U.S. Bank, National Assn. v. Fitzpatrick ( 2019 )

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U.S. BANK, NATIONAL ASSOCIATION, TRUSTEE v.
CHRISTOPHER M. FITZPATRICK ET AL.
(AC 41513)
DiPentima, C. J., and Alvord and Eveleigh, Js.
Syllabus
The plaintiff bank, as trustee, sought to foreclose a mortgage on certain
real property owned by the defendant F. In its complaint, the plaintiff
alleged that F and C Co. had executed a promissory note that was
secured by a mortgage on F’s property, that the plaintiff was the holder
of the note and that the note was in default for nonpayment. F filed
an answer and raised special defenses of laches and unclean hands.
Thereafter, the plaintiff filed a motion for summary judgment as to
liability along with a memorandum of law and, inter alia, copies of the
note and two allonges that were attached to the note. F filed an objection
to the motion for summary judgment, asserting that genuine issues of
material fact existed as to his special defenses of laches and unclean
hands. Subsequently, F filed a motion to dismiss on the ground that the
plaintiff lacked standing to bring the foreclosure action because it was
not the holder of the note or the mortgage. In his memorandum of law
in support of his motion, F asserted that C Co. had transferred the note
to S Co. via a special endorsement in the first allonge and that although
the second allonge purported to transfer the note from S Co. to the
plaintiff via a special endorsement, it was ineffective because it was
stamped void. The trial court held a hearing on the motions, during
which the plaintiff’s counsel presented the court with the original note.
After examining the note, the court denied F’s motion to dismiss, con-
cluding that the note contained an endorsement in blank executed by
S Co., and, therefore, it was payable to the bearer, and that the plaintiff,
as the possessor and valid holder of the note, was entitled to enforce
it and had standing to bring the action. The court then granted the
plaintiff’s motion for summary judgment, concluding that no genuine
issues of material fact existed as to F’s liability and that the plaintiff
had demonstrated a prima facie case for foreclosure. It further concluded
that the defendant had failed to provide any evidence in support of his
special defenses. Thereafter, the trial court rendered a judgment of
foreclosure by sale, from which F appeal to this court. Held:
1. The trial court properly denied F’s motion to dismiss, that court having
correctly determined that the plaintiff had standing to bring the foreclo-
sure action; contrary to F’s contention that the plaintiff lacked standing
because it was not the holder of the note, the plaintiff presented the
court with the original note endorsed in blank, thereby demonstrating
that it was the valid holder of the note and owner of the debt with
standing to pursue the action, and F failed to satisfy his burden of
proving that another party was the owner of the note and the debt.
2. The trial court properly granted the plaintiff’s motion for summary judg-
ment as to liability.
a. F’s claim that a genuine issue of material fact existed as to the
plaintiff’s standing was unavailing; the plaintiff demonstrated to the trial
court that it possessed the note, which was endorsed in blank and
payable to bearer, and as the valid holder of that instrument, it was
entitled to enforce it and had standing to bring the action, and F failed
to produce any evidence raising a genuine issue of material fact regarding
the plaintiff’s standing, as his arguments failed to account for the blank
endorsement on the note and focused primarily on the two allonges,
the existence of which did not negate the fact that the plaintiff possessed
the note endorsed in blank and, therefore, was the valid holder of the
note and entitled to enforce it.
b. F failed to meet his burden of demonstrating that genuine issues of
material fact existed as to his equitable defenses of laches and unclean
hands; although F asserted that such issues existed as to whether the
plaintiff’s delay in commencing this action caused the debt to become
greater than his equity in the property, whether the value of the property
declined as a result of the plaintiff’s delay and whether the plaintiff’s
delay had been fair, equitable and honest, he failed to support those
assertions with any evidence, and such bald assertions were insufficient
to defeat a motion for summary judgment.
Argued January 30—officially released June 25, 2019
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Truglia, J., denied the named
defendant’s motion to dismiss; thereafter, the court
granted the plaintiff’s motion for summary judgment
as to liability; subsequently, the court, Hon. Alfred J.
Jennings, Jr., judge trial referee, rendered a judgment
of foreclosure by sale, from which the named defendant
appealed to this court. Affirmed.
Ryan P. Driscoll, with whom, on the brief, was Rich-
ard J. Buturla, for the appellant (named defendant).
Jeffery M. Knickerbocker, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant Christopher M. Fitz-
patrick1 appeals from the denial of his motion to dismiss
and from the summary judgment rendered in favor of
the plaintiff, U.S. Bank, National Association, as trustee
for MASTR 2007-2. On appeal, the defendant claims that
the court improperly (1) denied his motion to dismiss by
concluding that the plaintiff had standing to commence
and maintain its foreclosure action and (2) granted the
plaintiff’s motion for summary judgment by determining
that no genuine issues of material fact existed with
respect to the plaintiff’s standing and his special
defenses of laches and unclean hands. We disagree and,
accordingly, affirm the denial of the defendant’s motion
to dismiss and the summary judgment rendered in favor
of the plaintiff.
The following detailed recitation of the facts and
procedural history is necessary for the resolution of
the defendant’s appeal. The origin of the present case
lies in a prior foreclosure action commenced on Octo-
ber 21, 2009, by SunTrust Mortgage, Inc. (SunTrust),
against the defendant concerning property located at 48
Second Avenue in Stratford. On June 14, 2010, SunTrust
filed a motion to substitute the plaintiff in the present
case as the plaintiff, stating that the subject mortgage
deed and note had been assigned to the plaintiff. The
court granted this motion on July 6, 2010. An unsuccess-
ful mediation effort ensued.
In the SunTrust action, on September 27, 2013, the
court, Tyma, J., granted the plaintiff’s motion for sum-
mary judgment as to liability only. SunTrust Mortgage,
Inc. v. Fitzpatrick, Superior Court, judicial district of
Fairfield, Docket No. CV-XX-XXXXXXX-S (September 27,
2013). First, the court noted that the plaintiff had pre-
sented evidence, by way of an affidavit, a copy of the
note and two allonges, that SunTrust had been the
proper party to initiate the foreclosure action and that
the plaintiff was the current owner of the debt and, thus,
the proper party to maintain the foreclosure action.
Id. Additionally, the court concluded: ‘‘Having failed to
present any evidence rebutting the presumption that
SunTrust was the rightful owner of the debt at the time
that it commenced the foreclosure action, and that the
. . . plaintiff is presently the rightful owner, the defen-
dant had failed to satisfy his burden of providing any
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact concerning the note
holder.’’ Id.
On June 5, 2014, the plaintiff moved for a judgment of
strict foreclosure, and the defendant filed an objection
fifteen days later. On June 26, 2014, the court, Bellis,
J., issued an order dismissing the action.2 The plaintiff
unsuccessfully moved to open the judgment of dis-
missal.
The plaintiff subsequently commenced the present
action in May, 2016. In its complaint, the plaintiff alleged
that the defendant and Comp-U-Fund Mortgage Corpo-
ration (Comp-U-Fund) had executed a promissory note
in the amount of $580,000 on August 16, 2007. The note
was secured by a mortgage on the defendant’s property,
located at 48 Second Avenue in Stratford, in favor of
Mortgage Electronic Registration Systems, Inc. (MERS)
as nominee for Comp-U-Fund.3 The mortgage was exe-
cuted on August 16, 2007, and recorded on the Stratford
land records on August 20, 2007.
The plaintiff further alleged that on or before May
26, 2015, it became, and at all times thereafter has been,
the party entitled to collect the debt evidenced by the
August 16, 2007 note. It further alleged that as a result
of the defendant’s nonpayment of the monthly install-
ment of principal and interest starting on May 1, 2009,
the note was in default. The plaintiff accelerated the
balance on the note, declaring it to be due in full, and
sought to foreclose on the mortgage.
After an unsuccessful mediation, the defendant filed
an answer and counterclaim on March 2, 2017.4 On
December 22, 2017, the plaintiff moved for summary
judgment as to liability, attaching a supporting affidavit,
documentary evidence and a memorandum of law to
its motion. In its memorandum of law, the plaintiff
argued that it had established a prima facie case5 of the
defendant’s liability in this mortgage foreclosure action.
Additionally, the plaintiff directed the court to the
attached mortgage, note, assignments of the mortgage
and affidavit of Shaundra Hunt, an officer employed by
SunTrust. The plainitff claimed that these documents
established that no genuine issue of material fact
remained, and, therefore, it was entitled to summary
judgment as to the liability with respect to its foreclo-
sure complaint.
On February 5, 2018, the defendant filed an objection
to the plaintiff’s motion for summary judgment. Specifi-
cally, he argued that genuine issues of material fact
existed as to whether his special defenses of laches
and unclean hands, as set forth in his amended answer,
barred the plaintiff’s claim. With respect to the former,
the defendant argued that ‘‘[a] genuine issue of material
fact exists as to whether there was an inexcusable delay
and whether that delay prejudiced [the defendant] by
unnecessarily increasing his alleged debt and/or by
decreasing the value of his collateral through the pas-
sage of time.’’ Specifically, the defendant contended
that six years had elapsed from the claimed nonpayment
until the commencement of the present action. With
respect to the unclean hands defense, the defendant
argued: ‘‘Here, given the considerable passage of time
between the alleged default and the [p]laintiff’s com-
mencement of the foreclosure, there are genuine issues
of material fact as to whether the [plaintiff’s] ‘sitting
on its rights’ for many years has been fair, equitable,
and honest.’’
Before the trial court decided the plaintiff’s motion
for summary judgment, the defendant initiated, on two
fronts, an attack on the plaintiff’s standing to bring its
foreclosure action. First, on March 2, 2018, he filed a
motion to dismiss, pursuant to Practice Book § 10-30,6
arguing that the plaintiff lacked standing. In his accom-
panying memorandum of law, the defendant asserted
that the court lacked subject matter jurisdiction
because the plaintiff was not a holder of the note or
the mortgage. In support thereof, the defendant argued
that he had executed the note with Comp-U-Fund on
August 16, 2007. The defendant claimed that Comp-U-
Fund transferred the note to SunTrust via the special
endorsement7 in the first allonge attached to the note.8
A second allonge to the note was specially endorsed
by SunTrust to the plaintiff; however, this document
was stamped ‘‘VOID.’’ The defendant argued, therefore,
that the note had not been transferred to the plaintiff,
and, therefore, it lacked standing to foreclose on the
property.
The defendant also challenged the plaintiff’s standing
in a March 2, 2018 supplemental objection to the plain-
tiff’s motion for summary judgment wherein he
repeated the legal argument set forth in his memoran-
dum of law in support of his motion to dismiss. Specifi-
cally, the defendant asserted that the note had been
transferred from Comp-U-Fund to SunTrust via the spe-
cial endorsement in the first allonge. The second
allonge, which would have transferred the note from
SunTrust to the plaintiff, was stamped ‘‘VOID’’ and
therefore was ineffective. In conclusion, the defendant
stated: ‘‘The evidence produced to date shows that there
is a genuine issue of material fact as to whether [the
plaintiff] is entitled to enforce the note. Therefore, [the
plaintiff’s] motion for summary judgment should be
denied.’’
On March 2, 2018, the plaintiff filed an objection to
the defendant’s motion to dismiss. It emphasized that
page three of the note contained an endorsement in
blank, executed by SunTrust, and, therefore, the note
was payable to the bearer.9 See, e.g., Equity One, Inc.
v. Shivers, 310 Conn. 119, 126, 74 A.3d 1225 (2013).
Thus, the plaintiff maintained that it did not need to be
in possession of a specifically endorsed note to pursue
this foreclosure action. It also argued that the defendant
had offered only speculation rather than proof, in chal-
lenging the plaintiff’s standing.
The court conducted a hearing on March 5, 2018,
during which it first addressed the defendant’s motion
to dismiss. The defendant repeated its argument that
the plaintiff lacked standing, stating that the note was
not a negotiable instrument payable to the bearer
because the first allonge contained the SunTrust spe-
cific endorsement. The plaintiff’s counsel responded
that he was in possession of the original note, which
contained a blank endorsement10 executed by SunTrust
and the allonges. The court examined the original note
and concluded that it contained a blank endorsement,
making it a bearer instrument. After hearing further
argument, the court denied the defendant’s motion to
dismiss.11
The court then turned to the plaintiff’s motion for
summary judgment. The plaintiff’s counsel argued that
the court, in denying the defendant’s motion to dismiss,
had considered and rejected the standing argument
raised in the defendant’s supplemental objection.12 The
plaintiff’s counsel then turned to the special defenses of
laches and unclean hands. He argued that the defendant
had failed to present any evidence in support of his
special defenses. The defendant’s counsel countered
that genuine issues of material fact existed as to laches
and unclean hands, and, therefore, the court should
deny the motion for summary judgment.
On March 14, 2018, the court issued a memorandum
of decision granting the plaintiff’s motion for summary
judgment. It concluded that no genuine issues of mate-
rial fact existed as to the defendant’s liability and that
the plaintiff had demonstrated a prima facie case for
foreclosure. It further concluded that the defendant had
failed to provide any evidence in support of his unclean
hands and laches defenses. The court also denied the
defendant’s motion for reconsideration of its denial of
the motion to dismiss.
On March 15, 2018, the plaintiff moved for a judgment
of strict foreclosure. One week later, the court rendered
a judgment of foreclosure by sale. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
denied his motion to dismiss. Specifically, he argues
that the plaintiff lacked standing to prosecute the fore-
closure action because the note had become payable
to SunTrust and there was no evidence that the note
had been assigned to the plaintiff. The plaintiff counters
that its standing was established by its possession of
the note, endorsed in blank, and thereby payable to the
bearer. We conclude that the court properly determined
that the plaintiff had standing and, therefore, was cor-
rect in denying the defendant’s motion to dismiss.
We begin with a review of the relevant legal princi-
ples. ‘‘The issue of standing implicates the trial court’s
subject matter jurisdiction and therefore presents a
threshold issue for our determination. . . . 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 sub-
ject matter jurisdiction 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. . . .
‘‘[B]ecause the issue of standing implicates subject
matter jurisdiction, it may be a proper basis for granting
a motion to dismiss. . . . The standard of review for
a court’s decision on a motion to dismiss is well settled.
. . . [O]ur review of the court’s ultimate legal conclu-
sion and resulting [determination] of the motion to dis-
miss will be de novo.’’ (Citation omitted; internal
quotation marks omitted.) U.S. Bank, National Assn.
v. Schaeffer, 160 Conn. App. 138, 145, 125 A.3d 262
(2015); see also Equity One, Inc. v. Shivers, supra, 310
Conn. 125–26; Chase Home Finance, LLC v. Fequiere,
119 Conn. App. 570, 574–75, 989 A.2d 606, cert. denied,
295 Conn. 922, 991 A.2d 564 (2010).
Next, we review the law pertaining to standing in a
foreclosure action.13 ‘‘In Connecticut, one may enforce
a note pursuant to the [Uniform Commercial Code
(UCC) as adopted in General Statutes § 42a-1-101 et
seq.] . . . General Statutes § 42a-3-301 provides in rel-
evant part that a [p]erson entitled to enforce an instru-
ment means . . . the holder of the instrument . . . .
When a note is endorsed in blank, the note is payable
to the bearer of the note. See General Statutes § 42a-
3-205 (b); see also RMS Residential Properties, LLC v.
Miller, [303 Conn. 224, 231, 32 A.3d 307 (2011), over-
ruled in part by J.E. Robert Co. v. Signature Properties,
LLC, 309 Conn. 307, 325 n.18, 71 A.3d 492 (2013)]. A
person in possession of a note endorsed in blank, is
the valid holder of the note. See 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. See RMS Residential Prop-
erties, LLC v. Miller, supra, 231.
‘‘In RMS Residential Properties, LLC v. Miller, supra,
303 Conn. 231, our Supreme Court stated that to enforce
a note through foreclosure, a holder must demonstrate
that it is the owner of the underlying debt. The holder
of a note, however, is presumed to be the rightful owner
of the underlying debt, and unless the party defending
against the foreclosure action rebuts that presump-
tion, the holder has standing to foreclose the mortgage.
A holder only has to produce the note to establish that
presumption. 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 [that] limit or change the plaintiff’s
rights.’’ (Citation omitted; emphasis added; footnotes
omitted; internal quotation marks omitted.) JPMorgan
Chase Bank, National Assn. v. Simoulidis, 161 Conn.
App. 133, 143–44, 126 A.3d 1098 (2015), cert. denied,
320 Conn. 913, 130 A.3d 266 (2016); see also Equity One,
Inc. v. Shivers, supra, 310 Conn. 126–27; U.S. Bank,
National Assn. v. Schaeffer, supra, 160 Conn. App.
146–47.
In the present case, the defendant contends that the
plaintiff was not the holder of the note and, therefore,
lacked standing to pursue the foreclosure action. The
defendant’s argument is primarily focused on the two
undated allonges to the note. The first allonge showed
that ownership of the note had been transferred from
the original lender, Comp-U-Fund, to SunTrust. The sec-
ond allonge purportedly transferred ownership of the
note from SunTrust to the plaintiff; however, this docu-
ment contained a ‘‘VOID’’ stamp. The defendant
claimed, therefore, that the ‘‘negotiable instrument
became payable to SunTrust and could be negotiated
only by SunTrust. [See General Statutes § 42a-3-205 (a)].
The uncontroverted facts are devoid of any assignments
of the note from SunTrust to the [p]laintiff. As a result,
the trial court should have found that the [p]laintiff was
not entitled to enforce the note . . . .’’ We are not
persuaded by the defendant’s reasoning.
At the March 5, 2018 hearing, the court examined the
original note and concluded that it had been endorsed
in blank by SunTrust, making it a bearer instrument. It
also concluded that the plaintiff, as the possessor of a
note endorsed in blank and therefore payable to the
bearer, was the valid holder and entitled to enforce
the note.
It bears repeating that ‘‘[t]he holder of a note seeking
to enforce the note through foreclosure must produce
the note. The note must be endorsed so as to demon-
strate that the foreclosing party is a holder, either by
a specific endorsement or by means of a blank endorse-
ment to bearer. . . . If the foreclosing party produces
the note demonstrating that it is a valid holder of the
note, the court is to presume that the foreclosing party
is the rightful owner of the debt. . . . The defending
party may rebut the presumption . . . but bears the
burden to prove that the holder of the note is not the
owner of the debt. . . . This may be done, for example,
by demonstrating that ownership of the debt has passed
to another party. . . . The defending party does not
carry its burden by merely identifying some documen-
tary lacuna in the chain of title that might give rise to
the possibility that a party other than the foreclosing
party owns the debt. . . . To rebut the presumption
that the holder of a note endorsed specifically or to
bearer is the rightful owner of the debt, the defending
party must prove that another party is the owner of the
note and debt. . . . Without such proof, the foreclosing
party may rest its standing to foreclose the mortgage on
its status as the holder of the note.’’ (Citations omitted;
emphasis omitted.) JPMorgan Chase Bank, National
Assn. v. Simoulidis, supra, 161 Conn. App. 145–46.
At the hearing on the defendant’s motion to dismiss,
the plaintiff presented the court with the original note
endorsed in blank.14 See, e.g., Chase Home Finance,
LLC v. Fequiere, supra, 119 Conn. App. 577 (party in
possession of promissory note endorsed in blank is
valid holder and entitled to enforce note); Countrywide
Home Loans Servicing, LP v. Creed, 145 Conn. App.
38, 51–52, 75 A.3d 38, cert. denied, 310 Conn. 936, 79
A.3d 889 (2013). At that point, the court properly con-
cluded that the plaintiff was the owner of the debt
and had standing to pursue the foreclosure action. See
Chase Home Finance, LLC v. Fequiere, supra, 578 (pos-
session of note endorsed in blank imports prima facie
that party acquired note in good faith for value and in
course of business, before maturity and without notice
of any circumstances impeaching its validity). The
defendant failed to satisfy his burden of proving that
another party was the owner of the note and the debt.
See id. Accordingly, we conclude that the court properly
concluded that the plaintiff had standing and denied
the defendant’s motion to dismiss.
II
The defendant next claims that the court improperly
granted the plaintiff’s motion for summary judgment.
Specifically, he argues that genuine issues of material
fact existed with respect to his (1) claim that the plain-
tiff lacked standing and (2) special defenses15 of laches
and unclean hands. We disagree and, accordingly,
affirm the summary judgment rendered by the trial
court in favor of the plaintiff.
We begin by setting forth the relevant legal principles.
‘‘Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary. . . . [I]n
seeking summary judgment, it is the movant who has
the burden of showing . . . the absence of any genuine
issue as to all the material facts [that], under applicable
principles of substantive law, entitle him to a judgment
as a matter of law. . . .
‘‘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. . . .
‘‘A party opposing summary judgment must provide
an evidentiary foundation to demonstrate the existence
of a genuine issue of material fact. . . . A party may
not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary
judgment. . . . In other words, [d]emonstrating a gen-
uine issue of material fact requires a showing of eviden-
tiary facts or substantial evidence outside the pleadings
from which material facts alleged in the pleadings can
be reasonably inferred. . . . A material fact is one that
will make a difference in the result of the case. . . .
To establish the existence of a [dispute as to a] material
fact, it is not enough for the party opposing summary
judgment merely to assert the existence of a disputed
issue. . . . Such assertions are insufficient regardless
of whether they are contained in a complaint or a brief.
. . . Further, unadmitted allegations in the pleadings
do not constitute proof of the existence of a genuine
issue as to any material fact . . . . The issue must be
one which the party opposing the motion is entitled to
litigate under [its] pleadings and the mere existence of
a factual dispute apart from the pleadings is not enough
to preclude summary judgment.’’ (Internal quotation
marks omitted.) Seaside National Bank & Trust v. Lus-
sier, 185 Conn. App. 498, 502–503, 197 A.3d 455, cert.
denied, 330 Conn. 951, 197 A.3d 391 (2018); see also
Bank of America, N.A., v. Aubut, 167 Conn. App. 347,
358, 143 A.3d 638 (2016).
In support of its motion for summary judgment, the
plaintiff attached a memorandum of law, copies of the
note, the two allonges and an affidavit from Hunt. Hunt’s
December 19, 2017 affidavit stated that SunTrust was
the mortgage loan servicer for the plaintiff and that on
the basis of her review of the business records relating
to this note, ‘‘[o]n or before May 26, 2015, the [p]laintiff
became and at all times since then has been the party
entitled to collect the debt evidenced by the [n]ote
. . . .’’ She also indicated that the note was in default
as a result of nonpayment, the default had not been
cured, and the plaintiff had exercised its right to acceler-
ate the indebtedness.
In the defendant’s February 5, 2018 initial objection
to the motion for summary judgment, he argued that
genuine issues of material fact existed as to the equita-
ble defenses of laches16 and unclean hands.17 Approxi-
mately one month later, on March 2, 2018, the defendant
filed a supplemental objection to the motion for sum-
mary judgment, essentially repeating the arguments
contained in his memorandum of law in support of his
motion to dismiss and claiming that a genuine issue of
material fact existed as to whether the plaintiff had
standing to bring and prosecute this foreclosure action.
On March 14, 2018, the court issued a memorandum
of decision granting the plaintiff’s motion for summary
judgment. Specifically, it concluded that the plaintiff
had demonstrated a prima facie case for foreclosure
of its mortgage and that the defendant had failed to
establish the existence of any material fact regarding his
liability under the note and mortgage. It then considered
and rejected the defendant’s arguments relating to his
equitable defenses. Specifically, the court determined
that the defendant had failed to submit any evidence
to support his claim of an unreasonable delay by the
plaintiff. Further, it observed that the record in the prior
foreclosure action demonstrated that the delays were
the result of his efforts to extend mediation, and not
the result of any action or inaction on the part of the
plaintiff. The court also stated that the defendant had
not alleged any facts other than the passage of time
that created an issue of fact regarding any prejudice.
Finally, the court concluded: ‘‘Therefore, as the defen-
dant has filed no affidavits or other evidence in opposi-
tion to the plaintiff’s motion, the court agrees with the
plaintiff that the defendant’s objection is based solely
on the allegations of inequitable conduct with no evi-
dentiary support.’’
A
The defendant first argues that a genuine issue of
material fact existed as to the plaintiff’s standing. Spe-
cifically, he contends that the note was not endorsed in
blank and was payable to SunTrust, not to the plaintiff.
Additionally, the plaintiff claims that there was no evi-
dence that the note had been transferred to the plaintiff
and, therefore, ‘‘[t]here is an issue of fact as to whether
the [p]laintiff is the owner of the note.’’ We disagree.
As we explained in greater detail in part I of this
opinion, the plaintiff demonstrated to the trial court
that it possessed the note endorsed in blank. A party
in possession of a note endorsed in blank and, therefore,
payable to the bearer, is a valid holder of that instrument
and entitled to enforce it and, thus, has standing to
commence and prosecute a foreclosure action. Coun-
trywide Home Loans Servicing, LP v. Creed, 145 Conn.
App. 38, 51–52, 75 A.3d 38, cert. denied, 310 Conn. 936,
79 A.3d 889 (2013). Additionally, Hunt’s affidavit stated
that the plaintiff was the party entitled to collect the
debt evidenced by the note and to enforce the mortgage
securing that debt. The plaintiff, therefore, established
that it had standing to prosecute this foreclosure action.
See, e.g., 21st Mortgage Corp. v. Schumacher, 171 Conn.
App. 470, 486, 157 A.3d 714, cert. denied, 325 Conn. 923,
159 A.3d 1171 (2017).
In contrast, the defendant failed to produce any evi-
dence raising a genuine issue of material fact regarding
the plaintiff’s standing. His arguments failed to account
for the blank endorsement on the note and focused
primarily on the two allonges, one of which contains a
‘‘VOID’’ stamp. The existence of these two allonges does
not negate the fact that the plaintiff possessed the note
endorsed in blank and, therefore, had standing to fore-
close. See 21st Mortgage Corp. v. Schumacher, supra,
171 Conn. App. 486. Accordingly, for the reasons pre-
viously set forth in this opinion, we are not persuaded
that a genuine issue of material fact exists with respect
to the plaintiff’s standing in the present matter.
B
The defendant next argues that genuine issues of
material fact existed as to his equitable defenses of
laches and unclean hands. Specifically, he emphasizes
the six year delay between the May, 2009 default and
the commencement of the present action. He further
contends that this delay unnecessarily increased his
debt and decreased the value of the property. Finally,
he claims that the extended delay in this case created
an issue of fact as to whether the plaintiff had acted
fairly, equitably and honestly. We are not persuaded.
The following additional facts are necessary for the
resolution of this claim. After the plaintiff filed a
demand for disclosure of defenses pursuant to Practice
Book § 13-19, the defendant disclosed the special
defenses of laches and unclean hands on October 23,
2017. On January 31, 2018, the defendant filed a request
to amend his answer and to include the special defenses
of laches and unclean hands. On February 22, 2018, the
court overruled the plaintiff’s objection to the request
to amend the answer.18 The plaintiff subsequently
replied to the defendant’s special defenses.
Under the procedural posture of this case, the defen-
dant bore the burden of demonstrating the existence
of a genuine issue of material fact with respect to his
equitable defenses of laches and unclean hands. See
Bank of America, N.A. v. Aubut, supra, 167 Conn. App.
382. Specifically, he asserted that such issues existed
as to whether (1) the plaintiff’s delay in commencing
this action caused the debt to become greater than his
equity in the property, (2) the value of the property
declined as a result of the plaintiff’s delay and (3) the
plaintiff’s delay had been fair, equitable and honest. The
defendant, however, failed to support these assertions
with any evidence. See, e.g., LaSalle National Bank v.
Shook, 67 Conn. App. 93, 99, 787 A.2d 32 (2001). Such
bald assertions are insufficient to defeat a motion for
summary judgment. See, e.g., Connecticut Bank &
Trust Co. v. Carriage Lane Associates, 219 Conn. 772,
781, 595 A.2d 334 (1991); Gough v. Saint Peter’s Episco-
pal Church, 143 Conn. App. 719, 728–29, 70 A.3d 190
(2013). We agree with the trial court that the defendant
has not met his burden. Accordingly, we conclude that
the court properly granted the plaintiff’s motion for
summary judgment.
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.
1
In its complaint, the plaintiff also named the Department of Revenue
Services and the Internal Revenue Service as defendants but these govern-
mental entities are not parties to this appeal. We therefore refer in this
opinion to Christopher M. Fitzpatrick as the defendant.
2
The court issued the following order: ‘‘The above entitled matter was
dismissed at the dormancy calendar of [June 26, 2014].’’
3
‘‘As one court has explained, MERS does not originate, lend, service, or
invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee
for the loans owned by its members. The MERS system is designed to allow
its members, which include originators, lenders, servicers, and investors,
to assign home mortgage loans without having to record each transfer in
the local land recording offices where the real estate securing the mortgage
is located. . . .
‘‘The benefit of naming MERS as the nominal mortgagee of record is that
when the member transfers an interest in a mortgage loan to another MERS
member, MERS privately tracks the assignment within its system but remains
the mortgagee of record. According to MERS, this system saves lenders
time and money, and reduces paperwork, by eliminating the need to prepare
and record assignments when trading loans. . . .
‘‘If, on the other hand, a MERS member transfers an interest in a mortgage
loan to a non-MERS member, MERS no longer acts as the mortgagee of
record and an assignment of the security instrument to the non-MERS
member is drafted, executed, and typically recorded in the local land
recording office.’’ (Internal quotation marks omitted.) 21st Mortgage Corp.
v. Schumacher, 171 Conn. App. 470, 472 n.1, 157 A.3d 714, cert. denied, 325
Conn. 923, 159 A.3d 1171 (2017).
4
As we set forth in greater detail in part II B of this opinion, the court
permitted the defendant to amend his answer and to raise the special
defenses of laches and unclean hands on February 26, 2018.
5
Specifically, the plaintiff noted that ‘‘[t]o establish a prima facie case, a
foreclosing mortgagee must plead and prove that there was a loan, evidenced
by a promissory note, secured by a mortgage, that the loan is in default and
the debt has been accelerated. . . . [The] [p]laintiff’s [c]omplaint alleges
the necessary allegations to state a cause of action for mortgage foreclosure,
and all of the allegations of [the] [p]laintiff’s [c]omplaint material to liability
are proved by competent evidence or admission.’’ (Citation omitted.) See,
e.g., Bank of New York Mellon v. Horsey, 182 Conn. App. 417, 435, 190 A.3d
105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018).
6
Practice Book § 10-30 (a) provides: ‘‘A motion to dismiss shall be used
to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdic-
tion over the person; (3) insufficiency of process; and (4) insufficiency of
service of process.’’
7
‘‘The definitions of the terms blank endorsement and special endorse-
ment 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).’’ (Internal quotation marks omitted.) U.S. Bank, N.A. v. Ugrin, 150
Conn. App. 393, 396 n.6, 91 A.3d 924 (2014).
The special endorsement provides: ‘‘Pay Without Recourse to the order
of: SUNTRUST MORTGAGE, INC.’’
By: SUNTRUST MORTGAGE, INC., POA FOR COMP-U-FUND MORT-
GAGE CORP. (POA ON FILE-PROVIDED UPON REQUEST)’’
The endorsement was signed by the assistant vice president as attorney-
in-fact for Comp-U-Fund.
8
‘‘An allonge is [a] slip of paper sometimes attached to a negotiable
instrument for the purpose of receiving further indorsements when the
original paper is filled with indorsements. . . . Pursuant to General Statutes
§ 42a-3-204 (a), [f]or the purpose of determining whether a signature is made
on [a negotiable] instrument, [an allonge] is a part of the instrument.’’
(Citation omitted; internal quotation marks omitted.) AS Peleus, LLC v.
Success, Inc., 162 Conn. App. 750, 755 n.3, 133 A.3d 503 (2016); see also
SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 566
n.3, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998).
In his memorandum of law, the defendant incorrectly asserted that the
allonges were dated August 16, 2007. Although that date does appear on
the allonges, it appears to be in reference to the execution date of the note
itself, and not the date of the allonges.
9
The defendant did not address the blank endorsement contained on page
three of the note in his memorandum of law in support of his motion
to dismiss or in his supplemental objection to the plaintiff’s motion for
summary judgment.
10
The blank endorsement on page three of the note stated:
‘‘WITHOUT RECOURSE PAY TO THE ORDER OF
SUNTRUST MORTGAGE, INC.’’
It was signed by Dean Liverman, an officer of SunTrust.
11
Specifically, the court stated: ‘‘Okay. All right. The court respectfully
disagrees. The court overrules—or the court denies the motion to dismiss
for the reasons stated therein. It is clear to the court that the note is endorsed
in blank on the signature page, and the plaintiff . . . has possession of the
note. It appears to the court that [it is] the proper [party] to foreclose the
mortgage. Let the record reflect I’m giving back the original note to the
plaintiff’s counsel. The motion to dismiss is respectfully denied, the objection
is sustained, and we will now move forward.’’
The court issued the following order on May 6, 2018: ‘‘After a hearing on
the motion, at which both parties appeared, the court finds: (1) that the
plaintiff is the holder of the promissory note which is the subject of this
action; and (2) that the note was endorsed in blank by [SunTrust], making
it a bearer instrument. The plaintiff therefore has standing to bring this
action. The defendant’s motion to dismiss for lack of subject matter jurisdic-
tion is denied.’’
12
The plaintiff’s counsel stated: ‘‘First of all, the court has examined the
original note; the court knows that the plaintiff—has already found that the
plaintiff is the holder and entitled to proceed with the foreclosure action.
The affidavits and documentary evidence submitted with the plaintiff’s
motion for summary judgment, including the affidavit established the default
and notice of default given, have not been controverted by the defendant
in connection with that.
‘‘The supplemental objection to the plaintiff’s motion for summary judg-
ment is predicated entirely on the claims that were just argued with regard
to the motion to dismiss. Since the plaintiff has the original note endorsed
in blank and therefore has . . . standing and the right to enforce it it—the
issues raised by the supplemental objection to the motion to dismiss fail
as to an objection to summary judgment as they failed in connection with
the motion to dismiss. The reason being that—if anything, the motion to
dismiss establishes by using the exact same documents the plaintiff would
to show that they’re [consistent] of the note as endorsed with the allonge,
with the mortgage attached as exhibit A to the motion to dismiss; the
assignments attached as exhibits C and D to the motion to dismiss. So, the
defendant has submitted to the court for its motion the same evidence that
the plaintiff had submitted for summary judgment in terms of its right to
foreclose.’’ (Emphasis added.)
13
We note that our Supreme Court has stated: ‘‘The law governing . . .
foreclosure lies at the crossroads between the equitable remedies provided
by the judiciary and the statutory remedies provided by the legislature. . . .
Because foreclosure is peculiarly an equitable action . . . the court may
entertain such questions as are necessary to be determined in order that
complete justice may be done. . . . In exercising its equitable discretion,
however, the court must comply with mandatory statutory provisions that
limit the remedies available to a foreclosing mortgagee. . . . It is our adjudi-
catory responsibility to find the appropriate accommodation between appli-
cable judicial and statutory principles.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 244
Conn. 251, 256–57, 708 A.2d 1378 (1998).
14
In his principal brief, the defendant, without any analysis or legal cita-
tion, contends that the note ‘‘by way of both page three and the allonge to
SunTrust, identifies SunTrust as the entity to whom it is payable. It is
therefore, ‘specially endorsed.’ Accordingly, it is not endorsed in blank or
bearer paper such that the holder is entitled to commence a foreclosure as
the court suggested in its ruling.’’ He repeats this bald assertion in his
reply brief.
The trial court examined the original note provided by the plaintiff at the
March 5, 2018 hearing and concluded that it contained a blank endorsement
executed by SunTrust. See General Statutes § 42a-3-205 (b). The defendant
disagrees with that determination but failed to support his contrary position
with any legal authority. The defendant’s conclusory assertion of error by
the trial court is insufficient to persuade this court that the endorsement
on page three of the note was a special endorsement. See, e.g., Jalbert v.
Mulligan, 153 Conn. App. 124, 145, 101 A.3d 279 (appellate courts do not
presume error by trial court; appellant bears burden to demonstrate revers-
ible error and unsupported statements, divorced from any meaningful analy-
sis do not satisfy that burden), cert. denied, 315 Conn. 901, 104 A.3d 107
(2014); see generally Cornfield Associates Ltd. Partnership v. Cummings,
148 Conn. App. 70, 78, 84 A.3d 929 (2014), cert. denied, 315 Conn. 929, 110
A.3d 433 (2015); Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App. 793,
803, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).
15
‘‘The purpose of a special defense is to plead facts that are consistent
with the allegations of the complaint but demonstrate, nonetheless, that the
plaintiff has no cause of action.’’ (Internal quotation marks omitted.) Fidelity
Bank v. Krenisky, 72 Conn. App. 700, 705, 807 A.2d 968, cert. denied, 262
Conn. 915, 811 A.2d 1291 (2002).
Although the defenses to a foreclosure action historically have been lim-
ited to payment, discharge, release or satisfaction, or lien invalidity, Connect-
icut courts have permitted several equitable defenses to a foreclosure action.
See Bank of America, N.A. v. Aubut, 167 Conn. App. 347, 372, 143 A.3d 638
(2016); see also LaSalle National Bank v. Shook, 67 Conn. App. 93, 97, 787
A.2d 32 (2001) (where plaintiff’s conduct is inequitable, court may withhold
foreclosure on equitable considerations and principles).
16
‘‘The defense of laches, if proven, bars a plaintiff from [obtaining] equita-
ble relief in a case in which there has been an inexcusable delay that has
prejudiced the defendant. . . . First, there must have been a delay that was
inexcusable, and, second, that delay must have prejudiced the defendant.’’
(Internal quotation marks omitted.) TD Bank, N.A. v. Doran, 162 Conn.
App. 460, 466, 131 A.3d 288 (2016); see generally Florian v. Lenge, 91 Conn.
App. 268, 281–82, 880 A.2d 985 (2005).
17
‘‘The doctrine of unclean hands expresses the principle that where a
plaintiff seeks equitable relief, he must show that his conduct has been fair,
equitable and honest as to the particular controversy in issue. . . . Unless
the plaintiff’s conduct is of such a character as to be condemned and
pronounced wrongful by honest and fair-minded people, the doctrine of
unclean hands does not apply.’’ (Internal quotation marks omitted.) Thomp-
son v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001); see also Monetary
Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 407, 867 A.2d 841 (2005).
18
Specifically, the court stated: ‘‘Objection overruled. [The] [d]efendant
has asserted laches and unclean hands in his [d]isclosure of [d]efense[s] . . .
and has briefed laches and unclean hands in opposition to [the] plaintiff’s
[m]otion for [s]ummary [j]udgment . . . . [The] [p]laintiff is not surprised
[or] prejudiced by permitting laches and unclean hands to be filed as a
special defense. Connecticut has [a] liberal amendment policy before, during
and even after trial.’’