgage is dated
May 26, 2006, more than two years after the March
1, 2004 date of the agreement. The assignment also
indicates that the assignor was the mortgage pool’s
servicer, Option One, and not its depositor, Securitized
Asset Backed Receivables, LLC. The defendant conse-
quently argues that these deviations demonstrate that
there are genuine issues of material fact about whether
the plaintiff validly held the note and owned the mort-
gage under the agreement when it commenced the pre-
sent action, such that the plaintiff was not entitled to
a judgment as a matter of law. According to the defen-
dant, this is because the agreement wholly governs the
plaintiff’s ability to hold the note and own the mortgage,
and New York trust law, which governs the agreement,
limits a trustee’s powers to a trust agreement’s
express terms.
We are not persuaded. The issue of whether a mort-
gagor may challenge a foreclosing party’s standing on
the basis of its noncompliance with a pooling and servic-
ing agreement, to which the mortgagor is not a party
and in which such mortgagor has no legal interest, is
one of first impression for our appellate courts. None-
theless, our law with respect to foreclosure actions and
third party beneficiaries provides us with a sufficient
basis to conclude that the court did not err in granting
summary judgment in the present action. We therefore
need not address the ever expanding panoply of deci-
sions from courts in other jurisdictions, ranging from
state trial courts to federal appellate courts, that have
considered the issue under the separate laws and stat-
utes of those jurisdictions.
B
‘‘On appeal, [w]e must decide whether the trial court
erred in determining that there was no genuine issue
as to any material fact and that the moving party is
entitled to a judgment as a matter of law. . . . Because
the trial court rendered judgment for the [plaintiff] 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 on 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
presented to the court under Practice Book [§ 17-45].
. . . The movant has the burden of showing the
nonexistence of such issues but the evidence thus pre-
sented, if otherwise sufficient, is not rebutted by the
bald statement that an issue of fact does exist. . . . To
oppose a motion for summary judgment successfully,
the nonmovant must recite specific facts . . . which
contradict those stated in the movant’s affidavits and
documents. . . .
‘‘Further, because the plaintiff sought summary judg-
ment in a foreclosure action, which is an equitable pro-
ceeding, we note that the trial court may examine all
relevant factors to ensure that complete justice is done.
. . . The determination of what equity requires in a
particular case, the balancing of the equities, is a matter
for the discretion of the trial court.’’ (Citations omitted;
internal quotation marks omitted.) Fidelity Bank v.
Krenisky, 72 Conn. App. 700, 704–705, 807 A.2d 968,
cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, 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 estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense.’’
(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 the 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.
Furthermore, ‘‘[t]he possession by the bearer of a
note indorsed in blank imports prima facie that he
acquired the note in good faith for value and in the
course of business, before maturity and without any
notice of any circumstances impeaching its validity.
The production of the note establishes his case prima
facie against the makers and he may rest there. . . .
It [is] for the [makers] to set up and prove the facts
which limit or change the [bearer’s] rights.’’ (Footnote
omitted; internal quotation marks omitted.) Chase
Home Finance, LLC v. Fequiere, 119 Conn. App. 570,
578, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d
564 (2010).
C
In granting summary judgment, the court noted in its
well written memorandum of decision: ‘‘In the present
case, the plaintiff has presented a copy of the note,
endorsed in blank, the mortgage and the notice of
default sent to the Strongs, which collectively establish
the plaintiff’s prima facie case for foreclosure. [The
defendant] does not dispute the existence or validity of
these documents or the fact that the Strongs defaulted.
Rather, [the defendant] argues that the evidence is
insufficient to demonstrate that the plaintiff is the
owner of the debt, as the note was never transferred
to the plaintiff in a manner consistent with the
[agreement].’’
The court then acknowledged that the present action
raises an issue of first impression but considered: ‘‘In
their treatise on Connecticut foreclosures, Denis R.
Caron and Geoffrey L. Milne comment on a borrower’s
ability to invoke the provisions of a [pooling and servic-
ing agreement] to challenge a plaintiff’s prima facie case
or standing to foreclose. ‘The relevance of securitization
documents on a lender’s standing to foreclose a mort-
gage is questionable. Simply put, a borrower has a con-
tract—the note and mortgage—with the owner or
holder of the loan documents. 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 admissible evidence of holder status has been
presented, a borrower must then challenge those facts
by competent evidence addressed to the delivery of
the loan documents. 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.’ D. Caron & G. Milne, Connecticut
Foreclosures (5th Ed. 2011) § 30-3, p. 401.
‘‘ ‘The law of trusts limits the ability of a borrower
to challenge whether conditions in the pooling and ser-
vicing 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.’’ 90 C.J.S. Trusts, § 363 (a). Generally, the par-
ties to a pooling and servicing agreement are the certifi-
cateholders, who own interests in the mortgages, a
trustee, a depositor of the assets, and a servicer. Bor-
rowers, however, have no contractual privity with the
parties to a pooling and servicing agreement.’ [D.
Caron & G. Milne, supra], pp. 405–406 . . . .’’
The court ultimately concluded: ‘‘The [agreement]
states that there were three parties to that agreement:
Securitized Asset Backed Receivables, LLC (the deposi-
tor), Option One Mortgage Corp[oration] (the servicer)
and the plaintiff (the trustee). [The defendant] was not
a party to or a third party beneficiary of the [agreement].
Thus, [she] cannot invoke the terms of the [agreement]
to challenge the plaintiff’s ability to establish its prima
facie case in this foreclosure action. [The defendant]
asserts that she is not seeking to ‘enforce’ the
[agreement]; rather, she claims that she has simply sub-
mitted the [agreement] as evidence to counter the plain-
tiff’s claim that it is the owner of [the defendant’s] debt.
The court finds no relevant distinction between these
two ways of raising the [agreement] in an attempt to
defeat the plaintiff’s motion. Simply put, [the defendant]
does not have standing to challenge the plaintiff’s
alleged lack of compliance with the [agreement] in an
effort to show that the plaintiff does not own the debt.
Accordingly, the plaintiff has established its prima facie
case for foreclosure.’’
The defendant contends that the court made the fol-
lowing errors in granting summary judgment. The court
failed to acknowledge the relationship between the
plaintiff’s compliance with the agreement and its stand-
ing to bring the present action. The court also improp-
erly shifted the burden of proof on summary judgment
because the plaintiff could not meet its initial burden,
due to its inability to establish its compliance with the
agreement. Finally, the court erred in holding that her
special defense was legally insufficient because she
lacked standing to enforce the agreement as a nonparty.
The defendant takes the position that she sought to
use the agreement as evidence of the plaintiff’s lack of
standing, not to enforce its terms against the plaintiff,
and even if this court concludes otherwise, it should
join certain of our trial courts and courts in other juris-
dictions that have recognized the relevance of a pooling
and servicing agreement to a foreclosing party’s claim
that it owns a mortgage.
D
We begin our analysis by noting, as did the court,
that the defendant does not challenge two of the three
elements of the plaintiff’s prima facie case. Specifically,
she does not contest that she has defaulted on the
note or that the conditions precedent to foreclosure,
as established by the note and mortgage, have been met.
Nor does she challenge the veracity of the documents
submitted by the plaintiff in support of its motion for
summary judgment. The defendant instead challenges
only the first element of the plaintiff’s prima facie case,
that is, the plaintiff’s status as owner of the note and
mortgage, and she does so only on the basis of the
plaintiff’s alleged noncompliance with the agreement.
We therefore direct our attention to the specific
agreement provisions that are presently at issue. The
agreement provides that it was made among Securitized
Asset Backed Receivables, LLC, as depositor, Option
One as servicer, and the plaintiff as trustee. The
agreement also provides: ‘‘Section 2.01 Conveyance of
Mortgage Loans. (a) The Depositor, concurrently with
the execution and delivery hereof, hereby sells, trans-
fers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor
in and to the Trust Fund, and the Trustee, on behalf of
the Trust, hereby accepts the Trust Fund.
‘‘(b) In connection with the transfer and assignment
of each Mortgage Loan, the Depositor has delivered or
caused to be delivered to the Trustee for the benefit of
the Certificateholders the following documents with
respect to each Mortgage Loan so assigned:
‘‘(i) the original Mortgage Note bearing all intervening
endorsements showing a complete chain of endorse-
ment from the originator to the last endorsee, endorsed
‘Pay to the order of , without recourse’
and signed (which may be by facsimile signature) in
the name of the last endorsee by an authorized officer.
To the extent that there is no room on the face of the
Mortgage Notes for endorsements, the endorsements
may be contained on an allonge, if state law so allows
and the Trustee is so advised in writing by the Responsi-
ble Party that state law so allows . . . .’’ (Emphasis
added.)
The agreement further provides: ‘‘Section 10.03 Gov-
erning Law. THIS AGREEMENT SHALL BE CON-
STRUED IN ACCORDANCE WITH AND GOVERNED
BY THE SUBSTANTIVE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REME-
DIES OF THE PARTIES HERETO AND THE CERTIFI-
CATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.’’
1
We must first address the relationship between the
plaintiff’s compliance with the agreement and its stand-
ing to bring the present foreclosure action, because the
issue of standing implicates subject matter jurisdiction.
‘‘The issue of standing implicates the trial court’s sub-
ject matter jurisdiction and therefore presents a thresh-
old issue for our determination.’’ (Internal quotation
marks omitted.) Massey v. Branford, 119 Conn. App.
453, 458, 988 A.2d 370, cert. denied, 295 Conn. 921, 991
A.2d 565 (2010). ‘‘Standing is the legal right to set judi-
cial 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] a party is found to lack standing,
the court is consequently without subject matter juris-
diction 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.’’ (Citations omitted; internal quota-
tion marks omitted.) Equity One, Inc. v. Shivers, 310
Conn. 119, 125–26, 74 A.3d 1225 (2013). ‘‘[T]he 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).
In addition to the standards enunciated in part I B
of this opinion, ‘‘[s]everal general principles concerning
mortgage foreclosure procedure . . . guide our analy-
sis. . . . ‘[S]tanding to enforce [a] promissory note is
[established] by the provisions of the Uniform Commer-
cial 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 instrument.
General Statutes § 42a-3-301. The ‘‘holder’’ is the person
or entity in possession of the instrument if the instru-
ment is payable to bearer. General Statutes § 42a-1-201
(b) (21) (A). When an instrument is endorsed in blank,
it ‘‘becomes payable to bearer and may be negotiated
by transfer of possession alone . . . .’’ General Statutes
§ 42a-3-205 (b). . . . In addition, General Statutes § 49-
17 allows the holder of a note to foreclose on real
property even if the mortgage has not been assigned
to him. . . . [Our Supreme Court] also has recently
determined that a loan servicer for the owner of legal
title to a note has standing in its own right to foreclose
on the real property securing the note.’ ’’ (Citations
omitted; footnotes omitted.) Equity One, Inc. v. Shiv-
ers, supra, 310 Conn. 126–27.
We reiterate that the defendant does not dispute the
validity of the evidence that the plaintiff submitted in
support of its motion for summary judgment as to liabil-
ity to establish that it was not only the holder but also
the owner of the note and mortgage before it com-
menced the present action. Rather, she disputes the
validity of the plaintiff’s status as the owner of the note
and mortgage, based not on the note or the mortgage
themselves but on a pooling and servicing agreement
in which she has no legal interest and that does not
pertain to her payment obligations pursuant to the note
and mortgage. Our appellate courts have not required
a foreclosure plaintiff to produce evidence of ownership
deriving from a pooling and servicing agreement in mak-
ing its prima facie case on summary judgment.
This court’s opinion in Ninth RMA Partners, L.P. v.
Krass, 57 Conn. App. 1, 746 A.2d 826, cert. denied,
253 Conn. 918, 755 A.2d 215 (2000), is relevant to our
analysis even though it is distinguishable to the extent
that it involved (1) a promissory note pertaining to a
nonmortgage debt and (2) defendants who conceded
their liability on the note. In Ninth RMA Partners L.P.,
after the defendants ‘‘stipulated to the entry of summary
judgment as to liability,’’ they ‘‘contested liability [dur-
ing the hearing in damages] by claiming that the plaintiff
was not a proper holder of the note and, therefore,
lacked standing to enforce it. Specifically, the defen-
dants attempted to raise doubts about the chain of title
to the note.’’ (Emphasis added.) Id., 3.
This court rejected the defendants’ position: ‘‘The
defendants make much of the maxim that standing
implicates the subject matter jurisdiction of the court
and may be raised at any time. The defendants, how-
ever, fail to understand that there is a difference
between challenging a party’s standing to maintain a
cause of action and challenging the merits of the cause
of action itself. The question of standing does not
involve an inquiry into the merits of the case. It merely
requires the party to make allegations of a colorable
claim of injury to an interest which is arguably protected
or regulated by the statute . . . in question. . . .
‘‘When the defendants argued at the hearing in dam-
ages that the plaintiff was not a proper holder of the
note, their argument went to the merits of the case,
that is, to whether the plaintiff should prevail. Although
they called their claim a lack of subject matter jurisdic-
tion, we do not view it as such. We view it, instead, as
a claim that goes to the heart of the issues that would
have had to be resolved if the case had gone to trial.
. . .
‘‘To prevail in an action to enforce a negotiable instru-
ment, the plaintiff must be a holder of the instrument
or nonholder with the rights of a holder. . . . This sta-
tus is an element of an action on a note. . . . The failure
to plead this fact properly is challenged by a motion to
strike. . . . The failure to prove such element will
result in a judgment for the defendants. . . . In neither
event is jurisdiction implicated.’’ (Citations omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) Id., 5–6. Similarly, we conclude that the
defendant’s challenge to the validity of the plaintiff’s
status as owner of the note and mortgage, as opposed
to the plaintiff’s actual possession of the note and own-
ership of the mortgage, implicates the merits of the
present foreclosure action, not the plaintiff’s standing
to bring the action.
‘‘[T]he term prima facie case has been utilized,
according to [one commentator on the law of evidence]
. . . where the proponent, having the burden of proving
the issue . . . has not only removed by sufficient evi-
dence the duty of producing evidence to get past the
judge to the jury, but has gone further, and, either by
means of a presumption or by a general mass of strong
evidence, has entitled himself to a ruling that the oppo-
nent should fail if he does nothing more in the way of
producing evidence.’’ (Emphasis in original; internal
quotation marks omitted.) Franklin Credit Manage-
ment Corp. v. Nicholas, 73 Conn. App. 830, 842, 812
A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d
136 (2003). Because the plaintiff produced evidence
that our appellate courts have recognized as sufficient
to establish the elements of its prima facie case, it was
entitled to the presumption that it had standing and
that there were no genuine issues of material fact pre-
cluding a judgment as a matter of law in its favor,
barring evidence produced by the defendant that
showed otherwise. We thus reject the defendant’s argu-
ment that the plaintiff’s alleged noncompliance with
the agreement undermined the plaintiff’s standing to
bring the present action and its ability to establish the
ownership element of its prima facie case.
2
Although the plaintiff’s alleged noncompliance with
the agreement did not impede the plaintiff’s ability to
meet its burden of proving that it was entitled to sum-
mary judgment as a matter of law, we cannot say the
same with respect to the defendant and her burden of
establishing a genuine issue of material fact or that the
plaintiff was not entitled to summary judgment as a
matter of law. ‘‘Contract obligations are imposed
because of conduct of parties manifesting consent, and
are owed only to the specific individuals named in the
contract.’’ (Internal quotation marks omitted.)
Bellemare v. Wachovia Mortgage Corp., 94 Conn. App.
593, 599, 894 A.2d 335 (2006), aff’d, 284 Conn. 193, 931
A.2d 916 (2007). ‘‘It is well settled that one who [is]
neither a party to a contract nor a contemplated benefi-
ciary thereof cannot sue to enforce the promises of the
contract. . . . Under this general proposition, if the
plaintiff is neither a party to, nor a contemplated benefi-
ciary of, [the] agreement, she lacks standing to bring
her claim for breach of [contract].’’ (Internal quotation
marks omitted.) Cimmino v. Household Realty Corp.,
104 Conn. App. 392, 395–96, 933 A.2d 1226 (2007), cert.
denied, 285 Conn. 912, 943 A.2d 470 (2008).
The defendant argues that these well established
standards do not apply to her special defense of the
plaintiff’s lack of standing due to its alleged noncompli-
ance with the agreement, because she neither requests
relief pursuant to the agreement nor brings an action
or counterclaim based on its alleged failure to comply
with the agreement. Therefore, she posits, she does not
seek to enforce the agreement. She compares her use
of the agreement to a tort plaintiff’s use of a contract
between a principal and its agent to establish their
relationship for vicarious liability purposes, or a prem-
ises liability plaintiff’s use of a lease agreement to estab-
lish which party had possession or control of the
premises. The defendant, however, does not cite to any
authority as to what constitutes or does not constitute
contract enforcement in the foreclosure context.
‘‘[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.’’ GMAC Mortgage, LLC v.
Ford, supra, 144 Conn. App. 176. The plaintiff met its
burden of proving that it was entitled to summary judg-
ment as to liability and established an undisputed prima
facie case by submitting copies of (1) the note with an
attached allonge indorsed in blank, (2) the mortgage,
(3) the two assignments of mortgage, and (4) the notice
of default, as well as an affidavit attesting to the plain-
tiff’s status as holder of the note and owner of the debt
at all relevant times. The defendant, however, did not
meet her burden of establishing that summary judgment
as to liability should not have been rendered by the
court either because of a genuine issue of material fact
or that it should not have been granted as a matter of
law. Accordingly, we conclude that the court did not err
in granting the plaintiff’s motion for summary judgment.
II
The defendant’s second claim is that the court erred
because it improperly denied her request for an eviden-
tiary hearing regarding the plaintiff’s affidavit of debt,
upon which the court relied in granting the plaintiff’s
motion for judgment of strict foreclosure. More specifi-
cally, the defendant argues that the court’s denial of
the request was clearly erroneous, given that she had
a good faith basis for challenging the validity of the
affidavit, and the affidavit was the only evidence before
the court when it decided the motion for judgment of
strict foreclosure. We are not persuaded.
‘‘Our standard of review regarding challenges to a
trial court’s evidentiary rulings is that these rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice. . . . Additionally, it is well
settled that even if the evidence was improperly admit-
ted, the [defendant] must also establish that the ruling
was harmful and not likely to affect the result of the
trial.’’ (Internal quotation marks omitted.) National
City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 797,
888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d
799 (2006).
Practice Book § 23-18 provides: ‘‘(a) In any action to
foreclose a mortgage where no defense as to the amount
of the mortgage debt is interposed, such debt may be
proved by presenting to the judicial authority the origi-
nal note and mortgage, together with the affidavit of the
plaintiff or other person familiar with the indebtedness,
stating what amount, including interest to the date of
the hearing, is due, and that there is no setoff or counter-
claim thereto. (b) No less than five days before the
hearing on the motion for judgment of foreclosure, the
plaintiff shall file with the clerk of the court and serve
on each appearing party, in accordance with Sections
10-12 through 10-17, a preliminary statement of the
plaintiff’s monetary claim.’’
The defendant did not raise a defense regarding the
amount of the mortgage debt at any point. She makes
much of the amount of time between the plaintiff’s
filing of its affidavit of debt on July 20, 2012, and the
scheduled hearing for the plaintiff’s motion for judg-
ment of strict foreclosure on July 23, 2012, in explaining
why she sought to establish her position with limited
evidence and through an objection rather than a
defense. We are not persuaded. During the July 23, 2012
hearing, the parties agreed that the court could ‘‘mark
off’’ the hearing to a future date. The court subsequently
heard the motion on September 17, 2012—approxi-
mately two months after the plaintiff filed its affidavit
of debt and the defendant filed her objection thereto.
During that time, the defendant filed a surreply but
introduced no additional evidence and made no addi-
tional arguments in support of her position on the evi-
dentiary sufficiency of the affidavit of debt. ‘‘Where a
defendant fails to raise a defense as to the amount of
the debt, the plaintiff may prove the debt by way of an
affidavit pursuant to Practice Book § 23-18.’’ Bank of
America, FSB v. Franco, 57 Conn. App. 688, 694, 751
A.2d 394 (2002) (defendant claimed court improperly
rendered judgment of strict foreclosure without compe-
tent evidence of debt because affidavit of debt did not
identify affiant’s relationship with parties in foreclosure
action). Cf. Connecticut National Bank v. N. E. Owen
II, Inc., 22 Conn. App. 468, 473, 578 A.2d 655 (1990)
(‘‘when a defendant mortgagor stipulates to the amount
of the indebtedness, he is ordinarily barred from later
contesting it’’ under predecessor to Practice Book
§ 23-18).
The present action is distinguishable from National
City Mortgage Co. v. Stoecker, supra, 92 Conn. App.
798, in which this court held that the trial court abused
its discretion in admitting an affidavit of debt into evi-
dence, where the defendant ‘‘objected to the affidavit
several times’’ and ‘‘specifically contended that the affi-
davit was hearsay and sought to cross-examine a repre-
sentative of the plaintiff to ascertain what was paid,
when it was paid, by whom it was paid and why it was
paid.’’ ‘‘[T]he defendant’s claim seeking to establish the
chronology and specific nature of the payments [there-
fore] was well articulated and . . . readily distinguish-
able from a vague claim of insufficient knowledge.
Because the defendant challenged the amount of the
debt, the use of Practice Book § 23-18 to introduce
the affidavit [was] prohibited, and the hearsay rules
appl[ied].’’ (Internal quotation marks omitted.) Id.,
798–99.
The defendant in the present action challenged the
employment and signature of the affiant, not the amount
of the debt. She based her challenge on conjecture
derived from a cursory Internet search, not on any bind-
ing legal authority, recognized legal principle, or rele-
vant evidence. We accordingly conclude that the court
did not abuse its discretion in denying the defendant’s
request for an evidentiary hearing to challenge the plain-
tiff’s use of an affidavit of debt under Practice Book
§ 23-18.
The judgment is affirmed and the case is remanded
for the purpose of setting a new law day.
In this opinion the other judges concurred.
1
Robert S. Strong, the named defendant and Diane Strong’s husband, died
during the pendency of this action, on May 19, 2011. His estate has not been
substituted as a defendant in this action. After careful review, we conclude
that the record does not contain any filings, arguments, or facts addressing
the effect of Robert Strong’s death on this action or title to the property at
issue. The only defendant involved in this appeal is Diane Strong. We there-
fore will refer to Robert Strong and Diane Strong collectively as the Strongs
and to Diane Strong individually as the defendant hereinafter.
2
‘‘Securitization 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 entities 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 quota-
tion marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn.
307, 313 n.4, 71 A.3d 492 (2013).