Wells Fargo Bank, N.A. v. Henderson

 WELLS FARGO BANK, N.A. v. GENEVIEVE
HENDERSON
(AC 38563)
Lavine, Keller and Pellegrino, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain of the defen-
dant’s real property. The trial court granted the plaintiff’s motion for
summary judgment as to liability and its motion for a judgment of strict
foreclosure, and rendered judgment thereon, from which the defendant
appealed to this court. Held:
1. The defendant could not prevail on her claim that the trial court improperly
granted the plaintiff’s motion for summary judgment as to liability, which
was based on her claim that the plaintiff lacked standing to foreclose
because it had not been assigned the mortgage and note until after it
commenced the action: the trial court determined that the plaintiff
proffered documentary evidence establishing a prima facie foreclosure
case and that the defendant presented no evidence to support her argu-
ment that the plaintiff was not the holder of the note on the date the
action commenced, and even if the mortgage was assigned after the
foreclosure action commenced, the plaintiff’s theory, which was sup-
ported by an affidavit, was that it was the holder of the note when the
action commenced, and the unrebutted affidavit and copy of the note
were sufficient to establish, for summary judgment purposes, the plain-
tiff’s standing to foreclose; moreover, the trial court did not improperly
decline to review the merits of several of the defendant’s amended
special defenses, which were substantively nearly identical to ones that
previously were stricken by the court and, thus, were properly disposed
of summarily by the court in ruling on the plaintiff’s motion for summary
judgment, the plaintiff’s affidavit stating that the plaintiff possessed the
original copy of the note was clearly a reference to the original document,
and the defendant was not deprived of an evidentiary hearing on the
issue of the plaintiff’s standing, as she failed to establish that a genuine
issue of material fact existed with regard to whether the plaintiff had
standing to foreclose.
2. The defendant was not deprived of due process with respect to several
motions and a request for a chain of custody hearing that she filed
during the course of the litigation, the defendant having been provided
with a full and fair opportunity to present her counterarguments to the
plaintiff’s motion for summary judgment as to liability: the record was
inadequate for review of the defendant’s claim that she was prevented
from making oral argument on a second motion to dismiss that she
filed, and even if the court did not hear argument on that motion, the
defendant suffered no harm because she presented in other motions
the same argument as to standing that she raised in the second motion,
and the defendant was not deprived of an evidentiary hearing on the
second motion because she submitted no proof to rebut the plaintiff’s
jurisdictional allegations in its complaint; moreover, there was no denial
of due process with respect to the defendant’s request for a chain of
custody hearing because the granting of the plaintiff’s motion for sum-
mary judgment dispensed with the need for any such hearing, the defen-
dant had no right to an evidentiary hearing on her motion to reargue,
which the court had the discretion to deny without a hearing, and
the defendant was not deprived of oral argument on her motion for a
continuance, as she failed to provide any record of a request for oral
argument on that motion, oral argument was not required under the
applicable rule of practice (§ 11-18 [a]), the trial court had the discretion
to rule on the motion without providing for oral argument, and the
defendant made no claim that the trial court abused its discretion in
denying the motion.
Argued April 10—officially released August 15, 2017
Procedural History
Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of Middle-
sex, where the defendant filed a counterclaim; there-
after, the court, Marcus, J., granted the plaintiff’s
motion to strike; subsequently, the court, Domnarski,
J., denied the defendant’s motion to dismiss; thereafter,
the court, Aurigemma, J., granted the plaintiff’s
motions for summary judgment as to liability and for
a judgment of strict foreclosure, and rendered judgment
thereon, from which the defendant appealed to this
court. Affirmed.
Genevieve Henderson, self-represented, the appel-
lant (defendant).
Sean R. Higgins, for the appellee (plaintiff).
Opinion
KELLER, J. In this foreclosure action, the self-repre-
sented defendant, Genevieve Henderson, appeals from
the trial court’s rendering of summary judgment in favor
of the plaintiff, Wells Fargo Bank, N.A.1 The defendant
claims that (1) the plaintiff failed to demonstrate that
it had standing to foreclose, and (2) she was deprived
of due process of law in connection with several
motions that she brought during the course of the litiga-
tion.2 We conclude that the defendant’s claims lack
merit and, accordingly, affirm the judgment of the court.
In rendering its summary judgment decision, the
court, Aurigemma, J., reviewed the documentation
submitted in support of the plaintiff’s motion for sum-
mary judgment, to which the defendant did not file
any written objection. As a result of the lack of any
objection, the court also considered the defendant’s
second motion for summary judgment, which in sub-
stance essentially was a cross motion for summary judg-
ment, and the documentation annexed thereto, which
had been filed subsequent to the plaintiff’s motion. This
approach was invited by the plaintiff’s counsel, who
pointed out to the court that the defendant’s cross
motion for summary judgment also served as a response
to the plaintiff’s motion for summary judgment.
In a memorandum of decision, the court stated the
following with respect to its review of the supporting
affidavits and documentation: ‘‘The [plaintiff] has
moved for summary judgment on the grounds that there
are no genuine issues of material fact as to the [defen-
dant] and the plaintiff is entitled to summary judgment
as a matter of law. The plaintiff has supported its motion
with the affidavit of Alisha Mulder, vice president, loan
documentation, of [the plaintiff], which appends the
note, mortgage and notice of default. The defendant
has supported her objection to . . . summary judg-
ment with her own affidavit. . . .
‘‘On December 31, 2007, the defendant executed and
delivered a note to Wachovia Mortgage [Corporation]
(Wachovia) in the original principal amount of $180,000.
[The plaintiff] has been the holder of the note for all
times relevant to this action.
‘‘Also on December 31, 2007, the defendant executed
a mortgage . . . in favor of Mortgage Electronic Regis-
trations Systems, Inc. (MERS), as nominee for
Wachovia Mortgage Company to secure the note with
real property located [in Middlefield]. . . . The mort-
gage was dated December 31, 2007, and recorded Janu-
ary 7, 2008. . . . MERS subsequently assigned the
mortgage to [the plaintiff].
‘‘The defendant is in default under the terms of the
note and mortgage for failing to make payments. [The
plaintiff] provided notice of default to the defendant
due and owing under the note. [The plaintiff] com-
menced this action against the defendant by [writ of]
summons and complaint bearing a return date of August
31, 2010.
‘‘The parties engaged in mediation through the Judi-
cial Branch mediation program. When mediation was
unsuccessful, the defendant filed an answer and [spe-
cial defenses] on March 18, 2013, and a counterclaim
on April 15, 2013. On February 21, 2014, the court
granted [the plaintiff’s] motion to strike the special
defenses and counterclaim.
‘‘The defendant filed a motion to dismiss [the plain-
tiff’s] complaint for lack of standing on February 18,
2014. The court denied the motion to dismiss on May
6, 2014.3
‘‘Thereafter, the defendant refiled her answer and
substituted/amended [special] defenses and substituted
counterclaim, which were nearly identical to those
which had already been stricken by the court. The
defendant added the following language to the substi-
tuted [special] defenses and counterclaim: ‘Because the
plaintiff was not assigned the mortgage nor the note
on or before August of 2010, [the] plaintiff lacks stand-
ing and cannot state a claim upon which relief may be
granted.’ . . .
‘‘In this case, the defendant does not dispute any of
the facts alleged and support[ing] evidence establishing
the plaintiff’s prima facie foreclosure case. She admits
that she executed the mortgage, that she is in default,
[and] that [the plaintiff] holds the note and mortgage.
The defendant asserts, without any evidence, that [the
plaintiff] was not assigned the mortgage and note on
or before August, 2010, when it filed the complaint. The
defendant also reasserts special defenses relating to
loss mitigation and mediation, which this court has
already rejected. . . .
‘‘With no evidence supporting the first special defense
(concerning standing), that special defense presents
no impediment to the summary judgment. The second
(refusal to accept payment), third (breach of contract)
and fourth (misrepresentation of facts) special defenses
have been stricken. In support of its motion to strike,
the plaintiff argued that none of the special defenses
related to the making, validity and enforcement of the
note and, therefore, did not constitute valid defenses
to the foreclosure action. . . . The court agreed and
struck the defenses and the counterclaim.
‘‘The defendant has presented no evidence to support
her argument that the plaintiff was not the holder of
the note and assignee of the mortgage on the date this
action commenced.4 All of the statements of fact in the
defendant’s affidavit relate to conduct which occurred
during the mediation process.5 Nothing in the note,
mortgage or mediation statute [General Statutes § 49-
31o] requires the plaintiff to modify the defendant’s
mortgage. Therefore, the defendant’s claims that the
plaintiff breached an agreement to modify the note and
mortgage does not constitute a defense to the foreclo-
sure action.’’ (Citations omitted; footnotes added.)
The court denied the defendant’s second motion for
summary judgment on November 12, 2014, and granted
the plaintiff’s motion for summary judgment on Novem-
ber 19, 2014. The defendant filed a motion to reargue
on December 8, 2014, which the court denied on Decem-
ber 9, 2014. Thereafter, the court rendered judgment
of strict foreclosure on August 31, 2015. The plaintiff
filed this appeal on November 20, 2015. Additional facts
and procedural history will be provided within the con-
text of our analysis.
I
The defendant claims that the plaintiff failed to dem-
onstrate that it had standing to foreclose and, therefore,
that the trial court improperly granted the plaintiff’s
motion for summary judgment. We address this claim
first because, if the defendant prevails with respect to
this claim, we need not address her remaining claims.
We disagree that the plaintiff failed to demonstrate that
it had standing to foreclose.
‘‘[O]ur review of summary judgment rulings is ple-
nary. . . . Pursuant to Practice Book § 17-49, summary
judgment shall be rendered forthwith 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. . . . The party seeking sum-
mary judgment has the burden of showing the absence
of any genuine issue [of] material facts which, under
applicable principles of substantive law, entitle him to
a judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue
of material fact.’’ (Citation omitted; internal quotation
marks omitted.) J.E. Robert Co. v. Signature Properties,
LLC, 309 Conn. 307, 333, 71 A.3d 492 (2013). ‘‘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. . . . It is not enough . . .
for the opposing party merely to assert the existence
of such a disputed issue . . . by the bald statement
that an issue of fact does exist.’’ (Citations omitted;
internal quotation marks omitted.) Daily v. New Brit-
ain Machine Co., 200 Conn. 562, 568–69, 512 A.2d
893 (1986).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he has, in an individual or representa-
tive 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.’’ (Internal quotation marks
omitted.) One Country, LLC v. Johnson, 314 Conn. 288,
297, 101 A.3d 933 (2014).
In support of her claim, the defendant argues that
the plaintiff lacked standing to foreclose because it was
assigned the note and mortgage after it commenced
the present action. The parties presented the following
documentation in connection with their cross motions
for summary judgment.6 The plaintiff provided, inter
alia, a copy of the note, which shows an endorsement
in blank, and a sworn affidavit from an employee of
the plaintiff. The affidavit states that Wachovia trans-
ferred the note to the plaintiff on October 16, 2009, and
that the plaintiff has retained and continues to retain
possession of the note since the date of the transfer.
Also provided by the defendant was a copy of an accel-
eration notice addressed to the defendant.
The defendant provided the court with a copy of a
document entitled ‘‘Corporate Assignment of Mortgage’’
(assignment), which lists MERS as the assignor and the
plaintiff as the assignee. The date of assignment listed
on the document is October 7, 2011, a date occurring
after this action was commenced. The defendant also
executed an affidavit in which she asserts that, ‘‘based
on [her] review’’ of the copies of the note and assign-
ment, ‘‘[the plaintiff] was not assigned the note or mort-
gage on or before it commenced [its] action in August,
2010.’’ (Emphasis omitted.)
This court has been very clear as to standing in the
context of foreclosure actions: ‘‘The rules for standing
in foreclosure actions when the issue of standing is
raised may be succinctly summarized 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 demonstrate that the fore-
closing party is a holder, either by a specific endorse-
ment 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 provide 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 omitted; footnote omitted.) U.S. Bank,
National Assn. v. Schaeffer, 160 Conn. App. 138, 150,
125 A.3d 262 (2015).
As noted previously, the court ruled that the plaintiff
had proffered documentary evidence establishing a
prima facie foreclosure case and that the defendant had
presented no evidence to support her argument that
the plaintiff was not the holder of the note on the date
this action commenced. The facts alleged in the defen-
dant’s affidavit, that ‘‘based on [her] review’’ of the
copies of the note and assignment, ‘‘[the plaintiff] was
not assigned the note or mortgage on or before it com-
menced [its] action in August, 2010,’’ are mere ‘‘bald
assertions, [which] without more, are insufficient to
raise a genuine issue of material fact . . . .’’ (Internal
quotation marks omitted.) CitiMortgage, Inc. v. Cool-
beth, 147 Conn. App. 183, 193, 81 A.3d 1189 (2013), cert.
denied, 311 Conn. 925, 86 A.3d 469 (2014); see also
Practice Book § 17-46 (affidavits supporting and oppos-
ing summary judgment ‘‘shall be made on personal
knowledge’’).
With respect to the defendant’s claim regarding the
date of the assignment of the mortgage, which indisput-
ably occurred subsequent to the commencement of this
action, it is of no consequence to an analysis of standing
that the mortgage was assigned after the proceeding
commenced because the plaintiff’s theory, supported
by the aforementioned employee affidavit submitted in
support of its summary judgment motion, was that it
was the holder of the note when the suit began. See
Chase Home Finance, LLC v. Fequiere, 119 Conn. App.
570, 576–77, 989 A.2d 606 (‘‘[General Statutes § 49-17]
codifies the common-law principle of long standing that
the mortgage follows the note . . . . Our legislature,
by adopting § 49-17, has provide[d] an avenue for the
holder of the note to foreclose on the property when
the mortgage has not been assigned to him. . . . The
holder is the person or entity in possession of the instru-
ment if the instrument is payable to bearer. . . . When
an instrument is endorsed in blank, it becomes payable
to bearer . . . .’’ [Citations omitted; internal quotation
marks omitted.]), cert. denied, 295 Conn. 922, 991 A.2d
564 (2010). The plaintiff’s unrebutted affidavit and copy
of the note were sufficient to establish, for summary
judgment purposes, the plaintiff’s standing to fore-
close.7 See GMAC Mortgage, LLC v. Ford, 144 Conn.
App. 165, 177, 73 A.3d 742 (2013) (prima facie burden
of showing mortgagee is owner of debt ‘‘satisfied when
the mortgagee includes . . . a sworn affidavit averring
that the mortgagee is the holder of the promissory note
in question at the time it commenced the action’’);
HSBC Bank USA, N.A. v. Navin, 129 Conn. App. 707,
712, 22 A.3d 647 (‘‘because the defendant offered no
evidence to contest the plaintiff’s assertion [in an affida-
vit] that it possessed the note at the time that it com-
menced the present action, we conclude that the
plaintiff had standing’’), cert. denied, 302 Conn. 948, 31
A.3d 384 (2011).
We briefly address a few of the defendant’s remaining
arguments in support of her claim that the entry of
summary judgment in favor of the plaintiff was
improper. The court did not, as the defendant contends,
improperly decline to review the merits of several of
her amended special defenses in its memorandum of
decision granting summary judgment. The court cor-
rectly observed that all but one of the defendant’s
amended special defenses were, substantively, nearly
identical to ones that previously were struck by the
court. See Practice Book § 10-39. The court was there-
fore permitted to summarily dispose of those special
defenses in ruling on the motion for summary judgment.
See Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066
(1982) (‘‘[w]here a matter has previously been ruled
upon interlocutorily, the court in a subsequent proceed-
ing in the case may treat that decision as the law of
the case’’).
The one special defense that had not previously been
struck alleged that the plaintiff did not have standing
because it was not the holder of the note or the assignee
of the mortgage when it commenced its foreclosure
action, the very claim that formed the basis for the
defendant’s second motion for summary judgment,
which the court clearly addressed as a cross motion.8
Additionally, the defendant argues that the plaintiff’s
affidavit was insufficient for summary judgment pur-
poses to show that the plaintiff held the note when
this proceeding commenced because the affidavit states
that the plaintiff possessed ‘‘the original copy of the
[n]ote . . . .’’ Specifically, the defendant posits that the
phrase, ‘‘original copy,’’ means something other than
the original—that is, ‘‘wet ink’’—note. We disagree. The
more plausible interpretation in the context of the affi-
davit is that ‘‘the original copy’’ refers to the original
note because, immediately prior, the affidavit states
that ‘‘[o]n October 16, 2009, Wachovia transferred the
[n]ote to Wells Fargo.’’ (Emphasis added.) Even consid-
ered in isolation, the phrase, ‘‘the original copy,’’ is
clearly a reference to the original document. Accord
Johnson v. Cherry, 422 F.3d 540, 547 n.2 (7th Cir. 2005)
(‘‘[i]f the document is the original copy, the ink of the
signature will smear’’ [emphasis added]).
Finally, the defendant argues that she was improperly
deprived of an evidentiary hearing on the issue of the
plaintiff’s standing in connection with her second
motion for summary judgment. The defendant’s argu-
ment causes us to conclude that she misunderstands the
nature and purpose of a motion for summary judgment,
which is to determine whether there is a genuine issue
of material fact on the basis of the pleadings, affidavits
and any other proof submitted in documentary form.
See Practice Book §§ 17-45 and 17-49. ‘‘The fundamental
purpose of summary judgment is preventing unneces-
sary trials.’’ Stuart v. Freiberg, 316 Conn. 809, 822, 116
A.3d 1195 (2015). If evidentiary presentations and testi-
mony were to be permitted, the intent to reduce litiga-
tion costs by way of the summary judgment procedure
would be undermined, and there may as well be a trial
on the merits. As explained previously, in opposing the
plaintiff’s motion for summary judgment, as well as in
the presentation of her second motion for summary
judgment, the defendant did not establish that a genuine
issue of material fact existed with regard to whether
the plaintiff had standing to foreclose. For the foregoing
reasons, the defendant’s first claim fails.
II
The defendant’s second claim is that she was
deprived of due process of law in connection with sev-
eral motions and a ‘‘[r]equest’’ that she filed during the
course of the litigation. The defendant has briefed this
second claim in a haphazard and confusing manner,
referring to motions that had been denied on previous
dates despite the fact that she appeals only from the
decision of the court granting summary judgment on
the issue of liability in favor of the plaintiff, which was
issued on November 19, 2014,9 and the entry of the
judgment of strict foreclosure on August 31, 2015. Nev-
ertheless, we have striven to fit the pieces of the puzzle
together and have discerned that she presents this claim
as to the following pleadings: (1) a first motion for
summary judgment, which claimed that the plaintiff
lacked standing and was denied by the court on June
2, 2014; (2) a second motion to dismiss, denied by the
court on June 30, 2014, which also claimed that the
plaintiff lacked standing; (3) a request for a chain of
custody hearing, to which the plaintiff objected for lack
of any procedural basis in rule, case law or statute, and
on which the court took no action, marking the matter
off on August 4, 2014; (4) a motion for a continuance
pursuant to Practice Book § 17-47, to permit the comple-
tion of discovery by the party opposing summary judg-
ment; (5) a second motion for summary judgment,
which was denied by the court on November 12, 2014;
and (6) a motion to reargue, which the court denied
on December 9, 2014. The defendant argues that the
court improperly (1) refused to hear oral argument on
the second motion to dismiss, the request for a chain
of custody hearing, the motion for a continuance and
the first and second motions for summary judgment,
and (2) failed to conduct evidentiary hearings in connec-
tion with her second motion to dismiss, her request
for a chain of custody hearing, her first and second
summary judgment motions and her motion to reargue.
We disagree that the defendant was deprived of due
process. The defendant presented to the court in numer-
ous, repetitive filings her argument that the plaintiff
lacked standing to foreclose because it was not in pos-
session of the note and the mortgage prior to its initia-
tion of this action, along with documents in support
thereof.10
As to her claim of being prevented from presenting
oral argument on her second motion to dismiss, which
was denied on June 30, 2014, the defendant has not
provided us with an adequate record for review that
substantiates her claim that the court ruled on this
particular motion without providing her with an oppor-
tunity for argument. In the absence of evidence to the
contrary, we presume that the court followed Practice
Book § 11-18 (a), which grants a party filing a motion
to dismiss the right to oral argument. The plaintiff con-
tends that the court, at a hearing held on June 2, 2014,
considered this motion along with the defendant’s first
motion for summary judgment, and that the parties
presented oral argument on the issue of standing. A
review of the transcript of that hearing does indicate
that the court also considered the defendant’s second
motion to dismiss at that time. At the beginning of that
hearing, the plaintiff’s attorney brought the pendency
of the defendant’s second motion to dismiss to the
attention of the court and advised the court that the
second motion to dismiss made the same claim as to the
alleged lack of the plaintiff’s standing that the defendant
was making in her first motion for summary judgment.
The plaintiff further argued that the defendant’s claim
of lack of standing lacked evidentiary support. The
plaintiff’s counsel stated: ‘‘Aside from asserting a num-
ber of times in her various pleadings, which, if the
court reviews the docket, you will see, most recently,
I believe, a second motion to dismiss, even though the
court has already denied the first motion to dismiss,
and a subsequent motion to reconsider and reargue that
motion. [The defendant] is simply restating over and
over again that they don’t have the note. They don’t
have the mortgage.’’
There is further support for the fact that the court
considered the second motion to dismiss on June 2,
2014, because the court denied both motions subse-
quent to that hearing, denying the motion for summary
judgment on June 2, 2014, and the second motion to
dismiss on June 30, 2014. We further conclude that even
if the court did not undertake to hear both motions
on June 2, 2014, we are persuaded that the defendant
suffered no harm or unfairness because she had ample
opportunity to, and in fact did, present her argument,
as set forth identically in both pending motions, relative
to the plaintiff’s alleged lack of standing.11 Moreover,
undaunted by the denial of her second motion to dismiss
and her first motion for summary judgment, the defen-
dant thereafter filed her second motion for summary
judgment, reiterating her claim that the plaintiff lacked
standing because it was not in possession of the note or
the mortgage prior to the date it commenced this action.
As to the defendant’s claim of deprivation of an evi-
dentiary hearing on her second motion to dismiss, if
the defendant submitted no proof to rebut the plaintiff’s
jurisdictional allegations in its complaint, the plaintiff
was entitled to rest on its allegations and the court could
consider them undisputed, thereby properly denying
dismissal without the need to resort to further proceed-
ings for the taking of evidence. No evidentiary hearing
to establish jurisdictional facts is required unless the
determination is dependent on the resolution of a criti-
cal factual dispute, which the defendant failed to raise.
See Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669
(2009); Mengwall v. Rutkowski, 152 Conn. App. 459,
465, 102 A.3d 710 (2014) (defendant not entitled to full
evidentiary hearing on motion to dismiss contesting
standing because ‘‘defendant failed to establish that a
genuine dispute as to jurisdictional facts exists’’).
As for her claim of being deprived of oral argument
on her motion for a continuance, on June 18, 2014,
the defendant moved for an extension of time to file
discovery to properly respond to the plaintiff’s motion
for summary judgment.12 On June 30, 2014, the court,
Aurigemma, J., issued an order stating that ‘‘[a]ll out-
standing motions, including motions for summary judg-
ment, shall be heard on August 11, 2014, at 9:30 a.m.’’
The court, Domnarski, J., granted the plaintiff an exten-
sion until July 21, 2014. On July 24, 2014, the defendant
filed a motion for a continuance of the summary judg-
ment hearing to permit the completion of discovery,
which the court denied on August 6, 2014. A decision
on a motion for a continuance is reviewed for an abuse
of discretion by the trial court, but the defendant makes
no claim that this denial was an abuse of discretion;
she claims only that she was denied an opportunity to
present oral argument on this motion. The defendant
has failed to provide any record of a request on her
part for oral argument of her motion, and a motion for
a continuance is not one of the civil motions that require
oral argument pursuant to Practice Book § 11-18 (a).13
As a result, the court had the discretion to rule on her
motion for a continuance without providing for oral
argument. Furthermore, neither at the commencement
of the hearing on August 11, 2014, or at any time during
that proceeding did the defendant renew her request
for a continuance.
With respect to the defendant’s claim that she was
deprived of oral argument and an evidentiary hearing
on her request for a chain of custody hearing, to which
the plaintiff objected, that request and the objection
thereto had been marked off the short calendar by the
court, Domnarski, J., on August 4, 2014. At the com-
mencement of the hearing on the plaintiff’s motion for
summary judgment and the defendant’s second motion
for summary judgment on August 11, 2014, the defen-
dant acquiesced in the court’s suggestion that there
would be no need to discuss her request for a chain of
custody hearing to resolve the issue of standing because
first entertaining the pending summary judgment
motions might resolve whether there was a need for
such hearing. After hearing lengthy argument on the
summary judgment jurisdictional and special defense
issues, the court took the matter under advisement and
adjourned. Prior to that adjournment, the defendant did
not bring anything to the attention of the court that
required additional consideration. The granting of the
plaintiff’s motion for summary judgment dispensed with
any need for such a hearing, and the court had no need
to consider it and did not ultimately deny it, as the
defendant contends. There was no denial of due process
with respect to the defendant’s request for a chain of
custody hearing.
In addition, as we noted in part I of this opinion, the
defendant had no right to an evidentiary hearing on
either her first or second motion for summary judgment.
Although she claims that she was denied oral argument
on both of her motions for summary judgment, the
record discloses that the court heard oral argument on
her first motion for summary judgment on June 2, 2014,
and heard oral argument on her second motion for
summary judgment on August 11, 2014.
Last, the defendant claims that her motion to reargue
was denied without an evidentiary hearing. The defen-
dant had no right to an evidentiary hearing on her
motion to reargue, and the court had the discretion to
deny it without a hearing. Practice Book § 11-12 (c)
provides: ‘‘The motion to reargue shall be considered
by the judge who rendered the decision or order. Such
judge shall decide, without a hearing, whether the
motion to reargue should be granted. If the judge grants
the motion, the judge shall schedule the matter for
hearing on the relief requested.’’
We therefore conclude that the defendant was pro-
vided with a full and fair opportunity to present her
counterarguments to the plaintiff’s motion for summary
judgment as to liability. She has failed to demonstrate
that a denial of her due process rights occurred.
The judgment is affirmed and the case is remanded
for the purpose of setting a new law day.
In this opinion the other judges concurred.
1
On her appeal form, the defendant states that the judgment dates of the
decisions being appealed are August 31, 2015, and August 11, 2014. The
judgment of strict foreclosure was rendered on August 31, 2015; however,
there is nothing in the record that reflects that a judgment was rendered
on August 11, 2014. Nonetheless, the defendant states that she is appealing
from ‘‘summary judgment-strict foreclosure,’’ which were rendered sepa-
rately on November 19, 2014, and August 31, 2015, respectively. After thor-
oughly reviewing the issues briefed by the defendant, we conclude that all
of her claims relate to the court’s granting of summary judgment on the
issue of liability on November 19, 2014.
2
In her appellate brief, the defendant raises three claims. The first two,
however, are both premised largely on the defendant’s assertion that the
plaintiff lacked standing to foreclose. We therefore address both of those
claims in part I of this opinion.
3
This was the first of two motions to dismiss filed by the defendant. In
her first motion, she alleged that the court lacked subject matter jurisdiction
because the plaintiff lacked standing. Her claim of lack of standing was
based on the fact that the plaintiff was not the original lender and had not
submitted proof of an assignment of the note evidencing its status as the
holder of the note at the time of the filing of its complaint. This claim, in
substance, is identical to her claim as to lack of standing in her second
motion to dismiss, and her claims as to lack of standing in both her first
and second motions for summary judgment. In denying the defendant’s first
motion to dismiss, the court, Domnarski, J., ruled that the court could
‘‘accept the allegations in the complaint because the defendant has not filed
any affidavit or document that calls into question that the plaintiff is the
holder of the note. Furthermore, the defendant has not asserted that the
plaintiff is not the holder of the note. An evidentiary hearing is not required.
See GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 174, 73 A.3d 742
(2013).’’
4
It is undisputed that the mortgage was not assigned to the plaintiff until
after it had commenced this action. As we will discuss in part I of this
opinion, although the court was incorrect in finding that the plaintiff was
the assignee of the mortgage on the date the action commenced, the timing
of the mortgage assignment has no bearing on the determination of whether
the plaintiff had standing.
5
After reviewing the defendant’s affidavit in support of her second motion
for summary judgment, we can discern no factual allegations related to her
special defenses. During oral argument before the trial court on August 11,
2014, however, both parties argued the viability of the defendant’s special
defenses in relation to the foreclosure action.
6
As noted previously, the defendant posed no written objection to the
plaintiff’s motion for summary judgment, but the court considered the docu-
mentation she had attached to her subsequently filed second motion for
summary judgment.
7
We also observe that, during a previous hearing on the first motion for
summary judgment filed by the defendant, which occurred on June 2, 2014,
at which the defendant was present, Judge Aurigemma did in fact review
the original note, which was produced by the plaintiff’s attorney. Because
a court may grant summary judgment in a foreclosure action even if the
plaintiff does not produce the original note in support of its motion for
summary judgment; see GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165,
177, 73 A.3d 742 (2013); we see no need to address the defendant’s claim
that only a copy of the note was produced on June 2, 2014, a factual assertion
for which there is no basis in the record, or that the production during that
hearing occurred ex parte because she did not view the document that was
shown to the court.
8
We note, however, that the court did not render summary judgment in
favor of the plaintiff on the defendant’s amended counterclaim, which
remains undisposed and pending in the case. This was appropriate because
a motion for summary judgment is directed at a specific pleading, defense
or claim, and the plaintiff did not file a motion for summary judgment on
the counterclaim. See W. Horton & K. Knox, 1 Connecticut Practice Series:
Connecticut Superior Court Civil Rules (2016–2017 Ed.) § 17-44, p. 826. As
neither party sought a deferral of the appeal from the granting of the plain-
tiff’s motion for summary judgment or the rendering of the strict foreclosure
judgment, which constituted a final judgment on the entire complaint, this
matter was properly appealed despite the lack of a conclusion of the entire
case as a result of no judgment having been rendered on the counterclaim.
See Practice Book § 61-2.
9
See footnote 1 of this opinion.
10
See part I of this opinion for a description of those documents.
11
We reject the defendant’s assertion that the court denied her first motion
for summary judgment only on procedural grounds. The record does not
reflect the basis for the court’s denial, and the defendant did not seek
an articulation.
12
Her purported need for further discovery to object to the plaintiff’s
motion for summary judgment, however, had not deterred the defendant
from filing two motions to dismiss and two motions for summary judgment
on the basis of an alleged lack of standing by the plaintiff due to its not
being in possession of the note prior to the filing of its foreclosure complaint.
13
Practice Book § 11-18 (a) provides in relevant part: ‘‘Oral argument is
at the discretion of the judicial authority except as to motions to dismiss,
motions to strike, motions for summary judgment, motions for judgment of
foreclosure, and motions for judgment on the report of an attorney trial
referee and/or hearing on any objections thereto. . . .’’