Hudson City Savings Bank v. Hellman ( 2020 )

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HUDSON CITY SAVINGS BANK v.
CHARLES D. HELLMAN ET AL.
(AC 41472)
Keller, Elgo and Bishop, Js.
Syllabus
The substitute plaintiff, M Co., sought to foreclose a mortgage on certain
real property owned by the defendants. After commencing the action,
the original plaintiff, H Co., moved for summary judgment as to liability,
which the trial court granted. Thereafter, the court granted H Co.’s
motion to substitute M Co. as the plaintiff. In support of its motion to
substitute, H Co. provided certain evidence that showed it had merged
into M Co. approximately twenty-one months before H Co. had filed its
motion for summary judgment. The court then rendered judgment of
foreclosure by sale in favor of M Co., and the defendants appealed to
this court, claiming that the court improperly granted the motion to
substitute M Co. for H Co. and granted summary judgment as to liability
in favor of H Co. Held:
1. The trial court did not abuse its discretion when it granted H Co.’s motion
to substitute M Co. as the plaintiff as the substitution had no substantive
effect: when H Co. merged into M Co., no assignment of the underlying
cause of action occurred, as H Co.’s assets, including the cause of action
against the defendants, vested in M Co. by operation of law, and M Co.
was the real party of interest upon its merger with H Co.; moreover,
the substitution of M Co. did not prejudice the defendants, as the defen-
dants did not articulate how being misled by the failure to substitute
M Co. as the plaintiff for more than two years after the merger occurred
caused actual prejudice to their ability to defend against the claims
brought against them, and M Co.’s obligation to establish its prima
facie case was not circumvented because it carried the same burden in
obtaining summary judgment as H Co. once the merger became effective;
furthermore, under established law, the substitution of M Co. as the
plaintiff was not necessary after its merger with H Co., and the failure
of M Co. to substitute itself prior to H Co.’s motion for summary judgment
did not preclude the defendants from obtaining discovery on any of the
issues that were pertinent to opposing that motion.
2. The defendants could not prevail on their claim that the trial court improp-
erly granted summary judgment as to liability in H Co.’s favor because
H Co. failed to establish that it had standing, in that it possessed the
mortgage note at the time the action was commenced: the record clearly
demonstrated that H Co. satisfied its prima facie case that it had standing,
as its production of the note, endorsed in blank, established a rebuttable
presumption that it possessed the note at the time it commenced the
foreclosure action, and the defendants failed to offer evidence to rebut
that presumption; moreover, although H Co. was not obligated to provide
anything further to show that it had standing to enforce the note, its
additional evidentiary submissions established that it possessed the note
at the time it commenced the underlying action.
3. The trial court improperly determined that M Co. satisfied its burden of
proof to establish that H Co. complied with the notification requirements
pursuant to the mortgage, and, thus, there was a genuine issue of material
fact as to whether H Co. satisfied a condition precedent to foreclosure;
H Co. did not submit any evidence to prove that the notice of default
was actually delivered to the defendants, and no admissible evidence
existed to support the claim that the notice of default was sent by first
class mail, and, accordingly, the judgment was reversed and the case
was remanded for further proceedings.
Argued September 23, 2019—officially released April 14, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendant et al., and for other relief,
brought to the Superior Court in the judicial district
of Stamford-Norwalk, where the court, Randolph, J.,
granted the named plaintiff’s motion for summary judg-
ment as to liability; thereafter, the court, Lee, J., granted
the named plaintiff’s motion to substitute Manufactur-
ers and Traders Trust Company as the plaintiff; subse-
quently, the court, Randolph, J., rendered judgment of
foreclosure by sale, from which the named defendant
et al. appealed to this court; thereafter, the court, Ran-
dolph, J., granted the substitute plaintiff’s motion to
terminate the stay of execution. Reversed; judgment
directed; further proceedings.
Charles D. Hellman, self-represented, for the appel-
lants (named defendant et al.).
Zachary Grendi, for the appellee (substitute
plaintiff).
Opinion
ELGO, J. The defendants Charles D. Hellman and
Holly H. Hellman1 appeal from the judgment of foreclo-
sure by sale rendered by the trial court in favor of the
substitute plaintiff, Manufacturers and Traders Trust
Company (M&T). On appeal, the defendants claim that
the court improperly (1) granted the motion to substi-
tute M&T for Hudson City Savings Bank (HCSB) as
the plaintiff in the action,2 and (2) rendered summary
judgment as to liability in favor of HCSB. We agree with
the defendants’ second claim and reverse the judgment
of the trial court.
The following facts and procedural history are rele-
vant to the present appeal. On May 22, 2007, the defen-
dants executed and delivered a note payable to Bank
of America, N.A. (BANA), in the original principal
amount of $532,000. The loan was secured by a mort-
gage deed on real property located in Westport, exe-
cuted that same day, and recorded on the Westport
land records.3 BANA endorsed the note in blank. The
defendants have been in default on the note and mort-
gage since September, 2011.
On January 7, 2013, BANA assigned both the note
and the mortgage to HCSB, with that assignment subse-
quently recorded on the Westport land records on Janu-
ary 14, 2013. On June 2, 2013, BANA, as the servicer
for the note, sent a letter to the defendants notifying
them of their rights under the mortgage relief program
pursuant to the provisions of General Statutes §§ 8-
265cc through 8-265kk. On June 21, 2013, BANA sent
a letter to the defendants providing notice that the loan
was in serious default and information with respect to
the total amount required to cure the default. The notice
of default also provided that, should the default not be
cured on or before July 31, 2013, the mortgage payments
would be accelerated.
When no payments followed, HCSB commenced the
present foreclosure action against the defendants on
December 4, 2013. HCSB filed the operative complaint,
its third revised complaint, on June 29, 2016. On January
20, 2017, the defendants filed an answer that included
thirteen special defenses, alleging, inter alia, that (1)
HCSB lacked the right or capacity to maintain the action
as a corporation, (2) HCSB lacked standing, (3) the
assignment of the note and mortgage was not actual
and bona fide, (4) BANA’s conduct with respect to the
mortgage constituted unclean hands, and (5) HCSB was
estopped from enforcing the mortgage.
On August 4, 2017, HCSB moved for summary judg-
ment as to liability, arguing that there was no genuine
issue of material fact with respect to the defendants’
liability on the note and mortgage. Attached to that
motion was the affidavit of Regina Rhodes. In the
Rhodes affidavit, the affiant averred, in relevant part,
that (1) she was authorized to sign the affidavit on
behalf of HCSB as an assistant vice president for BANA,
(2) BANA maintained records for the loan in question,
and part of her responsibilities was to be familiar with
the types of records maintained by BANA in connection
with the loan, (3) she had personal knowledge of
BANA’s procedures for creating the records, (4) as of
May 22, 2007, the defendants owed $532,000 as evi-
denced by the note payable to BANA, (5) on or before
November 25, 2013, HCSB ‘‘became and at all times
since then has been the party entitled to collect the
debt evidenced by the [n]ote and is the party entitled
to enforce the [m]ortgage securing the debt,’’ (6) the
note and mortgage are in default for nonpayment as of
September 1, 2011, (7) the defendants were given notice
of default, ‘‘by certified mail, postage fully prepaid,’’ on
June 21, 2013, and (8) HCSB ‘‘directly or through an
agent, has possession of the promissory note. [HCSB]
is the assignee of the security instrument for the refer-
enced loan.’’ Accompanying the Rhodes affidavit were
copies of the note, a June 21, 2013 notice of default
addressed to the defendants, a quitclaim deed of the
property, the mortgage, the assignment of the note and
mortgage from BANA to HCSB, and a June 2, 2013 notice
addressed to the defendants that contained information
pursuant to §§ 8-265cc through 8-265kk.
After being granted an extension of time to respond,
the defendants filed their opposition to HCSB’s motion
for summary judgment on October 27, 2017. In support
of their opposition, the defendants submitted the affida-
vit of the defendant Charles D. Hellman. In that affidavit,
Charles D. Hellman averred that, during 2012, BANA
repeatedly stated that it no longer owned the ‘‘loan’’
and mortgage, and refused to reveal the identity of the
new owner. He further averred, in relevant part, that
(1) HCSB failed to establish that notice of default was
delivered to the defendants as a condition of the mort-
gage due to Rhodes averring that HCSB had sent notice
by certified mail without proof of receipt and (2) he
could no longer find any physical branches of HCSB in
Connecticut which ‘‘raise[d] questions as to [HCSB’s]
existence and status as a real party in interest in this
matter.’’
On October 30, 2017, the court, Randolph, J., held a
hearing on the motion for summary judgment and heard
arguments from both parties. Three days later, the court
granted HCSB’s motion for summary judgment as to
liability. In its order, the court found that no genuine
issue of material fact existed as to the defendants’ liabil-
ity and that the defendants’ special defenses and affida-
vit were insufficient to rebut HCSB’s prima facie case.
On November 28, 2017, HCSB filed a motion to substi-
tute M&T as the plaintiff, pursuant to Practice Book
§§ 9-16 and 9-23.4 In support of its motion, HCSB
attached a copy of a certificate of effectiveness that
evidenced that, as of November 1, 2015—approximately
twenty-one months before HCSB filed its motion for
summary judgment as to liability—HCSB had merged
into M&T.5 Over the defendants’ opposition, the court,
Lee, J., granted that motion on December 11, 2017. On
February 26, 2018, the court, Randolph, J., rendered
judgment of foreclosure by sale in favor of M&T, order-
ing that a sale of the property be held on June 23, 2018.
On March 6, 2018, notice of judgment of foreclosure by
sale was sent to the defendants. This appeal followed.6
I
We first address the defendants’ claim that the court
improperly granted HCSB’s motion to substitute M&T
as the plaintiff. According to the defendants, substitut-
ing M&T as the plaintiff impeded their ability to properly
oppose HCSB’s motion for summary judgment and
obtain proper discovery from M&T. In response, M&T
asserts that the defendants were not prejudiced because
the substitution had no substantive effect. We agree
with M&T.
‘‘Practice Book § 9-16 confers authority on a trial
court judge to substitute a new plaintiff as the sole
plaintiff in a pending action as long as the substitution
does not prejudice the defense of the action. The deci-
sion whether to grant a motion for the [substitution]
of a party to pending legal proceedings rests generally
in the sound discretion of the trial court. . . . Our
review is limited to a determination of possible abuse of
discretion.’’ (Citation omitted; internal quotation marks
omitted.) Trevek Enterprises, Inc. v. Victory Con-
tracting Corp., 107 Conn. App. 574, 578–79, 945 A.2d
1056 (2008). ‘‘In reviewing the trial court’s exercise of
that discretion, every reasonable presumption should
be indulged in favor of its correctness . . . and only
if its action discloses a clear abuse of discretion is
our interference warranted.’’ (Internal quotation marks
omitted.) Joblin v. LaBow, 33 Conn. App. 365, 367, 635
A.2d 874 (1993), cert. denied, 229 Conn. 912, 642 A.2d
1207 (1994).
‘‘Our rules of practice . . . permit the substitution
of parties as the interests of justice require.’’ Federal
Deposit Ins. Corp. v. Retirement Management Group,
Inc., 31 Conn. App. 80, 84, 623 A.2d 517, cert. denied,
226 Conn. 908, 625 A.2d 1378 (1993). ‘‘As long as [the]
defendant is fully apprised of a claim arising from speci-
fied conduct and has prepared to defend the action,
his ability to protect himself will not be prejudicially
affected if a new plaintiff is added . . . .’’ (Internal
quotation marks omitted.) Rana v. Terdjanian, 136
Conn. App. 99, 110, 46 A.3d 175, cert. denied, 305 Conn.
926, 47 A.3d 886 (2012).
We begin by noting that the defendants’ claim appears
to be centered on the merger of HCSB into M&T and
how that merger eventually came to light. The defen-
dants assert that they were prejudiced by the substitu-
tion due to the fact that the motion to substitute was
filed more than two years after the merger took effect
and more than three months after HCSB filed for sum-
mary judgment. According to the defendants, the timing
of these events (1) misled both themselves and the
court, (2) circumvented HCSB’s obligation to show it
was entitled to seek judgment, and (3) impeded their
ability to oppose the motion for summary judgment
because the merger contradicted the averments made
in the Rhodes affidavit.
Guiding our resolution of the defendants’ claim are
the statutory and legal principles governing the mergers
of banking institutions. In Financial Freedom Acquisi-
tion, LLC v. Griffin, 176 Conn. App. 314, 170 A.3d 41,
cert. denied, 327 Conn. 931, 171 A.3d 454 (2017), this
court provided a comprehensive discussion of how a
foreclosure action is affected when a plaintiff bank
merges into another banking institution during the pen-
dency of the action.7 In that case, this court explored
federal and Connecticut banking law—as well as Con-
necticut corporate law—to resolve the consequences
of the plaintiff’s merger and name change during the
pendency of the action in which the new entity was
never substituted as the plaintiff. See id., 322–33. In so
doing, this court noted that, ‘‘[a]lthough Connecticut
banking law applies only to banks organized under Con-
necticut law . . . it provides guidance for determining
the impact of a merger of banking entities. . . . With
respect to a banking merger resulting in a Connecticut
bank, Connecticut law provides that (1) the corporate
existence of the constituent banks shall be continued
by and in the resulting bank; (2) the entire assets . . .
of each of the constituent banks shall be vested in the
resulting bank without any deed or transfer; (3) [n]o
suit, action or other proceeding pending at the time of
the merger . . . before any court or tribunal in which
any of such constituent banks is a party shall be abated
or discontinued because of such merger . . . but may
be continued and prosecuted to final effect by or against
the resulting bank; and (4) [t]he resulting bank shall
have the right to use the name of any of the constituent
banks . . . . General Statutes § 36a-125 (g).’’ (Cita-
tions omitted; internal quotation marks omitted.)
Financial Freedom Acquisition, LLC v. Griffin,
supra, 327–28.
‘‘With federal and state banking law in mind, we seek
additional guidance from the corporate law of this state
and other jurisdictions relating to mergers and changes
of name of nonbanking entities. In a merger of corpora-
tions governed by Connecticut law . . . the name of
the survivor may, but need not be, substituted in any
pending proceeding for the name of any party to the
merger whose separate existence ceased in the merger.
. . . General Statutes § 33-820 (a) (5). . . .
***
‘‘The Uniform Limited Liability Company Act simi-
larly provides that all property of each merging entity
vests in the surviving entity and that the name of the
surviving entity may be substituted for the name of any
merging entity that is a party to any pending action or
proceeding . . . . The rationale behind not requiring
the substitution of the surviving entity’s name in a pend-
ing proceeding is that [s]uch a substitution has no sub-
stantive effect because, whether or not the survivor’s
name is substituted, the survivor succeeds to the claims
of any party to the merger whose separate existence
ceased as a result of the merger. . . .
***
‘‘Under the relevant federal and state authority, the
merger to which the substitute plaintiff was [a] party
had the following consequences. First, the substitute
plaintiff’s corporate existence and identity continued
in the resulting bank. . . . Second, the substitute plain-
tiff’s assets, including the [defendants’] note, vested in
the resulting bank by operation of law and without any
deed or transfer. . . . Third, the present action, which
was pending at the time of the merger’s consummation,
was not abated, discontinued, or otherwise affected.
. . . Last, the substitute plaintiff could have substituted
the resulting bank in this action, but it was not required
to do so.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) Financial Freedom
Acquisition, LLC v. Griffin, supra, 176 Conn. App.
331–33.
Relevant to the present matter is the governing princi-
ple that M&T was not required to be substituted as the
plaintiff in place of HCSB. The rationale behind this
discretion afforded to substituting the surviving legal
entity as the plaintiff in a pending action is a matter of
practicality: ‘‘[S]uch a substitution has no substantive
effect’’ because, irrespective of the substitution, the
surviving entity succeeds all claims and assets. (Internal
quotation marks omitted.) Id., 331. We are further
guided by this state’s policy concerning intervention of
right. Practice Book § 9-18 provides in relevant part: ‘‘If
a person not a party has an interest or title which the
judgment will affect, the judicial authority, on its
motion, shall direct that person to be made a party.
. . .’’ See generally Investors Mortgage Co. v. Rodia,
31 Conn. App. 476, 480 and n.3, 625 A.2d 833 (1993).
With these principles in mind, we conclude that the
court did not abuse its discretion when it granted the
motion to substitute M&T as the plaintiff. In reaching
this determination, we note that the motion at issue
was predicated in part on Practice Book § 9-16, a section
that provides for the substitution of a plaintiff when
the cause of action itself is assigned to a different party.
Attached to the motion to substitute was both a certifi-
cate from the New York State Department of Financial
Services and a certification of the certificate of effec-
tiveness evidencing that the merger became effective
on November 1, 2015. However, no assignment of the
underlying cause of action occurred because, import-
antly, no assignment was necessary. The merger of
HCSB into M&T caused HCSB’s assets—including the
note and the cause of action against the defendants—
to vest in M&T by operation of law. See Financial
Freedom Acquisition, LLC v. Griffin, supra, 176 Conn.
App. 326 (‘‘[a]ll rights . . . in and to every type of prop-
erty . . . and choses in action shall be transferred to
and vested in the [resulting] national banking associa-
tion by virtue of such consolidation [or merger] without
any deed or other transfer’’ (emphasis omitted; internal
quotation marks omitted)). Although § 9-16 calls for the
substitution of a party upon that party’s assignment of
the cause of action, it was an appropriate vehicle to
bring about the substitution of M&T, who was the real
party of interest upon its merger with HCSB.8
In addition, we disagree with the defendants that the
substitution of M&T prejudiced them. First, we
acknowledge that both the defendants and the court
were misled by the failure to substitute M&T as the
plaintiff for more than two years after the merger
occurred. While it is clear that the substitution does
not affect M&T’s rights it assumed by virtue of the
merger, the failure to put the parties and the court on
notice that M&T assumed the rights of HCSB was, at
a minimum, careless. Indeed, it is possible that this type
of neglectful practice could be the basis for a myriad
of prejudices that a defendant could face by virtue of
not knowing who the proper plaintiff is. Nevertheless,
there is no basis for finding prejudice here, and the
defendants do not articulate how being misled in this
instance caused actual prejudice to their ability to
defend against the claims brought against them.
Second, M&T’s obligation to establish its prima facie
case was not circumvented because, like HCSB—whose
corporate existence continued by and in M&T after the
merger became effective—it had the identical burden
subsequent to the merger. In other words, M&T carried
the same burden in obtaining summary judgment as
HCSB once the merger became effective. The merger
of HCSB into M&T did not obviate the burden of either
HCSB or M&T to establish a prima facie case.
Lastly, we do not believe that the substitution of
M&T hindered the defendants’ ability to defend them-
selves in this action. Under established law, the substi-
tution of M&T as the plaintiff was not necessary after
its merger with HCSB. See id., 333 (plaintiff could have
substituted resulting bank as plaintiff in action after
merger, but was not required to do so). Moreover, the
failure of M&T to substitute itself prior to HCSB’s
motion for summary judgment did not preclude the
defendants from obtaining discovery on any of the
issues that were pertinent to opposing that motion.
Accordingly, the court did not abuse its discretion when
it granted HCSB’s motion to substitute M&T as the
plaintiff.
II
We turn next to the defendants’ claim that the court
improperly rendered summary judgment as to liability
in HCSB’s favor. Specifically, the defendants argue that
HCSB, as the former plaintiff, (1) failed to establish
that it possessed the note at the time the action was
commenced, and (2) failed to establish that no genuine
issue of material fact existed regarding whether it satis-
fied a condition precedent to foreclosure. We agree
with the defendants’ second argument.9
The legal principles and standard of review governing
our resolution of this claim are well settled. ‘‘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
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 in the record. . . . Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered forth-
with if the pleadings, affidavits 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 disputed factual issue. . . . The movant has the
burden of showing the nonexistence of such issues but
the evidence thus presented, 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 spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents.’’ (Internal quotation
marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.
App. 620, 630–31, 94 A.3d 1267, cert. denied, 314 Conn.
930, 101 A.3d 952 (2014).
‘‘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.’’
(Internal quotation marks omitted.) Bank of America,
N.A. v. Aubut, 167 Conn. App. 347, 359, 143 A.3d 638
(2016).
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
the material facts, which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue.’’ (Internal quotation marks omitted.) Romprey v.
Safeco Ins. Co. of America, 310 Conn. 304, 319–20, 77
A.3d 726 (2013).
A
The defendants first argue that HCSB, as the former
plaintiff, failed to establish the existence of standing.
Specifically, the defendants argue that the Rhodes affi-
davit only provides that HCSB was in possession of
the note when it commenced the foreclosure action.
According to the defendants, the Rhodes affidavit is
silent as to when HCSB came into possession of the
note, and the averment that HCSB was entitled to
enforce the note on or before November 25, 2013, was
conclusory. In response, M&T asserts that HCSB pro-
vided more than sufficient evidence to establish that it
possessed the note at the time it commenced the action.
We agree with M&T.
We begin by noting that, although our standard of
review of the granting of summary judgment is plenary;
see Wells Fargo Bank, N.A. v. Henderson, 175 Conn.
App. 474, 481, 167 A.3d 1065 (2017); the defendants
here challenge the summary judgment on the basis that
HCSB failed to establish that it possessed the note at
the time it commenced the underlying action. In the
context of foreclosure actions, whether a plaintiff pos-
sesses the relevant note at the time the action is com-
menced implicates that plaintiff’s standing. See
Deutsche Bank National Trust Co. v. Cornelius, 170
Conn. App. 104, 110–11, 154 A.3d 79 (‘‘[g]enerally, in
order to have standing to bring a foreclosure action the
plaintiff must, at the time the action is commenced, be
entitled to enforce the promissory note that is secured
by the property’’ (emphasis in original; internal quota-
tion marks omitted)), cert. denied, 325 Conn. 922, 159
A.3d 1171 (2017); Deutsche Bank National Trust Co.
v. Thompson, 163 Conn. App. 827, 832, 136 A.3d 1277
(2016) (‘‘[i]f the plaintiff did not hold the note at the
time it commenced this [foreclosure] action, then it
would have lacked standing and the case must be dis-
missed’’).
‘‘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. . . . A deter-
mination regarding a trial court’s subject matter juris-
diction is a question of law. When . . . the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Citation omitted; internal quota-
tion marks omitted.) Wells Fargo Bank, N.A. v. Cal-
drello, 192 Conn. App. 1, 20, 219 A.3d 858, cert. denied,
334 Conn. 905, 220 A.3d 37 (2019).
‘‘The rules for standing in foreclosure actions when
the issue of standing is raised may be succinctly summa-
rized as follows. When a holder seeks to enforce a note
through foreclosure, the holder must produce the note.
The note must be sufficiently endorsed so as to demon-
strate that the foreclosing party is a holder, either by
a specific endorsement to that party or by means of a
blank endorsement to bearer. If the foreclosing party
shows that it is a valid holder of the note and can
produce the note, it is presumed that the foreclosing
party is the rightful owner of the debt. That presumption
may be rebutted by the defending party, but the burden
is on the defending party to provide sufficient proof
that the holder of the note is not the owner of the debt,
for example, by showing that ownership of the debt
had passed to another party. It is not sufficient to pro-
vide that proof, however, merely by pointing to some
documentary lacuna in the chain of title that might give
rise to the possibility that some other party owns the
debt. In order to rebut the presumption, the defendant
must prove that someone else is the owner of the note
and debt. Absent that proof, the plaintiff may rest its
standing to foreclose on its status as the holder of the
note.’’ (Internal quotation marks omitted.) Wells Fargo
Bank, N.A. v. Henderson, supra, 175 Conn. App. 483.
‘‘Appellate courts in this state have held that the
burden [of showing that a plaintiff owns the note] is
satisfied when the mortgagee includes in its submis-
sions to the court a sworn affidavit averring that the
mortgagee is the holder of the promissory note in ques-
tion at the time it commenced the action. . . . The
evidentiary burden of showing the existence of a dis-
puted 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.’’ (Internal
quotation marks omitted.) Wells Fargo Bank, N.A. v.
Strong, 149 Conn. App. 384, 392, 89 A.3d 392, cert.
denied, 312 Conn. 923, 94 A.3d 1202 (2014). Further-
more, ‘‘[t]he possession by the bearer of a note
[e]ndorsed in blank imports prima facie that [it]
acquired the note in good faith for value and in the
course of business, before maturity and without notice
of any circumstances impeaching its validity. The pro-
duction of the note establishes [its] case prima facie
against the makers and [it] may rest there. . . . It [is]
for the defendant to set up and prove the facts which
limit or change the plaintiff’s rights.’’ (Internal quotation
marks omitted.) Equity One, Inc. v. Shivers, 310 Conn.
119, 135, 74 A.3d 1225 (2013).
In support of its motion for summary judgment, HCSB
attached to its motion three pertinent documents estab-
lishing that it was the holder of the note at the time it
commenced the underlying foreclosure action. First,
the Rhodes affidavit unequivocally states the following:
(1) Rhodes, as the affiant, is an officer of BANA; (2)
BANA is the servicing agent for HCSB for the underlying
debt; (3) Rhodes has personal knowledge of BANA’s
records maintained in connection with the debt; (4)
these records are ‘‘made at or near the time of the
occurrence of the matters recorded by persons with
personal knowledge of the information in the business
record, or from information transmitted by persons
with personal knowledge’’; (5) the records are ‘‘kept
in the course of BANA’s regularly conducted business
activities’’; (6) ‘‘it is the regular practice of BANA to
make such records’’; (7) ‘‘[o]n or before November 25,
2013, [HCSB] became and at all times since then has
been the party entitled to collect the debt evidenced
by the [n]ote and is the party entitled to enforce the
[m]ortgage securing the debt’’; and (8) ‘‘[HCSB] . . .
has possession of the [note].’’ Second, a copy of the
note, endorsed in blank, was attached as an exhibit to
HCSB’s motion and the original was presented to both
the court and the defendants during a hearing on the
motion. Lastly, a copy of the assignment of the note
and mortgage from BANA to HCSB, which was also
attached to HCSB’s motion as an exhibit, clearly shows
that the assignment was executed on January 7, 2013—
more than ten months prior to HCSB’s commencing the
foreclosure action.10
As our Supreme Court has made clear, HCSB’s pro-
duction of the note established a rebuttable presump-
tion that it possessed the note at the time it commenced
the foreclosure action. See Equity One, Inc. v. Shivers,
supra, 310 Conn. 135. The production of the note, by
itself, ‘‘establishe[d] [HCSB’s] case prima facie’’ with
respect to its standing. Id. (Internal quotation marks
omitted.) In the absence of the defendants’ offering any
evidence of their own to rebut the presumption that
HCSB owned the note when it commenced the underly-
ing foreclosure proceedings, HCSB was not required to
do anything more. See id. (because plaintiff did not
need to do more to prove standing than simply present
note endorsed in blank, defendant was not entitled to
evidentiary hearing on that issue). In the present case,
the note—endorsed in blank—was attached as an
exhibit to the Rhodes affidavit submitted in support of
HCSB’s motion for summary judgment.11 On October
30, 2017, HCSB again produced the original note and
presented it to the court. Thus, the production of the
note—both as an exhibit to the Rhodes affidavit and
at the hearing—established a rebuttable presumption
that HCSB possessed the note at the time it commenced
the foreclosure action. See id. (‘‘[t]he production of
the note [endorsed in blank] establishes [the plaintiff’s]
case prima facie against the makers and [it] may rest
there’’ (internal quotation marks omitted)).
In response, the only evidence offered by the defen-
dants to rebut that presumption was in the form of
the Hellman affidavit. In that affidavit, the defendant
Charles D. Hellman averred, in relevant part, that (1)
prior to the commencement of the foreclosure action,
BANA represented to the defendants that it did not own
the note prior to the date of assignment, which raised
doubts about its ability to assign the note and mortgage,
and (2) he could no longer find any physical HCSB bank
branches, which raised doubt as to HCSB’s existence.
These averments in no way undercut HCSB’s showing
that it had standing. First, whether BANA had the power
to assign the note and mortgage—therefore implicating
whether HCSB was the proper holder of the note—goes
to the merits of the foreclosure action, ‘‘not [HCSB’s]
standing to bring the action.’’ Wells Fargo Bank, N.A.
v. Strong, supra, 149 Conn. App. 400. Second, the aver-
ment that the affiant could not find any physical HCSB
bank branches is merely a bald assertion that, by itself,
is not evidence that calls into doubt HCSB’s existence.12
See Property Asset Management, Inc. v. Lazarte, 163
Conn. App. 737, 746–47, 138 A.3d 290 (2016) (after plain-
tiff presents prima facie evidence that it has standing,
‘‘the burden is on the defendant to impeach the validity
of [the] evidence that [the plaintiff] possessed the note
at the time that it commenced the . . . action . . .
[and must] prove the facts which limit or change the
plaintiff’s rights’’ (internal quotation marks omitted)).
Despite failing to rebut the presumption that HCSB
had standing by virtue of its production of the note,
the defendants assert that HCSB did not submit evi-
dence that establishes it possessed the note at the time it
commenced the action. As discussed previously, HCSB
had no obligation to do so because (1) it produced the
note endorsed in blank and (2) the defendants failed
to offer evidence to rebut the presumption that HCSB
possessed the note at the time it commenced the fore-
closure action. Even if we assume otherwise, the defen-
dants’ contention is without merit. The record shows
that HCSB submitted evidence clearly demonstrating
that it was in possession of the note on December 4,
2013—the date on which it commenced the underlying
action. For instance, the Rhodes affidavit specifically
averred that, ‘‘[o]n or before November 25, 2013, [HCSB]
became and at all times since then has been the party
entitled to collect the debt evidenced by the [n]ote and
is the party entitled to enforce the [m]ortgage securing
the debt.’’ (Emphasis added.) More significantly, a copy
of the assignment of the note was affixed to the Rhodes
affidavit as an exhibit. That assignment conclusively
shows that HCSB came into possession of the note by
way of an assignment from BANA on January 7, 2013—
more than ten months before HCSB commenced the
foreclosure proceedings against the defendants. The
Rhodes affidavit and the assignment, both submitted
in tandem with the note endorsed in blank, ‘‘was prima
facie evidence that [HCSB] was the holder of the note
at the relevant time and thus was entitled to enforce
the note.’’ US Bank National Assn. v. Christophersen,
179 Conn. App. 378, 385, 180 A.3d 611, cert. denied, 328
Conn. 928, 182 A.3d 1192 (2018).
In sum, the record clearly demonstrates that HCSB
satisfied its prima facie case that it had standing. Its
production of the note, endorsed in blank, established
a rebuttable presumption that it possessed the note at
the time it commenced the foreclosure action. Because
the defendants failed to offer evidence to rebut that
presumption, HCSB was not obligated to provide any-
thing further to show that it had standing to enforce
the note. Yet, HCSB did precisely that. Its submissions
of the note endorsed in blank, the Rhodes affidavit, and
the assignment of the note established that it possessed
the note at the time it commenced the underlying action.
Accordingly, we conclude that M&T has standing.
B
The defendants next argue that there was a genuine
issue of material fact as to whether HCSB satisfied a
condition precedent to foreclosure. In particular, the
defendants highlight HCSB’s obligation under the mort-
gage to provide the defendants with notice of default
before exercising its option to accelerate. The defen-
dants assert that, because the Rhodes affidavit states
that the notice was sent by certified mail, and, because
HCSB provided no evidence that notice was sent by
first class mail or that it was received by the defendants,
HCSB failed to satisfy a condition precedent to foreclo-
sure. M&T maintains that, although the Rhodes affidavit
states that the notice was sent by certified mail, the
copy of the envelope annexed to that affidavit shows
that it was sent by regular mail due to the markings
and number notations. Accordingly, M&T argues that
the evidence sufficiently establishes that HCSB sent
the notice of default by regular mail and it therefore
satisfied all conditions precedent prior to commencing
the foreclosure action. We agree with the defendants.
The following legal authority and standard of review
govern our resolution of this dispute as to notice. ‘‘It
is well established that [n]otices of default and accelera-
tion are controlled by the mortgage documents. Con-
struction of a mortgage deed is governed by the same
rules of interpretation that apply to written instruments
or contracts generally, and to deeds particularly. . . .
In construing a deed, a court must consider the language
and terms of the instrument as a whole. . . . Moreover,
the words [in the deed] are to be given their ordinary
popular meaning, unless their context, or the circum-
stances, show that a special meaning was intended.
. . .
‘‘In construing a contract, the controlling factor is
normally the intent expressed in the contract, not the
intent which the parties may have had or which the
court believes they ought to have had. . . . Where . . .
there is clear and definitive contract language, the scope
and meaning of that language is not a question of fact
but a question of law. . . . In such a situation our scope
of review is plenary, and is not limited by the clearly
erroneous standard. . . . In contrast, a contract is
ambiguous if the intent of the parties is not clear and
certain from the language of the contract itself. . . . If
the language of the contract is susceptible to more than
one reasonable interpretation, the contract is ambigu-
ous. . . . Ordinarily, such ambiguity requires the use
of extrinsic evidence by a trial court to determine the
intent of the parties, and, because such a determination
is factual, it is subject to reversal on appeal only if
it is clearly erroneous.’’13 (Citations omitted; internal
quotation marks omitted.) Aurora Loan Services, LLC
v. Condron, 181 Conn. App. 248, 264–65, 186 A.3d
708 (2018).
Turning to the mortgage at issue here, section 22
provides in relevant part that the ‘‘[l]ender shall give
notice to [the borrower] prior to acceleration following
[the borrower’s] breach of any covenant or agreement
in this [s]ecurity [i]nstrument . . . . The notice shall
specify: (a) the default; (b) the action required to cure
the default; (c) a date, not less than [thirty] days from
the date the notice is given to [the borrower], by which
the default must be cured; and (d) that failure to cure
the default on or before the date specified in the notice
may result in acceleration of the sums secured by this
[s]ecurity [i]nstrument and foreclosure or sale of the
[p]roperty.’’ Section 15 of the mortgage governs the
manner in which notices are to be given. That section
provides in relevant part that ‘‘[a]ll notices given by
[the borrower] or [the lender] in connection with this
[s]ecurity [i]nstrument must be in writing. Any notice
to [the borrower] in connection with this [s]ecurity
[i]nstrument shall be deemed to have been given to [the
borrower] when mailed by first class mail or when
actually delivered to [the borrower’s] notice address if
sent by other means.’’ Because such language creates
a condition precedent to commencing a foreclosure
action, HCSB was thus required to give the defendants
actual notice of the relevant information, with the
defendants presumptively in receipt of that notice only
if it was sent by first class mail.
We believe that Condron is instructive in this regard.
In that case, this court addressed a similar claim con-
cerning the satisfaction of a condition precedent when
a notice of default is sent to a borrower by certified
mail. Like the present case, the mortgage at issue in
Condron contained a condition precedent that notice
of default be sent to a borrower, and that such notice
will be deemed given to the borrower if sent by first
class mail. Aurora Loan Services, LLC v. Condron,
supra, 181 Conn. App. 263–64. That mortgage also pro-
vided that, if the notice of default was sent by other
means, then notice would be given to the borrower only
if it was ‘‘actually delivered’’ to the borrower’s address.
(Emphasis omitted; internal quotation marks omitted.)
Id., 264. In moving for summary judgment, the plaintiff
bank in Condron provided evidence that the notice
of default was sent by certified mail, but provided no
evidence that the notice was actually delivered to the
defendants. Id. Looking to the unambiguous language
of the mortgage and the evidence presented to the trial
court, this court held that the plaintiff failed to satisfy a
condition precedent to foreclosure. Id., 273. In reaching
that determination, the court summarized the ‘‘critical
difference’’ between certified mail and first class mail
in the context of satisfying the requirements of a mort-
gage. Id., 266–70. Because the plaintiff ‘‘failed to submit
a return receipt or any other evidence into the record
to prove that the notice of default was actually delivered
to the defendants by certified mail,’’ it therefore failed
to satisfy its burden of proof that it complied with the
notice requirements of the mortgage. Id., 273.
In the present case, the only documents submitted
by HCSB that the notice of default was given to the
defendants consisted of (1) the Rhodes affidavit and
(2) a copy of the notice itself. As discussed previously,
the Rhodes affidavit that was submitted by HCSB in
support of its motion for summary judgment makes
only one reference to the notice of default. Specifically,
the Rhodes affidavit states that ‘‘[n]otice of default was
given to [the defendants] on June 21, 2013 . . . . The
[n]otice was given by certified mail, postage fully pre-
paid, was addressed as set forth on the attached
[e]xhibit A-2. As set forth in [e]xhibit A-2, among other
things, the [n]otice specified the default, the action
required to cure the default and a date by which the
default had to be cured.’’ HCSB submitted no docu-
ments to authenticate exhibit A-2 as purporting to be
a notice of default sent by first class mail, nor did it
provide any documentation showing that the notice of
default was actually delivered to the defendants.
In resolving this issue, we reiterate that our plenary
review of a court’s decision granting summary judgment
is limited to whether ‘‘the pleadings, affidavits and any
other proof submitted show that there is no genuine
issue as to any material fact’’ when that evidence is
viewed ‘‘in the light most favorable to the nonmoving
party.’’14 (Internal quotation marks omitted.) Lucenti v.
Laviero, 327 Conn. 764, 773, 176 A.3d 1 (2018). More-
over, our law is well settled that a court is limited to
considering documents that would be admissible at
trial. New Haven v. Pantani, 89 Conn. App. 675, 678,
874 A.2d 849 (2005). Thus, ‘‘[b]efore a document may
be considered by the court [in support of] a motion
for summary judgment, there must be a preliminary
showing of [the document’s] genuineness, i.e., that the
proffered item of evidence is what its proponent claims
it to be.’’ (Emphasis added; internal quotation marks
omitted.) Gianetti v. Health Net of Connecticut, Inc.,
116 Conn. App. 459, 466, 976 A.2d 23 (2009).
On our review of the record, viewed in the light most
favorable to the defendants, we conclude that HCSB
did not meet its burden of showing that it satisfied a
condition precedent to foreclosure. The Rhodes affida-
vit states that the notice of default was ‘‘given by certi-
fied mail, postage fully prepaid, was addressed as set
forth on the attached [e]xhibit A-2.’’ That exhibit con-
tains a scanned copy of the envelope addressed to the
defendants and the notice of default. However, nothing
from that exhibit provides any indication that the notice
of default was actually delivered to the defendants if
sent by certified mail. Although M&T argues that the
scanned envelope contained in the exhibit is evidence
that the notice of default was sent by first class mail,
it is not accompanied by an affidavit authenticating it
as such. See New Haven v. Pantani, supra, 89 Conn.
App. 678 (documents not authenticated by, for example,
either affidavit or certified copy, are not admissible
evidence to establish plaintiff’s prima facie burden for
summary judgment). Instead, it was accompanied by
the Rhodes affidavit which averred that the document
constituted notice by certified mail. As we have dis-
cussed previously, under Condron, the absence of any
indication that the certified mail notice was actually
delivered is fatal. M&T’s claim that the document actu-
ally represents evidence of first class mail also fails
because it lacks an authenticating document to support
the claim that it is what M&T purports it to be. See id.,
680 (plaintiff failed to establish prima facie case for
summary judgment because documents submitted were
not authenticated).
Despite these deficiencies in its documentation,
M&T raises a number of arguments that the evidence
was sufficient to satisfy its burden for summary
judgment. First, M&T claims that HCSB consistently
asserted that the notice of default was sent by regular
mail. Specifically, it cites to the allegation in the opera-
tive complaint that states that ‘‘[HCSB] has complied
with all statutory and contractual preconditions prior
to commencing this foreclosure action including issu-
ance of a written notice of default, sent first class mail,
postage prepaid on or about June 21, 2013 to the defen-
dants . . . .’’ M&T, however, fails to explain how that
allegation is anything but inconsistent with the Rhodes
affidavit that HCSB submitted as evidence in support
of summary judgment.15
Second, M&T argues that, despite the averment made
in the Rhodes affidavit that the notice of default was
sent by certified mail, the barcode and accompanying
numbers contained on the envelope is evidence that
the notice was ‘‘quite obviously sent by regular mail
. . . .’’ We have no way to discern what the barcode
and the numbers represent for purposes of determining
how the envelope was mailed, nor was any evidence
submitted to the court that explained these features on
the envelope. Although counsel for M&T has assured
us that the barcode and numbers represent that it was
sent by first class mail, such representations are not
admissible evidence. See, e.g., Brusby v. Metropolitan
District, 160 Conn. App. 638, 652 n.12, 127 A.3d 257
(2015) (‘‘[t]his court, as well as our Supreme Court,
repeatedly has stated that representations of counsel
are not evidence’’ (internal quotation marks omitted)).
Moreover, M&T’s reference to website links purporting
to show the United States Postal System’s certified mail
number system was not evidence before the trial court,
and we therefore do not consider it on appeal. Fiorelli
v. Gorsky, 120 Conn. App. 298, 307 n.3, 991 A.2d 1105
(evidence that was not before trial court when it
decided motion for summary judgment will not be con-
sidered on appeal), cert. denied, 298 Conn. 933, 10 A.3d
517 (2010).
Lastly, in an attempt to distinguish Condron, M&T
notes that, (1) unlike in that matter, in this case, HCSB
claimed that it sent the notice of default by both certi-
fied mail and first class mail, and (2) the defendants in
Condron provided evidence that they ‘‘affirmatively did
receive the notice of default . . . .’’ (Emphasis omit-
ted.) For all intents and purposes, M&T’s initial argu-
ment is a distinction without a difference that has no
influence on our application of Condron to the present
facts. M&T’s latter argument fails for the same reason.
Not only did the defendants in Condron affirmatively
state that they did not receive notice, but most import-
antly, at issue was the plaintiff’s failure to satisfy its
burden that the defendants ‘‘actually received the notice
of default.’’ Aurora Loan Services, LLC v. Condron,
supra, 181 Conn. App. 264, 276. Compare Wells Fargo
Bank, N.A. v. Fitzpatrick, 190 Conn. App. 231, 241–42,
210 A.3d 88 (Condron is distinguishable because defen-
dants indisputably ‘‘had actual notice of the default and
the possibility that they faced a foreclosure because
they had been through [a] first foreclosure action and
admittedly received the [notice of default] before the
first foreclosure action was commenced’’), cert. denied,
332 Conn. 912, 209 A.3d 1232 (2019). M&T likewise has
failed to satisfy its burden that the defendants actually
received the notice of default, and the defendants there-
fore had no obligation to establish that a genuine issue
existed as to that material fact. See State Farm Fire &
Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079
(2016) (when evidence submitted by moving party fails
to establish no genuine issue of material fact, nonmov-
ing party has no obligation to submit evidence establish-
ing existence of issue).
Accordingly, we conclude that the evidence submit-
ted by HCSB failed to show that it satisfied a condition
precedent to foreclosure. HCSB did not submit any
evidence to prove that the notice of default was actually
delivered to the defendants, and no admissible evidence
exists to support the claim that the notice of default was
sent by first class mail. Therefore, the court improperly
determined that M&T satisfied its burden of proof to
establish that HCSB complied with the notification
requirements pursuant to the mortgage.
The judgment is reversed and the case is remanded
with direction to deny the motion for summary judg-
ment and for further proceedings consistent with this
opinion.
In this opinion the other judges concurred.
1
For convenience, we refer to Charles D. Hellman and Holly H. Hellman
as the defendants in this opinion. We further note that in this action, Charles
D. Hellman, a licensed attorney, represents both himself and Holly H.
Hellman.
Bank of America, N.A., was also named as a defendant in the complaint
for its claimed interest in the property by way of a mortgage dated October
28, 2002; it has not participated in the present appeal.
2
As discussed herein, at the time that the foreclosure action was com-
menced, HCSB was the plaintiff preceding M&T. The motion to substitute
was precipitated by HCSB’s merger with M&T, effective November 1, 2015.
HCSB was also the named plaintiff at the time summary judgment was
rendered in its favor, which preceded the motion to substitute M&T as the
plaintiff. For purposes of clarity, we refer to M&T and HCSB by name.
3
On February 8, 2004, the defendant Holly H. Hellman became the owner
of the Westport property by way of a quitclaim deed.
4
Practice Book § 9-16 provides that, ‘‘[i]f, pending the action, the plaintiff
assigns the cause of action, the assignee, upon written motion, may either
be joined as a coplaintiff or be substituted as a sole plaintiff, as the judicial
authority may order; provided that it shall in no manner prejudice the defense
of the action as it stood before such change of parties.’’
Practice Book § 9-23 provides that ‘‘[a]n action may be brought in all
cases in the name of the real party in interest, but any claim or defense
may be set up which would have been available had the plaintiff sued in
the name of the nominal party in interest.’’
5
The record provides no indication that either the court or the defendants
were aware that HCSB had merged into M&T some two years prior to the
motion to substitute being filed.
6
On May 1, 2018, the court granted M&T’s motion for termination of the
automatic stay of execution on appeal. On July 23, 2018, this court denied the
defendants’ motion to vacate the trial court’s termination of the automatic
appellate stay.
7
Given the complicated background of Financial Freedom Acquisition,
LLC v. Griffin, supra, 176 Conn. App. 314, we believe it to be helpful to
provide the facts of that case. The following summary provides an overview.
The decedent, whose estate was named as a defendant, executed a note
secured by a mortgage in July, 2008, and both were eventually assigned to
OneWest Bank, F.S.B. Id., 317, 320. OneWest Bank, F.S.B. then assigned the
note to the plaintiff, an entity that was a subsidiary of OneWest Bank, F.S.B.
Id., 320. In May, 2011, the plaintiff instituted the foreclosure action against
the defendants. Id., 321. In July, 2011, the plaintiff transferred the note and
mortgage back to OneWest Bank, F.S.B. Id., 320. In February, 2014, OneWest
Bank, F.S.B. changed its name to OneWest Bank, N.A. after converting from
a federal savings bank to a national banking association. Id. In September,
2014, OneWest Bank, N.A. was substituted as the plaintiff. Id., 321. In August,
2015, IMB HoldCo, LLC, the holding company of OneWest Bank, N.A., merged
with CIT Group, the holding company of CIT Bank. Id., 320. As part of the
merger, CIT Bank merged into OneWest Bank, N.A., and, although the latter
was the surviving entity, it changed its name to CIT Bank, N.A. Id., 321. CIT
Bank, N.A. was never substituted as the plaintiff in the action. Id.
At trial, OneWest Bank, N.A., as the substitute plaintiff, introduced the
original note and an allonge specifically endorsing the note to OneWest,
F.S.B., and another allonge wherein OneWest Bank, F.S.B., endorsed the
note in blank. Id. OneWest Bank, N.A. also introduced testimony from a
vice president and foreclosure litigation manager employed by CIT Bank,
N.A., who outlined the series of assignments and corporate restructurings
that resulted in CIT Bank, N.A.’s possession of the note. Id., 321–22. Follow-
ing trial, the court concluded that OneWest Bank, N.A. had established its
prima facie case of foreclosure and ruled against the defendants with respect
to their special defense and counterclaim. Id., 322. In response to the defen-
dants’ motion for articulation concerning which plaintiff owned the loan,
the court acknowledged that OneWest Bank, N.A., was then known as CIT
Bank, N.A., due to a legal name change. Id. On appeal, the defendants
challenged the court’s finding that the substitute plaintiff had established
its prima facie case, arguing that, as a result of a corporate merger of the
substitute plaintiff, ownership of the note had vested in a different legal
entity, CIT Bank, N.A., that was never made a party to the action. Id. This
court affirmed the trial court’s judgment. Id., 343.
8
Even assuming that Practice Book § 9-16 was not the appropriate basis
to bring about the substitution, we underline the wide discretion afforded
to courts for the substitution of parties given our state’s policy of ensuring
that a real party of interest is added as a party to the underlying action.
9
The defendants also assert that summary judgment was improperly
granted because (1) there were genuine issues of material fact as to the
validity of the assignment of the note by BANA to HCSB, and (2) more
discovery was needed from HCSB as to how it came into possession of the
note. Because we conclude that the court improperly granted summary
judgment in favor of HCSB, we do not address the defendants’ remaining
claims.
10
The assignment, titled ‘‘Assignment of Mortgage,’’ clearly assigned the
mortgage ‘‘together with the note(s) and obligations therein described and
the money due and to become due thereon . . . .’’
11
The defendants’ claim that there was no basis that the affiant in the
Rhodes affidavit had personal knowledge as to HCSB’s possession of the
note is without merit. Indeed, the averments plainly establish that Rhodes,
as the affiant, had personal knowledge of the matters stated therein. See
Bank of America, N.A. v. Aubut, supra, 167 Conn. App. 364–65 (outlining
requirements for establishing affiant’s personal knowledge when affidavit
is submitted in support of summary judgment in foreclosure action).
12
More importantly, as discussed at length in part I of this opinion, HCSB’s
existence continued in M&T, and M&T had the right to use the name of HCSB
in continuing the underlying foreclosure action. See Financial Freedom
Acquisition, LLC v. Griffin, supra, 176 Conn. App. 328. Thus, HCSB’s stand-
ing was not affected solely as the result of its merger into M&T.
13
We note that the record contains no evidence that the intent of the
parties in executing the mortgage was an issue before the trial court, nor
has that issue been raised on appeal. Moreover, neither party has asserted
that any ambiguity exists in the mortgage, nor do we perceive one.
14
In granting HCSB’s motion for summary judgment, the court issued a
four sentence order that consisted of the following: ‘‘The motion for summary
judgment having been heard, it is hereby found that no genuine issue of
material fact exists as to the defendants’ liability on the note and mortgage.
The defendants’ special defenses and affidavit are insufficient to rebut
[HCSB’s] prima facie case. It is therefore ordered GRANTED. Determination
of the amount of indebtedness is deferred until such time as [HCSB] seeks
a judgment of foreclosure. Practice Book §§ 17-44 through 17-51.’’
We further note that Aurora Loan Services, LLC v. Condron, supra, 181
Conn. App. 248, was published after the trial court granted HCSB’s motion.
15
M&T’s position that it has consistently asserted that the notice of default
was sent by first class mail is further undermined by HCSB’s representation
to the court during the hearing on the motion for summary judgment. In
arguing that HCSB satisfied the condition precedent to give notice to the
defendants, HCSB’s counsel explicitly stated that exhibit A-2 to its motion
for summary judgment ‘‘shows that [the notice of default] was sent . . .
by certified mail . . . .’’