Deutsche Bank National Trust Co. v. Torres , 149 Conn. App. 25 ( 2014 )

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. ELIZABETH TORRES ET AL.
(AC 35838)
Gruendel, Beach and Alvord, Js.
Argued January 21—officially released March 25, 2014
(Appeal from Superior Court, judicial district of
Hartford, Vacchelli, J.)
Laura Pascale Zaino, with whom were Brian D.
Rich, and, on the brief, Peter R. Meggers, for the appel-
lant (plaintiff).
Opinion
GRUENDEL, J. The plaintiff, Deutsche Bank National
Trust Company, as Trustee for Long Beach Mortgage
Loan Trust 2006-1, appeals from the judgment of the
trial court granting the motion to dismiss of the self-
represented defendant, Elizabeth Torres.1 On appeal,
the plaintiff claims that the court improperly found that
the plaintiff failed to demonstrate that it had standing,
and subsequently erred in granting the defendant’s
motion to dismiss.2 We agree, and therefore, reverse
the judgment of the trial court.
‘‘The procedural posture of this case governs our
recitation of the facts underlying the appeal. When a
. . . court decides a . . . question raised by a pretrial
motion to dismiss, it must consider the allegations of
the complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . Further, in addition to
admitting all facts well pleaded, the motion to dismiss
invokes any record that accompanies the motion,
including supporting affidavits that contain undisputed
facts.’’ (Citation omitted; internal quotation marks omit-
ted.) CitiMortgage, Inc. v. Gaudiano, 142 Conn. App.
440, 441–42, 68 A.3d 101, cert. denied, 310 Conn. 902,
75 A.3d 29 (2013).
This appeal concerns real property owned by the
defendant and known as 60 Whiting Road in East Hart-
ford (property). On October 25, 2005, the defendant
executed a promissory note (note) in favor of Long
Beach Mortgage Company in the principal amount of
$144,000. That note was secured by a mortgage deed
on the property that the defendant also executed on
October 25, 2005, to Long Beach Mortgage Company.
The mortgage and the note were later assigned to
the plaintiff, who initiated a foreclosure action on Janu-
ary 5, 2009, alleging that it was the holder of such note
and mortgage, which were both in default by virtue
of nonpayment. The plaintiff also filed a motion for
judgment of strict foreclosure in June, 2010, but the
motion was continued and never adjudicated. On
November 19, 2012, the defendant moved to dismiss
the plaintiff’s complaint, arguing, inter alia: ‘‘Remove
for the following: pursuant to federal question, subject
matter, diversity of citizenship, lack of standing, lack
of jurisdiction, failure to produce allonge instrument,
deed, note, mortgage, original contract without material
alteration.’’ The plaintiff thereafter filed a substantive
objection to the defendant’s motion, arguing that she
failed to set forth a sufficient legal argument as to why
the court should grant her motion to dismiss.
The parties appeared before the court on April 1,
2013, for argument on the defendant’s motion to dis-
miss.3 The court first addressed whether the plaintiff
had standing to bring a foreclosure action against the
defendant. Although the plaintiff presented a copy of
the note and mortgage, it did not produce the original
documents to the court. The court then continued the
case until April 29, 2013, to allow the plaintiff to bring
such documents in order to ‘‘prove that it was . . . the
owner of the debt and holder of the note prior to the
commencement of the suit.’’
On April 29, 2013, the parties again appeared before
the court and the plaintiff’s counsel provided the origi-
nal note and mortgage to the court. The defendant
objected, arguing that the party on the note was Long
Beach Mortgage Company, not the plaintiff bank, to
which the plaintiff responded that the mortgage was
assigned to it as trustee, and provided the supporting
assignment document as proof. The court then stated:
‘‘The record I have in front of me says Long Beach has
it, so I need some evidence . . . [of] how it got to
the plaintiff in this case . . . .’’ The plaintiff’s counsel
explained that ‘‘the last time we were in court about a
month ago for this very same motion to dismiss, Your
Honor requested that I show [the defendant] a copy
of the note, mortgage and any relative assignments. I
brought that with me today in original form. I did not
prepare to bring any agreements between the banks.
I’m willing to . . . obtain them if I could have a week
. . . .’’ At that time, the court granted the defendant’s
motion to dismiss, stating: ‘‘I need to see how [the
plaintiff] has standing to pursue this and I do have the
note, but the note is made out to a different party. I
need to see the chain . . . the documents that show
how it got into the hands of the plaintiff . . . .’’ In May,
2013, the plaintiff filed a motion to reargue the granting
of the motion to dismiss. That motion was denied by
the court, and this appeal followed.
‘‘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 . . . . [It]
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction.’’ (Internal quotation marks
omitted.) In re Iliana M., 134 Conn. App. 382, 387–88,
38 A.3d 130 (2012). ‘‘The issue of standing implicates
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss. Practice Book § [10-30]
(a).’’ (Internal quotation marks omitted.) McWeeny v.
Hartford, 287 Conn. 56, 63, 946 A.2d 862 (2008).
Our standard of review is well established. ‘‘[W]here
legal conclusions of the [trial] court are challenged, we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision. . . . Thus, our
review of the trial court’s ultimate legal conclusion and
resulting grant of the motion to dismiss will be de novo.’’
(Citation omitted; internal quotation marks omitted.)
Borden v. Planning & Zoning Commission, 58 Conn.
App. 399, 405, 755 A.2d 224, cert. denied, 254 Conn. 921,
759 A.2d 1023 (2000).
The plaintiff claims that the court improperly granted
the defendant’s motion to dismiss. It argues that it has
standing to bring this foreclosure action because it
alleged in its complaint that it is the holder of the note
and the mortgage. The plaintiff therefore concludes
that, because the trial court must take the facts to be
those alleged in the complaint, it should have denied
the defendant’s motion to dismiss. We agree.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . [When] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause.’’ (Citation omitted; internal quotation marks
omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119,
125, 74 A.3d 1225 (2013).
‘‘Several general principles concerning mortgage
foreclosure procedure also guide our analysis. ‘[S]tand-
ing 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 instrument. General Statutes
§ 42a-3-301. The ‘‘holder’’ is the person or entity in pos-
session of the instrument if the instrument 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).’ ’’ (Footnotes omitted.) Equity One, Inc. v. Shivers,
supra, 310 Conn. 126. ‘‘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. See, e.g., RMS Residential Properties, LLC v.
Miller, [303 Conn. 224, 230, 32 A.3d 307 (2011)] ([o]ur
legislature, by adopting § 49-17, created a statutory right
for the rightful owner of a note to foreclose on real
property regardless of whether the mortgage has been
assigned to him); Chase Home Finance, LLC v.
Fequiere, [119 Conn. App. 570, 576, 989 A.2d 606] (§ 49-
17 codifies the common-law principle of long standing
that the mortgage follows the note, pursuant to which
only the rightful owner of the note has the right to
enforce the mortgage . . .), [cert. denied, 295 Conn.
922, 991 A.2d 564 (2010)]. This 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. J.E. Robert Co.
v. Signature Properties, LLC, 309 Conn. 307, 311, 317,
71 A.3d 492 (2013).’’ (Footnote omitted; internal quota-
tion marks omitted.) Equity One, Inc. v. Shivers, supra,
127. Furthermore, there is a rebuttable presumption
that the holder of a note is the owner of the debt. RMS
Residential Properties, LLC v. Miller, supra, 231–32.
Based on the standard with which a trial court must
rule on a motion to dismiss and our Supreme Court’s
delineation of the standing requirements in a foreclo-
sure action, it is clear that the court erroneously granted
the defendant’s motion to dismiss for the plaintiff’s
failure to demonstrate standing. In the complaint, the
plaintiff alleged that it was the holder of the note and
the mortgage that were assigned to it from Long Beach
Mortgage Company. As the plaintiff explained in its
memorandum in support of its motion to reargue the
granting of the motion to dismiss, ‘‘Long Beach Mort-
gage Company endorsed the note in blank. . . . Thus,
the note is payable to bearer and the plaintiff is the
lawful holder. . . . This note was presented to and
reviewed by the court and defendant. . . . Despite the
plaintiff’s statements that as holder of the note it has
standing to bring the instant action, and absent any
facts or evidence set forth by the defendant at argument
or in the defendant’s motion to dismiss, the court dis-
missed the action for lack of standing.’’ (Citations omit-
ted.) Because the defendant did not offer any evidence
to call the plaintiff’s allegations into question, she failed
to rebut the presumption that the plaintiff, as the holder
of the note, is the owner of the debt. See RMS Residen-
tial Properties, LLC v. Miller, supra, 303 Conn. 231–32.
Based on the facts alleged in the plaintiff’s complaint
and the documents presented to the court, we conclude
that the plaintiff has raised the presumption of standing
sufficient to overcome a motion to dismiss. The court,
therefore, erred in granting the defendant’s motion to
dismiss.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion to dismiss
and for further proceedings according to law.
In this opinion the other judges concurred.
1
The defendant EMC Mortgage Corporation did not appear before the
trial court and is not a party to this appeal. In this opinion, we refer to
Elizabeth Torres as the defendant.
2
The plaintiff also claims that the court erred in (1) granting a procedurally
deficient motion to dismiss, (2) failing to hold an evidentiary hearing before
dismissing its action for lack of standing, (3) denying its request for a brief
continuance to allow the plaintiff to produce the chain of agreements by
which it acquired the note and mortgage, and (4) denying the plaintiff’s
motion to reargue the judgment of dismissal. Our conclusion that the court
erred in finding that the plaintiff failed to demonstrate standing makes it
unnecessary to address these other claims. Accordingly, we set forth only
those facts that are necessary to the resolution of the plaintiff’s standing
claim.
3
The court did not hold an evidentiary hearing, but rather permitted the
self-represented defendant to argue on her motion.