Wells Fargo Bank, N.A. v. Caldrello

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WELLS FARGO BANK, N.A. v. SANDRA CALDRELLO
(AC 41074)
Keller, Elgo and Harper, Js.
Syllabus
The plaintiff bank, W Co., sought to foreclose a mortgage on certain real
property owned by the defendant, who had executed a promissory note
in the amount of $480,000 in favor of S Co., which was secured by a
mortgage on the subject property. In its complaint, W Co. alleged that
it was entitled to collect the debt evidenced by the note and to enforce
the mortgage as S Co.’s successor by merger, that the defendant was
in default on her obligations under the note and that it had exercised
its right to accelerate the debt. The defendant filed an answer and a
thirty-two count revised counterclaim, alleging, inter alia, violations of
the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.)
and the Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq.). The trial
court granted the plaintiff’s motion to strike the revised counterclaim,
striking the CUTPA and TILA counts on ground that the applicable
statutes of limitations barred those claims. Thereafter, W Co. filed a
motion for summary judgment as to liability and presented to the court
the original promissory note, which had not been endorsed and remained
payable to S Co., and the recorded mortgage. In support of its motion,
W Co. submitted an affidavit from S, its vice president for loan documen-
tation, who, on the basis of her examination of W Co.’s business records,
averred that following the execution of the note and mortgage, S Co.
merged and changed its name to M Co., that M Co. converted to F Co.
and that F Co. merged into W Co., thereby making W Co. the successor
by merger to S Co. and the holder of the subject note. S attached to
her affidavit supporting documentation. The plaintiff also submitted an
affidavit of H, its implementation consultant, who, on the basis of his
examination of W Co.’s business records, averred that W Co. was prop-
erly identified on the loan transfer history as the investor entity that
owned the defendant’s note. The defendant filed an objection to the
motion for summary judgment asserting that W Co. failed to provide
any documents that proved that it had met its burden to prove standing.
The defendant’s primary argument concerned a transaction whereby S
Co. transferred or sold the note to its subsidiary, L Co. She asserted
that M Co. could not have reacquired ownership of the note without L
Co. having first endorsed the note and that there was no endorsement
attached to the note at the time W Co. commenced the foreclosure
action. In her affidavit in support of her objection, the defendant averred,
inter alia, that she had personal knowledge of W Co.’s lack of standing.
The trial court granted W Co.’s motion for summary judgment as to
liability, concluding that W Co.’s affidavits and attached documentation
had established that it was the successor to S Co. and entitled to enforce
the note, and that the defendant’s submissions in opposition to the
motion lacked an adequate evidentiary foundation. Thereafter, W Co.
filed a notice of supplemental document production that included a
copy of the note with an allonge blank endorsement. The defendant
then filed a motion for summary judgment, challenging W Co.’s standing
on the basis of the note endorsed in blank. She renewed her claim that
L Co. could not have transferred the note back to M Co. without an
endorsement. The trial court denied the defendant’s motion for summary
judgment, treating it as a motion to reargue. The defendant subsequently
filed a cross motion for summary judgment and a motion for a new
trial, again requesting that the court address the reasons for W Co.’s
endorsement of the note in blank, which she considered to be newly
discovered evidence that undermined W Co.’s standing as the holder of
the note at the time the foreclosure action was commenced. The defen-
dant also filed an application for issuance of subpoenas for two witness,
who had signed affidavits of debt on behalf of W Co., stating that she
was seeking information related to the blank endorsement. Thereafter,
the trial court, held a hearing on W Co.’s motion for a judgment of strict
foreclosure, during which it marked off the defendant’s cross motion
for summary judgment, motion for a new trial and application for subpoe-
nas. The trial court then rendered a judgment of strict foreclosure, and
the defendant appealed to this court. Held:
1. The defendant could not prevail on her claim that the trial court erred
in concluding that no genuine issue of material fact existed with respect
to W Co.’s standing and in rendering summary judgment as to liability
in W Co.’s favor: W Co. met its evidentiary burden and raised the pre-
sumption that it was the holder of the note and rightful owner of the
debt, as the production of the original note, W Co.’s detailed affidavits,
and statutory and case law established that W Co. was the successor
to S Co. and entitled to enforce the note, the undisputed evidence having
indicated that after L Co. converted to a limited liability company and
transferred the note back to M Co., M Co. maintained its status as holder
of the note when it reacquired the note pursuant to statute (§ 42a-3-
207), and the later possession of the note by any successor in title to
S Co., including W Co., entitled the successor to stand in the shoes of
S Co. and to assume its rights as holder of the note, and, under federal
banking law (12 U.S.C. § 215a [e]), all of S Co.’s rights in the note
automatically transferred to W Co. without the need for any endorse-
ment; moreover, the defendant’s submissions in opposition to W Co.’s
motion for summary judgment failed to satisfy her burden to rebut, with
competent evidence, the presumption that W Co., as the holder of the
note, was also the rightful owner of the debt and had standing to bring
the action, as she failed to establish an adequate foundation to support
the admission of her personal interpretation of the various banking
documents that she referred to in her affidavit or that were submitted
by her in opposition to the motion, and she presented no evidence that
some entity other than W Co. owned the note at the time this action
was commenced or at any time thereafter.
2. This court declined to review the defendant’s claim that, after the trial
court granted W Co.’s motion for summary judgment with respect to
liability but prior to the time that it rendered the judgment of strict
foreclosure, it deprived her of her right to conduct additional discovery
and her right to a new trial: the record was inadequate to review the
defendant’s claim that she was denied a new trial, as the trial court
marked off her cross motion for summary judgment and her motion for
a new trial, and, therefore, there was no ruling on the motion for a new
trial for this court to review, and the defendant failed to provide this
court with a transcript of the proceedings related to the trial court’s
denial of her motion for summary judgment; moreover, the defendant
failed to adequately brief or to provide an adequate record for review
of her claim that she was denied discovery in order to properly under-
mine W Co.’s claim of standing as a result of the attachment of the
blank endorsement to the subject note after summary judgment was
rendered in favor of W Co.
3. The defendant’s claim that the trial court erred in striking the counts of
her counterclaim alleging CUTPA and TILA violations was not review-
able, the defendant having failed to brief that claim adequately; the
portions of the defendant’s principal and reply briefs that address the
stricken counts of her counterclaim under CUTPA and TILA failed to
address, much less analyze, the standard of review with respect to
motions to strike, the application of the second limitation to the rule
that a statute of limitations must be pleaded as a special defense, or
the precise nature of the allegations pleaded in her revised counterclaim
that rendered her claims legally sufficient to refute the court’s conclusion
that the statutes of limitations relevant to her TILA and CUTPA claims
had expired, and she improperly alluded to additional facts concerning
an alleged denial of her right to a mortgage modification or other relief
programs as a violation of CUTPA, which were not alleged in the
revised counterclaim.
Argued February 5—officially released August 20, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district of
New London, where the defendant filed a counterclaim;
thereafter, the court, Cosgrove, J., granted the plaintiff’s
motion to strike the defendant’s revised counterclaim;
subsequently, the court granted the plaintiff’s motion
for summary judgment as to liability; thereafter, the
court, Hon. Joseph Q. Koletsky, judge trial referee,
denied the defendant’s motion for summary judgment;
subsequently, the court, Calmar, J., granted the plain-
tiff’s motion for a judgment of strict foreclosure and
rendered judgment thereon; thereafter, the court,
Calmar, J., denied the defendant’s motion to open the
judgment, and the defendant appealed to this court.
Affirmed.
Sandra Caldrello, self-represented, the appellant
(defendant).
William J. Hanlon, with whom, on the brief, was
David M. Bizar, for the appellee (plaintiff).
Opinion
KELLER, J. The self-represented defendant,1 Sandra
Caldrello, appeals from the judgment of strict foreclo-
sure rendered in favor of the plaintiff, Wells Fargo Bank,
N.A. The defendant claims that2 (1) the court erred in
concluding that a genuine issue of material fact did not
exist with respect to the plaintiff’s standing to foreclose
the mortgage and rendering summary judgment as to
liability in favor of the plaintiff, (2) after the court
granted the motion for summary judgment with respect
to liability but prior to the time that it rendered judg-
ment of strict foreclosure, the court deprived her of
her right to conduct additional discovery and her right
to a new trial related to the fact that, following the
rendition of summary judgment, the plaintiff attached
a blank endorsement to the note at issue in this action,
and (3) the court erred in granting the plaintiff’s motion
to strike two counts of her counterclaim alleging viola-
tions of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., and the
Truth in Lending Act (TILA),3 15 U.S.C. § 1601 et seq.
We affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On September 12, 2012,
the plaintiff commenced this foreclosure action. The
complaint alleged that on February 9, 2007, the defen-
dant signed a promissory note in the amount of $480,000
in favor of the World Savings Bank, FSB (World Sav-
ings). The note was secured with a mortgage on prop-
erty owned by the defendant known as 939 Pequot
Avenue in New London. The plaintiff alleged that it was
the party entitled to collect the debt evidenced by the
note and the party entitled to enforce the mortgage, as
it is the successor by merger to the original mortgagee,
World Savings, that the defendant was in default on her
obligations under the note, and that it had exercised
its right to accelerate the debt and to commence this
action.
Prior to rendering summary judgment as to liability
in favor of the plaintiff, the court, Cosgrove, J.,4 granted
the plaintiff’s motion to strike the defendant’s revised
counterclaim. The circuitous procedural journey to the
striking of the defendant’s counterclaim commenced
on February 11, 2015, when the defendant filed her first
of many sets of counterclaims and associated ‘‘supple-
ments’’ and ‘‘addenda.’’ On May 20, 2015, after the plain-
tiff had previously filed a series of requests for the
defendant to revise her counterclaim, the defendant
filed a revised counterclaim containing thirty-two
counts.
On August 4, 2015, the plaintiff moved to strike all
thirty-two counts of the revised counterclaim. On Octo-
ber 23, 2015, the defendant filed a ‘‘Defendant’s Adden-
dum to Counterclaims.’’ The plaintiff moved to strike
the addendum, arguing that the defendant had failed
to satisfy the requirements of Practice Book § 10-60
and had improperly amended her revised counterclaim.
Judge Cosgrove granted the plaintiff’s motion to strike
the addendum on December 4, 2015, simultaneously
overruling the defendant’s objection to the plaintiff’s
motion to strike her addendum.
On January 5, 2016, Judge Cosgrove issued a memo-
randum of decision striking the defendant’s revised
counterclaim. On January 20, 2016, the defendant filed
a counterclaim containing thirty-one repleaded counts.
The plaintiff again moved to strike all of the counts
of the counterclaim. On May 3, 2016, Judge Cosgrove
granted in part the plaintiff’s motion, striking all but
one of the defendant’s repleaded counts as legally insuf-
ficient or as asserting claims on which relief may not
be granted in the form of a judgment on a counterclaim.
The court did not strike count twenty-nine, however,
which alleged breach of contract.5
In its January 5, 2016 memorandum of decision, the
court agreed with the plaintiff’s argument that in ruling
on the motion to strike, it could address the plaintiff’s
argument that the statutes of limitations applicable to
the CUTPA and TILA causes of action barred those
claims. Although a claim that an action is barred by
the lapse of the statute of limitations usually must be
pleaded as a special defense, and not raised by a motion
to strike; see Forbes v. Ballaro, 31 Conn. App. 235, 239,
624 A.2d 389 (1993); see also Practice Book § 10-50; the
court determined that the issues in this case met one
of the two limited situations where the use of a motion
to strike to raise the defense of the statute of limitations
is permissible. See Forbes v. Ballaro, supra, 239–40
(‘‘where a statute gives a right of action which did not
exist at common law, and fixes the time within which
the right must be enforced, the time fixed is a limitation
or condition attached to the right—it is a limitation of
the liability itself as created, and not of the remedy
alone’’ [internal quotation marks omitted]).
Noting that the execution of the note and mortgage
occurred on February 9, 2007, Judge Cosgrove, after
reviewing the defendant’s myriad allegations pertaining
to violations of the two statutes,6 determined that
‘‘[c]ounts eight through ten [of the counterclaim] allege
inaccurate material disclosures, as opposed to a failure
to provide material disclosures [and], therefore, the
defendant’s right to rescind expired three years from
the date of consummation or delivery of all material
disclosures. While counts eight through ten allege inac-
curate material disclosures, count seven alleges that
the closing agent failed to provide copies of the signed
closing documents. Even taking this fact in the light
most favorable to the defendant—that the closing agent
is an agent of the plaintiff and the closing documents
are material disclosures as defined by 12 C.F.R.
§ 1026.23 (a) (3) (ii)—the defendant’s claim is still
barred by 15 U.S.C. § 1635 (f)’s statute of limitation[s].7
The [defendant] fails to allege any facts in [counts]
seven or thirty regarding the transfer of all of the defen-
dant’s interest in the property or the sale of the property,
so the date of consummation remains the time measure.
More than three years elapsed between February 9,
2007 and August 31, 2012. Further, while the defendant
alleged that she has the right of rescission under recoup-
ment pursuant to TILA, she has not alleged recoupment
as a matter of defense, pursuant to 15 U.S.C. § 1640 (e),
but rather, as a counterclaim. Finally, equitable tolling
does not apply to [count] thirty because ‘[§] 1635 (f)
completely extinguishes the right of rescission at the
end of the [three] year period.’ Beach v. Ocwen Federal
Bank, [523 U.S. 410, 412, 118 S. Ct. 1408, 140 L. Ed. 2d 566
(1998)].’’ (Footnote added.) Judge Cosgrove concluded
that the statute of limitations pursuant to TILA expired
on February 9, 2010. He applied the same expiration
date in striking counts eight through ten alleging CUTPA
violations, noting that CUTPA, a statutory cause of
action that did not exist at common law, also has a
limitation period of three years after the occurrence of
a violation. See General Statutes § 42-110g (f). Judge
Cosgrove further concluded that the defendant had
failed to plead facts sufficient to demonstrate fraudu-
lent concealment, which might otherwise toll the stat-
ute of limitations.
On January 20, 2016, the defendant filed a thirty-one
count amended counterclaim, which she corrected by
changing a date, on January 25, 2016. The plaintiff again
moved to strike the counterclaim. Judge Cosgrove
struck all of the counts of the amended counterclaim
except a single breach of contract claim, agreeing with
the plaintiff that the legal insufficiencies in the defen-
dant’s prior counterclaim had not been cured and that
the defendant improperly had used her opportunity of
pleading over pursuant to Practice Book § 10-44 to add
additional claims.8
On June 15, 2016, the plaintiff filed a motion for
summary judgment as to liability on its complaint and
as to the defendant’s counterclaim for breach of con-
tract. In its memorandum of law in support of the
motion, the plaintiff argued that there were no genuine
issues of material fact regarding the defendant’s liability
under the note and the mortgage, and that summary
judgment was proper because the defendant’s counter-
claim was legally insufficient.
During the course of this litigation, the plaintiff pre-
sented to the court and to the defendant the original
promissory note and the recorded mortgage. The origi-
nal note is an adjustable rate mortgage note, ‘‘pick-a-
payment’’ loan signed by the defendant and payable
to World Savings. Prior to the rendering of summary
judgment, the original note had not been endorsed in
any manner and remained payable by its express terms
to ‘‘[World Savings], a federal savings bank, its succes-
sor and/or assignees, or anyone to whom this Note is
transferred.’’ The recorded mortgage references this
promissory note.
In support of its motion for summary judgment as to
liability, the plaintiff submitted an affidavit from Shae
Smith, the vice president for loan documentation for
the plaintiff. In her affidavit, Smith averred that she is
familiar with the business records maintained by the
plaintiff, which records were made at or near the time
of the event recorded by the plaintiff, that it was a
regular practice for the plaintiff to make those records
and that her knowledge was acquired from the examina-
tion of these business records. Smith stated that the
defendant executed and delivered an adjustable rate
mortgage note dated February 9, 2007, in the amount
of $480,000 to World Savings. She further stated that the
plaintiff is the successor by merger to the mortgagee.
Specifically, Smith stated that on December 31, 2007,
ten months after the making of the note and mortgage,
World Savings merged and changed its name to
Wachovia Mortgage, FSB (Wachovia). This transaction
is documented by correspondence annexed to Smith’s
affidavit from the Office of Thrift Supervision within
the United States Department of the Treasury. Smith
further stated, on the basis of her examination of the
plaintiff’s business records, that, on November 1, 2009,
Wachovia converted to a National Bank named Wells
Fargo Bank, Southwest, N.A., and that on the same date
Wells Fargo Bank Southwest, N.A., merged into Wells
Fargo Bank, N.A., the plaintiff in this action. These
conversions of corporate names and status were docu-
mented by correspondence from the Office of the
Comptroller of the Currency annexed to the affidavit.
Smith further averred that the plaintiff’s attorney was
in possession of the note at the time this litigation was
commenced and that the note had been in default since
December, 2011. Also annexed to Smith’s affidavit was
a copy of a ‘‘Notice to Cure and Intent to Accelerate’’
document sent to the defendant. Finally, Smith stated
that the plaintiff had not received funds sufficient to
cure the default on the defendant’s promissory note.
Given that the plaintiff claimed to hold the note by
virtue of a series of corporate mergers, name changes
and conversions, the plaintiff provided an additional
affidavit from Paul Hoff, the plaintiff’s implementation
consultant, to support its motion for summary judg-
ment. Hoff averred that his affidavit was based on his
examination of the business records maintained by the
plaintiff and, specifically, his interpretation of the elec-
tronic records relating to the defendant’s February 9,
2007 note and mortgage to World Savings. Hoff con-
cluded that the plaintiff is properly identified on the
loan transfer history as the investor entity that owned
the defendant’s note.
In its memorandum of law in support of its motion
for summary judgment, the plaintiff argued that it had
established with competent evidence a prima facie case
of liability in a mortgage foreclosure action through the
affidavits of Smith and Hoff, and the documentation
attached to them, which established that (1) there was
a loan, evidenced by the note, payable to World Savings;
(2) the plaintiff was and, since prior to the commence-
ment of the foreclosure action, had been the party enti-
tled to collect the debt evidenced by that note; (3) the
defendant was in default; and (4) the indebtedness due
under the note had been accelerated. The plaintiff
asserted that it had standing to foreclose on the mort-
gage because, as evidenced by the Hoff affidavit and
its supporting exhibits, the plaintiff not only was in
possession of the original note, but had the rights of
the original holder of the note, World Savings, by opera-
tion of the federal merger statute, 12 U.S.C. § 215a
(e) 2006.9
In her objection to the plaintiff’s motion for summary
judgment, relevant to standing, the defendant argued
that the plaintiff failed to provide any documents that
proved it was the owner of the note and had not met
its burden to prove standing. She claimed that the plain-
tiff was defrauding the court with false assertions of
ownership of the note. She questioned whether the affi-
ants, Smith and Hoff, actually had personal knowledge
of the facts to which they had attested.10 Her primary
argument concerned a transaction whereby World Sav-
ings transferred or sold the note to its subsidiary, World
Loan Company (World Loan), on May 3, 2007. She
asserted that Wachovia, which formerly was known as
World Savings, could not have reacquired ownership
of the note without World Loan having first endorsed
the note, and that there was no endorsement attached
to the note at the time the plaintiff commenced the
foreclosure action. She also claimed that there was no
evidence that World Savings or Wachovia had trans-
ferred the note. She further argued that the Federal
Home Loan Bank of San Francisco took title to and
owned the note by virtue of a Uniform Commercial
Code financing statement, which was filed to establish
a security interest in the assets of World Loan. The
defendant argued, as well, that she had received a letter
on May 2, 2012, from the plaintiff’s counsel, stating in
relevant part: ‘‘This office has been retained by
Wachovia Mortgage, a Division of [the plaintiff], the
mortgage servicer of the above-referenced mortgage
loan, to commence a foreclosure.’’ On the basis of this
letter, the defendant claimed that the plaintiff did not
own the note because ‘‘the foreclosure was requested
by Wachovia . . . with [the plaintiff] named as the
servicer.’’
The plaintiff argued that the transfers between World
Savings and its subsidiary, World Loan, did not affect
its standing to enforce the note because after World
Loan converted from a corporation to a limited liability
company, World Loan Company, LLC, it transferred
the note back to World Savings, which was renamed
Wachovia, in 2009. Thus, the plaintiff argued, Wachovia
maintained World Savings’ status as a holder upon reac-
quiring the note from World Loan under Connecticut
law pursuant to General Statutes § 42a-3-207.11 The
plaintiff also argued that when Wachovia, the renamed
original payee of the note, converted and changed its
name to Wells Fargo Bank Southwest, N.A., and on the
same day, Wells Fargo Bank Southwest, N.A., merged
into the plaintiff, the plaintiff, under the federal merger
statute, obtained all of World Savings’ rights in the note
without need of an endorsement.
After considering the defendant’s objection to the
plaintiff’s motion for summary judgment as to liability,
Judge Cosgrove granted the motion, concluding that
‘‘[i]n this case, the plaintiff has provided to the court
. . . the original note executed by the defendant. It is
not endorsed but it need not be endorsed if the plaintiff
can demonstrate that [it] is the corporate successor to
the original mortgage[e], [World Savings]. The plaintiff’s
affidavits and cited statutes and case law establish that
it is the successor to [World Savings] and entitled to
enforce the note. . . . There is no dispute that the note
has not been paid in accordance with it terms and
that the defendant was give[n] notice of the intent to
accelerate the debt.’’ The court observed that the defen-
dant’s submissions in opposition to the motion for sum-
mary judgment, despite lacking an adequate evidentiary
foundation to be considered, nonetheless ‘‘would be
consistent with the plaintiff’s affidavits.’’12 (Emphasis
omitted.)
Before the court rendered the judgment of strict fore-
closure, the plaintiff filed a ‘‘Notice of Supplemental
Document Production’’ on June 22, 2017, that included
a copy of the note with an allonge blank endorsement
dated February 8, 2017. The defendant, asserting that
this recent endorsement was an attempt by the plaintiff
to circumvent what she considered to be a valid objec-
tion to its standing (based on her allegation that the
note, as a matter of law, needed an endorsement
because at one point it had been sold by World Savings
to its subsidiary, World Loan), filed a motion for sum-
mary judgment. Therein, she renewed her claim that
World Loan Company, LLC, could not have transferred
the note back to Wachovia without an endorsement.13
In this motion, relative to standing, she referred to an
affidavit of debt supplied by Diane F. Duckett, which
was filed in court on April 20, 2017, and which indicated
that the note was now endorsed in blank. She accused
the plaintiff of fraud and deceit in order to fabricate a
ground on which it had standing. The plaintiff filed
an objection on June 22, 2017, noting that after Judge
Cosgrove had rendered summary judgment in its favor,
the plaintiff recalled the note from its foreclosure coun-
sel, endorsed it in blank and returned it to foreclosure
counsel. This sequence of events is described in an
amended affidavit of debt by Kimberly A. Mueggenberg
that was attached to the plaintiff’s objection. The plain-
tiff also argued that all of the issues raised in the defen-
dant’s motion for summary judgment dated May 8, 2017,
already had been adjudicated by Judge Cosgrove in that
they had been raised in the defendant’s objection to
the plaintiff’s motion for summary judgment as to liabil-
ity or in a motion for reconsideration of his order filed
by the defendant on December 22, 2016, which had
been denied by Judge Cosgrove on January 9, 2017.
On August 17, 2017, the court, Hon. Joseph Q. Kolet-
sky, judge trial referee, denied the defendant’s motion
for summary judgment dated May 8, 2017, stating, ‘‘[t]he
motion termed ‘Motion for Summary Judgment’ is
denied. A previously granted motion to reargue occa-
sioned the hearing of August 17, 2017, at which it
became apparent that the self-represented defendant’s
motion was in reality an attempt to reargue a summary
judgment granted by Cosgrove, J., in favor of plaintiff
. . . . Notwithstanding the procedural irregularities,
the court heard extensive presentations from both par-
ties. The court is of the opinion that the motion for
summary judgment was correctly decided the first
time.’’
Subsequent to Judge Koletsky’s decision, the defen-
dant filed a cross motion for summary judgment and a
motion for a new trial, again demanding that the court
address the reasons for the plaintiff’s endorsement of
the note in blank, which she considered to be newly
discovered evidence that undermined the plaintiff’s
standing as the holder of the note at the time the foreclo-
sure action was commenced.
Prior to the hearing on the plaintiff’s motion for a
judgment of strict foreclosure, the defendant applied,
pursuant to Practice Book § 7-19, for issuance of sub-
poenas directed at the plaintiff’s lawyers. Before the
plaintiff could file its objection to the defendant’s sub-
poena request, the court granted it. The plaintiff sought
reconsideration and moved to quash the subpoenas.
The court, Nazzaro, J., conducted a hearing on April
24, 2017, and granted the plaintiff’s motions to recon-
sider and to quash on May 8, 2017.
After the plaintiff reclaimed its motion for a judgment
of strict foreclosure, the court set a hearing date of
August 14, 2017. The defendant filed another request to
subpoena the plaintiff’s lawyers. Judge Cosgrove denied
her subpoena request but rescheduled the August 14
hearing for September 11, 2017. On September 6, 2017,
the defendant filed a third application for the issuance
of subpoenas directed at two out-of-state witnesses,
Duckett and Mueggenberg, who both signed affidavits
of debt on behalf of the plaintiff, and which were filed
in support of its motion for a judgment of strict foreclo-
sure. The defendant stated that she was seeking infor-
mation on the ‘‘surprise’’ blank endorsement that was
first mentioned in Duckett’s affidavit that had been filed
in court on April 20, 2017.
During the hearing on the plaintiff’s motion for a
judgment of strict foreclosure on September 11, 2017,
counsel for the plaintiff represented to the court,
Calmar, J., that the plaintiff had ‘‘[p]ulled back’’ the
note from counsel, endorsed it in blank, and returned
it to counsel, and that counsel had informed Judge
Koletsky about the endorsement before he denied the
defendant’s motion for summary judgment. Judge
Koletsky determined that the defendant’s motion for
summary judgment was, in reality, an attempt to reargue
the summary judgment that had been rendered in the
plaintiff’s favor by Judge Cosgrove. The defendant
claimed she had not become aware of the endorsement
until June 22, 2017.14 After determining that Judge Kolet-
sky had been made aware of the issue concerning the
newly attached endorsement to the note, Judge Calmar
marked the defendant’s cross motion for summary judg-
ment and her motion for a new trial off, ruling, ‘‘[a]s
to the cross motion for summary judgment and the
motion for a new trial, no action is necessary because
there is no issue. First of all, Judge Koletsky had denied
essentially a motion to reargue, so [the issue of liability
is] resolved. And there’s, therefore, no basis to have a
motion for summary judgment pending. And whereas
[the motion for a new trial] also was a motion to reargue
effectively as to the issue of liability, he essentially
denied a motion to retry the issues.’’ Judge Calmar
also marked off as moot the defendant’s application for
subpoenas for Duckett and Mueggenberg because the
application was part of an effort to explore the issue
of the creation of the blank endorsement, which he
believed Judge Koletsky had addressed.
Judge Calmar then proceeded to conduct an eviden-
tiary hearing on the plaintiff’s motion for a judgment
of strict foreclosure. He granted the plaintiff’s motion
on September 11, 2017.
On September 21, 2017, the defendant filed a motion
to open the judgment of strict foreclosure. The court
denied the motion, noting that the ‘‘[d]efendant lacks
good cause to open and vacate this court’s judgment
of strict foreclosure. She asserts the same arguments
that this court has repeatedly rejected in denying [the]
defendant’s motion to dismiss, three motions for sum-
mary judgment, as well as in a myriad of other motions
and filings. [The] defendant cannot challenge issues
that have already been decided.’’15 This appeal followed.
Additional facts and procedural history will be set
forth as necessary.
I
The defendant’s first claim is that the court erred in
concluding that a genuine issue of material fact did not
exist with respect to the plaintiff’s standing to foreclose
the mortgage and the rendering of summary judgment
as to liability in its favor. We disagree.
We begin with our standard of review. ‘‘Summary
judgment shall be rendered forthwith if the pleadings,
affidavits and 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.
. . . The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. . . . When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Marchesi
v. Board of Selectmen, 309 Conn. 608, 620, 72 A.3d 394
(2013). ‘‘In deciding a motion for summary judgment,
the trial court must view evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material fact which,
under applicable principles of substantive law, entitle
him to judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact.’’ (Internal quotation marks omit-
ted.) CitiMortgage, Inc. v. Coolbeth, 147 Conn. App.
183, 190–91, 81 A.3d 1189 (2013), cert. denied, 311 Conn.
925, 86 A.3d 469 (2014). This court’s review of a trial
court’s decision to grant a motion for summary judg-
ment is plenary. Id., 191.
Evidence, for the purposes of a summary judgment
motion, means affidavits made upon personal knowl-
edge of ‘‘such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is compe-
tent to testify to the matters stated therein.’’ Practice
Book § 17-46. Any other material submitted in support
of or opposition to the motion must demonstrate that
the proffer would be admissible under the rules of evi-
dence. ‘‘The movant has the burden of showing the
nonexistence of such issues but the evidence thus pre-
sented, if otherwise sufficient, is not rebutted by the
bald statement that an issue of fact does exist. . . . To
oppose a motion for summary judgment successfully,
the nonmovant must recite specific facts . . . which
contradict those stated in the movant’s affidavits and
documents.’’ (Internal quotation marks omitted.) Bank
of America, N.A. v. Aubut, 167 Conn. App. 347, 358,
143 A.3d 638 (2016).
To make out a prima facie case in a mortgage foreclo-
sure action, the foreclosing party must show ‘‘that it is
the owner of the note and mortgage, that the defendant
mortgagor has defaulted on the note and that any condi-
tions precedent to foreclosure, as established by the
note and mortgage, have been satisfied.’’ (Internal quo-
tation marks omitted.) Wells Fargo Bank, N.A. v.
Strong, 149 Conn. App. 384, 392, 89 A.3d 392, cert.
denied, 312 Conn. 923, 94 A.3d 1202 (2014).
‘‘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.’’ (Internal quo-
tation marks omitted.) Bysiewicz v. DiNardo, 298
Conn. 748, 758, 6 A.3d 726 (2010). ‘‘A determination
regarding a trial court’s subject matter jurisdiction is a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Firstenb-
erg v. Madigan, 188 Conn. App. 724, 730, 205 A.3d
716 (2019).
The original note before Judge Cosgrove was unen-
dorsed and payable to the plaintiff’s predecessor, World
Savings. The defendant asserts that five years before
this action was commenced, the note was sold by the
World Savings to its subsidiary, World Loan. According
to the defendant, the plaintiff bore the burden of proving
that it owned the note when it commenced this action
by presenting evidence that the original note was sold
back to its parent corporation. This would have required
the attachment of a specific endorsement from World
Loan Company, LLC, back to one of the plaintiff’s
merged predecessors, World Savings, Wachovia, or
Wells Fargo Bank Southwest, N.A., or the plaintiff, or
by the attachment of a blank endorsement.
The defendant cites to a variety of different cases in
her appellate brief in an attempt to support her argu-
ment. For example, the defendant cites to a decision of
the Florida Supreme Court, Wright v. JPMorgan Chase
Bank, N.A., 169 So. 3d 251 (Fla. 2015), in support of
her contention that ownership of a note by a subsidiary
does not give a parent corporation, which is a distinct
legal entity, the right to enforce the note absent evi-
dence that the parent corporation acquired such a right
through, for example, a purchase or servicing agree-
ment. The facts of that case, however, are markedly
different from the present case. In Wright, the court
concluded that there was no evidence of any transfer
from the wholly owned subsidiary of JPMorgan Chase
Bank, N.A., Chase Bank, USA, N.A., back to its parent
corporation. Id. Here, however, the plaintiff presented
undisputed evidence of a transfer from the subsidiary,
World Loan Company, LLC, back to the parent corpora-
tion, Wachovia.
The affidavit of the plaintiff’s implementation consul-
tant, Hoff, filed with the plaintiff’s motion for summary
judgment, explains the history of the note subsequent
to its February 9, 2007 execution and refers to exhibits
annexed to Hoff’s affidavit. Hoff reviewed the plaintiff’s
business records and established the corporate and
transactional history—a history that the plaintiff claims
the defendant failed to rebut with any admissible evi-
dence of her own.
Hoff discussed the history of both the note and the
mergers that resulted in the plaintiff’s right to assert
ownership of the note, averring: ‘‘The note was assigned
loan number *******4985. . . . In the regular course of
business, [the plaintiff] maintains an electronic record
relating to the note called the Loan Transfer History
and it is [the plaintiff’s] practice to update this record
at or near the time of the event recorded.16 . . . In the
regular course of its business, [the plaintiff] maintains
the Investor/Category Matrix, which is used to code
events recorded in the Loan Transfer History.17 . . .
On November 19, 2007, [World Savings] changed its
name to [Wachovia]. On November 1, 2009, [Wachovia]
changed its name to Wells Fargo Bank Southwest, FSB,
and merged into [the plaintiff]. These entities were con-
sistently coded as investor ‘010’ on the Investor/Cate-
gory Matrix. . . . On the Investor/Category Matrix,
[World Loan] and its successors in interest have been
assigned the Asset Investor Number of ‘050’. . . . [O]n
December 31, 2008, [World Loan] converted from a
corporation to a limited liability corporation. These
entities were consistently coded as investor ‘010’ on
the Invertor/category Matrix. . . . On the Investor/Cat-
egory Matrix, the assignment of an asset investor num-
ber indicates that the investor has maintained owner-
ship of the loan. Similarly, the entity and its successor
in interest identified in the ‘Risk’ column indicate own-
ership of the loan. ‘Non-asset investor numbers’ are
assigned when the loan is securitized or transferred to
a non-affiliated third party. . . . On May 3, 2007, [World
Savings] transferred the note to [World Loan]. This
transfer was recorded in the Loan Transfer History
relating to the Note on the line marked ‘5/03/07’ and
bearing the description ‘sale to [World Loan]’ in the
field for ‘additional transfer information.’ The entry on
the Loan Transfer History dated 05/03/07 shows an old
investor (‘Old INV’) of ‘010’ and a new investor (‘New
Inv’) of ‘050’, i.e. a transfer from [World Savings] to
[World Loan]. . . . The 1/23/09 entry reversed the 05/
03/07 transfer. The 01/23/09 entry on the Loan Transfer
History shows an old investor . . . of ‘050’ and a new
investor . . . of ‘010, i.e., a transfer from World Loan
Company LLC, [formerly known as World Loan]18 to
[Wachovia]. The 01/23/09 entry also displays the nota-
tion ‘Maint Investor’ in the field for ‘additional transfer
information,’ which means the Loan Transfer History
record is being maintained, and the field of the Loan
Transfer History being maintained is the identity of the
investor. . . . The 01/28/09 entry ‘Maint Service Fee
and Investor Loan’ indicates the elimination of a servic-
ing fee, which is consistent with the transfer of owner-
ship from the World Loan Company [LLC] subsidiary
to its corporate parent/servicer. . . . On the Loan
Transfer History record each of the entries following
01/23/09 identify the investor as ‘010’, which is [World
Savings] and its successors in interest. [The plaintiff]
has been [World Savings’] successor in interest since
November 1, 2009. . . . [The plaintiff] is properly iden-
tified on the Loan Transfer History as the ‘investor’,
which is the entity that owns the note.’’ (Emphasis
added; footnotes added.)
In Judge Cosgrove’s memorandum of decision on the
plaintiff’s motion for summary judgment, he noted that
the plaintiff previously had produced for the court’s
review the original unendorsed note, which was made
payable to its corporate predecessor, World Savings.
Smith’s affidavit stated that, on or about May 2, 2012,
the plaintiff transferred possession of the note to its
attorney in order to initiate this action. In its complaint,
the plaintiff alleged that on or before May 2, 2012, it
‘‘became and at all times since then has been the party
entitled to collect the debt evidenced by said note and
is the party entitled to enforce said mortgage.’’
With respect to the defendant’s documentary submis-
sions in opposition to summary judgment, in an affidavit
dated August 15, 2016, the defendant claimed to have
personal knowledge of the plaintiff’s lack of standing as
‘‘the note was clearly sold and transferred to numerous
parties all the while lacking endorsement essential to
prove ownership.’’ Appended to her affidavit, but not
specifically referenced therein, are numerous other
documents. The defendant appended the acceleration
and notice of default letter that she received prior to
the commencement of this action. She asserted that
the letter, written on behalf of ‘‘Wachovia Mortgage, a
Division of Wells Fargo Bank, NA, the mortgage ser-
vicer,’’ proved that the plaintiff did not own the note
because the foreclosure was requested by Wachovia
with the plaintiff named as the servicer. The letter,
apparently sent to the defendant by the plaintiff’s coun-
sel, however, is not evidence concerning whether the
plaintiff owned the note. Moreover, by its terms, the
letter clearly reflects that ‘‘Wachovia Mortgage, a Divi-
sion of Wells Fargo Bank, N.A.,’’ was the entity initiating
the foreclosure action. The defendant also alleged that
the plaintiff did not acquire the assets of World Loan,
but this is not material because Hoff’s affidavit states
that the plaintiff had acquired the assets of Wachovia
on November 1, 2009, after World Loan Company, LLC,
formerly known as World Loan, transferred the note
back to Wachovia on January 23, 2009. There was evi-
dence that, on November 1, 2009, about nine months
after the transfer of the note back to Wachovia,
Wachovia merged into the plaintiff.
The defendant also presented evidence to demon-
strate that the Federal Home Loan Bank of San Fran-
cisco (Federal Home) took title to and owned the note,
which she claims had been securitized, by virtue of a
Uniform Commercial Code financing statement, but
such a statement is filed to establish a security interest
in the assets of World Loan. The defendant is unable
to demonstrate that having a security interest in collat-
eral is the equivalent of taking title to the underlying
collateral. See Fidelity Mutual Life Ins. Co. v. Harris
Trust & Savings Bank, 71 F.3d 1306, 1309 (7th Cir.
1995) (‘‘[a] security interest is not only not title; it is
not a possessory interest’’). The financing statement
serves as notice to third parties of Federal Home’s secu-
rity interest in World Loan’s assets, but it is not a trans-
fer of assets or a prohibition on transfer. There is no
persuasive evidence to support the defendant’s claim
that World Loan sold the note to Federal Home.
The defendant also claims, in the alternative, that,
absent an endorsement, World Loan Company, LLC,
retained title to the note sold to World Loan by
Wachovia, and that World Loan Company, LLC, had
gone out of business. The plaintiff’s proof of this fact
is a copy of a ‘‘Certificate of Termination’’ from the
Office of the Secretary of State of Texas, which is an
attachment to her objection to the plaintiff’s motion for
summary judgment. This certificate provides that World
Loan Company, LLC, was ‘‘terminated’’ in 2012. As
Judge Cosgrove noted, some of the defendant’s submis-
sions were consistent with the plaintiff’s position. This
document, if legitimate, merely establishes that it is
quite unlikely that World Loan Company, LLC, will make
any claim that it currently owns the note.19
Having thoroughly reviewed the affidavits and other
documentation submitted by the plaintiff in support of
its motion for summary judgment, we are satisfied that
the plaintiff met its evidentiary burden and raised the
presumption that it is the rightful owner of the debt.
The plaintiff demonstrated its standing through affidavit
testimony, documentation of regulatory approvals of
the mergers, and the history of transfers related to the
note, as well as the production of the original note itself.
In showing that it was the successor by merger to the
payee on the note, World Savings, the plaintiff also
became the payee by operation of law and was the
holder and presumptive owner of the note.
The undisputed evidence before the court reflects
that, in 2007, World Savings transferred the note to its
subsidiary, World Loan. After World Loan converted to
a limited liability company, it transferred the note back
to World Savings, then renamed Wachovia, in 2009.20
Wachovia maintained its status as holder because it
reacquired the note pursuant to the Uniform Commer-
cial Code, § 42a-3-207. Under § 42a-3-207, ‘‘[r]eacquisi-
tion of an instrument occurs if it is transferred to a
former holder, by negotiation or otherwise.’’ If the entity
that was the original named payee on the note reac-
quires it, there is no cloud on that entity’s title. See
General Statutes Annotated § 42a-3-207, comment
(West 2018). This statute applied to reestablish
Wachovia, as the holder following the intercorporate
transfer from World Loan Company, LLC, which
resulted in Wachovia’s reacquisition of the note. It
allows a prior holder of a negotiable instrument to
become a person entitled to enforce the instrument
upon reacquiring such instrument without having to
be burdened with any endorsements that might have
occurred between the time of the first undertaking of
liability and the reacquisition of the instrument. Under
§ 42a-3-207, ‘‘[r]eacquisition of an instrument occurs if
it is transferred to a former holder, by negotiation or
otherwise.’’ ‘‘Holder’’ is defined in General Statutes
§ 42a-1-201 (21) (A) as ‘‘[t]he person in possession nego-
tiable instrument that is payable either to bearer or to
an identified person that is the person in possession.’’
As the comment to the Uniform Commercial Code
explains, § 42a-3-207 implements ‘‘a rule of conve-
nience’’ that relieves the reacquirer, a former holder,
of ‘‘the burden of obtaining an indorsement that serves
no substantive purpose.’’ General Statutes Annotated
§ 42a-3-207, comment (West 2018); see also Wells Fargo
Bank, N.A. v. Sheikha, 221 So. 3d 657, 659 (Fla. App.
2017).
Under the circumstances here, the later possession
of the note by any successor in title to World Savings,
including the plaintiff, entitled the successor to stand
in the shoes of World Savings and to assume to the
rights of a holder of the note. Under federal banking law,
all of World Savings’ rights in the note automatically
transferred to the plaintiff without the need for any
endorsement. See 12 U.S.C. § 215a (e). A federal bank
merger transfers to and vests in the surviving bank ‘‘[a]ll
rights, franchises and interests . . . in and to every
type of property (real, personal, and mixed) and choses
in action . . . by virtue of such merger with any deed
or other transfer.’’ Id. These broad transfers by merger
of all rights and interests ‘‘in and to every type of prop-
erty’’ included World Savings’ rights as the note’s
holder. ‘‘[S]uch receiving association shall be deemed
to be the same corporation as each bank or banking
association participating in the merger.’’ Id. After a
merger with a creditor bank, the surviving corporation
stands in the shoes of the original creditor under § 215a
(e) and becomes the note’s owner. By operation of
federal law, the plaintiff became the owner and holder
of both the note and mortgage at the time it merged with
Wachovia,21 which then held the note. No assignment,
document transfer, or court action was necessary for
the plaintiff or Wachovia to acquire the loan and to
enforce it. ‘‘[A]fter a merger with a creditor bank, the
surviving corporation . . . is the original creditor.’’
(Emphasis in original.) Dues v. Capital One, N.A.,
Docket No. 11-CV-11808 (CEB) (E.D. Mich. August 8,
2011); see also Sprague v. Neil, United States District
Court, Docket No. 1:05-CV-1605 (SHR) (M.D. Pa. Octo-
ber 19, 2007) (‘‘By way of merger, Universal Bank trans-
ferred all of its rights and property to Citibank, including
its property interest in [p]laintiff’s debt. Citibank
assumed all rights and property, including [p]laintiff’s
debt, as its own and thus stands in the shoes of the
previous two banks.’’). As the successor to the bank
named as the original payee on the note, the plaintiff
is considered its owner. Hence, the plaintiff, as the
original creditor under the note, has standing to enforce
it and standing to foreclose the mortgage under General
Statutes § 49-17.22
Applying merger principles, numerous courts have
rejected claims similar to that raised by the defendant
and have concluded that the plaintiff is the successor
to Wachovia and World Savings. See, e.g., Park v. Wells
Fargo Bank, United States District Court, Docket No.
C 12-2065 (PHJ) (N.D. Cal. August 13, 2012).
As a result of the plaintiff’s having proven its status
as a holder of the note, the burden shifted to the defen-
dant, as the maker of the note, to rebut the presumption
that the plaintiff, as the holder of the note, was also
the rightful owner of the debt. See JPMorgan Chase
Bank, National Assn. v. Simoulidis, 161 Conn. App.
133, 146–47, 126 A.3d 1098 (2015), cert. denied, 320
Conn. 913, 130 A.3d 266 (2016). ‘‘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 docu-
mentary 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 stand-
ing 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, 150–51,
125 A.3d 262 (2015).
The defendant’s submissions to counter the plaintiff’s
status as the holder of the note and, therefore, its status
as the presumptive owner of the debt, fall short, as she
failed to establish an adequate foundation to support the
admission of her personal interpretation of the various
banking documents she referred to in her affidavit or
that were submitted by her in opposition to the plain-
tiff’s motion for summary judgment. She also presented
no evidence that some entity other than the plaintiff
owned the note at the time this action was commenced
or at any time thereafter.
In summary, the prior production of the original note,
the plaintiff’s detailed affidavits, and statutory and case
law establish that the plaintiff is the successor to World
Savings and entitled to enforce the note. For all the
foregoing reasons, we conclude that the court properly
found that the plaintiff had standing to foreclose on the
note and mortgage in granting the motion for summary
judgment as to liability. The defendant’s submissions
in opposition to summary judgment fail to satisfy her
burden to overcome, with competent evidence, the pre-
sumption that the plaintiff, as the holder of the note,
is also the owner and is entitled to enforce the note.
II
Next, the defendant claims that, after the court
granted the plaintiff’s motion for summary judgment
with respect to liability but prior to the time that it
rendered the judgment of strict foreclosure, it deprived
her of her right to conduct additional discovery and
her right to a new trial related to the fact that, following
the rendition of summary judgment, the plaintiff
attached a blank endorsement to the note at issue in
this action. We will address each aspect of this claim
separately.
A
We first address the defendant’s claim that she was
denied a ‘‘new’’ trial, which we decline to review
because the record is inadequate for review.23
The following additional facts are relevant to this
claim. The defendant filed a motion for summary judg-
ment on May 8, 2017, in which she focused on the
significance of the fact that the note was not endorsed
in favor of the plaintiff. On June 22, 2017, the plaintiff
filed a notice of supplemental document production, in
which it included a copy of the note with an allonge
blank endorsement dated February 8, 2017. When Judge
Koletsky subsequently considered the defendant’s
motion, he treated it as a motion to reargue and, after
a hearing, denied it on August 17, 2017, indicating that
he had heard ‘‘extensive presentations from both
parties.’’
The defendant later filed a motion for a new trial on
September 8, 2017, and a cross motion for summary
judgment on August 24, 2017, both of which focused
on the issue of whether the blank endorsement that the
plaintiff had added to the note, postsummary judgment,
was newly discovered evidence material to the issue
of the plaintiff’s standing. As she did before the trial
court, she asserts on appeal that the emergence of the
blank endorsement raised the suspicion that the plain-
tiff was not the holder of the note when it commenced
the action.
On September 11, 2017, prior to ruling on the plain-
tiff’s motion for a judgment of strict foreclosure, Judge
Calmar addressed the defendant’s motion for a new
trial and her cross motion for summary judgment. After
concluding that Judge Koletsky had been made aware
of and considered the defendant’s claim regarding the
new blank endorsement that had been added to the
note, Judge Calmar marked both the defendant’s cross
motion for summary judgment and her motion for a new
trial off, ruling, ‘‘[a]s to the cross motion for summary
judgment and the motion for a new trial, no action is
necessary because there is no issue. First of all, Judge
Koletsky had denied essentially a motion to reargue,
which he termed a motion to reargue, so liability’s
resolved. And there’s, therefore, no basis to have a
motion for summary judgment pending. And whereas
[the motion for a new trial] also was a motion to reargue
effectively as to the issue of liability, he essentially
denied a motion to retry the issues.’’
As a result of Judge Calmar’s marking these two
motions off, there is no ruling on the motion for a new
trial by Judge Calmar that we can review. The law
of the case, as determined by Judge Calmar, was the
decision of Judge Koletsky denying the defendant’s
motion for summary judgment. The defendant has failed
to provide this court with a transcript of the proceedings
before Judge Koletsky. Whether Judge Calmar was cor-
rect in determining that Judge Koletsky had considered
the defendant’s claim of newly discovered evidence on
the basis of the blank endorsement, or whether Judge
Koletsky properly heard and rejected that claim, cannot
be determined without reviewing the transcript of the
proceedings before Judge Koletsky prior to August, 17,
2017, the date on which he denied the defendant’s
motion. Accordingly, the record is inadequate to review
this particular claim.
B
The defendant also claims that she was denied ‘‘dis-
covery’’ in order to properly undermine the plaintiff’s
claim of standing as a result of the attachment of the
blank endorsement to the plaintiff’s note after summary
judgment was rendered in favor of the plaintiff. We
decline to review this claim because it is inadequately
briefed and unsupported by an adequate record.
In the context of this claim, which is related to the
denial of the defendant’s right to discovery and a new
trial, the defendant refers only to Judge Calmar’s denial
of her application for issuance of subpoenas by a self-
represented party. The plaintiff, in its appellate brief,
has interpreted the defendant’s claim as being related
to this ruling. Presumably, out of an abundance of cau-
tion, the plaintiff has briefed the issue of whether the
court abused its discretion in not permitting the defen-
dant to subpoena its attorneys prior to the hearing on
the motion for a judgment of strict foreclosure. The
denial of those applications, however, are not encom-
passed in the defendant’s stated claim or discussed in
her brief. Moreover, it was two different judges, Judge
Nazzaro, in granting the plaintiff’s motion to quash, and
Judge Cosgrove, in denying her second application for
subpoenas, who denied the defendant’s request to sub-
poena the plaintiff’s attorneys.
In addressing her claim for a denial of ‘‘discovery,’’
the defendant briefly refers to the court’s failure to
allow her to issue subpoenas ‘‘for interrogatories’’ and
then specifically refers only to the transcript of the
hearings on the motion for a judgment of strict foreclo-
sure before Judge Calmar on October 30, 2017, as the
source for this ruling. First, we note that subpoenas
are not used for discovery or for the purpose of posing
interrogatories. Judge Calmar, during the hearing on
the motion for a judgment of strict foreclosure, denied
the defendant’s application to subpoena Duckett and
Mueggenberg as witnesses as ‘‘moot’’ because the
defendant’s request was relevant to the issue concern-
ing the blank endorsement, which he determined Judge
Koletsky already had addressed.
Construing the defendant’s ‘‘discovery’’ claim to
encompass Judge Calmar’s ruling on her September
6, 2017 application for subpoenas, we note that the
rationale for his ruling—that Judge Koletsky had fully
considered her claims as to the late emergence of a
blank endorsement to the note—is not referred to in the
defendant’s brief. The issue of whether Judge Calmar’s
ruling on her application for subpoenas was an abuse
of discretion is not even discussed except for her bare
conclusory assertion that ‘‘the court, in an abuse of
discretion, denied the defendant discovery on the blank
endorsement . . . .’’ We, therefore, conclude that any
claim with respect to the denial of her application for
subpoenas has been inadequately briefed. ‘‘Although
we are solicitous of the rights of pro se litigants . . .
[s]uch a litigant is bound by the same rules . . . and
procedure as those qualified to practice law. . . . [W]e
are not required to review claims that are inadequately
briefed. . . . We consistently have held that [a]nalysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the
issue properly.’’ (Citation omitted; internal quotation
marks omitted.) Thompson v. Rhodes, 125 Conn. App.
649, 651, 10 A.3d 537 (2010); see also Packard v. Pack-
ard, 181 Conn. App. 404, 405 n.3, 186 A.3d 795 (2018).
In addition, as we previously determined relative to
the defendant’s claim regarding the denial of her motion
for a new trial, whether Judge Calmar’s denial of her
application for subpoenas as moot was an abuse of
discretion would necessitate a review of the transcript
of the proceedings that occurred before Judge Koletsky,
and the defendant has failed to provide us with a tran-
script of those proceedings. Because the defendant has
failed to adequately brief her claim or to provide this
court with an adequate record to review it, we are
unable to consider its merits.
III
The defendant’s final claim is that the court erred in
striking two counts of her counterclaim alleging CUTPA
and TILA violations.24 Relying on the reasons explained
and the authority set forth in part II B of this opinion,
we decline to review this claim because it is inade-
quately briefed.
‘‘Claims are . . . inadequately briefed when they
. . . consist of conclusory assertions . . . with no
mention of relevant authority and minimal or no cita-
tions from the record . . . .’’ (Citation omitted; internal
quotation marks omitted.) Electrical Contractors, Inc.
v. Dept. of Education, 303 Conn. 402, 444 n.40, 35 A.3d
188 (2012). ‘‘Analysis, rather than mere abstract asser-
tion, is required in order to avoid abandoning an issue by
failure to brief the issue properly.’’ (Internal quotation
marks omitted.) Artiaco v. Commissioner of Correc-
tion, 180 Conn. App. 243, 248–49, 182 A.3d 1208, cert.
denied, 328 Conn. 931, 184 A.3d 758 (2018).
Those portions of the defendant’s principal and reply
briefs that address the stricken counts of her counter-
claim under CUTPA and TILA fail to address, much less
analyze, the standard of review with respect to motions
to strike, the application of the second limitation to the
rule that a statute of limitations must be pleaded as a
special defense, as set forth in Forbes v. Ballaro, supra,
31 Conn. App. 239, on which the trial court relied, or
the precise nature of the allegations pleaded in her
revised counterclaim that rendered her claims legally
sufficient to refute the court’s conclusion that the stat-
utes of limitations relevant to her TILA and CUTPA
claims had expired. In her principal and reply briefs, the
defendant also improperly alludes to additional facts
concerning an alleged denial of her right to a mortgage
modification or other relief programs as a violation of
CUTPA, which were not alleged in the operative revised
counterclaim.25
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
The defendant was self-represented during the proceedings at trial and
during the present appeal.
2
The defendant makes four separate claims of error in her appellate brief,
but we have combined her first two claims, as they both relate to whether
the plaintiff had standing to initiate the foreclosure action.
3
‘‘[TILA], as amended in particular by the Truth-in-Lending Simplification
Reform Act of 1980, was enacted as part of the Consumer Credit Protection
Act of 1968, and is codified at 15 U.S.C. § 1601 et seq. The purpose of TILA
is to promote the informed use of consumer credit by requiring disclosures
about its terms and cost. See 12 C.F.R. § 1026.1.’’ Cheshire Mortgage Services,
Inc. v. Montes, 223 Conn. 80, 96–97, 612 A.2d 1130 (1992). In order to carry
out this purpose, ‘‘Regulation Z,’’ codified at 12 C.F.R. 226.1 et seq., was
promulgated. Id., 97.
4
Several judges issued relevant rulings in this case. We are identifying
them by name for purposes of clarity.
5
Judge Cosgrove ultimately rendered summary judgment in favor of the
plaintiff on the defendant’s counterclaim alleging breach of contract.
6
See paragraphs 7, 8, 9, 10 and 30 of the defendant’s revised counterclaim.
7
Civil liability under TILA is codified at 15 U.S.C. § 1640 (e), which limits
actions under this section to within one year from the date of the occurrence
of the violation, except in an action to collect the debt that was brought
more than one year from the date of the occurrence of the violation as a
matter of defense by recoupment or set-off in such action. The right of a
person to bring a civil action for liability against a creditor that does not
comply with the requirements imposed by TILA is not a right that existed
at common law. Therefore, Judge Cosgrove concluded that he could consider
the plaintiff’s statute of limitations arguments regarding TILA as to counts
seven through ten and thirty of the counterclaim on its motion to strike.
8
Judge Cosgrove also noted that the defendant had misapprehended the
distinction between counterclaims and special defenses.
9
Title 12 of the United States Code, § 215a (e) provides in relevant part:
‘‘The corporate existence of each of the merging banks or banking associa-
tions participating in such merger shall be merged into and continued in
the receiving association and such receiving association shall be deemed
to be the same corporation as each bank or banking association participating
in the merger. All rights, franchises, and interests of the individual merging
banks or banking associations in and to every type of property (real, per-
sonal, and mixed) and choses in action shall be transferred to and vested
in the receiving association by virtue of such merger without any deed or
other transfer. The receiving association, upon the merger and without any
order or other action on the part of any court or otherwise, shall hold and
enjoy all rights of property, franchises, and interests . . . in the same man-
ner and to the same extent as such rights, franchises, and interests were
held or enjoyed by any one of the merging banks or banking associations
at the time of the merger . . . .’’
10
The defendant filed a motion to strike the affidavits of Smith and Hoff
that were submitted by the plaintiff in support of its motion for summary
judgment. The court denied this motion to strike, citing ‘‘settled law’’ in
Connecticut that affidavits based on a review of business records are prop-
erly relied on by a court to resolve summary judgment issues. See RMS
Residential Properties, LLC v. Miller, 303 Conn. 224, 235–36, 32 A.2d 307
(2011) (‘‘[u]nder General Statutes § 52-180, to be competent to testify, the
affiant need only have personal knowledge of the relevant business records
. . . and not the act, transaction or occurrence recounted therein’’ [citation
omitted; footnote omitted]), overruled in part by J.E. Robert Co. v. Signature
Properties, LLC, 309 Conn. 307, 325 n.8, 71 A.3d 494 (2013); American Home
Mortgage Servicing, Inc. v. Reilly, 157 Conn. App. 127, 136, 117 A.3d 500
(‘‘it is well established that a court may rely on an affidavit when the
affiant acquired personal knowledge from a review of underlying business
records’’), cert. denied, 317 Conn. 915, 117 A.3d 854 (2015). The denial of
the defendant’s motion to strike these affidavits is not challenged on appeal.
11
General Statutes § 42a-3-207 provides: ‘‘Reacquisition of an instrument
occurs if it is transferred to a former holder, by negotiation or otherwise.
A former holder who reacquires the instrument may cancel endorsements
made after the reacquirer first became a holder of the instrument. If the
cancellation causes the instrument to be payable to the reacquirer or to
bearer, the reacquirer may negotiate the instrument. An endorser whose
endorsement is cancelled is discharged, and the discharge is effective against
any subsequent holder.’’
12
In the same memorandum of decision, the court also rendered summary
judgment in favor of the plaintiff on the defendant’s counterclaim for breach
of contract. The propriety of the court’s summary judgment ruling on the
counterclaim for breach of contract is not a subject of this appeal.
13
In its appellate brief, the plaintiff discusses, at length, the defendant’s
vigorous and extensive discovery pursuits in which she sought information
from it related to sale of the note five years before the plaintiff commenced
this action. The plaintiff maintains that, prior to moving for summary judg-
ment, it complied with these efforts by producing documentation as to the
note’s history. Several months prior to the date on which the court heard the
plaintiff’s motion for summary judgment, the court sustained the plaintiff’s
objection to the defendant’s supplemental requests for documents and its
objection to two motions filed by the defendant to compel discovery. In its
first order, the court concluded: ‘‘There has been good faith compliance
with the defendant’s discovery request relating to the financial transaction
at issue.’’ In its memorandum of decision granting the plaintiff’s motion
for summary judgment, the court, in denying the defendant a continuance
requested by affidavit for additional discovery as to the sale of the note in
order to oppose the motion, stated: ‘‘The defendant raises as an additional
issue that the plaintiff has not complied with discovery that she had filed.
This dispute was the subject of numerous motions and hearings before the
court. The court previously indicated that it was satisfied that the plaintiff
had complied with the discovery requests and provided the defendant with
the documentation as to the ownership of her loan. The defendant has not
made a persuasive case now or in the hearings on the prior discovery
motions that information was being withheld improperly.’’
14
The Duckett affidavit, filed on April 20, 2017; the defendant’s motion
for summary judgment dated May 8, 2017; the plaintiff’s objection to it on
June 22, 2017; and the plaintiff’s notice of supplemental document produc-
tion, also filed on June 22, 2017, clearly demonstrate that the defendant was
on notice that there had been a blank endorsement attached to the note
well before Judge Koletsky considered her motion for summary judgment.
The plaintiff maintains that the endorsement did nothing to change the
plaintiff’s status as the holder of the note.
15
The defendant has not appealed from the denial of her motion to open
the judgment.
16
A screenshot of the ‘‘Loan Transfer History’’ is annexed to Hoff’s affidavit
as exhibit B.
17
A copy of the ‘‘Investor/Category Matrix,’’ redacted to show only title,
headings and the investors identified on the ‘‘Loan Transfer History,’’ is
attached to Hoff’s affidavit as exhibit C.
18
There was evidence that, on December 31, 2008, World Loan was
renamed to World Loan Company, LLC.
19
The defendant also attached case law, articles and federal regulations
to her objection to the plaintiff’s motion for summary judgment, which she
asked the court to use in the adjudication of the motion for summary
judgment. It suffices to observe that none of these submissions gives rise
to a genuine issue of material fact as to whether the plaintiff is entitled to
summary judgment in its favor.
20
As a result of the name change, any interest that World Savings had
in the defendant’s note ‘‘inure[d] to the association under its new name
[Wachovia].’’ 12 U.S.C. § 31 (2017).
21
Prior to merging with the plaintiff, Wachovia was converted into Wells
Fargo Bank, Southwest, N.A., which retained Wachovia’s interest in the note
pursuant to 12 C.F.R. § 5.24 (i) (2019).
22
The record reflects that the mortgage has not been assigned to the
plaintiff. Section 49-17, however, ‘‘codifies the well established common-
law principle that the mortgage follows the note, pursuant to which only
the rightful owner of the note has the right to enforce the mortgage. . . .
Our legislature, by adopting § 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.’’ (Citations omitted.) RMS Residential
Properties, LLC v. Miller, 303 Conn. 224, 230, 32 A.3d 307 (2011), overruled
on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn.
307, 325 n.8, 71 A.3d 492 (2013).
23
The defendant’s motion for a new trial is inaptly named because there
never was any trial at all. Moreover, the defendant, in her appellate brief,
asserts that she was denied a new trial on the basis of newly discovered
evidence under General Statutes § 52-270, but she did not file a proper
petition pursuant to that statute.
24
The defendant also claims that the court improperly ‘‘dismissed’’ her
special defenses. Although she filed a series of counterclaims, she never
filed any special defenses, only a disclosure of defenses on February 2,
2015. There are no special defenses included in her answer to the complaint.
Moreover, she does not identify any particular ruling wherein the court
‘‘dismissed’’ her special defenses.
25
The defendant also failed to include copies of the relevant pleadings
and the court’s memorandum of decision striking her counterclaim in her
appendices, in violation of Practice Book § 67-8 (b) (1).