Deutsche Bank National Trust Co. v. Pardo

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. CARLOS A. PARDO ET AL.
(AC 38127)
Beach, Mullins and Lavery, Js.*
Argued October 26, 2016—officially released February 14, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Mintz, J.)
Peter V. Lathouris, for the appellant (named
defendant).
Elizabeth T. Timkovich, with whom, on the brief,
was Pierre-Yves Kolakowski, for the appellee
(plaintiff).
Opinion
LAVERY, J. The defendant Carlos A. Pardo appeals
from the denial of his motion to dismiss and motion to
open the judgment of strict foreclosure rendered by
the trial court in favor of the plaintiff, Deutsche Bank
National Trust Company, as Trustee under the Pooling
Servicing Agreement relating to IMPAC Secured Assets
Corp., Mortgage Pass-Through Certificates, Series 2007-
3.1 He claims that the court improperly (1) denied his
motion to dismiss for lack of subject matter jurisdiction,
and (2) dismissed, pursuant to General Statutes § 49-15,2
his motion to open the judgment of strict foreclosure as
moot.3 We conclude that neither of these claims are
persuasive and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are perti-
nent to this appeal. The plaintiff commenced this action
for strict foreclosure against the defendant on April
29, 2014. The plaintiff alleged the following facts in its
complaint. On April 9, 2007, the defendant executed a
promissory note in favor of IMPAC Funding Corpora-
tion d/b/a IMPAC Lending Group (IMPAC) in exchange
for a loan in the amount of $627,500, which was secured
by a mortgage on the defendant’s real property located
at 123 Jeanne Court in Stamford (property). The mort-
gage, originally executed in favor of Mortgage Elec-
tronic Registration Systems, Inc. (MERS), as nominee
for IMPAC, was assigned to the plaintiff on August 30,
2012, by virtue of an assignment of mortgage agreement.
The plaintiff is ‘‘the holder of [the] note and mortgage.’’
The defendant executed loan modification agreements
on May 4, 2010, and October 3, 2012, increasing the
unpaid principal balance due under the note. The defen-
dant has defaulted on the note, and the plaintiff has
elected to declare the unpaid balance under the note
to be due in full and to foreclose the mortgage securing
the note. Copies of the note, mortgage, and assignment
of mortgage, which named the plaintiff as the assignee,
were appended to the complaint as exhibits.
On August 8, 2014, the court granted the plaintiff’s
motion for entry of default against the defendant for
failure to appear. On September 3, 2014, the plaintiff
filed a motion for a judgment of strict foreclosure. On
December 8, 2014, following a hearing, the court
granted the plaintiff’s motion, rendered a judgment of
strict foreclosure, and set January 20, 2015, as the law
day. Thereafter, the court granted the plaintiff’s motion
to open the judgment of strict foreclosure, reset the
date of judgment to February 2, 2015, and extended the
law day to May 19, 2015.
On May 12, 2015, the defendant filed a motion to
open the judgment of strict foreclosure, asserting that
the plaintiff lacked standing to commence the action,
along with a motion to dismiss for lack of subject matter
jurisdiction. In support of his motion to dismiss, the
defendant argued that the plaintiff was not a ‘‘ ‘holder’ ’’
of the note, and thus lacked standing to foreclose the
mortgage, because the note was not a ‘‘negotiable
instrument’’ within the meaning of General Statutes
§ 42a-3-104.4 Specifically, the defendant argued that the
note ceased to be an unconditional promise or order
to pay under General Statutes § 42a-3-106 (a)5 because,
as pleaded in the complaint, the terms of the note were
modified by loan modification agreements executed on
May 4, 2010, and October 3, 2012. The loan modifica-
tions, the defendant maintained, made the promises
and obligations set forth in the original note ‘‘subject
to or governed by’’ other writings and, consequently,
rendered the original note ‘‘conditional’’ under § 42a-3-
106 (a) (ii) and (iii). The defendant did not request a
hearing on his motion to open or motion to dismiss
prior to the May 19, 2015 law day.
Following a hearing on the defendant’s motion to
open, held on May 26, 2015, the court ordered the parties
to submit briefs, and scheduled the motion for further
argument at the June 16, 2015 short calendar. At the
short calendar, the defendant contended that, notwith-
standing § 49-15, which precludes trial courts from
opening judgments of strict foreclosure after title to
the mortgaged property vests following the running of
the law days,6 the court retained authority to open the
judgment because he filed a motion to dismiss challeng-
ing the court’s subject matter jurisdiction on May 12,
2015, which, he asserted, tolled the running of the May
19, 2015 law day. The court disagreed and, pursuant to
§ 49-15, dismissed the defendant’s motion to open as
moot. The court then scheduled the motion to dismiss
for argument on a later date and ordered the plaintiff
not to transfer title to the property until after the motion
was heard.
At a hearing held on June 22, 2015, the court denied
the defendant’s motion to dismiss. The court noted that,
at the time it rendered the judgment of strict foreclo-
sure, it had found that the foreclosure documents were
in order and that the plaintiff was the holder of the
note. The court further found that the note remained
a negotiable instrument regardless of the modification
agreements and that the plaintiff had standing to fore-
close the mortgage.7 This appeal followed.
I
The defendant first claims that the court improperly
denied his motion to dismiss on the basis of its finding
that the plaintiff was a holder of the note with standing
to commence this action. Specifically, the defendant
argues that the plaintiff was not a holder of the note
because the note was not a ‘‘negotiable instrument’’
under § 42a-3-104 (a).8 We disagree.
‘‘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 subject matter jurisdiction to determine the
cause. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
In addition, because standing implicates the court’s sub-
ject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any time.’’ (Inter-
nal quotation marks omitted.) Property Asset Manage-
ment, Inc. v. Lazarte, 163 Conn. App. 737, 745, 138 A.3d
290 (2016). We will not disturb the court’s subordinate
factual findings unless they are clearly erroneous, but
‘‘our review of the trial court’s ultimate legal conclusion
and resulting [denial] of the motion to dismiss will be de
novo.’’ (Internal quotation marks omitted.) JPMorgan
Chase Bank National Assn. v. Simoulidis, 161 Conn.
App. 133, 135–36, 126 A.3d 1098 (2015), cert. denied,
320 Conn. 913, 130 A.3d 266 (2016).
‘‘Generally, in order to have standing to bring a fore-
closure action the plaintiff must, at the time the action
is commenced, be entitled to enforce the promissory
note that is secured by the property. . . . Whether a
party is entitled to enforce a promissory note is deter-
mined by the provisions of the Uniform Commercial
Code, as codified in General Statutes § 42a-1-101 et seq.
. . . Under [the Uniform Commercial Code], only a
holder of an instrument or someone who has the rights
of a holder is entitled to enforce the instrument . . . .
‘‘The plaintiff’s possession of a note endorsed in blank
is prima facie evidence that it is a holder and is entitled
to enforce the note, thereby conferring standing to com-
mence a foreclosure action. . . . After the plaintiff has
presented this prima facie evidence, the burden is on
the defendant to impeach the validity of [the] evidence
that [the plaintiff] possessed the note at the time that
it commenced the . . . action or to rebut the presump-
tion that [the plaintiff] owns the underlying debt . . . .
The defendant [must] . . . prove the facts which limit
or change the plaintiff’s rights.’’ (Emphasis omitted;
internal quotation marks omitted.) Property Asset Man-
agement, Inc. v. Lazarte, supra, 163 Conn. App. 746–47.
In the present case, we note at the outset that the
plaintiff presented prima facie evidence that it is a
holder of the note with standing to commence this
foreclosure action. In its complaint, the plaintiff alleged
that the defendant executed a mortgage on his property
in favor of MERS to secure the underlying note, that
MERS assigned the note and mortgage to the plaintiff
on August 30, 2012, and that the plaintiff ‘‘is the holder
of [the] note and mortgage.’’ By alleging that it was
the holder of the note and mortgage, the plaintiff also
alleged, by implication, that it held the note and mort-
gage at the time the action was commenced. See GMAC
Mortgage, LLC v. Ford, 144 Conn. App. 165, 174, 73
A.3d 742 (2013). Additionally, the plaintiff submitted
the note, mortgage, and assignment, which names the
plaintiff as assignee of the note and mortgage, as attach-
ments to its complaint. Given those pleadings, the bur-
den shifted to the defendant to ‘‘prove the facts which
limit or change the plaintiff’s rights.’’ (Internal quotation
marks omitted.) Property Asset Management, Inc. v.
Lazarte, supra, 163 Conn. App. 747. The defendant
failed to answer the complaint or otherwise appear in
this action, and the court, on December 8, 2014, granted
the plaintiff’s motion for a judgment of strict foreclo-
sure. In denying the defendant’s motion to dismiss,
which was filed after judgment was rendered, the court
found that the foreclosure documents were in order
and that the plaintiff was a holder of the note with
standing to foreclose the mortgage.
The defendant’s sole argument on appeal, which the
trial court rejected, is a legal one—namely, that the
plaintiff cannot be a holder of the note because the
note is not a ‘‘negotiable instrument’’ as defined in the
Uniform Commercial Code. See Florian v. Lenge, 91
Conn. App. 268, 276, 880 A.2d 985 (2005) (question of
whether promissory note meets definition of negotiable
instrument is question of law subject to plenary review).
General Statutes § 42a-1-201 (21) defines ‘‘holder’’ to
mean, inter alia, ‘‘[t]he person in possession of a nego-
tiable instrument that is payable either to bearer or to
an identified person that is the person in possession
. . . .’’ (Emphasis added.) The note is not a negotiable
instrument, the defendant contends, because it was
modified by two subsequent loan modification
agreements that increased the balance due under the
note. The defendant’s theory is that, as a result of the
modification agreements, the note ceased to be ‘‘an
unconditional promise or order to pay a fixed amount
of money,’’ as is required for a writing to qualify as a
negotiable instrument; General Statutes § 42a-3-104 (a);
because its terms became subject to other writings. In
support of this novel proposition, the defendant cites
only to § 42a-3-106 (a), which provides in relevant part
that ‘‘for the purposes of section 42a-3-104 (a), a prom-
ise or order is unconditional unless it states . . . (ii)
that the promise or order is subject to or governed by
another writing, or (iii) that rights or obligations with
respect to the promise or order are stated in another
writing. . . .’’
We reject the contention that the note at issue in the
present case was rendered ‘‘conditional’’ under § 42a-
3-106 (a) (ii) or (iii) by the defendant’s subsequent exe-
cution of the two loan modification agreements that
increased the balance due under the note. The prefatory
language in § 42a-3-106 (a)—‘‘a promise or order is
unconditional unless it states’’—plainly indicates that
in order for subsections (ii) or (iii) to apply, the promise
or order to pay must itself contain the reference to the
other writing. That is, an unconditional promise or order
to pay is not rendered conditional by a modification
agreement that is not referenced in the original note.9
Here, because the note does not state that its terms are
subject to any other writing, it is a negotiable instrument
subject to the Uniform Commercial Code regardless of
the two loan modification agreements. For that reason,
the defendant has failed to rebut the evidence in the
record demonstrating that the plaintiff was the holder
of the note with standing to institute this action. Accord-
ingly, the court properly denied the defendant’s motion
to dismiss for lack of subject matter jurisdiction.
II
The defendant next claims that the court improperly
dismissed his motion to open the judgment of strict
foreclosure as moot. We are not persuaded.
‘‘Our determination of whether there is any practical
relief that can be afforded the defendant depends on
whether the trial court had the authority to grant the
defendant’s motion to open and, therefore, requires us
to interpret the statutory provision governing the open-
ing of strict foreclosure judgments. Statutory construc-
tion, in turn, presents a question of law over which our
review is plenary.’’ (Internal quotation marks omitted.)
First National Bank of Chicago v. Luecken, 66 Conn.
App. 606, 610–11, 785 A.2d 1148 (2001), cert. denied,
259 Conn. 915, 792 A.2d 851 (2002).
The opening of judgments of strict foreclosure is
governed by § 49-15, which provides in relevant part:
‘‘Any judgment foreclosing the title to real estate by
strict foreclosure may, at the discretion of the court
rendering the judgment, upon the written motion of any
person having an interest in the judgment and for cause
shown, be opened and modified . . . provided no such
judgment shall be opened after the title has become
absolute in any encumbrancer . . . .’’ (Emphasis
added.)
‘‘[W]hen a foreclosure decree has become absolute
by the passing of the law days, the outstanding rights of
redemption have been cut off and the title has become
unconditional in the [lienor] . . . . The [property
owner] has no remaining title or interest . . . .’’ (Inter-
nal quotation marks omitted.) Handsome, Inc. v. Plan-
ning & Zoning Commission, 317 Conn. 515, 528, 119
A.3d 541 (2015). Thus, once the law day passes and
title vests in the lienor, ‘‘no practical relief is available
[p]rovided that this vesting has occurred pursuant to
an authorized exercise of jurisdiction by the trial court
. . . . A natural corollary of this principle is that a
judgment of strict foreclosure may be opened only upon
a finding that the court lacked jurisdiction over either
the person or the case at the time the judgment of strict
foreclosure was entered. Anything less would appear
to be in direct contravention of the strictures of § 49-
15 (a) and our subsequent case law.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Highgate Condominium Assn., Inc. v. Miller, 129
Conn. App. 429, 435, 21 A.3d 853 (2011).
Here, the court rendered the judgment of strict fore-
closure on February 2, 2015, and set May 19, 2015, as
the law day. The defendant filed his motion to open
the judgment on May 12, 2015. Critically, however, the
motion was not heard until May 26, 2015, after the law
day had passed. ‘‘A critical factor to be recognized in
connection with a motion to reopen a judgment of strict
foreclosure is that the motion must be heard, and not
merely filed, prior to the vesting of title.’’ (Internal quo-
tation marks omitted.) Farmers & Mechanics Savings
Bank v. Sullivan, 216 Conn. 341, 349, 579 A.2d 1054(1990); see also First National Bank of Chicago v.
Luecken, supra, 66 Conn. App. 611–12. The record does
not reveal any attempt by the defendant to schedule a
hearing on the motion prior to the running of the law
day. Therefore, by the time the court heard argument
on May 26, 2015, title to the property had vested in
the plaintiff and the defendant could not have been
affording any practical relief.10 The court properly
denied the defendant’s motion to open as moot.
The defendant, citing no pertinent authority, con-
tends that title to the property never vested in the plain-
tiff because he filed a motion to dismiss challenging
the court’s subject matter jurisdiction on May 12, 2015,
which, he argues, triggered an automatic stay that tolled
the running of the law days. We disagree. Although this
court has recognized that ‘‘a finding that the court
lacked jurisdiction over either the person or the case’’
provides a basis for opening a judgment of strict foreclo-
sure after the vesting of title; (emphasis added) High-
gate Condominium Assn., Inc. v. Miller, supra, 129
Conn. App. 435; we have not found any basis in the law
for the proposition that a mere challenge to jurisdiction
tolls the running of the law days.11 Indeed, as this court
has recognized, § 49-15 ‘‘was intended to give the court
flexibility to accommodate the defendant’s changed cir-
cumstances subsequent to the original judgment. None-
theless, it also recognizes the rights of the plaintiff and
the need for an orderly foreclosure procedure that nec-
essarily must, at some point, conclude.’’ First National
Bank of Chicago v. Luecken, supra, 66 Conn. App. 614;
see also New Milford Savings Bank v. Jajer, 244 Conn.
251, 260, 708 A.2d 1378 (1998) (emphasizing ‘‘duty of
the [trial] court [in applying § 49-15] to do justice to
protect the rights of all the interested parties’’ [empha-
sis added]). The defendant’s approach, which would
require trial courts to toll the running of the law days
upon the mere filing of a motion to dismiss, would
produce unnecessary delay and interrupt the orderly
disposition of foreclosure proceedings. Accordingly, we
decline to adopt it.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant Ford Motor Credit Company, LLC, named in the complaint
as a subsequent encumbrancer with respect to the subject property, is not
a party to this appeal. Accordingly, in this opinion we refer to Carols A.
Pardo as the defendant.
2
General Statutes § 49-15 (a) (1) provides in relevant part: ‘‘Any judgment
foreclosing the title to real estate by strict foreclosure may, at the discretion
of the court rendering the judgment, upon the written motion of any person
having an interest in the judgment and for cause shown, be opened and
modified . . . provided no such judgment shall be opened after the title
has become absolute in any encumbrancer . . . .’’ (Emphasis added.)
3
In his main brief to this court, the defendant also claims that the filing
of his motion to dismiss for lack of subject matter jurisdiction tolled the
running of the law days, and, therefore, that title to the foreclosed property
never vested in the plaintiff. Because the defendant advances this argument
as support for his claim that the court improperly dismissed his motion to
open the judgment of strict foreclosure, rather than as a separate ground
for relief, we address it in part II of this opinion rather than as a distinct claim.
4
General Statutes § 42a-3-104 (a) provides in relevant part that, in order
to qualify as a ‘‘ ‘negotiable instrument,’ ’’ the instrument must, inter alia,
constitute ‘‘an unconditional promise or order to pay a fixed amount of
money . . . .’’
5
General Statutes § 42a-3-106 (a) provides: ‘‘Except as provided in this
section, for the purposes of section 42a-3-104 (a), a promise or order is
unconditional unless it states (i) an express condition to payment, (ii) that
the promise or order is subject to or governed by another writing, or (iii)
that rights or obligations with respect to the promise or order are stated in
another writing. A reference to another writing does not of itself make the
promise or order conditional.’’
6
See footnote 2 of this opinion.
7
The court stated that it ‘‘is going to find [that] the court reviewed the
documents. The court found that all the documents were in order. It was
modified pursuant to the [Uniform Commercial Code] that allows for modifi-
cation and [the court] denies the motion. The court finds it has subject
matter jurisdiction and denies the motion to dismiss.’’
8
In addition to arguing that the defendant’s contention regarding the
negotiability of the note is incorrect, the plaintiff maintains that it would
have had standing to foreclose the mortgage even if the note were not a
negotiable instrument. Because we conclude that the note was a negotiable
instrument, we need not address this alternative argument.
9
The official comments to § 3-106 (a) of the Uniform Commercial Code
bear out this interpretation. Comment 1 provides in relevant part that ‘‘[f]or
example, a promissory note is not an instrument defined by Section 3-104
if it contains any of the following statements: 1. ‘This note is subject to a
contract of sale dated April 1, 1990 between the payee and maker of this
note.’ 2. ‘This note is subject to a loan and security agreement dated April
1, 1990 between the payee and maker of this note.’ 3. ‘Rights and obligations
of the parties with respect to this note are stated in an agreement dated
April 1, 1990 between the payee and maker of this note.’ . . . The rationale
is that the holder of a negotiable instrument should not be required to
examine another document to determine rights with respect to payment.’’
The American Law Institute, Uniform Commercial Code (2014) § 3-106, com-
ment 1, p. 297; see W & D Acquisition, LLC v. First Union National Bank,
262 Conn. 704, 712–13, 817 A.2d 91 (2003) (official commentary of Uniform
Commercial Code relevant to interpretation of state statute). Each of those
examples presents a situation in which the reference to the collateral docu-
ment is contained within the promissory note itself.
10
Furthermore, contrary to the defendant’s argument on appeal, ‘‘this
vesting [of title in the plaintiff] has occurred pursuant to an authorized
exercise of jurisdiction by the trial court . . . .’’ (Emphasis omitted; internal
quotation marks omitted.) Highgate Condominium Assn., Inc. v. Miller,
supra, 129 Conn. App. 435. The defendant has not challenged the court’s
personal jurisdiction over him and, as explained in part I of this opinion,
the court had subject matter jurisdiction to hear this action.
11
The defendant makes a vague attempt to compare the filing of a motion
to dismiss to the filing of an appeal, which triggers an automatic stay. First,
our rules of practice specifically provide that ‘‘proceedings to enforce or
carry out the judgment or order shall be automatically stayed until the time
to file an appeal has expired’’; Practice Book § 61-11 (a); whereas there is
no such rule of practice for the filing of a motion to dismiss. Moreover, the
automatic tolling of the law days is necessary in the context of filing an
appeal because otherwise defendants would be deprived of their rights to
file a timely appeal and to redeem. See Continental Capital Corp. v. Lazarte,
57 Conn. App. 271, 274, 749 A.2d 646 (2000) (noting that setting law day
within twenty-day appeal period is improper because ‘‘[a] party may not
effectively be deprived of the right to appeal within the twenty days by
having the law day pass within that time, thereby causing a loss of the right
of redemption’’). By contrast, the imposition of an automatic stay for the
filing of a motion to dismiss does not serve any similar procedural safeguards.
Indeed, our case law specifically provides a remedy for defendants who
prevail in jurisdictional challenges that are instituted after the passing of
the law days. See Highgate Condominium Assn., Inc. v. Miller, supra, 129
Conn. App. 435.