Citimortgage, Inc. v. Tanasi , 176 Conn. App. 829 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CITIMORTGAGE, INC. v. RICHARD
TANASI ET AL.
(AC 39037)
Alvord, Prescott and Kahn, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendants C and T. After execution and delivery of the
note underlying that mortgage, the plaintiff entered into an agreement
selling the debt of C and T to a second bank, H Co. Under the terms
of the agreement, the plaintiff agreed to service the debt for H Co. and
was authorized to institute foreclosure proceedings on H Co.’s behalf.
C and T subsequently failed to make the required monthly payments
and the plaintiff commenced the present action alleging, inter alia, that
it was the holder of the note. Attached to the complaint was a copy of
the note, endorsed in blank. After the trial court denied a motion to
strike the foreclosure related prayers for relief from the complaint filed
by C and T, it granted the plaintiff’s motion for summary judgment as
to liability. Thereafter, C and T filed a motion to dismiss, claiming that
the plaintiff lacked standing to foreclose because the plaintiff did not
own the debt and had not been given authority to foreclose by H Co.
In response, the plaintiff produced a copy of the agreement, which had
also been provided to C and T previously during mediation. C and T
were given the opportunity to review the agreement during a one hour
recess, and the provision of the agreement granting the plaintiff the
authority to foreclose was read into the record. The court subsequently
denied the motion to dismiss and rendered a judgment of strict foreclo-
sure in favor of the plaintiff, from which C and T appealed. Held:
1. The trial court properly denied C and T’s motion to dismiss, as the plaintiff
had standing to foreclose on behalf of H Co.; the plaintiff having provided
the court with a copy of the agreement at the hearing on the motion to
dismiss, and the relevant portions of the agreement having been read
into the record and considered by the court, the record was adequate
to review the question of whether the agreement gave the plaintiff the
authority to foreclose, and the plain and unambiguous language of the
agreement provided the plaintiff, as the holder of the note endorsed in
blank, with authority to foreclose on behalf of H Co., the owner of
the note.
2. C and T could not prevail on their claim that the plaintiff should be
judicially estopped from proceeding under a theory that H Co. owned
the debt; the plaintiff’s introduction of the agreement was not untimely
but, rather, was responsive to the attempt by C and T to meet their burden
of rebutting the presumption of ownership afforded to the plaintiff as
a holder of the note, C and T were provided with ample opportunity to
review the agreement, and they failed to demonstrate that they were
prejudiced by the introduction of the agreement during the hearing on
the motion to dismiss.
3. C and T could not prevail on their claim that the trial court erred by
failing to dismiss the foreclosure action, with prejudice, on the basis of
fraud; under the relevant burden shifting framework, the plaintiff was
presumed to be the owner of the debt when it produced the note
endorsed in blank and had no burden of proving ownership, but once
that presumption was challenged by C and T, the plaintiff had the burden
to demonstrate that it owned the debt or had the authority from the
owner of the note, H Co., to foreclose, and, therefore, it was not fraudu-
lent for the plaintiff to demonstrate that it had authority to foreclose
on behalf of H Co. in response to the motion to dismiss filed by C and T.
Argued June 1—officially released October 3, 2017
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., brought to
the Superior Court in the judicial district of Middlesex,
where the court, Domnarski, J., denied the motion to
strike filed by the named defendant et al.; thereafter,
the defendant PNC Bank, National Association, was
defaulted for failure to appear; subsequently, the court,
Aurigemma, J., granted the plaintiff’s motion for sum-
mary judgment as to liability; thereafter, the court, Aur-
igemma, J., denied the motion to dismiss filed by the
named defendant et al.; subsequently, the court, Auri-
gemma, J., granted the plaintiff’s motion for a judgment
of strict foreclosure and rendered judgment thereon,
from which the named defendant et al. appealed to this
court; thereafter, the court, Aurigemma, J., issued an
articulation of its decision. Affirmed.
Christopher G. Brown, for the appellants (named
defendant et al.).
Donald E. Frechette, with whom was Tara Trifon,
for the appellee (plaintiff).
Opinion
KAHN, J. The defendants, Richard Tanasi and Athana-
sula S. Casberg Tanasi,1 appeal from the judgment of
strict foreclosure rendered by the court in favor of the
plaintiff, CitiMortgage, Inc. The defendants claim that
the court erred in denying their motion to dismiss the
foreclosure action because the plaintiff (1) lacked
standing to commence foreclosure proceedings, (2)
improperly relied on a document as a basis for standing,
and (3) committed fraud warranting dismissal of the
action with prejudice. We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts are relevant to our resolution of
this appeal. On August 2, 2007, the defendants executed
and delivered a note in the principal amount of $656,250
to ABN AMRO Mortgage Group, Inc. (Mortgage Group),
which was secured by a mortgage on real property
known as 27 Briarwood Drive in Old Saybrook. In late
August 2007, the plaintiff acquired Mortgage Group by
merger. In November, 2007, the plaintiff entered into a
‘‘Master Mortgage Loan Purchase and Servicing
Agreement’’ (agreement) with Hudson City Savings
Bank (Hudson). Under the agreement, Hudson pur-
chased certain mortgage loans from the plaintiff, includ-
ing the defendants’ loan. The agreement identifies
Hudson as the ‘‘[i]nitial [p]urchaser’’ and the plaintiff
as the ‘‘[s]eller and [s]ervicer.’’ The plaintiff possessed
the original note, endorsed in blank, at the time of the
commencement of the foreclosure action. When the
defendants failed to make the required monthly pay-
ments on the loan, the plaintiff sent the defendants a
notice of default. The defendants subsequently failed
to cure their default, and the plaintiff accelerated the
sums due under the note. The plaintiff commenced a
foreclosure action in July, 2011, and alleged in its com-
plaint that it ‘‘is the holder of [the defendants’] [n]ote
and [m]ortgage.’’
The parties proceeded to mediation. It is not disputed
that, during mediation, the plaintiff provided the defen-
dants with a copy of the agreement. After participating
in fourteen court-annexed mediation sessions, the
plaintiff filed a motion to terminate the mediation stay,
which the court granted.
On April 10, 2013, the defendants filed a motion to
strike the foreclosure related prayers for relief in the
complaint, arguing that ownership of the debt is an
essential allegation of an action for foreclosure of a
mortgage and that the plaintiff failed to allege owner-
ship of the debt in its complaint. The court denied
the motion.
On June 2, 2014, the plaintiff filed a motion for sum-
mary judgment as to liability only. The plaintiff attached
an affidavit of Glenna S. Feeley, the vice president of
document control for the plaintiff, to its memorandum
of law in support of its motion for summary judgment.
In the affidavit, Feeley stated that in August, 2007, Mort-
gage Group merged into the plaintiff, that the rights
under the mortgage were assigned to the plaintiff, and
that the plaintiff is the holder of the note and mortgage.
The plaintiff also attached a 2007 certificate of merger
and a copy of the defendants’ note, which was endorsed
in blank. The defendants filed an objection to the
motion for summary judgment. The court concluded
that the uncontested evidence presented by the plaintiff
established that the plaintiff possessed the original note
at the time of the commencement of foreclosure pro-
ceedings, and that the note was endorsed in blank by
the original lender. The court concluded that the plain-
tiff was the holder of the note, that the note was in
default, and that the plaintiff was entitled to summary
judgment as to liability as a matter of law.
On July 23, 2015, the defendants filed a motion to
dismiss the foreclosure action for lack of subject matter
jurisdiction. At the November 30, 2015 hearing on the
motion to dismiss, the defendants’ counsel argued that
the plaintiff lacked standing to foreclose because the
defendants had rebutted the presumption of ownership,
and the plaintiff did not have authority from the note’s
owner to foreclose. In response to the defendants’ chal-
lenge to the presumption of ownership, the plaintiff
provided the court and the defendants’ counsel with
unredacted copies of the agreement and an affidavit
authenticating it. The plaintiff asserted that it was the
holder of the note, not the owner, and that the
agreement provided that the owner of the note, Hudson,
had vested the plaintiff with the right to institute fore-
closure proceedings when the plaintiff deemed reason-
able. The defendants’ counsel objected on the ground
that the agreement had not previously been filed and
that he had ‘‘never seen it before.’’2 The plaintiff’s coun-
sel stated that the agreement was sensitive because it
contained proprietary information and, thus, would
need to be filed under seal. The court granted the plain-
tiff’s oral motion to file the document under seal.
The court recessed for one hour to provide the defen-
dants with an opportunity to review the agreement. The
court also noted that it would take the agreement under
advisement. When the hearing reconvened, the court
informed the plaintiff’s counsel that she would have to
file a written motion if she wanted to have the
agreement placed under seal. The court then heard
argument from both sides relating to the terms of the
agreement. The plaintiff’s counsel explained that
§ 10.01 of the agreement provided that the plaintiff ‘‘is
hereby authorized and empowered by [Hudson] . . .
when [the plaintiff] believes it is appropriate and rea-
sonable in its judgment . . . to institute foreclosure
proceedings . . . .’’ The defendants cited other sec-
tions of the agreement in an attempt to refute the plain-
tiff’s authority to foreclose. Following the hearing, the
court issued an order summarily denying the defen-
dants’ motion to dismiss. On December 3, 2015, the
plaintiff filed a motion to seal the agreement. The court
granted the motion to seal.
On March 7, 2016, the court granted the plaintiff’s
motion for a judgment of strict foreclosure. This appeal
followed. Following the filing of the appeal, the defen-
dants filed a motion for articulation of the denial of
their motion to dismiss, which the court denied. The
defendants then filed a motion for review with this
court, and this court granted the motion and the relief
requested therein.
The trial court filed an articulation stating its reasons
for denying the defendants’ motion to dismiss. In its
articulation, the court rejected the defendants’ argu-
ment that the plaintiff was judicially estopped from
asserting anything other than owner status, reasoning
that the plaintiff never claimed to be the owner of the
note and, thus, the judicial estoppel claim was moot.
Likewise, the court rejected the defendants’ argument
that the plaintiff was bound by its alleged invocation
of the presumption of ownership. The court concluded
that ‘‘the defendants failed to set up and prove the
facts which limit or change the plaintiff’s rights . . . .
Therefore, the argument that the plaintiff was estopped
from rebutting the presumption of ownership was base-
less.’’ (Internal quotation marks omitted.) The court
also found that nothing in the record substantiated the
defendants’ claim that the plaintiff perpetrated fraud
by failing to inform the court that it did not own the debt.
The following jurisprudence on standing in foreclo-
sure matters is relevant to our resolution of the defen-
dants’ claims. ‘‘The ability to enforce a note in
Connecticut is governed by the adopted provisions of
the Uniform Commercial Code. Pursuant to General
Statutes § 42a-3-301, a [p]erson entitled to enforce an
instrument means . . . the holder of the instrument
. . . . When a note is endorsed in blank . . . the note
becomes payable to the bearer . . . . See General Stat-
utes § 42a-3-205 (b); see also RMS Residential Proper-
ties, LLC v. Miller, 303 Conn. 224, 231, 32 A.3d 307(2011), overruled in part on other grounds by J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn. 307,
325 n.18, 71 A.3d 492 (2013). When a person or entity
has possession of a note endorsed in blank, it becomes
the valid holder of the note. General Statutes § 42a-1-
201 (b) (21) (A). Therefore, a party in possession of a
note, endorsed in blank and thereby made payable to
its bearer, is the valid holder of the note, and is entitled
to enforce the note. . . .
‘‘In RMS Residential Properties, LLC v. Miller, supra,
303 Conn. 231, our Supreme Court stated that to seek
enforcement of a note through foreclosure, a holder
must be able to demonstrate it is the owner of the
underlying debt. It noted, however, that a holder of a
note is presumed to be the rightful owner of the underly-
ing debt, and that unless the party defending against
the foreclosure action rebuts that presumption, the
holder has standing to foreclose. . . . A holder merely
needs to produce the note to establish that presump-
tion. The production of the note establishes his case
prima facie against the [defendant] and he may rest
there. . . . It [is] for the defendant to set up and prove
the facts which limit or change the plaintiff’s rights.’’
(Citations omitted; emphasis omitted; footnotes omit-
ted; internal quotation marks omitted.) U.S. Bank,
National Assn. v. Schaeffer, 160 Conn. App. 138, 146–47,
125 A.3d 262 (2015).
‘‘[I]f a defendant in a foreclosure action [is] able to
demonstrate that the debt [is] owned by a party other
than the one bringing the foreclosure action, or by other
means [is] able to rebut the presumption that the holder
of the note was the owner of the debt, the result [is]
not an automatic dismissal of the action due to lack of
standing. Rather, the burden shifts back to the party
bringing the foreclosure action to demonstrate that the
rightful owner had in some way vested in it the right
to collect the debt on the owner’s behalf.’’ JPMorgan
Chase Bank, National Assn. v. Simoulidis, 161 Conn.
App. 133, 145, 126 A.3d 1098 (2015), cert. denied, 320
Conn. 913, 130 A.3d 266 (2016), citing J.E. Robert Co.
v. Signature Properties, LLC, supra, 309 Conn. 325 n.18.
I
The defendants claim that the court erred in denying
their motion to dismiss because the plaintiff lacked
standing to foreclose. Specifically, the defendants argue
that the court should have dismissed the action because
they had rebutted the presumption of ownership and
the plaintiff, as the holder of the note, did not have
authority to foreclose. We are not persuaded.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . [O]ur
review of the trial court’s ultimate legal conclusion and
resulting [denial] of the motion to dismiss will be de
novo. . . . The issue of standing implicates subject
matter jurisdiction and is therefore a basis for granting
a motion to dismiss. . . . [I]t is the burden of the party
who seeks the exercise of jurisdiction in his favor . . .
clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute. . . .
It is well established that, in determining whether a
court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) GMAC Mortgage, LLC v.
Ford, 144 Conn. App. 165, 172–73, 73 A.3d 742 (2013).
In an effort to rebut the presumption of ownership,
the defendants submitted, in connection with their
motion to dismiss, a letter from the plaintiff in which
the plaintiff states that it is a loan service provider
acting on behalf of the owner of the debt.3 Specifically,
the letter states that the plaintiff ‘‘services [the defen-
dants’] loan on behalf of Hudson . . . .’’ The plaintiff,
however, never claimed to be the owner of the debt,
and stated at the hearing on the motion to dismiss that
‘‘[w]e have never claimed to be [the] owner. . . . [I]t’s
just an incorrect factual statement. We are not the
owner. We are the holder, vested with the rights to
foreclose by the owner, Hudson.’’ Both parties agree
that the plaintiff is not the owner of the debt and that
Hudson is the owner.
In response to the defendants’ challenge to the pre-
sumption of ownership, the plaintiff submitted the
agreement to the court. The plaintiff read into the
record the portion of the agreement that gave it author-
ity to foreclose. The defendants’ counsel objected to
the introduction of the agreement, and the court over-
ruled the objection. The court gave permission for the
plaintiff to file the agreement under seal. The terms of
§ 10.01 of the agreement, which was introduced during
the hearing and subsequently filed under seal, authorize
the plaintiff to ‘‘institute foreclosure proceedings
. . . .’’
The defendants argue that the record is not adequate
to review the issue of whether the agreement gave the
plaintiff authority from Hudson to foreclose. They con-
tend that the agreement was not in the record at the
time the court summarily denied the motion to dismiss.
We do not agree. The plaintiff provided the court with
a copy of the agreement at the hearing on the motion
to dismiss, and the plaintiff read the relevant portions
of the agreement into the record. The court gave defen-
dants’ counsel time to review and respond to the
agreement. The transcript of the hearing on the motion
to dismiss makes clear that the court took the
agreement into consideration in denying the motion
to dismiss. Although the court’s articulation does not
expressly refer to the agreement, the court found that
‘‘the defendants failed to ‘set up and prove the facts
which limit or change the plaintiff’s rights,’ as required
[by] RMS Residential Properties, LLC v. Miller, [supra,
303 Conn. 231]. Therefore, the argument that the plain-
tiff was estopped from rebutting the presumption of
ownership was baseless.’’4 The trial court admitted the
agreement in response to the defendants’ challenge to
the presumption of ownership. In rejecting the estoppel
claim, the court’s articulation relies implicitly on the
agreement as the source of the plaintiff’s authority to
foreclose.5
The relevant language in the agreement is plain and
unambiguous and, therefore, our review is plenary.6 See
Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 101–102,
84 A.3d 828 (2014) (‘‘[When] there is definitive contract
language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law. . . . It is implicit in this rule that the deter-
mination as to whether contractual language is plain
and unambiguous is itself a question of law subject to
plenary review.’’ [Citations omitted; internal quotation
marks omitted]). Section 10.01 of the agreement pro-
vides that the plaintiff ‘‘is hereby authorized and
empowered by Purchaser [Hudson] when Seller [the
plaintiff] believes it appropriate and reasonable in its
judgment . . . to institute foreclosure proceedings
. . . .’’ The agreement plainly provides the plaintiff with
authority from Hudson to foreclose. Accordingly, we
conclude that the plaintiff had standing to foreclose
and that, therefore, the trial court properly denied the
defendants’ motion to dismiss.
II
The defendants next argue, in several ways, that
because the plaintiff consistently asserted that it was
the holder of the note and permitted the court to pre-
sume, as such, that it was the owner of the note, they
were prejudicially surprised by the plaintiff’s introduc-
tion of the agreement at the hearing on the motion to
dismiss.7 The defendants argue that the plaintiff should
be estopped from claiming they were anything other
than the owner of the note. We disagree.
The defendants provide no authority, nor are we
aware of any, for the proposition that a plaintiff that
previously has asserted that it was the holder of the
note and was silent when the court employed the pre-
sumption of ownership is precluded from later
asserting, when challenged by the defendant, that the
owner had vested the plaintiff with the right to institute
foreclosure proceedings. First, it was the defendants’
burden, not the plaintiff’s, to rebut the presumption of
ownership. See U.S. Bank, National Assn. v. Schaeffer,
supra, 160 Conn. App. 146–47 (holder of note presumed
to be rightful owner of underlying debt unless party
defending against foreclosure action rebuts that pre-
sumption).
Second, the plaintiff’s introduction of the agreement
was not untimely, but rather it was responsive to the
defendants’ attempt to rebut the presumption of owner-
ship. The plaintiff’s admission of that evidence is consis-
tent with the framework clarified in J.E. Robert Co. v.
Signature Properties, LLC, supra, 309 Conn. 325 n.18,
under which the burden shifts to the holder to produce
evidence that the owner had vested it with the authority
to foreclose only after the ownership presumption has
been challenged.
Third, the defendants were provided with ample
opportunity to review the agreement. At the hearing
on the motion to dismiss, the plaintiff provided the
defendants with a copy of the agreement and read the
relevant portions of the agreement into the record. The
court gave the defendants a one hour recess to examine
the agreement. Moreover, this was not the first time
that the defendants had been provided with an opportu-
nity to review the agreement. The defendants stated in
their memorandum of law in support of their motion
to dismiss that the plaintiff had provided them with a
copy of the agreement in 2012 while the parties were
engaged in mediation. The defendants have not demon-
strated that they suffered any prejudice from the plain-
tiff’s reliance on an agreement that the defendants had
in their possession nearly three years before the filing
of the motion to dismiss, and which the court gave
them one hour to further review during the hearing on
the motion to dismiss.
III
The defendants’ final claim is that the trial court erred
in failing to dismiss the foreclosure action, with preju-
dice, on the basis of fraud. They contend that the plain-
tiff ‘‘perpetrated a fraud on the court by prosecuting
this foreclosure action as an imposter . . . note-
owner’’ and ‘‘put on note-owner’s clothing—by bran-
dishing its holder status—and watched in silence as
the court twice mistook it for the note-owner’’ and,
accordingly, that the court erred in failing to dismiss
the foreclosure action with prejudice. We disagree with
the defendants, and conclude that the court properly
determined in its articulation that there was nothing in
the record to support the defendants’ claim of fraud.
The defendants misunderstand the nature of pre-
sumptions and the burden shifting framework clarified
in J.E. Robert Co. v. Signature Properties, LLC, supra,
309 Conn. 325 n.18. ‘‘[Presumptions] operate in advance
of argument or evidence, or irrespective of it, by taking
something for granted; by assuming its existence. When
the term is legitimately applied, it designates a rule or
proposition which still leaves open to further inquiry the
matter thus assumed. The exact scope and operation
of these prima facie assumptions are to cast upon the
party against whom they operate, the duty of going
forward, in argument or evidence, on the particular
point to which they relate.’’ (Internal quotation marks
omitted.) Vincent v. Mutual Reserve Fund Life Assn.,
77 Conn. 281, 288, 58 A. 963 (1904).
Under the relevant burden shifting framework, the
plaintiff was presumed to be the owner of the debt when
it produced the note endorsed in blank. The plaintiff
had no burden to rebut this presumption. Once the
defendants challenged the presumption, the plaintiff
had the burden of demonstrating that it owned the debt
or had authority from the note’s owner, Hudson, to
foreclose. It was not fraudulent for the plaintiff to dem-
onstrate that Hudson had vested it with the authority
to foreclose in response to the defendants’ challenge
to the presumption of ownership.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
Although the complaint also named PNC Bank, National Association, as
a defendant, it did not appear before the trial court and has not participated
in this appeal. We, therefore, refer in this opinion to Tanasi and Casberg
Tanasi as the defendants.
2
At oral argument before this court, the defendants’ counsel conceded
that the agreement had been provided to the defendants during mediation.
3
We note that the status of the plaintiff as the loan servicer would not
necessarily preclude the existence of standing to foreclose. ‘‘[A] loan servicer
need not be the owner or holder of the note and mortgage in order to have
standing to bring a foreclosure action if it otherwise has established the
right to enforce those instruments . . . .’’ J.E. Robert Co. v. Signature
Properties, LLC, supra, 309 Conn. 327–28.
4
To the extent that the articulation is somewhat unclear, however, we
note that the defendants did not file a motion for a further articulation or
a motion for review of the articulation with this court.
5
Even if we were to assume, arguendo, that the trial court’s articulation
was not based implicitly on the agreement, we nonetheless would affirm
the trial court’s denial of the motion to dismiss on dispositive alternative
grounds that, as a matter of law, the agreement provided the plaintiff with
standing to foreclose. ‘‘Where the trial court reaches a correct decision but
on [alternative] grounds, this court has repeatedly sustained the trial court’s
action if proper grounds exist to support it. . . . [W]e . . . may affirm the
court’s judgment on a dispositive [alternative] ground for which there is
support in the trial court record.’’ (Citations omitted; internal quotation
marks omitted.) Hoskins v. Titan Value Equities Group, Inc., 252 Conn.
789, 794, 749 A.2d 1144 (2000).
6
At oral argument, the defendants’ counsel stated for the first time before
this court that the agreement was ambiguous. The defendants have not,
however, directed us to any language in the agreement that would render
the provision regarding the plaintiff’s authority to institute foreclosure pro-
ceedings ambiguous.
7
The defendants specifically contend that (1) the ‘‘eleventh hour’’ intro-
duction of the agreement was unfair; (2) the introduction of the agreement
deprived them of due process because they were not provided with fair
notice of the plaintiff’s claim regarding its authority to foreclose on behalf
of Hudson; (3) the plaintiff was judicially estopped from relying on the
theory of the authority from Hudson after prevailing on the motion to strike
and the motion for summary judgment under the ownership presumption;
and (4) the plaintiff perverted procedure because it ‘‘never disputed that it
knew it was not the [owner of the note] and that the holder was presumed
to be the owner.’’ None of these arguments are meritorious.