The Bank of New York Mellon v. Mazzeo

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THE BANK OF NEW YORK MELLON,
TRUSTEE v. JOHN
MAZZEO ET AL.
(AC 42180)
Keller, Prescott and Harper, Js.
Syllabus
The plaintiff bank, M Co., sought to foreclose a mortgage on certain real
property owned by the defendants J and L. At trial, the court denied
the motion for judgment filed by J and L, which was based on their
claim that M Co. failed to make out a prima facie case because a condition
precedent to foreclosure, namely, notice of default prior to acceleration,
had not been proven. The trial court rendered a judgment of foreclosure
by sale, from which J and L appealed to this court. Held:
1. J and L could not prevail on their claim that M Co. lacked standing, which
was based on their claim that M Co. failed to establish that it was the
holder of the note when it commenced the present action: M Co.’s
production of the original note at trial, as well as the admission into
evidence of the copy of the note through H, a litigation manager for B
Co., the subservicer for the loan securing M Co.’s mortgage to J and L’s
property, raised a presumption that M Co. was the holder of the note,
and it then became the burden of J and L to rebut that presumption in
order to challenge M Co.’s right to enforce the note, which they failed
to do; moreover, even though J and L claimed that the court improperly
admitted into evidence the routing history of the loan, that evidence
was not necessary to prove that M Co. was a holder of the note, as M
Co. produced the note, which was endorsed in blank, and, thus, the
challenge by J and L to the admission of the routing history, even if
valid, did not rebut the presumption that M Co. owned the debt when
this action commenced.
2. The trial court improperly concluded that M Co. proved its prima facie
foreclosure case: even though J and L could not prevail on their claim
that M Co. did not demonstrate that it was the owner of the debt,
M Co. did not prove that all conditions precedent to foreclosure, as
established by the note and mortgage, had been satisfied, specifically,
M Co. did not demonstrate that it provided J and L with notice of default,
as the plain language of the mortgage note required that notices of
default be sent by first class mail, and the default notice admitted into
evidence and H’s accompanying testimony did not provide sufficient
facts for a trier of fact reasonably to infer that the notice was mailed
to J and L; moreover, A Co., the master servicer of the loan, generated
the default notice, and H, as a representative of B Co., the subservicer
for the loan, was not able to testify as to the practices A Co. employed
to generate or mail default notices, and H’s sole basis for claiming that
notice was mailed was the existence of the notice and a screenshot
from A Co.’s servicing platform that included a breach and expiration
date consistent with the date on the default notice; furthermore, H
provided no pertinent details regarding B Co.’s boarding process or
methods of verification, and although H testified that the screenshot
was part of the verification process for the mailing of the default notice,
H lacked personal knowledge of the policies and procedures used to
generate the screenshot; accordingly, the evidence was insufficient to
support the court’s determination that a default notice was sent to J
and L via first class mail, and, thus, M Co. failed to prove a prima facie
foreclosure case.
Argued October 15, 2019—officially released January 21, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield and tried to the court, Hon. Michael
Hartmere, judge trial referee; judgment of foreclosure
by sale, from which the named defendant et al. appealed
to this court. Reversed; judgment directed.
Janine M. Becker, with whom, on the brief, was
Patricia Moore, for the appellants (named defendant
et al.).
Benjamin Staskiewicz, for the appellee (plaintiff).
Opinion
KELLER, J. The defendants, John Mazzeo and Linda
Mazzeo,1 appeal from the judgment of foreclosure by
sale rendered by the trial court in favor of the plaintiff,
The Bank of New York Mellon, formerly known as The
Bank of New York, as Trustee for the Certificateholders
of CWALT, Inc., Alternative Loan Trust 2005-56, Mort-
gage Pass-Through Certificates, Series 2005-56. The
defendants claim that the plaintiff (1) lacked standing
to bring the present action and (2) failed to prove its
prima facie case.2 We disagree with the defendants’ first
claim but agree with the defendants’ second claim and,
accordingly, reverse the judgment of the court.
Following a two day bench trial, the court issued a
memorandum of decision setting forth the following
findings of fact and procedural history: ‘‘On August 17,
2012, the plaintiff . . . filed this foreclosure complaint
against the defendants . . . . On November 3, 2014,
the defendants filed an answer and special defenses
and setoffs.3 . . . The matter was tried to the court
on April 24 and April 25, 2018, subsequent to which the
parties submitted posttrial briefs. Based on the submis-
sions of the parties and the evidence presented at trial,
the court makes the following findings.
‘‘The defendant, John Mazzeo, executed an adjustable
rate note4 dated July 25, 2005, in the amount of $532,000,
originally in favor of Countrywide Bank, a division of
Treasury Bank, N.A. As of August 10, 2012, the date of
the underlying [c]omplaint, the plaintiff was the owner
and holder of the underlying note . . . . The court
examined the original underlying documents during the
trial. The note was secured by an open end mortgage
deed concerning 36 Shady Lane, Monroe, Connecticut
which was recorded on the Monroe land records. Bay-
view Loan Servicing, LLC (Bayview) is the current loan
servicer for the plaintiff. Lauren Haberlan, a litigation
manager for Bayview, testified extensively concerning
Bayview’s business records and how those records are
made, maintained and verified for accuracy in the ordi-
nary and usual course of business. She testified as to
how historical loan servicing records for this loan were
obtained, reviewed and audited for accuracy before
they were incorporated by Bayview as their own busi-
ness records.
‘‘Haberlan testified that the note was signed by defen-
dant John Mazzeo and that the note was endorsed in
blank. The plaintiff received the original note on Sep-
tember 23, 2005, and sent the note to [the] plaintiff’s
counsel, on September 19, 2011. The mortgage deed,
dated July 25, 2005, was signed by the defendants, John
and Linda Mazzeo, and recorded in the Monroe land
records. The mortgage deed secured property located
at 36 Shady Lane, Monroe, Connecticut. An assignment
of mortgage dated August 18, 2011, to the plaintiff also
was recorded on the Monroe land records.
‘‘There were a number of prior loan servicers for this
loan prior to Bayview.5 Bayview was given a limited
power of attorney to act on behalf of the plaintiff.
‘‘The defendants were issued written notices of
default by one of the prior loan servicers, which were
sent to the defendants at the property address. Written
notices of default were sent to the defendants on Janu-
ary 27 and February 16, 2010. Under the terms of the
mortgage deed, notice to one borrower is considered
notice to all borrowers.
‘‘The plaintiff presented a complete loan history, evi-
dence and backup of the debt, and a demonstrative
exhibit detailing the overall debt calculation. All loan
charges, fees and calculations constituting the total
debt were documented. The parties have stipulated that
the fair market value of 36 Shady Lane, Monroe, [Con-
necticut] is $414,000. The testimony and exhibits pre-
sented at trial established a total debt of $892,770.14.
The addition of a per diem interest charge of $82.56
from April 24, 2018, to August 27, 2018, will bring the
total debt to $903,090.14. The court will allow appraisal
fees (three appraisals) in the total amount of $1005 and
a statutory title search fee of $225.
‘‘Thus, the plaintiff established a prima facie case for
foreclosure. The plaintiff established that it is the owner
and holder of the underlying note; that the note is
endorsed in blank; that the plaintiff and or its agents
have been in possession of the original note since prior
to the commencement of this foreclosure action; that
the plaintiff is the current mortgagee of record; that
the plaintiff issued written notices of default to the
defendants; that the defendants failed to cure the under-
lying default; that the plaintiff issued proper [Emer-
gency Mortgage Assistance Program] notices to the
defendants, and that the loan is in default and currently
due for the January 1, 2010 mortgage payment. When
the defendants failed to cure the default, the plaintiff
accelerated the note and began these foreclosure pro-
ceedings.’’ (Footnotes added.)
In its decision, the court found no merit in the defen-
dants’ special defenses and setoffs. The court rendered
a judgment of foreclosure by sale with a sale date to
be set by the court upon resolution of the attorney’s
fees.6 This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendants first claim that the plaintiff lacked
standing to bring the present action. In particular, the
defendants claim that the plaintiff failed to establish
that it was the holder of the note at the time it com-
menced the present action. The plaintiff argues that it
had proved its status as holder and, thus, had standing
to bring the present action, by virtue of its possession
of the note and blank endorsement. We disagree with
the defendants and conclude that the plaintiff had stand-
ing to bring this action.
The following additional facts are relevant to the
disposition of this claim. At trial, the plaintiff’s counsel
produced the original note for review by opposing coun-
sel and the court.7 After the court stated that it had
reviewed the original note, the plaintiff’s counsel
offered for admission into evidence exhibit 7, a copy
of the original note, through its witness Lauren
Haberlan,8 a litigation manager for Bayview, the subser-
vicer for the loan securing the plaintiff’s mortgage to
the defendants’ property. After the court admitted into
evidence the copy of the note, Haberlan testified that
the signature page of the note contained two endorse-
ments, one of which was an endorsement in blank.
Haberlan further testified that the plaintiff was the
holder of the note at the commencement of the action,
which was August 14, 2012. The plaintiff’s counsel also
offered for admission into evidence exhibit 8, a docu-
ment that detailed the routing history for the loan in
question. Once the court admitted into evidence exhibit
8, Haberlan testified, consistent with the information
set forth in the routing history, that ‘‘on [September
23, 2005], the [loan’s] collateral documents were with
[the plaintiff].’’
‘‘The issue of standing implicates the trial court’s
subject matter jurisdiction and therefore presents a
threshold issue for our determination. . . . Standing is
the legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court
unless he [or she] has, in an individual or representative
capacity, some real interest in the cause of action, or
a legal or equitable right, title or interest in the subject
matter of the controversy. . . . [When] a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . In addition,
because standing implicates the court’s subject matter
jurisdiction, the issue of standing is not subject to
waiver and may be raised at any time.9 . . . [T]he
plaintiff ultimately bears the burden of establishing
standing.’’ (Citations omitted; footnote added; internal
quotation marks omitted.) Wells Fargo Bank, N.A. v.
Strong, 149 Conn. App. 384, 397–98, 89 A.3d 392, cert.
denied, 312 Conn. 923, 94 A.3d 1202 (2014).
‘‘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. . . .
When a note is endorsed in blank, any person10 in pos-
session of the note is a holder and is entitled to enforce
the instrument. General Statutes §§ 42a-1-201 (b) (21)
(A), 42a-3-205 (b) and 42a-3-301.’’ (Emphasis omitted;
footnote added; internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Bliss, 159 Conn.
App. 483, 488–89, 124 A.3d 890, cert. denied, 320 Conn.
903, 127 A.3d 186 (2015), cert. denied, U.S. , 136
S. Ct. 2466, 195 L. Ed. 2d 801 (2016).
‘‘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] set up and prove the facts which
limit or change the plaintiff’s rights. . . . The posses-
sion by the bearer of a note [e]ndorsed in blank imports
prima facie [evidence] that he acquired the note in good
faith for value and in the course of business, before
maturity and without notice of any circumstances
impeaching its validity. The production of the note
establishes his case prima facie against the makers and
he may rest there. . . . It [is] for the defendant to set up
and prove the facts which limit or change the plaintiff’s
rights.’’ (Citation omitted; internal quotation marks
omitted.) Id., 489.
In JPMorgan Chase Bank, National Assn. v. Simou-
lidis, 161 Conn. App. 133, 145–46, 126 A.3d 1098 (2015),
cert. denied, 320 Conn. 913, 130 A.3d 266 (2016), this
court elaborated that ‘‘[i]f the foreclosing party pro-
duces a note demonstrating that it is a valid holder of
the note, the court is to presume that the foreclosing
party is the rightful owner of the debt. . . . The
defending party may rebut the presumption that the
holder is the rightful owner of the debt, but bears the
burden to prove that the holder of the note is not the
owner of the debt. . . . This may be done, for example,
by demonstrating that ownership of the debt had passed
to another party. . . . The defending party does not
carry its burden by merely identifying some documen-
tary lacuna in the chain of title that might give rise to
the possibility that a party other than the foreclosing
party owns the debt. . . . To rebut the presumption
that the holder of a note endorsed specifically or to
bearer is the rightful owner of the debt, the defending
party must prove that another party is the owner of the
note and debt. . . . Without such proof, the foreclosing
party may rest its standing to foreclose the mortgage on
its status as the holder of the note.’’ (Citations omitted;
emphasis in original.)
Here, the plaintiff’s production of the note at trial,
as well as the introduction into evidence of the copy
of the note through Haberlan, raised the presumption
that the plaintiff was the valid holder of the note. See
U.S. Bank, N.A. v. Ugrin, 150 Conn. App. 393, 403–404,
91 A.3d 924 (2014) (plaintiff’s production of original
note at trial was prima facie evidence that plaintiff was
holder of note and had standing); Deutsche Bank
National Trust Co. v. Bliss, supra, 159 Conn. App.
494–95 (plaintiff’s production of copy of note, together
with witness testimony, was prima facie evidence that
plaintiff was holder of note and had standing); Equity
One, Inc. v. Shivers, 310 Conn. 119, 131, 74 A.3d 1225
(2013) (plaintiff’s production of copy of note endorsed
in blank, certified copy of mortgage, and assignment of
note and mortgage to plaintiff was prima facie evidence
that plaintiff was holder of note and had standing).
Once the plaintiff produced the note, endorsed in
blank at trial, it became the defendants’ burden to rebut
that presumption and to challenge the plaintiff’s right
to enforce the note. The defendants do not directly
challenge the plaintiff’s production of the note as a
means of proving standing but, rather, claim that with-
out the admission into evidence of the routing history
in exhibit 8, the plaintiff was not able to prove that it
was the holder of the note on the date the action was
commenced. The defendants purport that ‘‘[t]he [r]out-
ing [h]istory was the only documentary evidence which
suggest[ed] that [the plaintiff] was the holder of the
[n]ote at the time the action was commenced.’’11 The
defendants challenge the admission of the routing his-
tory on the basis that, over the objection of the defen-
dants’ counsel, the court improperly admitted it pursu-
ant to the business records exception to the hearsay
rule. We disagree with the defendants’ assertion that
the admission into evidence of the routing history was
necessary to prove that the plaintiff was the holder
of the note. In making this argument, the defendants
neglect to acknowledge that the plaintiff’s production
of the note endorsed in blank raised a presumption that
it was the holder of the note, and the defendants then
bore the burden of rebutting that presumption. The
contents of the routing history merely supported the
plaintiff’s position that it was the holder of the note at
the time the action was commenced. Thus, the defen-
dants’ challenge to the admissibility of the routing his-
tory, even if valid, does not rebut the presumption that
arose by virtue of the evidence that the plaintiff had
possession of the note endorsed in blank at the time
of trial.
Therefore, we need not reach the defendants’ con-
tention regarding the admission of the routing history
because, even if the defendants are correct in their
assertion that the routing history should not have been
admitted into evidence, that argument would in no way
aid them in rebutting the presumption raised by the
plaintiff’s production of the note. Specifically, the
absence of the routing history would not aid the defen-
dants in demonstrating that a party other than the plain-
tiff was the holder of the note at the time the action
was commenced. The plaintiff contends, and we agree,
that the defendants’ present argument is wholly focused
on the admission of the routing history and overlooks
other critical evidence, namely, the production of the
original note endorsed in blank and the admission into
evidence of the copy of the original note and the
endorsement. Throughout the two day trial, the defen-
dants did not offer any evidence to rebut the presump-
tion that the plaintiff, as the holder of the note, owned
the underlying debt at the commencement of the action
in August, 2012. See HSBC Bank USA, N.A. v. Navin,
129 Conn. App. 707, 712, 22 A.3d 647 (plaintiff was
deemed to have standing because defendants offered
no evidence challenging plaintiff’s assertion that it pos-
sessed the note at the commencement of the action),
cert. denied, 302 Conn. 948, 31 A.3d 384 (2011); Chase
Home Finance, LLC v. Fequiere, 119 Conn. App. 570,
578, 989 A.2d 606 (plaintiff’s presentation of note
endorsed in blank established plaintiff’s standing in
foreclosure action when defendant ‘‘failed to present
even a scintilla of evidence demonstrating that the plain-
tiff was not in possession of the promissory note’’ at
the commencement of the action), cert. denied, 295
Conn. 922, 991 A.2d 564 (2010). Therefore, the plaintiff
had standing to bring this foreclosure action because
the plaintiff presented unrebutted evidence that gave
rise to a presumption that it was the owner of the debt
at the time the action was commenced.
II
Next, the defendants claim that the plaintiff failed to
prove its prima facie case. Specifically, the defendants
claim that the plaintiff failed to prove that (1) it was
the owner and holder of the note and mortgage and (2)
any conditions precedent to foreclosure, as established
by the note and mortgage, had been satisfied. With
respect to the second contention, in particular, the
defendants claim that the plaintiff did not provide the
defendants with notice of default, as required by the
note and mortgage. We disagree with the defendants’
first claim but agree with their second claim, and,
accordingly, reverse.
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and the mort-
gage, have been satisfied.’’ (Internal quotation marks
omitted.) Wells Fargo Bank, N.A. v. Strong, supra, 149
Conn. App. 392.
‘‘In order to establish a prima facie case, the propo-
nent must submit evidence which, if credited, is suffi-
cient to establish the fact or facts which it is adduced
to prove.’’ (Emphasis omitted; internal quotation marks
omitted.) New England Savings Bank v. Bedford Realty
Corp., 246 Conn. 594, 608, 717 A.2d 713 (1998).
‘‘[W]hether the plaintiff has established a prima facie
case is a question of law, over which our review is
plenary.’’ (Internal quotation marks omitted.) John H.
Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn.
App. 599, 605, 821 A.2d 774, cert. denied, 264 Conn. 919,
828 A.2d 617 (2003). In conducting a plenary review
‘‘we must decide whether [the court’s] conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Stepney Pond Estates, Ltd. v. Monroe,
260 Conn. 406, 417, 797 A.2d 494 (2002). ‘‘We conduct
that plenary review, however, in light of the trial court’s
findings of fact, which we will not overturn unless they
are clearly erroneous.’’ (Internal quotation marks omit-
ted.) Seymour v. Region One Board of Education, 274
Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016,
126 S. Ct. 659, 163 L. Ed. 2d. 526 (2005).
‘‘A finding of fact is clearly erroneous when [either]
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Id.
Therefore, ‘‘[u]nder the clearly erroneous standard of
review, a finding of fact must stand if, on the basis
of the evidence before the court and the reasonable
inferences to be drawn from that evidence, a trier of
fact reasonably could have found as it did.’’ (Internal
quotation marks omitted.) McBurney v. Paquin, 302
Conn. 359, 368, 28 A.3d 272 (2011).
A
First, we address whether the plaintiff proved that it
was the owner of the note.
‘‘Being the holder of a note satisfies the plaintiff’s
burden of demonstrating that it is the owner of the note
because under our law, the note holder is presumed to
be the owner of the debt, and unless the presumption
is rebutted, may foreclose the mortgage . . . . The
possession by the bearer of a note [e]ndorsed in blank
imports prima facie [evidence] that he acquired the note
in good faith for value and in the course of business,
before maturity and without notice of any circum-
stances impeaching its validity. The production of the
note [endorsed in blank] establishes [the possessor’s]
case prima facie against the makers and he may rest
there. . . . It [is] for the defendant to set up and prove
the facts which limit or change the plaintiff’s rights.’’
(Citation omitted; internal quotation marks omitted.)
American Home Mortgage Servicing, Inc. v. Reilly, 157
Conn. App. 127, 133, 117 A.3d 500, cert. denied, 317
Conn. 915, 117 A.3d 854 (2015).
On the basis of our resolution of the claim discussed
in part I of this opinion, we reject the defendants’ claim
that the plaintiff did not demonstrate that it was the
owner of the debt because the defendants failed to
present evidence to rebut the presumption that, as the
holder of the note, the plaintiff owned the debt.
As we observe in part I of this opinion, the plaintiff
established, through the production of the note, that it
was the holder of the note. Therefore, following the
reasoning of this court in American Home Mortgage
Servicing, Inc. v. Reilly, supra, 157 Conn. App. 127, the
plaintiff, as the note holder, also is presumed to be the
owner of the debt. Further, as explained in part I of
this opinion, the defendants in no way rebutted that
presumption. Accordingly, we reject the defendants’
assertion that the plaintiff failed to present evidence to
support its prima facie case with regard to ownership
of the note and mortgage.
B
We next address the defendants’ claim that the plain-
tiff failed to establish a prima facie case because it
failed to prove that a condition precedent to foreclosure
had been satisfied. The condition precedent at issue in
the present action involves sections 7 and 8 of the
mortgage note, which require that, upon default, the
plaintiff provide the defendants with notice of default
prior to acceleration.12 In its complaint, the plaintiff
alleged that it provided the defendants with written
notice of default in accordance with the note and mort-
gage. In their answer, the defendants neither admitted
nor denied that the plaintiff provided them with such
notice and left the plaintiff to its proof.
The following additional facts are relevant to this
portion of the defendants’ claim. At trial, the plaintiff
offered for admission into evidence exhibit 17, which
is a default notice addressed to one of the defendants,
John Mazzeo, at 36 Shady Lane, Monroe, Connecticut.
The default notice was dated February 16, 2010. The
last page of exhibit 17 also contained a screenshot from
Bank of America’s mortgaging servicing platform
(screenshot). The screenshot included information
regarding the loan in question, including a breach date
of February 16, 2010, and an expiration date. The plain-
tiff offered exhibit 17 into evidence through Haberlan.
Exhibit 17 was admitted over the objection of the defen-
dants’ counsel that the exhibit did not qualify under
the business records exception to the rule against the
admission of hearsay evidence because Haberlan could
not testify that the document was made at or about the
time of the date that appeared on the notice. The court
overruled the objection, stating that the exhibit had
been established to be a business record of Bayview,
Haberlan’s employer.13
Following the admission into evidence of exhibit 17,
Haberlan testified that the default notice in question
was mailed first class mail to John Mazzeo at the subject
property of 36 Shady Lane, Monroe, Connecticut. On
cross-examination, however, she testified that she did
not have direct knowledge of whether the notice was
properly stamped and placed in a mailbox or handed
over to the postal service, but, rather, that she based her
assertion that the notice was mailed on the existence
of the notice itself and the accompanying screenshot.
She further testified, ‘‘I have no reason to believe they
were not mailed out. . . . [T]hat’s industry standard
for any time anyone doesn’t pay on anything.’’ Haberlan
also testified that she had no firsthand personal knowl-
edge of Bank of America’s process for generating notice
of default letters. The following exchange then occurred
between the defendants’ counsel and Haberlan:
‘‘Q. You have no personal knowledge as you sit here
today of whether or not Bank of America Home Loans
ever mailed [the default notice]?
‘‘A. Other than the review of our business records.
‘‘Q. But what in your business record would have
revealed whether or not that letter ever in fact got
mailed by Bank of America Home Loans?
‘‘A. The fact that they exist. They don’t create them
not to mail them out.’’
On redirect examination, Haberlan further testified
that Bayview conducts a verification process of the
documents it loads into its system during the boarding
process.14 She noted that the screenshot was the way
by which Bayview verified that the default notice was
in fact mailed by the prior servicer, Bank of America.
Following the plaintiff’s case in chief, the defendants’
counsel moved for a judgment in favor of the defen-
dants, arguing that the plaintiff failed to make out a
prima facie case because a condition precedent to fore-
closure, namely, notice of default prior to acceleration,
had not been proven. The defendants’ counsel based
her argument on the fact that there was ‘‘testimony that
[the default notice] was created and generated, but [the
plaintiff is] missing a link regarding [Bank of America’s]
procedures in generating the letter to putting it in the
postbox, which is the requirement under the law.’’ The
plaintiff’s counsel responded that the breach date on
the screenshot was proof of mailing of the default notice
because ‘‘the way that you breach a loan is you issue
a letter of default.’’ The court subsequently ruled on the
defendants’ motion: ‘‘I’ll deny the motion for judgment
based on all of the evidence introduced. The plaintiff
has produced sufficient evidence to make out a prima
facie case including the notices to the defendants of
default. And again, that’s based upon the testimony
which we’ve heard.’’
This court has recognized that ‘‘[t]he right of a mort-
gagee to initiate a foreclosure action against a defaulting
debtor depends on the mortgagee’s compliance with the
notice provisions contained in the mortgage.’’ Mortgage
Electronic Registration Systems, Inc. v. Goduto, 110
Conn. App. 367, 368, 955 A.2d 544, cert. denied, 289
Conn. 956, 961 A.2d 420 (2008); see also Fidelity Bank
v. Krenisky, 72 Conn. App. 700, 707, 807 A.2d 968, cert.
denied, 262 Conn. 915, 811 A.2d 1291 (2002); Citicorp
Mortgage, Inc. v. Porto, 41 Conn. App. 598, 602, 677
A.2d 10 (1996). ‘‘The intent of such notice of default
provisions is to inform mortgagors of their rights so
that they may act to protect them.’’ (Internal quotation
marks omitted.) Aurora Loan Services, LLC v. Con-
dron, 181 Conn. App. 248, 263, 186 A.3d 708 (2018).
Here, the plain language of the mortgage note
requires that notice of default be sent to the borrowers15
prior to acceleration. See footnote 12 of this opinion.
As stated previously in footnote 12 of this opinion, sec-
tion 8 of the note at issue requires that notices of default
be sent by first class mail. This court has previously
held that ‘‘[f]irst class mail enjoys a presumption of
actual delivery,’’ meaning that when the notice is placed
in the mail, delivery is presumed and the sender need
not confirm actual receipt. Id., 268. Similarly, the ‘‘mail-
box rule,’’ a general principle of contract law, provides
that ‘‘a properly stamped and addressed letter that is
placed into a mailbox or handed over to the United
States Postal Service raises a rebuttable presumption
that it will be received.’’ Echavarria v. National Grange
Mutual Ins. Co., 275 Conn. 408, 418, 880 A.2d 882
(2005).
Therefore, in the present case, the issue is whether
the court properly found that the plaintiff proved,
through exhibit 17 and Haberlan’s testimony, that the
default notice was actually placed in the mail.
According to our Supreme Court: ‘‘That a letter was
duly deposited in a mail box may be proved either by
direct or circumstantial evidence. It may be proved by
the testimony of the person who deposited it or by
proof of facts from which it may be reasonably inferred
that it was duly deposited. . . . Any other rule would
ignore the realities of today’s business practice.’’ (Cita-
tion omitted.) Kerin v. Udolf, 165 Conn. 264, 268, 334
A.2d 434 (1973). In interpreting this language, however,
courts have concluded that the direct or circumstantial
evidence to be provided in the form of testimony are
sufficient when given by a witness with personal knowl-
edge of the mailing procedures in question. In Kerin,
our Supreme Court held that, in an action on a promis-
sory note, the defendant proved, through circumstantial
evidence, that he had mailed an installment check prior
to the default period. Id., 265, 268. Specifically, ‘‘the
defendant and [his employee] both testified that it was
customary for [the defendant] to give [his employee]
letters to be mailed so that [the employee] could stamp
them and deposit them in the mail box. It was further
testified that this customary procedure was followed
[at the time the letter was allegedly mailed].’’ Id., 266,
268. Similarly, in State v. Morelli, 25 Conn. App. 605,
610–11, 595 A.2d 932 (1991), this court relied on circum-
stantial evidence in the form of witness testimony to
hold that a police station had mailed to the defendant
the results of a series of breath tests. In particular, a
police officer employed by the Wilton Police Depart-
ment that administered the tests and mailed the results
testified that it was the department’s ‘‘course of habit’’
to mail test results to the subject of the test. (Internal
quotation marks omitted.) Id., 610; see also State v.
Dedominicis, Superior Court, judicial district of New
Britain, Docket No. MV-XX-XXXXXXX (October 21, 2002)
(33 Conn. L. Rptr. 298) (circumstantial evidence from
witness who testified that he supervised established
practice in lab of mailing test results led court to infer
that state met its burden of proving that results were
mailed.)
In the present case, exhibit 17 and Haberlan’s accom-
panying testimony did not provide sufficient facts for
a trier of fact to reasonably infer that the default notice
was mailed to the defendants. Haberlan, as a representa-
tive of Bayview, was not able to testify as to the particu-
lar practices used by Bank of America to generate
default notices, or to mail default notices. Although she
testified that she was ‘‘familiar with industry stan-
dards,’’ she admitted that she was not familiar with
the default notice practices used by Bank of America.
Unlike the testifying witnesses in Kerin and Morelli,
Haberlan was not able to testify that it was ‘‘customary’’
or the ‘‘course of habit’’ for Bank of America to mail
default notices following the generation of such notices
because she had no personal knowledge of Bank of
America’s specific procedures or policies. Her sole
basis for claiming that the default notice was mailed
to the defendants was the mere existence of the notice
and accompanying screenshot, and the fact that they
had been boarded into Bayview’s system when Bayview
became the loan subservicer. Haberlan testified that
Bayview’s boarding process verifies the loan documents
and the alleged actions to which they refer, however,
she provided the court with no pertinent details regard-
ing the boarding process or its methods of verification.
See footnote 13. She testified that the verification pro-
cess sometimes consists of ‘‘system notes’’ and mailing
‘‘logs,’’ however, she referred the court to no such items
in this instance. Rather, she testified, in a rather circular
fashion, that, in this case, the screenshot was part of
the verification process for the mailing of the default
notice because the screenshot contained an expiration
date and breach date consistent with the date on the
default notice. Haberlan, however, admitted that she
lacked personal knowledge of the policies and proce-
dures used to generate the screenshot. Therefore, her
reliance on the screenshot to prove Bayview’s verifica-
tion process is insufficient evidence of Bank of America
having mailed the default notice to the defendants.
In applying the clearly erroneous standard of review,
we find that the evidence was insufficient to support
the court’s determination that Bank of America had
mailed the default notice to the defendants. Accord-
ingly, because it was a condition precedent of the note
that the plaintiff provide the defendants with notice of
default via first class mail, the plaintiff failed to prove
a prima facie foreclosure case.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendants.
In this opinion the other judges concurred.
1
The complaint named as defendants, in addition to John Mazzeo and
Linda Mazzeo, the state Department of Revenue Services and the United
States Internal Revenue Service, each of which had asserted tax liens against
the property. Those defendants, however, are not parties to the appeal, and
references in this opinion to the defendants are to John Mazzeo and Linda
Mazzeo, who are husband and wife.
2
The defendants make four separate claims of error in their brief, which
we have condensed to two claims. We have interpreted the second claim
(‘‘Did the court err in finding that the plaintiff established that it is the
current owner and holder of the underlying note and that the plaintiff has
been in possession of the note since prior to the commencement of the
foreclosure action?’’), as one challenging whether the plaintiff had standing
to commence the underlying foreclosure action and whether the plaintiff
established a prima facie case.
We also have combined the third claim (‘‘Was it error for the court to
allow the admission of exhibit 8, the ‘routing history’ of the note?’’), with
the claim related to standing.
Finally, we have combined the fourth claim (‘‘Did the court err in finding
that the plaintiff provided written notice of default to the defendants?’’),
with the claim related to whether the plaintiff established a prima facie case.
3
The defendants asserted the following special defenses and setoffs: ‘‘(1)
The plaintiff’s action is barred by its violations of the provisions of [the
Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.] and the
Dodd-Frank Wall Street Reform and Consumer Protection Act, [Pub. L. No.
111-203, 124 Stat. 1376-2223 (2010)].
‘‘(2) The plaintiff’s action is barred and/or the defendants are entitled to
a setoff due to the charging of unnecessary fees and charges.
‘‘(3) The plaintiff’s action is barred in that its assignor and/or agents
engaged in unfair lending practices.
‘‘(4) The plaintiff’s action is barred by unclean hands in that its predecessor
disregarded underwriting standards and implemented fraud in the making
of the loan and mortgage.’’
4
The note was a negative amortization note, meaning that as the defen-
dants paid off portions of the principal and interest every month, the out-
standing balance due on the note increased instead of decreased.
5
Bank of America Home Loans (Bank of America) serviced the defendants’
loan prior to Bayview, and remains the master servicer for the loan. Bayview
is the subservicer.
6
A judgment ordering a foreclosure by sale is a final judgment for purposes
of appeal even if the court has not set a date for the sale. Willow Funding Co.,
L.P. v. Grencom Associates, 63 Conn. App. 832, 837–38, 779 A.2d 174 (2001).
7
At trial, the plaintiff’s counsel stated: ‘‘I have the original note, original
mortgage and certified assignment of mortgage. I have shown such to oppos-
ing counsel and I’ve agreed with her that I’m going to be submitting copies
as . . . exhibits in this matter but I wanted to give Your Honor the opportu-
nity to review the original documents themselves.’’ The court replied, ‘‘I’ve
reviewed the documents. They appear to be in order.’’
8
Following a voir dire of Haberlan, the defendants’ counsel objected to
the admission of exhibit 7, the copy of the note. The objections of the
defendants’ counsel were not based on any specific evidentiary grounds.
Rather, the defendants’ counsel stated that ‘‘I have no objection to the
introduction of the original note subject again to the plaintiff being able to
tie up that they’re the person entitled to enforce the note.’’ Counsel also
stated, ‘‘I’m going to object at this point because we do not know who the
owner of the note is.’’
9
The defendants did not raise the issue of standing at trial.
10
Pursuant to General Statutes § 42a-1-201 (b) (27), a ‘‘[p]erson’’ is defined
as ‘‘an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, government, govern-
mental subdivision, agency or instrumentality, public corporation or any
other legal or commercial entity.’’
11
Moreover, there was a representation made to the trial court pursuant
to Equity One, Inc. v. Shivers, supra, 310 Conn. 132–33, that the office of
the plaintiff’s counsel was in possession of the original note endorsed in
blank for the benefit of its client prior to the commencement of this action.
‘‘In the absence of any fact based challenge to counsel’s representation,
such reliance was proper . . . because the plaintiff’s counsel is an officer
of the court . . . .’’ Id., 133. There was also testimony from Josephine Lewis,
an employee of the office of the plaintiff’s counsel, that the original note
was received by the law firm on September 23, 2011, which was approxi-
mately one year before the case was brought.
12
Section 7 (C) of the note, titled ‘‘Notice of Default,’’ provides: ‘‘If I am
in default, the Note Holder may send me a written notice telling me that if
I do not pay the overdue amount by a certain date, the Note Holder may
require me to pay immediately the full amount of Principal that has not
been paid and all the interest that I owe on that amount. The date must be
at least 30 days after the date on which the notice is mailed to me or
delivered by other means.’’
Further, Section 8 of the note, titled ‘‘GIVING OF NOTICES,’’ provides:
‘‘Unless applicable law requires a different method, any notice that must
be given to me under this Note will be given by delivering it or by mailing
it by first class mail to me . . . . Unless the Note Holder requires a different
method, any notice that must be given to the Note Holder under this Note
will be given by delivering it or by mailing it by first class mail . . . .’’
13
Although the default notice and accompanying mortgage servicing plat-
form screenshot were generated by Bank of America, the plaintiff’s counsel
established that Haberlan’s employer, Bayview, had access to these docu-
ments, as well as others, through the boarding process that occurs between
a master servicer (in this case, Bank of America) and a subservicer (in this
case, Bayview). The following exchange occurred between the plaintiff’s
counsel and Haberlan:
‘‘Q. And when you had a circumstance when a loan is transferred from
one servicer to another, does the transferring servicer have a duty to transfer
a copy of a document such as this to the new servicer on or about the time
of the transfer per industry custom and standard?’’
‘‘A. Yes.’’
Haberlan described the boarding process as follows: ‘‘Boarding is where
. . . we merge and adopt the previous loan servicer’s information into our
system of records, which then creates one singular record. We have two
main areas that are involved, which is loan setup and operations. Loan setup
would handle mapping, which is where we take raw data from the previous
servicer and input it into a standardized format and operations handles
testing and data validation. Testing is where the loan is checked for accuracy
and completeness, checks and balances along with reconciliations occur as
does due diligence and if anytime during that process we find any errors
or discrepancies with the loan, we place it aside for further review, reach
back out to the previous servicer and if the issue cannot be rectified the
loan will not be boarded. Data validation is where the final phase of testing
occurs so that we can ensure the loan is validated as such and accurate.
Once that is completed the loan is then boarded onto the system, given a
specific Bayview Loan number and distributed amongst the different depart-
ments to be worked and then we also send out a welcome letter at that point.’’
14
The following exchange occurred between the plaintiff’s counsel and
Haberlan:
‘‘Q. During the boarding process Bayview’s employees would look at prior
loan notes, prior loan histories and items like that to verify that the actions
alleged to be taken by that prior servicer were actually done, would they not?
‘‘A. Yes.’’
The following additional exchange occurred between the plaintiff’s coun-
sel and Haberlan:
‘‘Q. Please tell me your understanding about the boarding process and
the verification process used in particular for default letters and other
correspondence sent on a loan?
‘‘A. So they’re going to verify that the address is correct, that the borrower
[is] correct, that the amounts are correct, the dates and even sometimes
the language in the breach letters. If there are system notes those will be
verified as well stating sometimes there [are] logs that say this was mailed
out on this particular day. In this particular instance on this loan we have
that screenshot that’s attached to the back of the letter that says it was on
this date with this expiration date with this amount due with this loan
number. So that would be part of the verification process.’’
15
Section 15 of the mortgage deed in question, titled ‘‘Notices,’’ provides
in relevant part: ‘‘Notice to any one Borrower shall constitute notice to all
Borrowers unless Applicable Law expressly requires otherwise.’’