U.S. Bank, National Assn. v. Schaeffer

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U.S. BANK, NATIONAL ASSOCIATION, TRUSTEE v.
ANNE K. SCHAEFFER ET AL.
(AC 36910)
Gruendel, Sheldon, and Borden, Js.
Argued May 21—officially released September 29, 2015
(Appeal from Superior Court, judicial district of
Danbury, Roraback, J.)
William J. Hanlon, with whom, on the brief, was
David M. Bizar, for the appellant (substitute plaintiff).
Eileen McGann, for the appellee (named defendant).
Opinion
BORDEN, J. The plaintiff, U.S. Bank, National Associ-
ation, as trustee for Wells Fargo Asset Securities Corpo-
ration Mortgage Pass-Through Certificates, Series 2005-
AR6 Pooling and Servicing Agreement (U.S. Bank),1
appeals from the judgment of the trial court dismissing
this residential real estate foreclosure action against
several defendants, including the named defendant,
Anne Schaeffer, for lack of standing.2 U.S. Bank claims
that the trial court applied the incorrect legal standard
in determining that it lacked standing to enforce the
note. U.S. Bank further claims that, pursuant to the
correct standard, it has standing to pursue the underly-
ing foreclosure action. We agree, and therefore reverse
the judgment of the trial court.
U.S. Bank brought this foreclosure action. The defen-
dant moved to dismiss the action for lack of standing.
Following a series of evidentiary hearings, the trial
court granted the motion to dismiss. This appeal
followed.
The following facts and procedural history are rele-
vant to the present case. The defendant owns a piece
of property located at 308 State Route 39, New Fairfield.
On January 5, 2005, the defendant executed a note for
a loan in the principal amount of $225,000 in favor of
Wells Fargo Bank, National Association (Wells Fargo).
At the same time, the defendant also executed and
delivered to Wells Fargo a mortgage on the property.
The Wells Fargo Asset Securities Corporation (asset
corporation), a subdivision of Wells Fargo responsible
for its mortgage transactions, was the owner of the debt
and Wells Fargo, as the master servicer, maintained
possession of the defendant’s note and mortgage
agreement.
On March 17, 2005, the defendant’s note and debt
were moved into a trust as part of the Wells Fargo
Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2005-AR6, Pooling and Servicing
Agreement, a pooling and servicing agreement among
Wells Fargo, the asset corporation and Wachovia Bank
(Wachovia). Wachovia was named trustee of the pool-
ing and servicing agreement. In accordance with the
terms of the pooling and servicing agreement, the defen-
dant’s note was endorsed in blank by Wells Fargo.
Shortly thereafter, Wells Fargo entered into a custodial
agreement with Wachovia, as part of which Wells Fargo
agreed to act as an ‘‘agent for [Wachovia Bank]’’ and
to maintain possession of the documents associated
with the pooling and servicing agreement.
On November 29, 2005, Wachovia’s corporate trust
business was acquired by U.S. Bank. As part of the
purchase, U.S. Bank acquired the interest in all of
Wachovia’s mortgage-backed transactions, including
Wachovia’s trusteeship in the pooling and servicing
agreement with Wells Fargo and the asset corporation.
Wells Fargo continued to act as custodian of those
notes and mortgage agreements. On February 18, 2009,
U.S. Bank commenced the present foreclosure action,
alleging that the defendant had defaulted on the note,
and that U.S. Bank was the holder of the note.
The defendant filed a motion to dismiss the foreclo-
sure action on March 27, 2009. On August 5, 2011, the
trial court, Pavia, J., denied the defendant’s motion to
dismiss. Shortly thereafter, the trial court reconsidered
its decision and vacated its order denying the motion
to dismiss. The trial court then held an evidentiary hear-
ing on December 12, 2011. At the hearing, legal counsel
for U.S. Bank presented the original note to the court.
The original note was signed by the defendant and was
made payable to the lender, Wells Fargo. On its last
page, the note was endorsed by stamp in blank. The note
was identified by Erin Hirzel Roesch, a vice president of
Wells Fargo in charge of loan documentation, and a
copy of the note was marked and entered into evidence.
Judge Pavia, after examining the original note, entered
a copy of the note and endorsement into evidence.
Hirzel Roesch further testified that the note had
remained with Wells Fargo, as custodian of the trust’s
documents, until the point at which U.S. Bank began
legal preparations to initiate foreclosure proceedings.
Following the evidentiary hearing, Judge Pavia granted
the defendant a continuance to obtain and review those
documents related to U.S. Bank’s acquisition of the debt
and note.
Following almost two years of inaction on the motion
to dismiss, on October 15, 2013, the trial court, Rora-
back, J., held a status conference in which the court
indicated that an additional evidentiary hearing was
needed to resolve the motion to dismiss, and ordered
the production of numerous documents from U.S. Bank
regarding the note’s chain of title. On November 18,
2013, Judge Roraback held an additional evidentiary
hearing regarding the documents ordered from U.S.
Bank. At the hearing, U.S. Bank provided to the trial
court a copy of the pooling and servicing agreement
among Wells Fargo, the asset corporation and
Wachovia, as well as a copy of the custodial agreement
between Wells Fargo and Wachovia. U.S. Bank addition-
ally provided an assignment and assumption agreement
in which all interest in Wachovia’s corporate trust busi-
ness was conveyed to U.S. Bank. Judge Roraback asked
U.S. Bank to provide to the trial court the original pur-
chase agreement between U.S. Bank and Wachovia. At
a subsequent hearing on January 13, 2014, U.S. Bank
indicated that it was having difficulty locating the docu-
ment. In lieu of the purchase agreement, U.S. Bank
entered into evidence, over the defendant’s objection,
a joint affidavit by Charles Pedersen, a vice president
of U.S. Bank, and Kevin Shire, a vice president of
Wachovia, attesting, on the basis of their personal
knowledge, that U.S. Bank had purchased all of
Wachovia’s trust assets on November 29, 2005, includ-
ing the trust containing the defendant’s note and debt.
Specifically, this joint affidavit referred to a certain
‘‘Purchase Agreement’’ between Wachovia and U.S.
Bank, pursuant to which U.S. Bank acquired all of
Wachovia’s corporate trust business described in a four-
teen-page appendix as ‘‘Mortgage-Backed Transac-
tions.’’ The first item on the fourteenth page identified
as part of the acquired assets the same Wells Fargo
entity that had acquired the note earlier, namely, the
Wells Fargo Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2005-AR6, Pooling
and Servicing Agreement. This affidavit had been
recorded on the land records, and U.S. Bank offered a
certified copy of it pursuant to §§ 10-1 and 10-4 of the
Code of Evidence, which concern the best evidence
rule.3 The court stated that, although the document was
admissible ‘‘because I do think it satisfies the rules of
evidence,’’ the court would nonetheless ‘‘give it what-
ever weight . . . this document might be due . . . .’’
On January 13, 2014, the trial court closed the evi-
dence, and subsequently received briefs on the motion
to dismiss. The trial court then issued a memorandum
of decision on April 3, 2014, granting the motion to
dismiss. The trial court specifically noted that, although
the evidence presented demonstrated ‘‘plausible sce-
narios under which [U.S. Bank] might have standing,’’
U.S. Bank had failed to prove definitively that it had
standing to foreclose, largely because it was unable to
provide the original purchase agreement between itself
and Wachovia.
More specifically, the court reasoned in its memoran-
dum of decision that U.S. Bank’s ‘‘inability to locate and
enter into evidence a copy of the Purchase Agreement
[between U.S. Bank and Wachovia] is fatal to its efforts
to prove that it has standing to pursue this matter.’’
One of the other ‘‘plausible scenarios’’ posited by the
court was that ‘‘ownership of the note in question had
been transferred from Wachovia Corporation to another
party on or before it entered into the Purchase
Agreement with’’ U.S. Bank. With regard to the joint
affidavit, the court gave it what it described as ‘‘limited
weight,’’ principally because of the best evidence rule.4
The court stated: ‘‘Without having the benefit of the
Purchase Agreement itself, the court is unable to know
if that agreement transferred ownership of the note.’’
The court then noted that, despite its having ruled that
the affidavit was admissible under the best evidence
rule, none of the applicable exceptions to the rule
applied. U.S. Bank claims that the trial court improperly
granted the motion to dismiss, and that the evidence
submitted demonstrates that it has standing to fore-
close. We agree.
‘‘The issue of standing implicates the trial court’s
subject matter jurisdiction and therefore presents a
threshold issue for our determination. . . . Standing is
the legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court
unless he [or she] has, in an individual or representative
capacity, some real interest in the cause of action, or
a legal or equitable right, title or interest in the subject
matter of the controversy. . . . [When] a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . In addition,
because standing implicates the court’s subject matter
jurisdiction, the issue of standing is not subject to
waiver and may be raised at any time.’’ (Citation omit-
ted; internal quotation marks omitted.) Wells Fargo
Bank, N.A. v. Strong, 149 Conn. App. 384, 397–98, 89
A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202
(2014).
‘‘[B]ecause the issue of standing implicates subject
matter jurisdiction, it may be a proper basis for granting
a motion to dismiss. . . . The standard of review for
a court’s decision on a motion to dismiss is well settled.
. . . [O]ur review of the court’s ultimate legal conclu-
sion and resulting [determination] of the motion to dis-
miss will be de novo. . . . When a . . . court decides
a jurisdictional question raised by a pretrial motion to
dismiss, it must consider the allegations of the com-
plaint in their most favorable light. . . . In this regard,
a court must take the facts to be those alleged in the
complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . The motion to dismiss
. . . admits all facts which are well pleaded, invokes
the existing record and must be decided upon that
alone.’’ (Citations omitted; internal quotation marks
omitted.) Electrical Contractors, Inc. v. Dept. of Educa-
tion, 303 Conn. 402, 413, 35 A.3d 188 (2012).
At the outset of this matter we believe it useful to
summarize our existing jurisprudence on standing in
foreclosure matters. The ability to enforce a note in
Connecticut is governed by the adopted provisions of
the Uniform Commercial Code. Pursuant to General
Statutes § 42a-3-301, a ‘‘[p]erson entitled to enforce an
instrument means . . . the holder of the instrument
. . . .’’ (Internal quotation marks omitted.) When a note
is endorsed in blank, as in the present case, the note
becomes payable to the ‘‘bearer’’ of the note. See Gen-
eral Statutes § 42a-3-205 (b); see also RMS Residential
Properties, LLC v. Miller, 303 Conn. 224, 231, 32 A.3d
307 (2011), overruled in part on other grounds by J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn. 307,
325 n.18, 71 A.3d 492 (2013). When a person or entity
has possession of a note endorsed in blank, it becomes
the valid holder of the note. General Statutes § 42a-1-
201 (b) (21) (A). Therefore, a party in possession of a
note, endorsed in blank and thereby made payable to
its bearer, is the valid holder of the note, and is entitled
to enforce the note. See RMS Residential Properties,
LLC v. Miller, supra, 231.
In RMS Residential Properties, LLC v. Miller, supra,
303 Conn. 231, our Supreme Court stated that to seek
enforcement of a note through foreclosure, a holder
must be able to demonstrate it is the owner of the
underlying debt.5 It noted, however, that a holder of a
note is presumed to be the rightful owner of the underly-
ing debt, and that unless the party defending against
the foreclosure action rebuts that presumption, the
holder has standing to foreclose.6 Id., 231–32. A holder
merely needs to produce the note to establish that pre-
sumption. ‘‘The production of the note establishes his
case prima face against the [defendant] and he may rest
there. . . . It [is] for the defendant to set up and prove
the facts which limit or change the plaintiff’s rights.’’
(Internal quotation marks omitted.) Id.; see also Ameri-
can Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.
App. 127, 133, A.3d (2015).
Recently in J.E. Robert Co. v. Signature Properties,
LLC, 309 Conn. 307, 71 A.3d 492 (2013), our Supreme
Court fleshed out its analysis of standing articulated in
RMS Residential Properties, LLC. First, the court noted
that when it stated that a holder is the rightful owner
of the debt, the court intended to ‘‘address the situation
in which ownership of the note and ownership of the
mortgage rest in different hands at the time the foreclo-
sure action commenced.’’ Id., 323. The court empha-
sized that the purpose of RMS Residential Properties,
LLC, was not to restrict those cases in which the owner-
ship of the note and ownership of the debt fell in the
same hands. Id., 324–25. Rather, the court articulated
a means by which ‘‘a debtor may be able to produce
evidence demonstrating that the plaintiff, who might
otherwise appear to be entitled to enforce the debt [by
way of possessing the note] nevertheless lacks standing,
perhaps because ownership of the debt has passed to
another party.’’ (Emphasis added.) Id., 325.
The court in J.E. Robert Co. further stated that, even
if a defendant were able to demonstrate that the debt
was rightfully owned by a different party than the fore-
closing party, or by other means was able to rebut the
presumption that the holder of the note was the owner
of the debt, the result was not an automatic dismissal
of the plaintiff’s case due to lack of standing. Id., 325
n.18. Rather, the burden would then shift back to the
plaintiff to give it the opportunity to demonstrate that
the rightful owner had in some way vested in the plain-
tiff the right to collect the debt secured by the note. Id.
In footnote 18 of J.E. Robert Co., the court laid out
an alternative test for cases where the plaintiff is not
the holder of the note. Id., 325–26 n.18. In those cases
where a nonholder transferee seeks to enforce a note
in foreclosure proceedings, the transferee must be pre-
pared to demonstrate, through means of proper sup-
porting documents, its right to seek foreclosure. Id. In
this demonstration, the transferee must account for
possession of the note by proving the transaction
through which it acquired the note from the holder. Id.
The court took pains to emphasize, however, that this
analysis applied only to nonholders. Id.
And recently, this court reiterated this reading of the
J.E. Robert Co. footnote. In American Home Mortgage
Servicing, Inc. v. Reilly, supra, 157 Conn. App. 130,
the plaintiff foreclosing party was a holder of a bearer
mortgage note that was, in fact, owned, not by the
plaintiff, but by Fannie Mae. This court held that, none-
theless, the plaintiff had standing to foreclose because
the evidence showed that Fannie Mae had authorized
the plaintiff to enforce the debt. Id., 135. In response
to the defendant’s claim that the plaintiff’s chain of title
to the note was insufficient, this court stated: ‘‘We reject
the defendant’s claim that the plaintiff was required to
provide a full history of any and all transfers of the
note with supporting documentation, as well as docu-
mentation of the plaintiff’s authority to act on behalf
of the owner of the mortgage debt. In support of its
claim, the defendant relies on J.E. Robert Co. v. Signa-
ture Properties, LLC, supra, 309 Conn. 325 n.18. In
J.E. Robert Co., our Supreme Court specified that the
precept of having the proper supporting documentation
in hand when filing suit showing the history of the
note pertained to cases in which a nonholder transferee
seeks to enforce a note in foreclosure proceedings
. . . .
‘‘Thus, our Supreme Court has stated that this specific
precept is applicable to nonholder loan servicers. As
such, it is not pertinent here, where the plaintiff is both
the loan servicer and the note holder, rather than solely
a nonholder loan servicer. The defendant has provided
no authority, nor are we aware of any, that supports
his suggestion that a note holder, such as the plaintiff,
is obligated to produce the documentation showing the
full history of the note when filing a foreclosure action.
In fact, it is well settled that a note holder may initiate
a foreclosure action because of the presumption that
the note holder is also the note owner. RMS Residential
Properties, LLC v. Miller, supra, 303 Conn. 231–32.’’
(Citation omitted; emphases in original; internal quota-
tion marks omitted.) American Home Mortgage Servic-
ing, Inc. v. Reilly, supra, 157 Conn. App. 137 n.10.
The rules for standing in foreclosure actions when
the issue of standing is raised may be succinctly summa-
rized as follows. When a holder seeks to enforce a note
through foreclosure, the holder must produce the note.
The note must be sufficiently endorsed so as to demon-
strate that the foreclosing party is a holder, either by
a specific endorsement to that party or by means of a
blank endorsement to bearer. If the foreclosing party
shows that it is a valid holder of the note and can
produce the note, it is presumed that the foreclosing
party is the rightful owner of the debt. That presumption
may be rebutted by the defending party, but the burden
is on the defending party to provide sufficient proof
that the holder of the note is not the owner of the debt,
for example, by showing that ownership of the debt
had passed to another party.7 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.
If, on the other hand, the party seeking foreclosure
is not the holder of the note, it is the foreclosing party’s
burden, when the issue of standing is raised, to demon-
strate by way of proper documentation that it has the
right to enforce the note. It may, for example, produce
documents showing a valid transfer of the right to
enforce the note between the original holder and the
foreclosing party.
In applying these legal principles to the present case,
we conclude that U.S. Bank has standing to foreclose.
As the possessor of a bearer note, it is a holder under
the aegis of §§ 42a-1-201 (b) (21) (A) and 42a-3-301. At
all times, the note and debt have remained in single
ownership. Furthermore, the trial court’s conclusion
that U.S. Bank’s failure to produce the purchase
agreement, and that therefore there was a ‘‘plausible
scenario’’ under which Wachovia might have trans-
ferred ownership of the note to some other party, is
wholly insufficient to rebut the presumption that the
holder of the note is also the owner of the note and
debt. In effect, the trial court improperly relied on the
test for standing articulated for nonholders, rather than
for a holder like U.S. Bank. And the presence of the
specific and detailed joint affidavit, albeit given ‘‘little
weight’’ by the trial court, is sufficient to dispel any
doubts about U.S. Bank’s holder status.
The defendant alternatively attempts to rebut the pre-
sumption that U.S. Bank is the owner of the debt by
arguing that the note presented to the court was not
the original because there was no specific finding that
it was the authentic, original note, because the original
note was not properly inspected by the trial court or
entered into evidence, and because in her testimony,
Hirzel Roesch identified a copy of the note instead of the
original.8 The defendant’s claims ignore the procedural
facts of the note’s presentation. At the time of its pre-
sentment, both parties agreed to mark a copy of the
note, rather than the original note, for the purpose of
subsequent review by the court. At the first evidentiary
hearing, Judge Pavia had the original note, which she
described as such, in front of her to examine, and both
parties described the note as the original.9 Judge Rora-
back, in his memorandum of decision, also described
the note proffered to Judge Pavia in the first evidentiary
hearing as the original note. The only disagreement
about the note involved the quality of the stamped
endorsement, which was settled by stipulation. The
defendant has cited no authority supporting the notion
that the plaintiff was required to enter the original note
into evidence and have it authenticated to demonstrate
standing. Two judges and all of the parties have, at one
time or another, agreed on the record that the note
before Judge Pavia was the original. As a consequence,
we conclude that the defendant’s argument fails, and
that U.S. Bank was a valid holder of the note endorsed
in blank.10
Under Connecticut law, the rightful holder of the
note is presumed to be the owner of the debt, and the
defendant has the burden to rebut such position. The
defendant failed to do so, and as a consequence has
failed to demonstrate that U.S. Bank lacked standing
to enforce the note.
The judgment is reversed, and the case is remanded
with direction to deny the motion to dismiss and for
further proceedings according to law.
In this opinion the other judges concurred.
1
During the course of the litigation, the court granted the plaintiff’s motion
to substitute as plaintiff a somewhat differently named entity, namely, U.S.
Bank, National Association, as Trustee, successor in interest to Wachovia
Bank, National Association, as Trustee for Wells Fargo Asset Securities
Corporation, Mortgage Pass-Through Certificates, Series 2005-AR6, because
the original named plaintiff (U.S. Bank) had assigned the note and mortgage
to the substitute plaintiff. We can see no basis for any claim in this appeal
regarding this substitution. For simplicity, we refer to the plaintiff as U.S.
Bank.
2
At the time the action commenced, the plaintiff also named Bank of
America, National Association, as a defendant. It is not party to this appeal.
In this opinion, we refer to Schaeffer as the defendant.
3
Section 10-1 of the Code of Evidence provides: ‘‘To prove a content
of a writing, recording or photograph, the original writing, recording or
photograph must be admitted in evidence, except as otherwise provided by
the Code, the General Statutes or the Practice Book.’’
Section 10-4 of the Code of Evidence provides: ‘‘The contents of a record,
report, statement or data compilation recorded or filed in a public office
may be proved by a copy, certified in accordance with applicable law or
testified to be correct by a witness who has compared it with the original.’’
We express no opinion on whether the affidavit was properly admitted
under these rules of evidence. Nonetheless, because the affidavit was ulti-
mately admitted into evidence, we may consider it as part of the trial
court record.
4
The court articulated certain other formal issues with the affidavit, none
of which appears to us to be significant.
5
Although in many, if not most, cases, the party seeking enforcement of
the note will also be the owner of the debt, our jurisprudence has not
specifically defined what that distinction means. We construe ownership of
the underlying debt to refer to the person or entity to whom the money is
ultimately payable. For example, a mere servicer of the note may seek
enforcement of it, although ultimately the money would be payable to some
other entity. See, e.g., J.E. Robert Co. v. Signature Properties, LLC, 309
Conn. 307, 313, 71 A.3d 492 (2013) (J.E. Robert Company was servicer of
note, but debt was owned by JP Morgan Chase Bank, N.A., to whom money
was ultimately payable).
6
The court reiterated the codification of the ‘‘well established common-
law principle that the mortgage follows the note,’’ noting that ‘‘[o]ur legisla-
ture, by adopting [General Statutes] § 49-17, created a statutory right for
the rightful owner of a note to foreclose on real property regardless of
whether the mortgage has been assigned to him.’’ RMS Residential Proper-
ties, LLC v. Miller, supra, 303 Conn. 230.
7
It is important to distinguish this test from the test applied when a
plaintiff in a foreclosure action is seeking summary judgment. We have
previously stated that ‘‘[i]n order to establish a prima facie case in a mortgage
foreclosure action, the [foreclosing party] must prove by a preponderance
of the evidence that it is the owner of the note and the mortgage, that the
defendant mortgagor has defaulted on the note and that any conditions
precedent to foreclosure, as established by the note and mortgage, have
been satisfied.’’ (Emphasis added; internal quotation marks omitted.) Wells
Fargo Bank, N.A. v. Strong, supra, 149 Conn. App. 392; see also U.S. Bank,
N.A. v. Foote, 151 Conn. App. 620, 632, 94 A.3d 1267 (2014); GMAC Mortgage,
LLC v. Ford, 144 Conn. App. 165, 176, 73 A.3d 742 (2013).
8
The defendant also claims that U.S. Bank, when initially meeting with
Judge Roraback, falsely recounted certain events during the evidentiary
hearing before Judge Pavia. We disagree; none of the statements challenged
is, upon our review, false or misleading.
9
The defendant’s claim that the trial court was going to examine the note
to determine whether it had the qualities of an original misinterprets the
record. Rather, the record reveals that the trial court indicated that it would
mark a copy of the note for the purposes of the exhibit, and allow U.S.
Bank to maintain possession of the bearer note, after examining the qualities
of the original, so as to ensure the copy and the original were substantially
the same. The defendant consented to this plan after receiving a stipulation
that the endorsement was stamped. The trial court then was handed the
original note by U.S. Bank’s counsel; the court examined the note and then
returned it to U.S. Bank’s counsel. The defendant’s rendering of the record
does not support the position that Judge Pavia failed to examine the note
at the first evidentiary hearing.
10
The defendant claims that the stamped endorsement on her note is a
product of ‘‘robo-stamping’’ and argues that because of the possibility of
abuse and fraud through robo-stamping, we should heighten our degree of
scrutiny over the validity of the note in the present case. The defendant
advanced this argument in her bench brief before the trial court. We note,
however, that the defendant submitted no evidence to substantiate her claim
that the stamped endorsement in this case was a product of robo-stamping,
or that there was any fraud or abuse in the application of the endorsement.
As a consequence, there is not a sufficient record from which to appraise
the defendant’s claim. We therefore decline to review it.