U.S. Bank, National Assn. v. Moncho ( 2021 )

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U.S. BANK, NATIONAL ASSOCIATION, TRUSTEE v.
LEE MONCHO ET AL.
(AC 43568)
Alvord, Elgo and Albis, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendants following their default on a promissory note
secured by the mortgage. The defendants filed an answer with five
special defenses and a counterclaim. After trial, the defendants filed a
posttrial brief claiming for the first time that the court was required to
deem all of their special defenses as admitted due to the plaintiff’s
failure to file a reply. In its reply brief, the plaintiff argued that the
defendants were not entitled to implied admissions. The plaintiff then
filed its reply to the defendants’ special defenses, denying each one in
turn. The trial court rejected all of the defendants’ special defenses and
rendered a judgment of strict foreclosure, from which the defendants
appealed to this court. Held:
1. The trial court did not err in determining that the defendants were not
entitled to implied admissions on their special defenses because the
provisions of Practice Book § 10-19 are not always mandatory: the trial
court is not bound by an implied admission pursuant to § 10-19 if the
implied admission is not brought to its attention at any stage of the trial
proceedings; moreover, the plaintiff’s failure to reply did not result in
any surprise or prejudice to the defendants, as they were placed on
notice of the plaintiff’s intent to deny the special defenses by the plain-
tiff’s pretrial brief, which addressed each defense and the grounds on
which they were to be challenged, and the special defenses were litigated
during trial; furthermore, once made aware of its nonpleading, the plain-
tiff filed a timely reply.
2. The trial court did not err in concluding that the plaintiff had standing
in the action or in rejecting the defendants’ special defense that the
plaintiff was not a holder in due course because a note holder is pre-
sumed to be the rightful owner of a debt, which satisfies the holder’s
initial burden with respect to standing: the plaintiff was in physical
possession of the original note at the time of the commencement of the
action and presented credible evidence that an allonge, endorsing the
note in blank, was affixed to the note, establishing the presumption that
the plaintiff was the rightful owner of the debt; moreover, the defendants’
introduction of various other allonges into evidence, without any evi-
dence demonstrating that they were ever affixed to the note, was insuffi-
cient to rebut this presumption.
3. The trial court did not err in rejecting the defendants’ four remaining
special defenses:
a. The trial court did not err in rejecting the defendants’ special defense
alleging that any attempt by the plaintiff to seek a deficiency judgment
was barred by the statute of limitations, as a court cannot resolve a
claimed controversy unless it is justiciable: the plaintiff has not yet
filed a motion for a deficiency judgement, so the defendants’ statute of
limitations defense was premature and not ripe for adjudication.
b. The trial court did not err in rejecting the defendants’ special defense
alleging that the plaintiff lacked standing due to its noncompliance with
the securitization requirements of a certain securitization document
necessary for the note to be part of a certain trust of which the plaintiff
was the trustee because the defendants failed to meet their evidentiary
burden of proof: the defendants did not present any evidence with
respect to the requirements of securitization or the plaintiff’s alleged
failure to comply with the same; moreover, noncompliance with securiti-
zation requirements does not implicate standing.
c. The trial court did not err in concluding that the defendants received
proper notice of default and acceleration, the delivery of which was
controlled by the mortgage documents: pursuant to the mortgage docu-
ments, the defendants received notice of default and intent to accelerate
the loan if the default was not cured within the relevant time period
from the loan servicer, which, contrary to the defendants’ claim, was
not a stranger to the loan; moreover, the fact that the notice came from
the loan servicer instead of the plaintiff did not cause any prejudice to
the defendants.
d. The trial court did not abuse its discretion in rejecting the defendants’
special defense of unclean hands because the defendants failed to meet
their evidentiary burden of proving the facts alleged: the mere presence
of additional allonges and assignments of mortgage did not give rise to
behavior on behalf of the plaintiff that could be classified as unfair,
inequitable, or dishonest.
4. The trial court did not err in admitting the payment history on the note
into evidence, as the business records exception to the hearsay rule
applies to loan records made by third parties in connection with purchase
and sale of debt if it is shown that the records became a part of the
business record of the proponent pursuant to a transaction in which
the third party had a business duty to transmit accurate information: a
witness from the loan servicing company testified that the prior owner
of the loan had a duty to provide the servicer with accurate records
during the loan transfer process, that the loan servicer reviewed and
analyzed the information upon receipt, and that the information provided
was used by the loan servicer to create the payment history that was
introduced into evidence.
Argued October 8, 2020—officially released March 2, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the named defendant et al. filed
a counterclaim; subsequently, the court, Hon. Michael
Hartmere, judge trial referee, rendered a judgment of
strict foreclosure and rendered judgment on the coun-
terclaim for the plaintiff, from which the named defen-
dant et al. appealed to this court. Affirmed.
James M. Nugent, for the appellants (named defen-
dant et al.).
Pierre-Yves Kolakowski, for the appellee (plaintiff).
Opinion
ALBIS, J. The defendants Lee Moncho and Karen
Moncho1 appeal from the judgment of strict foreclosure
rendered by the trial court in favor of the plaintiff, U.S.
Bank, National Association, Trustee, as successor in
interest to Wachovia Bank, N.A., as Trustee for JPMor-
gan 2005-A7. On appeal, the defendants claim that the
court erred by (1) refusing to deem all of the defendants’
special defenses as admitted when the plaintiff failed
to reply to them prior to trial, (2) concluding that the
plaintiff had standing and was entitled to enforce the
note, (3) rejecting the defendants’ five special defenses,
and (4) improperly admitting evidence concerning the
payment history of the note as a business record. We
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our discussion of the claims on appeal. The
plaintiff commenced this foreclosure action on July 3,
2017. The plaintiff later filed a revised complaint on
May 15, 2018. In its one count revised complaint, the
plaintiff sought to foreclose a mortgage on real property
owned by the defendants, alleging that it was the holder
of the promissory note secured by the mortgage and
that it had been assigned the mortgage. The defendants
filed their amended answer, special defenses, and a
counterclaim on April 24, 2019. A court trial commenced
on April 30, 2019, and concluded on May 1, 2019. There-
after, the plaintiff filed its reply to the defendants’ spe-
cial defenses on June 18, 2019.
In a memorandum of decision dated September 17,
2019, the court made the following factual findings and
reached the following conclusions. On July 29, 2005,
the defendants executed a note in which they promised
to pay JPMorgan Chase Bank, N.A. (JPMorgan), the
principal sum of $966,999 with all interest accrued
thereon. On that same day, to secure the note, they
executed a mortgage in favor of JPMorgan on their real
property located at 245 High Meadow Road in South-
port, which mortgage was delivered to JPMorgan.
JPMorgan endorsed the note in blank, and the mortgage
eventually was assigned to the plaintiff. The defendants
later defaulted pursuant to the terms of both the note
and the mortgage in that they failed to make the monthly
payments of principal and interest due on November
1, 2008, and every month thereafter. Each defendant
received a letter dated January 4, 2009, which notified
them of their default and advised them that if the
amount required to cure the default was not received
within thirty-two days, immediate acceleration of all
moneys due under the note and mortgage would be
declared without further notice or demand. The defen-
dants failed to cure the default, and the total amount
of the indebtedness due and owing was accelerated. As
of April 30, 2019, the first day of trial, the total amount
due under the note was $1,680,018.38.
The court concluded that the plaintiff had established
a prima facie claim for foreclosure. Specifically, the
court found that the plaintiff had established that it
was the holder of the note because the plaintiff was in
physical possession of the note endorsed in blank,
which endorsement was set forth on an original allonge
executed by Alisha Young, an assistant vice president
of JPMorgan, and stapled to the note (Young allonge).
The court also found that, as required by the terms
of the note, the plaintiff had satisfied the conditions
precedent to the enforcement of the mortgage and the
note by timely mailing notices of default and accelera-
tion warnings to the defendants. Accordingly, the court
rendered a judgment of strict foreclosure. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendants first claim that the court erred by
refusing to deem all of their special defenses as admit-
ted when the plaintiff failed to reply to them prior to
trial. Specifically, the defendants argue that the plaintiff
never replied to their five special defenses at any time
and that, pursuant to Practice Book § 10-19, all of their
special defenses must therefore be deemed admitted.
The defendants further contend that the provisions of
§ 10-19 are mandatory. In response, the plaintiff argues
that the court properly rejected the defendants’ claims
of entitlement to implied admissions. In the plaintiff’s
view, the defendants are precluded from claiming
implied admissions because the defendants failed to
challenge the plaintiff’s failure to plead at trial. We agree
with the plaintiff.
The following additional facts are relevant to this
claim. On April 24, 2019, the defendants filed their
amended answer, special defenses, and a counterclaim.
In their amended pleading, the defendants asserted five
special defenses: (1) the Young allonge did not trans-
form the note into bearer paper and the plaintiff was
not a holder in due course with the right to prosecute
the foreclosure action; (2) the plaintiff was precluded
from bringing an action on the note due to the passing
of the applicable statute of limitations; (3) the plaintiff
failed to establish that it had complied with all of the
requirements of the securitization document necessary
for the note to be a part of the JPMorgan 2005 A-7
Securitized Trust; (4) the plaintiff failed to provide
proper notice of default and acceleration as required
under the mortgage; and (5) the plaintiff was barred
from recovery due to unclean hands. The plaintiff failed
to file a reply to the defendants’ special defenses. The
plaintiff did, however, submit a twenty-six page memo-
randum of law prior to trial that addressed each of the
defendants’ special defenses.
The defendants never advised the court or the plain-
tiff of the plaintiff’s failure to plead prior to or during
trial. Instead, the defendants raised this issue for the
first time in their posttrial brief, which they filed on
June 3, 2019, approximately one month after the trial
concluded. Specifically, the defendants claimed that the
court was required to deem all of their special defenses
as admitted due to the plaintiff’s failure to file a reply.
Thereafter, the plaintiff filed its reply to the defendants’
special defenses on June 18, 2019, in which it denied
each special defense. The plaintiff also filed a reply
brief in which it argued that the defendants were not
entitled to implied admissions.
In its memorandum of decision, the court, pursuant
to Birchard v. New Britain, 103 Conn. App. 79, 927
A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721
(2007), concluded that the defendants were not entitled
to implied admissions. The court found that ‘‘it would
be inequitable in the circumstances here to hold that
the failure to file an answer to the special defenses
should be considered an implied admission. Since the
defendants failed to challenge the plaintiff’s nonplead-
ing or otherwise make a request for an implied admis-
sion at trial, the defendants’ claim of implied admissions
must fail.’’ The court then considered, and rejected, all
of the defendants’ special defenses. Accordingly, the
court found in favor of the plaintiff and rendered a
judgment of strict foreclosure.
We are guided by the following relevant legal princi-
ples. ‘‘Pleadings are intended to limit the issues to be
decided at the trial of a case and [are] calculated to
prevent surprise.’’ (Internal quotation marks omitted.)
Birchard v. New Britain, supra, 103 Conn. App. 83.
Pursuant to Practice Book § 10-56, the ‘‘plaintiff’s reply
pleading to each of the defendant’s special defenses
may admit some and deny others of the allegations of
that defense, or by a general denial of that defense
put the defendant upon proof of all the material facts
alleged therein.’’ ‘‘According to the law of pleading,
what is not denied is conceded.’’ (Internal quotation
marks omitted.) Birchard v. New Britain, supra, 84.
Consistent with that principle, Practice Book § 10-19
provides that ‘‘[e]very material allegation in any plead-
ing which is not denied by the adverse party shall be
deemed to be admitted, unless such party avers that
he or she has not any knowledge or information thereof
sufficient to form a belief.’’ ‘‘[T]he interpretation of
pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of
the pleadings therefore is plenary.’’ (Internal quotation
marks omitted.) Birchard v. New Britain, supra, 83.
In Birchard, this court determined that a trial court is
not bound by an implied admission pursuant to Practice
Book § 10-19 in certain circumstances. Id., 85. We con-
cluded that a trial court is not bound by an implied
admission that is not brought to its attention at any
stage of the trial court proceedings. Id. Because it is
‘‘unfair and unworkable to require the trial court, in
each and every civil action before it, to scour the plead-
ings in search of implied admissions . . . the burden
rests with the parties to bring to the court’s attention
an allegedly implied admission pursuant to . . . § 10-
19.’’ (Citations omitted.) Id., 85–86.
We conclude that the trial court did not err in holding
that the defendants were not entitled to implied admis-
sions on their special defenses. First, contrary to the
defendants’ contention, our decision in Birchard indi-
cates that the provisions of Practice Book § 10-19 are
not always mandatory. Specifically, a trial court is not
bound by any implied admissions that are not brought
to its attention at any stage of the trial proceedings.
Id., 85. Although the defendants eventually brought the
plaintiff’s nonpleading to the court’s attention, they did
so only following the conclusion of trial, despite having
had ample opportunity to do so beforehand. As we
noted in Birchard, it would have been unfair and
unworkable here to require the trial court to scour the
pleadings in search of any implied admissions. Because
the burden rests with the parties to bring to the court’s
attention any allegedly implied admissions and the
defendants did not notify the court of their intention
to claim implied admissions until approximately one
month following trial, the court may not be bound by
any implied admissions that could have resulted from
the plaintiff’s failure to plead if they were raised timely.2
Id., 85–86.
Second, both the court and the defendants were on
notice of the plaintiff’s intention to deny the defendants’
special defenses prior to trial. In accordance with a trial
management order, the plaintiff submitted a twenty-six
page pretrial brief. In its brief, the plaintiff specifically
addressed each of the defendants’ special defenses and
asserted the legal grounds on which it was challenging
them. The defendants and the court, therefore, were
clearly on notice of the plaintiff’s denial of its special
defenses and the specific legal grounds for its denial.
As previously observed, ‘‘[p]leadings are intended to
limit the issues to be decided at the trial of a case and
[are] calculated to prevent surprise.’’ (Internal quota-
tion marks omitted.) Birchard v. New Britain, supra,
103 Conn. App. 83. Because the plaintiff addressed each
of the defendants’ special defenses in its pretrial brief,
the defendants cannot claim any surprise or prejudice
due to the plaintiff’s failure to reply to their special
defenses.
Third, the defendants’ special defenses were litigated
during trial. After the defendants raised the issue of
implied admissions in their posttrial brief, the plaintiff
rectified its mistake and filed its reply two weeks later.
In its memorandum of decision, the court, after
determining that the defendants were not entitled to
implied admissions, addressed the defendants’ special
defenses. The court made findings of fact on each
defense and concluded that the defendants had failed
to meet their burden of proof on each of them. Under
these circumstances, we agree with the plaintiff that
the defendants are precluded from claiming implied
admissions. The defendants’ claim that they are entitled
to implied admissions ‘‘seeks to elevate form over sub-
stance. Such rigid formality with respect to pleadings
is not required when the issue is properly argued before
the court.’’ Fountain Pointe, LLC v. Calpitano, 144
Conn. App. 624, 643, 76 A.3d 636, cert. denied, 310
Conn. 928, 78 A.3d 147 (2013); id. (concluding it was not
improper for court to render judgment without formal
written amended complaint when oral amendment was
argued extensively before court and defendants could
not claim surprise).
The defendants contend that our Supreme Court’s
decision in Schilberg Integrated Metals Corp. v. Conti-
nental Casualty Co., 263 Conn. 245, 819 A.2d 773 (2003),
supports their claim that the trial court erred in conclud-
ing that they were not entitled to implied admissions.3
We are not persuaded. In Schilberg, the parties disputed
whether various insurance policies issued by the defen-
dant insurers required them to defend the plaintiff
insured in an administrative action. Id., 247. The defen-
dants filed a special defense asserting a pollution exclu-
sion. Id., 250. The plaintiff did not timely file a reply in
avoidance of this defense and, instead, asserted for the
first time in a motion for summary judgment that the
pollution exclusion was unenforceable due to the defen-
dants’ failure to file it with the insurance commissioner.
Id., 272. The defendants objected to the plaintiff’s asser-
tion on the ground that the plaintiff should have raised
the issue of the defendants’ regulatory noncompliance
in a reply as a matter in avoidance rather than in a
summary judgment motion. Id. The plaintiff did not file
a reply to the defendants’ special defenses until after
oral argument on the summary judgment motion, which
was approximately three months after the defendants
had filed their special defenses. Id., 271–72.
The trial court concluded that it was procedurally
improper for the plaintiff to have raised the regulatory
noncompliance issue in a motion for summary judgment
rather than in a reply to the defendants’ special defenses
and refused to consider the plaintiff’s claim. Id., 273.
Our Supreme Court affirmed the trial court’s decision
on the grounds that (1) the defendants objected to the
plaintiff’s procedural deficiency in a timely manner,
(2) the plaintiff failed to file promptly a reply to the
defendants’ special defenses after the defendants’
objection, and (3) the plaintiff failed to offer any expla-
nation for its procedural transgressions. Id., 273–75.
In the present case, the actions of the parties are
distinguishable from those of the parties in Schilberg.
First, the plaintiff in Schilberg raised a completely new
legal and factual claim in its summary judgment motion.
In contrast, the defendants in the present case were on
notice of the plaintiff’s denial of their special defenses
prior to trial. The defendants, thus, cannot claim any
surprise or prejudice from the plaintiff’s failure to reply
to their special defenses. Second, our courts ‘‘have
afforded trial courts discretion to overlook violations
of the rules of practice and to review claims brought
in violation of those rules as long as the opposing party
has not raised a timely objection to the procedural
deficiency.’’ Id., 273. In the present case, the defendants
did not object to the plaintiff’s failure to plead in a
timely manner, despite having had ample opportunity
to do so prior to and during trial. It was thus well within
the discretion of the trial court to overlook the plaintiff’s
failure to file a reply to the defendants’ special defenses
due to the defendants’ failure to timely object. Third,
unlike the plaintiff in Schilberg, the plaintiff in the pres-
ent case promptly filed its reply to the defendants’ spe-
cial defenses after becoming aware of its nonpleading
and offered an explanation for its procedural transgres-
sions.4 The plaintiff filed its reply two weeks after it
was first put on notice and indicated in its reply brief
that its previous failure to file was inadvertent. Schil-
berg, therefore, is distinguishable, and the defendants’
reliance on it is misplaced.
In light of these considerations, we agree with the
trial court that ‘‘it would be inequitable in the circum-
stances here to hold that the failure to file an answer
to the special defenses should be considered an implied
admission.’’ Accordingly, we conclude that the court
did not err in determining that the defendants were not
entitled to implied admissions on their special defenses.
II
Next, the defendants claim that the plaintiff lacked
standing to pursue this action. Specifically, the defen-
dants contend that the plaintiff relies on the Young
allonge to establish its standing to prosecute this action
and that it cannot do so because it was deemed admitted
that Young did not execute the allonge and, therefore,
the Young allonge did not transform the note into bearer
paper. In the alternative, the defendants contend that
the evidence indicates that the Young allonge was not
attached to the note and that the plaintiff has failed to
establish its rights as the owner of the mortgage. In
response, the plaintiff claims that by producing the note
and the Young allonge at trial, a presumption was cre-
ated that the allonge was so affixed when the action
was commenced. The plaintiff further claims that the
defendants have failed to rebut the presumption that
the plaintiff was entitled to enforce the note. We agree
with the plaintiff.
The following additional facts are relevant. The
defendants challenged the plaintiff’s standing to pursue
this action by way of their first special defense, in which
they alleged that the Young allonge did not transform
the note into bearer paper and that the plaintiff was
not a holder in due course with the right to prosecute
the foreclosure action. On the first day of trial, the
plaintiff produced the original executed note, mortgage,
and assignment of mortgage. The court and the defen-
dants’ counsel had the opportunity to examine the docu-
ments, and copies were admitted as full exhibits. Later
that day, the defendants presented several additional
allonges to call into question the validity of the Young
allonge and the plaintiff’s standing to foreclose. These
allonges were admitted into evidence as full exhibits.
The defendants also produced two additional assign-
ments of the defendants’ mortgage, which were admit-
ted as full exhibits.
In its memorandum of decision, the court indicated
that it had examined the note, mortgage, and assign-
ment of mortgage during trial. Thereafter, the court
found that JPMorgan endorsed the note in blank and
that the mortgage was assigned to the plaintiff. It further
found that the plaintiff ‘‘established that it was the
holder of the note because the plaintiff is in physical
possession of the note endorsed in blank, which
endorsement was set forth on an original allonge exe-
cuted by Alisha Young, assistant vice president of
[JPMorgan] and stapled to the note. . . . The plaintiff
established that it was in physical possession of the
note, with the affixed allonge which endorsed the note
in blank, prior to the commencement of this action on
July 3, 2017.’’ The court then addressed the additional
allonges that the defendants had presented during trial.
The court found that ‘‘[a]lthough the defendants intro-
duced several other signed and unsigned allonges, no
evidence was offered to show that any of these other
allonges were ever affixed to the note. The plaintiff did
present credible evidence which demonstrated that the
Young allonge was affixed to the note several years
before the commencement of this action, and remained
so affixed right up to and including the date of the
trial.’’ Accordingly, the court concluded that the defen-
dants had failed to meet their burden of proving their
first special defense and that the plaintiff had standing.
We set forth our standard of review. ‘‘It is well estab-
lished that [a] party must have standing to assert a
claim in order for the court to have subject matter
jurisdiction over the claim. . . . 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. . . . Where a party is found to lack
standing, the court is consequently without subject mat-
ter jurisdiction to determine the cause. . . . Our
review of the question of [a] plaintiff’s standing is ple-
nary. . . . Furthermore, [t]he scope of review of a trial
court’s factual decisions related to the issue of standing
on appeal is limited to a determination of whether they
are clearly erroneous in view of the evidence and plead-
ings.’’ (Internal quotation marks omitted.) Deutsche
Bank National Trust Co. v. Pototschnig, 200 Conn. App.
554, 561, 240 A.3d 288, cert. denied, 335 Conn. 977, 241
A.3d 130 (2020). ‘‘A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Internal quotation marks
omitted.) AS Peleus, LLC v. Success, Inc., 162 Conn.
App. 750, 753–54, 133 A.3d 503 (2016).
‘‘To make out a prima facie case in a mortgage fore-
closure action, the foreclosing party must show that it is
the owner of the note and mortgage, that the defendant
mortgagor has defaulted on the note and that any condi-
tions precedent to foreclosure, as established by the
note and mortgage, have been satisfied.’’ (Internal quo-
tation marks omitted.) Wells Fargo Bank, N.A. v. Cald-
rello, 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
has 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.’’ (Emphasis in original; internal quotation marks
omitted.) Flagstar Bank, FSB v. Kepple, 190 Conn. App.
312, 326, 210 A.3d 628 (2019).
In the present case, we agree with the trial court that
the plaintiff had standing to prosecute this action and
that the defendants failed to meet their burden of prov-
ing their first special defense. Here, the plaintiff pro-
duced the original note at trial. The Young allonge,
which endorsed the note in blank, was affixed to the
original note with staples.5 Moreover, Diane Weinberger,
an employee from Select Portfolio Servicing (SPS), the
loan servicer for the plaintiff, testified at trial that the
plaintiff was the holder of the note when the action
was commenced. The record before us thus contains
documentary and testimonial evidence that substanti-
ates the court’s finding that the plaintiff was in physical
possession of the note endorsed in blank prior to the
commencement of the action. That finding, therefore,
is not clearly erroneous. Accordingly, the plaintiff estab-
lished the presumption that it was the rightful owner
of the debt and met its initial burden with respect to
standing.6 See Deutsche Bank National Trust Co. v.
Pototschnig, supra, 200 Conn. App. 565 (plaintiff met
initial burden on standing when it produced note
endorsed in blank at trial and credible evidence demon-
strated that plaintiff possessed note when action was
commenced until time of trial).
The defendants failed to produce any evidence at
trial to rebut the presumption that the plaintiff was
the rightful owner of the debt and, thus, had standing.
Although the defendants introduced several additional
signed and unsigned allonges into evidence during trial,
they failed to offer any evidence demonstrating that
these allonges, rather than the Young allonge, ever were
affixed to the note. Because an allonge must be affixed
to a note before it operates as an endorsement of the
note; see General Statutes § 42a-3-204; the mere pres-
ence of the additional allonges does not rebut the plain-
tiff’s entitlement to enforce the note. See Flagstar Bank,
FSB v. Kepple, supra, 190 Conn. App. 326 (party does
not rebut presumption of entitlement to enforce note
‘‘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’’ (emphasis in original;
internal quotation marks omitted)). The plaintiff, there-
fore, has met its burden of establishing its status as the
holder of the note. Accordingly, we conclude that the
trial court did not err in concluding that the plaintiff
had standing and that the defendants had failed to meet
their burden of proving their first special defense.7
III
We now turn to the issue of whether the trial court
erred in rejecting the defendants’ remaining special
defenses. The defendants asserted five special defenses:
(1) the Young allonge did not transform the note into
bearer paper and the plaintiff was not a holder in due
course with the right to prosecute the foreclosure
action; (2) the plaintiff was precluded from bringing an
action on the note due to the passing of the applicable
statute of limitations; (3) the plaintiff failed to establish
that it had complied with all the requirements of the
securitization document necessary for the note to be a
part of the JPMorgan 2005 A-7 Securitized Trust; (4)
the plaintiff failed to provide proper notice of default
and acceleration as required under the mortgage; and
(5) the plaintiff was barred from recovery due to
unclean hands. We already have determined that the
trial court did not err in concluding that the defendants
failed to meet their burden of proving their first special
defense. As observed in part I of this opinion, we also
have determined that the defendants were not entitled
to implied admissions on their special defenses. Accord-
ingly, we address the remaining special defenses on
the merits.
We are guided by the following principles in
addressing the defendants’ special defenses. ‘‘[T]he
party raising a special defense has the burden of proving
the facts alleged therein. . . . If the plaintiff in a fore-
closure action has shown that it is entitled to foreclose,
then the burden is on the defendant to produce evidence
supporting its special defenses . . . . Legally suffi-
cient special defenses alone do not meet the defendant’s
burden. The purpose of a special defense is to plead
facts that are consistent with the allegations of the
complaint but demonstrate, nonetheless, that the plain-
tiff has no cause of action.’’ (Internal quotation marks
omitted.) Bank of New York Mellon v. Mangiafico, 198
Conn. App. 722, 727, 234 A.3d 1115 (2020).
A
In their second special defense, the defendants
alleged that the plaintiff was precluded from bringing
an action on the note and from seeking a deficiency
judgment on it due to the passing of the applicable
statute of limitations. In response, the plaintiff contends
that because it has yet to file a motion for a deficiency
judgment, the defendants’ statute of limitations defense
is premature and, accordingly, not ripe for adjudication.
We agree with the plaintiff.
The trial court rejected the defendants’ statute of
limitations defense. In its memorandum of decision, the
court concluded that the defendants’ statute of limita-
tions special defense failed because it was premature.
Specifically, the court determined that because ‘‘the
plaintiff has not made a motion for deficiency judgment
to this point in the proceedings . . . this defense is
premature and may be addressed during any subse-
quent proceedings.’’
‘‘A court will not resolve a claimed controversy on
the merits unless it is satisfied that the controversy is
justiciable. . . . Justiciability requires (1) that there be
an actual controversy between or among the parties to
the dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant.’’ (Internal
quotation marks omitted.) Tavani v. Riley, 160 Conn.
App. 669, 676, 124 A.3d 1009 (2015). ‘‘[R]ipeness is a
sine qua non of justiciability . . . .’’ (Internal quotation
marks omitted.) Mikucka v. St. Lucian’s Residence,
Inc., 183 Conn. App. 147, 165, 191 A.3d 1083 (2018).
‘‘[T]he rationale behind the ripeness requirement is to
prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . . . Accordingly, in determining
whether a case is ripe, a trial court must be satisfied
that the case before [it] does not present a hypothetical
injury or a claim contingent upon some event that has
not and indeed may never transpire.’’ (Internal quota-
tion marks omitted.) Id., 165–66. ‘‘[B]ecause an issue
regarding justiciability raises a question of law, our
appellate review is plenary.’’ (Internal quotation marks
omitted.) Tavani v. Riley, supra, 676.
In the present case, we conclude that the defendants’
statute of limitations defense is not ripe for review. The
plaintiff has not yet filed a motion for a deficiency
judgment. The defendants’ claim that any attempt by
the plaintiff to seek a deficiency judgment is barred by
the statute of limitations is thus a ‘‘claim contingent
upon some event that has not and indeed may never
transpire.’’ Mikucka v. St. Lucian’s Residence, Inc.,
supra, 183 Conn. App. 166. Accordingly, the court did
not err in rejecting the defendants’ statute of limitations
special defense.
B
In their third special defense, the defendants alleged
that the plaintiff has failed to establish that it has com-
plied with all the requirements of the securitization
document necessary for the note to be part of the
JPMorgan 2005-A-7 Securitized Trust and for the plain-
tiff to be the proper trustee of that trust. In the defen-
dants’ view, the plaintiff’s failure to comply with these
requirements deprives the plaintiff of standing to prose-
cute this action. The trial court concluded that the
defendants’ third special defense failed because the
defendants failed to meet their evidentiary burden with
regard to their claim and because noncompliance with
securitization requirements does not implicate stand-
ing. We agree with the trial court.
‘‘Because a challenge to the jurisdiction of the court
presents a question of law, our review of the court’s
legal conclusion is plenary.’’ (Internal quotation marks
omitted.) Hunter v. Shrestha, 195 Conn. App. 393, 397–
98, 225 A.3d 285 (2020). Here, the defendants have failed
to present any evidence to establish the requirements of
securitization or the plaintiff’s alleged failure to comply
with those requirements. Because the defendants had
the burden of proving the facts alleged in their special
defenses; Bank of New York Mellon v. Mangiafico,
supra, 198 Conn. App. 727; the defendants’ failure to
present any evidence on the allegations in their third
special defense prevents them from meeting their evi-
dentiary burden. Moreover, this court has held that
noncompliance with securitization requirements does
not implicate a party’s standing to bring a foreclosure
action. See Wells Fargo Bank, N.A. v. Strong, 149 Conn.
App. 384, 400–401, 89 A.3d 392 (rejecting defendant’s
argument that plaintiff’s noncompliance with securiti-
zation agreement undermined plaintiff’s standing to
bring action and its ability to establish ownership ele-
ment of its prima facie case), cert. denied, 312 Conn.
923, 94 A.3d 1202 (2014). Even if we were to assume
that the plaintiff failed to comply with the securitization
requirements, such noncompliance, thus, would not
affect the plaintiff’s standing to bring this action.
Accordingly, we conclude that the trial court did not
err in rejecting the defendants’ third special defense.
C
In their fourth special defense, the defendants alleged
that the plaintiff failed to provide proper notice of
default and acceleration as required under the mort-
gage. Specifically, the defendants alleged that the notice
provided was not sent by the plaintiff but, instead, was
sent by Chase Home Finance, LLC, ‘‘a stranger to the
loan.’’ The trial court concluded that the defendants
received proper notice of default and acceleration and,
consequently, rejected their fourth special defense. We
agree with the trial court.
The following additional facts are relevant. Section
22 of the mortgage deed provides in relevant part that
the ‘‘Lender shall give notice to Borrower prior to accel-
eration following Borrower’s breach of any covenant
or agreement . . . . The notice shall specify: (a) the
default; (b) the action required to cure the default; (c)
a date, not less than 30 days from the date the notice
is given to 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 Security Instru-
ment and foreclosure or sale of the Property.’’ Follow-
ing the defendants’ default, JPMorgan’s servicer, Chase
Home Finance, LLC, sent each defendant a letter on
January 4, 2009. These letters notified the defendants
of their default and informed them that if they did not
cure their default within thirty-two days from the date of
the letters, Chase Home Finance, LLC, would accelerate
the maturity of the loan. The defendants did not cure
their default, and the debt was accelerated.
The court concluded that the defendants received
proper notice of default and acceleration as required
under the mortgage. In making this determination, the
court noted that, in asserting their fourth special
defense, the defendants did not dispute that they had
received notice but instead claimed that the notice pro-
vided was improper because it was not sent by the
plaintiff. The court found that, contrary to the defen-
dants’ allegations, the entity that provided them with
notice was not a ‘‘stranger to the loan’’ and was, instead,
the servicer of the loan. The court also found that the
fact that the notice was sent by the servicer of the loan
rather than by the plaintiff resulted in no prejudice
to the defendants. Accordingly, the court rejected the
defendants’ fourth special defense.
‘‘It is well established that [n]otices of default and
acceleration are controlled by the mortgage documents.
Construction of a mortgage deed is governed by the
same rules of interpretation that apply to written instru-
ments or contracts generally, and to deeds particularly.
The primary rule of construction is to ascertain the
intention of the parties. This is done not only from the
face of the instrument, but also from the situation of
the parties and the nature and object of their transac-
tions. . . . A promissory note and a mortgage deed are
deemed parts of one transaction and must be construed
together as such.’’ (Internal quotation marks omitted.)
Aurora Loan Services, LLC v. Condron, 181 Conn. App.
248, 264–65, 186 A.3d 708 (2018). ‘‘The plain intent of
. . . notification requirements set forth in . . . the
mortgage deed is to provide notice of a default to a
[mortgagor] prior to the commencement of a foreclo-
sure proceeding.’’ Id., 272.
‘‘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.’’ (Internal quotation marks omit-
ted.) Id., 265.
We agree with the trial court that the defendants were
provided proper notice of their default and acceleration.
Here, each defendant received a letter from the servicer
of the loan notifying them of their default and of the
note holder’s intent to accelerate the debt if the defen-
dants did not cure their default within the relevant
time period. The defendants, therefore, received proper
notice of default and acceleration pursuant to the terms
of the mortgage deed.
The defendants do not dispute that they received
notice of default and acceleration. Instead, they chal-
lenge the plaintiff’s compliance with the notification
requirements of the mortgage only on the ground that
the alleged notice was not sent by the plaintiff. Such
an argument is unavailing. Although the plaintiff did
not send the letters notifying the defendants of their
default, the entity that sent them, Chase Home Finance,
LLC, was hardly a ‘‘stranger to the loan’’ as the defen-
dants allege. The introductory letter provided to the
defendants at the closing of the loan on July 29, 2005,
directs the defendants to submit their payments to
Chase Home Finance, LLC. As the trial court noted in
its memorandum of decision, the defendants were thus
‘‘made aware from the very start that Chase Home
Finance, LLC, was acting as a servicing agent with
respect to the loan.’’ The notification requirements in
a mortgage are intended to provide notice of default to a
mortgagor prior to the commencement of a foreclosure
proceeding, and the letters sent to the defendants ful-
filled this requirement. See Aurora Loan Services, LLC
v. Condron, supra, 181 Conn. App. 272. Moreover, the
fact that the defendants received notice from the ser-
vicer of the loan rather than from the plaintiff caused
them no prejudice. In light of these considerations, we
conclude that the trial court did not err in finding that
the defendants received proper notice of default and
acceleration and in rejecting the defendants’ fourth spe-
cial defense.
D
In their fifth special defense, the defendants alleged
that the ‘‘plaintiff comes to court with unclean hands
and therefore it is barred from recovery.’’ We conclude
that the court did not err in rejecting the defendants’
fifth special defense.
In its memorandum of decision, the court noted that
the ‘‘defendants’ special defense is a conclusory one
sentence allegation [that is] completely devoid of any
supporting factual representations.’’ The court further
noted that the defendants argued in their reply brief
that their unclean hands special defense ‘‘was proved
by the evidence of multiple unexplained allonges and
an assignment of mortgage.’’ In light of the court’s find-
ing that the Young allonge was attached to the note,
the court concluded that the mere existence of other
allonges and assignments of the mortgage that were
never acted on or recorded did not establish unclean
hands on the part of the plaintiff. Accordingly, the court
concluded that the defendants had failed to sustain
their burden of proof concerning their unclean hands
special defense.
‘‘Because an action to foreclose a mortgage is an
equitable proceeding, the doctrine of unclean hands
may be applicable. . . . The doctrine of unclean hands
expresses the principle that where a plaintiff seeks equi-
table 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 wrong-
ful by honest and fair-minded people, the doctrine of
unclean hands does not apply. . . . [A]pplication of
the doctrine of unclean hands rests within the sound
discretion of the trial court. . . . The exercise of [such]
equitable authority . . . is subject only to limited
review on appeal. . . . The only issue on appeal is
whether the trial court has acted unreasonably and in
clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
[the trial court’s] action.’’ (Citations omitted; internal
quotation marks omitted.) Ulster Savings Bank v. 28
Brynwood Lane, Ltd., 134 Conn. App. 699, 710–11, 41
A.3d 1077 (2012).
We conclude that the trial court did not abuse its
discretion in rejecting the defendants’ special defense
of unclean hands. In their posttrial reply brief, the defen-
dants claimed that their unclean hands defense was
proven by the evidence of multiple contradictory
allonges and assignments of their mortgage. As pre-
viously observed in part II of this opinion, however, the
defendants failed to produce any evidence suggesting
that any of the additional allonges ever were affixed to
the note or that the other assignments of the mortgage
ever were acted on or recorded. Moreover, the mere
presence of additional allonges and assignments hardly
can be classified as indicative of behavior on the part
of the plaintiff that was unfair, inequitable, or dishonest.
See id., 711. Besides their vague claims that the presence
of the additional allonges and assignments indicated
that the plaintiff acted with unclean hands, the defen-
dants offered no evidentiary support with respect to
this defense. We conclude, therefore, that the defen-
dants have failed to meet their burden of proving their
special defense of unclean hands. Accordingly, the
court did not err in rejecting the defendants’ fifth spe-
cial defense.
IV
Finally, the defendants claim that the court erred by
admitting into evidence the note’s payment history. In
response, the plaintiff contends that the court properly
admitted the payment history as a business record. We
agree with the plaintiff.
The following additional facts are relevant. During
trial, Weinberger8 testified about the general duties and
obligations of loan servicers. She testified that servicers
take care of the day-to-day activities of a loan. Such
activities include collecting and posting payments, pro-
viding notices to the borrowers, and maintaining accu-
rate and daily records. Weinberger then testified that
all servicers must comply with certain requirements
regarding the maintenance of records. Specifically, all
servicers have a duty to ensure that they keep com-
pletely accurate records. To accomplish this, SPS uses
a boarding process to independently verify and analyze
the data that it receives. During the boarding process,
SPS employees review and analyze documents received
in connection with every loan. If there are any questions,
discrepancies, or any other issues that need to be
straightened out, SPS addresses them prior to the loan
boarding and before servicing begins. Weinberger testi-
fied that the loan to the defendants went through this
process. She also stated that, as the prior owner of the
loan, JPMorgan and its servicers had a duty to provide
SPS with accurate records during the loan transfer
process.
The plaintiff then sought to introduce into evidence
the note’s payment history that SPS created when it
began servicing the defendants’ loan in April, 2014.
Although SPS was not the original servicer of the loan,
Weinberger testified that the SPS payment history
included information from JPMorgan’s servicer and,
thus, contained the detailed transaction history from
the inception of the loan. Weinberger further testified
that she retrieved the payment history from SPS’ busi-
ness records and that SPS maintained it in its files in the
ordinary course of business. The defendants objected to
the introduction of the payment history into evidence,
claiming that there was no way to verify the loan history
that was supplied to SPS by the prior servicer.9 The
court overruled the defendants’ objection on the ground
that Weinberger had testified extensively about the
boarding process and how SPS checked the records to
ensure that they were accurate before they were kept
as business records. The payment history was then
admitted as a full exhibit.
We are guided by the following relevant legal princi-
ples. Section 8-4 (a) of the Connecticut Code of Evi-
dence, colloquially referred to as the business records
exception to the hearsay rule, provides that ‘‘[a]ny writ-
ing or record, whether in the form of an entry in a book
or otherwise, made as a memorandum or record of any
act, transaction, occurrence or event, shall be admissi-
ble as evidence of the act, transaction, occurrence or
event, if the trial judge finds that it was made in the
regular course of any business, and that it was the
regular course of the business to make the writing or
record at the time of the act, transaction, occurrence
or event or within a reasonable time thereafter.’’ ‘‘To
the extent [that admissibility] of evidence is based on
an interpretation of the Code of Evidence, our standard
of review is plenary. For example, whether a challenged
statement properly may be classified as hearsay . . .
[is a] legal [question] demanding plenary review.’’
(Internal quotation marks omitted.) Jenzack Partners,
LLC v. Stoneridge Associates, LLC, 334 Conn. 374, 388,
222 A.3d 950 (2020).
In Jenzack Partners, LLC, our Supreme Court specifi-
cally addressed the applicability of the business records
exception as it relates to a mortgagee’s present servicer
that introduces servicing records provided to it from a
prior servicer. Our Supreme Court determined in Jen-
zack Partners, LLC, that ‘‘[w]hen a party introduces a
document that it did not create but that it received from
a third party, the business records exception will apply
only if the information contained in the document is
based on the entrant’s own observation or on informa-
tion of others whose business duty it was to transmit
it to the entrant. . . . Where the prior owner of the
note had a legitimate business duty to provide to the
next holder the information used to generate the pay-
ment history, the printout of that information was the
business record of the present holder.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 390–91. ‘‘If
part of the data was provided by another business, as
is often the case with loan records in connection with
the purchase and sale of debt, the proponent does not
have to lay a foundation concerning the preparation of
the data it acquired but must simply show that these
data became part of its own business record as part of
a transaction in which the provider had a business duty
to transmit accurate information.’’ Id., 391.
In the present case, the court properly admitted the
note’s payment history as a business record. Weinberger
testified that JPMorgan, the prior owner of the loan,
had a duty to provide SPS with accurate records during
the loan transfer process. When SPS received this infor-
mation, it went through SPS’ boarding process, whereby
SPS reviewed the documents and analyzed them. The
information that JPMorgan provided to SPS was used to
create the payment history that the plaintiff introduced
into evidence at trial. Pursuant to our Supreme Court’s
decision in Jenzack Partners, LLC, the payment history
thus qualifies as a business record of SPS. Accordingly,
the trial court did not err in admitting the payment his-
tory as a business record.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
Hermes Capital, LLC, was also named as a defendant in this action.
Because it is not involved in this appeal, our references in this opinion to
the defendants are to Lee Moncho and Karen Moncho only.
2
The defendants argue that the plaintiff’s reliance on Birchard is mis-
placed because we based our decision in Birchard on the fact that the
plaintiff in that case failed to raise the issue of implied admissions until it
filed an appeal. In the defendants’ view, this makes Birchard distinguishable
because they ‘‘raised the issue during the trial while the trial court still had
jurisdiction and was nowhere near ruling’’ on the case. We do not agree.
Although Birchard may not be identical to the present case, its reasoning
is not limited to cases where a party first raises the issue of implied admis-
sions on appeal. Birchard is persuasive authority that provides guidance
on the implied admissions issue presently before us. Our conclusions in
Birchard that it would be unfair and unworkable to require the trial court
to scour the record for implied admissions and that the burden rests with
the parties to bring an allegedly implied admission to the court’s attention,
are pertinent to the present case. We conclude that the defendants’ belated
attempt to satisfy their burden of bringing the issue to the court’s attention
by raising it for the first time in their posttrial brief did not bind the trial
court to accept the implied admissions they sought. Moreover, as further
discussed in this opinion, the defendants cannot complain about the plain-
tiff’s failure to file a reply to their special defenses when the defendants
were clearly on notice that the plaintiff was denying them. In light of these
considerations, we conclude that the defendants’ attempt to distinguish
Birchard is unpersuasive.
3
The defendants cited to Schilberg for the first time at oral argument
before this court. Accordingly, we ordered the parties to file supplemental
briefs addressing Schilberg and its applicability to this appeal.
4
Pursuant to Practice Book § 10-8, a party has fifteen days to file a reply
to special defenses in an action to foreclose a mortgage.
5
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.’’ (Internal quotation marks omit-
ted.) AS Peleus, LLC v. Success, Inc., supra, 162 Conn. App. 755 n.3. Because
the Young allonge was stapled to the note, it became a part of the note.
See General Statutes § 42a-3-204 (a) (‘‘[f]or the purpose of determining
whether a signature is made on an instrument, a paper affixed to the instru-
ment is a part of the instrument’’). The Young allonge, which was endorsed
in blank, turned the note into bearer paper and, as a result, the note could
be negotiated by transfer of possession alone. See General Statutes § 42a-
3-205 (b) (‘‘[w]hen endorsed in blank, an instrument becomes payable to
bearer and may be negotiated by transfer of possession alone’’). The holder
of the note with the attached Young allonge would thus have standing to
initiate an action on the note. See Flagstar Bank, FSB v. Kepple, supra, 190
Conn. App. 326.
6
The defendants assert that the plaintiff has failed to meet its initial
burden of proving its standing by claiming that there is significant evidence
that the Young allonge was not attached to the note. In support of this
contention, the defendants point to the lack of punch holes at the top of
the Young allonge and to the Young allonge’s absence from the package of
documents submitted by the plaintiff on October 13, 2017, to verify the debt.
We are not persuaded that this evidence demonstrates that the Young allonge
was not attached to the note. Although the Young allonge does not appear
to have punch holes at the top of the document like those found on the
note, this does not compel a conclusion that it was not affixed to the note.
Both the note and the Young allonge have staple holes in the same locations
in the top left corner and in the center of the documents, indicating that
the Young allonge was indeed attached to the note. As to the absence of
the Young allonge from the verification of debt documents, the plaintiff’s
counsel did not yet have access to the original note and Young allonge when
it first sent these documents to the defendants’ counsel. When the plaintiff’s
counsel obtained the original note approximately one month later, counsel
sent an updated version of the debt verification documents to the defendants.
The Young allonge was included with these documents. The defendants’
claim that the Young allonge was not attached to the note is, thus, unpersua-
sive. In any event, on the basis of our conclusion that the record before us
contains documentary and testimonial evidence that substantiates the
court’s finding that the plaintiff was in physical possession of the note
endorsed in blank prior to the commencement of the action, even if there
was merit to the defendants’ contentions, we conclude that the findings of the
trial court concerning the Young allonge still would not be clearly erroneous.
7
The defendants also challenge the plaintiff’s entitlement to bring this
foreclosure action by arguing that the plaintiff has failed to establish its
rights as owner of the mortgage. In support of this argument, the defendants
contend that the plaintiff ‘‘appears to be a stranger to this loan’’ because
additional assignments that predate the assignment to the plaintiff effectively
transferred the mortgage to another party before the plaintiff was able to
take ownership of it. The defendants’ contentions are unavailing. First, the
defendants do not point to any evidence demonstrating the existence of
original copies of these assignments, that they were ever completed, or that
they were ever recorded. Second, ‘‘General Statutes § 49-17 codifies the
common-law principle of long-standing that the mortgage follows the note
. . . and allows the holder of a note to foreclose on real property even if
the mortgage has not been assigned to him.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Deutsche Bank National Trust
Co. v. Pototschnig, supra, 200 Conn. App. 562. Even if we were to assume
that the mortgage was never assigned to the plaintiff, because the plaintiff
presented evidence that it was the holder of the original note, it would
still be entitled to foreclose on the property. Accordingly, the defendants’
argument fails.
8
As discussed previously in this opinion, Weinberger is an employee of
SPS, the plaintiff’s loan servicer.
9
The defendants based their objection on Jenzack Partners, LLC v. Stone-
ridge Associates, LLC, 183 Conn. App. 128, 192 A.3d 455 (2018), rev’d in part,
334 Conn. 374, 388, 222 A.3d 950 (2020). After the defendants submitted their
brief in this appeal, our Supreme Court overturned the portion of Jenzack
Partners, LLC, on which the defendants have relied. See Jenzack Partners,
LLC v. Stoneridge Associates, LLC, 334 Conn. 374, 388, 222 A.3d 950 (2020).