Deutsche Bank National Trust Co. v. Pototschnig

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. HUBERT POTOTSCHNIG ET AL.
(AC 41229)
DiPentima, C. J., and Lavine and Keller, Js.*
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant P, who filed an answer with special defenses and
counterclaims. Thereafter, the plaintiff filed a motion to strike all of the
defendant’s special defenses and counterclaims. Several of the special
defenses challenged the plaintiff’s standing to commence the foreclosure
action. Following an evidentiary hearing, the trial court determined that
the plaintiff had standing and granted the plaintiff’s motion to strike
the special defenses that implicated the plaintiff’s standing and denied
the motion to strike as to the remaining special defenses and all of the
counterclaims. The trial court thereafter rendered judgment in favor of
the plaintiff, from which the defendant appealed to this court. Held:
1. The trial court properly determined that the plaintiff had standing to bring
the foreclosure action; the court found credible evidence demonstrated
that the note had been endorsed in blank prior to the commencement
of the foreclosure action and had been in the plaintiff’s possession until
the time of trial; moreover, the defendant failed to rebut the presumption
that the plaintiff, as holder of the note, was the rightful owner of the
debt, as the court clearly credited testimony regarding when the note
was endorsed and rejected assertions made by the defendant that the
plaintiff was not in possession of the note during a certain time period.
2. Contrary to the defendant’s claim, the trial court properly concluded that
a decision of a New York court did not have preclusive effect under
the doctrines of res judicata and collateral estoppel; the parties in the
present case were not in privity with the parties in the New York case
and the cases involved factually distinct claims and different loans.
3. The defendant’s claim that the trial court erred in failing to consider
whether the trust for which the plaintiff is trustee ever received the
note and mortgage was unavailing; the court did in fact address this
argument in its memorandum of decision on the foreclosure complaint
and clearly rejected it, and the defendant failed to present evidence
sufficient to rebut the presumption that the plaintiff was owner of the
debt and entitled to enforce the terms of the note and mortgage and it
was unclear whether the defendant could even challenge the nature of
the transfer.
4. The trial court did not abuse its discretion in making certain evidentiary
rulings denying certain of the defendant’s motions and requests; it was
not improper for the court to deny the defendant’s motion for leave to
add special defenses as that request was made more than three years
after the commencement of the foreclosure action and only after the
court had granted in part the plaintiff’s motion to strike the defendant’s
special defenses; moreover, the court was within its discretion to deny
the defendant’s requests for deposition commissions in light of the fact
that the defendant failed to show that certain of the proposed individuals
had any knowledge of the note or that the denial hamstrung his ability
to rebut the plaintiff’s presumption of ownership of the note; further-
more, the court properly determined that cease and desist orders of a
New York state agency directed at the original lender that the defendant
sought to introduce into evidence were irrelevant to the issue of standing,
and the defendant did not pursue their admissibility.
Argued January 21—officially released October 6, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Waterbury, where the named defendant filed a counter-
claim; thereafter, the matter was tried to the court,
Roraback, J.; judgment of strict foreclosure, from which
the named defendant appealed to this court. Affirmed.
Randolph E. White, pro hac vice, with whom was
Patrick Zailckas, for the appellant (named defendant).
Brian D. Rich, with whom, on the brief, was Logan
A. Carducci, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant Hubert Pototschnig1
appeals from the judgment of foreclosure rendered by
the trial court in favor of the plaintiff, Deutsche Bank
National Trust Company, as Trustee, for HSI Asset Sec-
uritization Corporation 2005-NC2 Mortgage Pass-
Through Certificates, Series 2005-NC2 (HSI). On appeal,
the defendant claims that the court (1) improperly
determined that the plaintiff had standing to bring the
foreclosure action, (2) failed to follow the decision of
an out of state court, (3) failed to consider whether
the securitized trust, HSI, ever received the note and
mortgage, and (4) abused its discretion in several of
its evidentiary rulings. We affirm the judgment of the
trial court.
At the center of this appeal is the issue of whether
the plaintiff had standing to commence this action. The
trial court twice addressed this issue. First, in ruling
on the plaintiff’s motion to strike the defendant’s special
defenses, the court concluded, following an evidentiary
hearing, that the plaintiff had standing. Later, in its
memorandum of decision on the foreclosure complaint,
the court addressed the issue of standing after noting
that the defendant in his posttrial brief ‘‘largely attempts
to relitigate the question of whether the plaintiff has
standing to bring this action. It is within this court’s
discretion to treat its 2015 hearing decision as the law
of the case with regard to the issue of standing. . . .
Even if this court were to reconsider the question, the
evidence offered at trial was sufficient to establish the
plaintiff’s standing to enforce the note.’’ (Citation omit-
ted.) We agree with the court that the plaintiff had
standing because the facts, as found by the trial court,
establish that an employee of the original lender, New
Century Mortgage Corporation (New Century),
endorsed the note in blank sometime prior to the end
of August, 2005, which preceded both New Century’s
2007 bankruptcy and the transfer of New Century’s
assets to a liquating trust in 2008. There was evidence,
which the trial court credited, that the plaintiff pos-
sessed the note endorsed in blank at the time the fore-
closure action was commenced in 2012.
In its decision on the foreclosure complaint, the court
found the following facts and reached the following
conclusions. ‘‘The plaintiff . . . seeks to foreclose a
mortgage on a Woodbury . . . property owned by the
defendant . . . . In its amended complaint, filed Janu-
ary 28, 2013, the plaintiff alleges that it is the holder of
the promissory note and owner of the mortgage which
are the subject of this lawsuit. The loan documents are
alleged to have been prepared by the original lender,
New Century . . . and executed by the defendant in
connection with a $750,000 loan he received on June
10, 2005. The undisputed evidence at trial was that no
payment has been made on this loan since January
23, 2012.
‘‘On September 24, 2014, the defendant filed his fourth
amended answer, asserting ten special defenses and
three counterclaims. On November 10, 2014, the plain-
tiff moved to strike all of the special defenses and coun-
terclaims. Several of the special defenses challenged
the plaintiff’s standing, thereby implicating the court’s
subject matter jurisdiction. In the fourth special
defense, the defendant alleged that the plaintiff is an
improper party, and in the sixth and seventh special
defenses, the defendant alleged that the assignments
of the mortgage by [New Century] to the plaintiff, made
after July 15, 2008, are invalid. The fourth, sixth and
seventh special defenses were all grounded in the alle-
gation that [New Century] filed for chapter 11 bank-
ruptcy in 2007 and that all of its assets were transferred,
by order of the Bankruptcy Court, to a liquidating trust
on July 15, 2008. It was the defendant’s position that,
based on the bankruptcy and transfer of assets, [New
Century] either ceased to exist as an entity competent
to endorse the note in blank and assign the mortgage
to the plaintiff, or lacked the authority to unilaterally
transfer assets after the bankruptcy was filed. In con-
trast, it was the plaintiff’s position that the note was
endorsed in blank by [New Century] prior to its bank-
ruptcy, the plaintiff was the holder of the note when
the present action was initiated and the defendant’s
challenges to [New Century’s] assignment to the plain-
tiff were insufficient to deprive the plaintiff of standing
to pursue this foreclosure action.
‘‘An evidentiary hearing was held on October 2, 2015,
to determine whether the plaintiff had standing to bring
the foreclosure action. At that hearing, it was estab-
lished that the endorsement on the note, bearing the
name Magda Villanueva, was placed there by a stamp,
not by an original signature. In her deposition, which
was introduced at the hearing . . . Villanueva testified
that she sometimes used a stamp to endorse notes on
behalf of her employer, [New Century], and at least one
of the stamps she used was missing a part of the letter
‘G’ in her first name. . . . Villanueva was employed by
New Century until August of 2005, and, when she left,
she destroyed all the stamps she had used for endorsing
notes. It was also established at this hearing that the
note had been endorsed in blank by . . . Villanueva
sometime prior to June 24, 2009.
‘‘Based on the evidence produced at the hearing, this
court concluded that the plaintiff was the valid holder
of the note and entitled to enforce it based on its posses-
sion of the note, endorsed in blank by [New Century].
. . . The plaintiff’s production of the note established
a presumption in its favor that it is the owner of the
underlying debt. . . . The production of the note estab-
lished the plaintiff’s prima facie case against the defen-
dant, and it was for the defendant to prove facts limiting
or changing the plaintiff’s rights. . . . The defendant
did not, however, meet his burden of proving that the
debt belonged to a person or entity other than the plain-
tiff, and as such, this court concluded that the plaintiff
had standing to pursue this foreclosure action. . . .
‘‘At trial, the defendant stipulated to the authenticity
of his signature on the original note and mortgage, both
of which the plaintiff entered into evidence. Also intro-
duced as an exhibit was a loan modification agreement
entered into by the parties to resolve a prior foreclosure
action. Jeremy Summerford, an employee of JP Morgan
Chase Bank, N.A. (Chase), the loan servicer, testified
credibly that, based upon his examination of Chase’s
business records, the plaintiff was the holder of the
note and mortgage at the time it initiated the present
foreclosure. Summerford further testified that the
defendant has been in default of his payment obligations
under the note since February of 2012. This fact was
later confirmed by the defendant’s own testimony. The
plaintiff also introduced into evidence, as an exhibit,
the requisite notice of default, which was sent to the
defendant in advance of this action being commenced.
Based on the foregoing, this court finds that the plaintiff
has established its prima facie case and, as such, will
be entitled to judgment unless the defendant proves
any of his special defenses. . . . [T]he defendant has
not met its burden in proving that the plaintiff is not
the owner of the debt.’’ (Citations omitted; footnotes
omitted.)
Following the filing of the present appeal, the defen-
dant filed a motion for articulation. In its memorandum
of decision on the defendant’s motion for articulation
the court clarified: ‘‘Evidence regarding the note was
presented both at the hearing conducted by the court
on October 2, 2015, in response to issues raised by the
defendant challenging the standing of the plaintiff to
bring this action and at trial. On the basis of that evi-
dence, the court found that the plaintiff was the holder
of the original note endorsed in blank at the time the
foreclosure action now on appeal was commenced. The
court further found that the defendant had not met its
burden of rebutting the presumption that the plaintiff
was the rightful owner of the underlying debt at the
time it instituted this action. In addition, the court also
expressly finds that the original note was endorsed in
blank by . . . Villanueva while she was employed by
[New Century]. She left [New Century] in August of
2005. The defendant contends that [New Century] filed
for bankruptcy in 2007. On the basis of these findings,
the court concludes that the subject note was endorsed
in blank by [New Century] before it filed for bank-
ruptcy. . . .
‘‘This court expressly finds on the basis of the testi-
mony and exhibits offered by Albert Smith [a home
lending research officer for Chase] at the October 2,
2015 hearing and on the basis of the testimony and
exhibits offered by . . . Summerford at trial that the
plaintiff was in possession of the original note endorsed
in blank no later than May of 2009 and that the original
note has remained in the possession of the plaintiff
from at least May of 2009 until the time of trial. While
there was no evidence presented which would enable
the court to determine the precise date upon which the
plaintiff took physical possession of the note, there was
credible evidence offered that it had been in possession
of the original note since at least May of 2009. On the
strength of that evidence, this court finds that the plain-
tiff was in possession of the original note endorsed in
blank by . . . Villanueva for [New Century] from at
least May of 2009 until the time of trial.’’
I
The defendant first claims that the court improperly
determined that the plaintiff had standing to bring this
foreclosure action. We disagree.
‘‘It is well established that [a] party must have stand-
ing to assert a claim in order for the court to have
subject matter jurisdiction over the claim. . . . Stand-
ing 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 represen-
tative 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. . . . Where a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
Our review of the question of [a] plaintiff’s standing is
plenary. . . . Furthermore, [t]he scope of review of a
trial court’s factual decisions related to the issue of
standing on appeal is limited to a determination of
whether they are clearly erroneous in view of the evi-
dence and pleadings.’’ (Citation omitted; internal quota-
tion marks omitted.) CitiMortgage, Inc. v. Gaudiano,
142 Conn. App. 440, 444, 68 A.3d 101, cert. denied, 310
Conn. 902, 75 A.3d 29 (2013).
‘‘The plaintiff’s possession of a note endorsed in blank
is prima facie evidence that it is a holder and is entitled
to enforce the note, thereby conferring standing to com-
mence a foreclosure action. . . . After the plaintiff has
presented this prima facie evidence, the burden is on
the defendant to impeach the validity of [the] evidence
that [the plaintiff] possessed the note at the time that
it commenced the . . . action or to rebut the presump-
tion that [the plaintiff] owns the underlying debt. . . .
The defendant [must] . . . prove the facts which limit
or change the plaintiff’s rights.’’ (Internal quotation
marks omitted.) Deutsche Bank National Trust Co. v.
Bliss, 159 Conn. App. 483, 489, 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).
General Statutes § 49-172 ‘‘codifies the common-law
principle of long standing that the mortgage follows the
note’’; (internal quotation marks omitted) Equity One,
Inc. v. Shivers, 310 Conn. 119, 127, 74 A.3d 1225 (2013);
and ‘‘allows the holder of a note to foreclose on real
property even if the mortgage has not been assigned
to him.’’ Id. ‘‘[A] holder of a note is presumed to be
the owner of the debt, and unless the presumption is
rebutted, may foreclose the mortgage under § 49-17.
The possession by the bearer of a note [e]ndorsed in
blank imports prima facie 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.’’ (Internal quotation marks omitted.) Id., 135.
A
The defendant argues that the court erred in
determining that the plaintiff had standing to bring the
present foreclosure action. He contends that the plain-
tiff has not established the rebuttable presumption that
it is the holder of the note entitled to enforce the note
because it failed to demonstrate ‘‘when it acquired the
note, how it acquired the note [and] from whom.’’ He
contends that the only evidence the plaintiff produced
to support standing was conflicting testimony from
Smith and Summerford ‘‘as to the timing and signifi-
cance of computer generated images of the note alleg-
edly contained in . . . Chase’s computer system. Such
limited evidence, without more, is unreliable and pro-
vided an insufficient and clearly erroneous basis for
the trial court to find that the plaintiff had established
standing as a matter of law.’’ We do not agree with the
defendant’s argument.
In his argument, the defendant highlights conflicts
between Smith’s deposition testimony and his testi-
mony at the October 2, 2015 hearing regarding internal
computer generated documents of the note by Chase.
Although the defendant’s argument fails on legal
grounds that we will discuss later, it is worth noting
that evidence is not insufficient because it is conflicting,
rather it is the function of the trier of fact to weigh
conflicting versions of events and determine which is
more credible. Masse v. Perez, 139 Conn. App. 794, 798,
58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61 A.3d
1098 (2013). In the present case, however, the trial court
explained in its decision on the motion to strike the
discrepancy between Smith’s deposition testimony and
October 2, 2015 testimony as follows. ‘‘Smith is a home
lending research officer for . . . Chase which services
the mortgage loan to the defendant, which is the subject
of this dispute. . . . Smith had examined the business
records of . . . Chase in an effort to determine when
the stamped endorsements had been placed on the note.
At his deposition held on December 8, 2014 . . . Smith
had testified that the endorsement had been placed on
the note on June 6, 2012. That conclusion was based
on . . . Smith’s misapprehension at the time he was
deposed that the information contained in the defen-
dant’s exhibit 1 indicated that this document recorded
the date of endorsement. At the hearing . . . Smith
corrected his earlier testimony and explained that the
information on exhibit 1 only evidenced that . . .
Chase had, as part of an internal document review pro-
cess, confirmed on June 6, 2012 that the note in its
possession had been properly endorsed. In addition
. . . Smith testified that further research of the busi-
ness records of . . . Chase turned up evidence that the
subject note had been endorsed sometime prior to June
24, 2009. This is because plaintiff’s exhibit 1 revealed
that, on that day, a copy of the note endorsed in blank
by the stamped signature of . . . Villanueva had been
furnished to the defendant in response to a discovery
request he had promulgated in connection with a prior
action, which had been commenced to foreclose the
mortgage which the note secures.’’ Accordingly, the
discrepancy was explained by the court as relating a
misapprehension by Smith, and the court explained that
the June, 2012 date referred to the date on which Chase
confirmed that the note had been endorsed, not the
date of endorsement.
The defendant also contends that the testimony of
Summerford at the foreclosure trial that he reviewed
the computer generated images in Chase’s computer
system sometime in February or March, 2017, and saw
a computer scan of the note allegedly entered into the
system in May, 2009, did not constitute evidence of
when and how the plaintiff acquired physical posses-
sion of the note.
In his argument, the defendant mischaracterizes Con-
necticut foreclosure law. The plaintiff is not required
to prove the factual details of the delivery of the note,
such as the precise date and manner in which it acquired
the note. ‘‘Generally, in order to have standing to bring
a foreclosure action the plaintiff must, at the time the
action is commenced, be entitled to enforce the promis-
sory note that is secured by the property.’’ (Emphasis
in original; internal quotation marks omitted.) Deutsche
Bank National Trust Co. v. Bliss, supra, 159 Conn. App.
488. Accordingly, the defendant’s argument regarding
Chase’s computer generated images of the note do not
relate to whether the plaintiff has established the pre-
sumption of ownership of the debt. Case law is clear
that ‘‘[a] holder only has to produce the note to establish
[the] presumption [that it is the rightful owner of the
underlying debt]. The production of the note establishes
his case prima facie against the [defendant] and he
may rest there. . . . It [is] for the defendant to set up
and prove the facts [that] limit or change the plaintiff’s
rights.’’ (Emphasis in original; internal quotation marks
omitted.) JPMorgan Chase Bank National Assn. v.
Simoulidis, 161 Conn. App. 133, 144 126 A.3d 1098
(2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016).
By producing the note endorsed in blank, the plaintiff
established the presumption that it is the rightful owner
of the debt.
Furthermore, even though a plaintiff is not required
to prove the precise date it came into possession of the
note, in its articulation, the court stated that the credible
evidence demonstrated that the plaintiff was in posses-
sion of the note endorsed in blank by Villanueva for
New Century from at least May, 2009, until the time of
trial. Accordingly, the plaintiff met its initial burden
with respect to standing.
B
The defendant raises several arguments in support
of his claim that the court improperly determined that
he did not successfully rebut the presumption that the
plaintiff is the owner of the debt. We disagree.
‘‘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
documentary 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 pre-
sumption 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.) Id., 145–46, citing U.S. Bank,
National Assn. v. Schaeffer, 160 Conn. App. 138, 146–47,
125 A.3d 262 (2015).
The defendant first contends that the presumption
was rebutted by a July, 2008 order, which was admitted
as an exhibit at the October 2, 2015 hearing, by the
United States Bankruptcy Court for the District of Dela-
ware confirming New Century’s bankruptcy plan to
transfer its asserts to a liquidating trust. He argues that
New Century could not endorse the note in blank and
assign it to the plaintiff because, as a result of New
Century’s bankruptcy filing, the liquidating trust was
the entity that owned the note, mortgage, and underly-
ing debt, not New Century, which ceased to exist as
an entity. We disagree.
The transcript of Villanueva’s deposition, which was
admitted as an exhibit at the October 2, 2015 hearing,
reveals that Villanueva testified that she had used her
actual signature 95 percent of the time and that she
used her signature stamp for a period of time but could
not recall approximately when that time period
occurred. She further testified that she personally
destroyed all of her signature stamps after her employ-
ment with New Century was terminated in August, 2005,
and that, as far as she was aware, no additional signa-
ture stamps with her name then existed. She stated that
during her time working for New Century she was not
aware of any instances in which someone used her
signature stamp without her knowledge.
The court credited Villanueva regarding the timing
of the destruction of the stamps she used when she
endorsed notes.3 In its decision on the plaintiff’s motion
to strike, the court found that Villanueva, whose name
was stamped on the endorsement in blank, testified
that she was employed by New Century until August,
2005, that at least one of the stamps she used when
endorsing notes is missing part of the letter ‘‘G’’ in her
first name, and that she destroyed all of her stamps she
used for endorsements when she left the employ of
New Century in August, 2005.4 The court concluded
that these facts are consistent with the plaintiff being
the owner of the debt, and we agree. According to these
facts, the plaintiff demonstrated that the note, which
bears Villanueva’s stamped endorsement, was endorsed
prior to August, 2005, which date precedes both the
date that New Century filed for bankruptcy in 2007 and
the 2008 transfer of assets to a liquidating trust. As a
result, the defendant has not shown that the liquidating
trust was the owner of the debt at the time the plaintiff
commenced the present action.
The defendant additionally makes an attenuated argu-
ment that the plaintiff was not in possession of the note
from September 6, 2008 to July 31, 2013, but, rather,
Chase Home Finance, LLC, alleged in a September, 2008
complaint that it was the holder of the note, but all
records in that file subsequently were destroyed. The
defendant contends that the note was released to fore-
closure counsel on July 31, 2013. The court clearly
rejected these claims and the related testimony offered
by the defendant, and concluded in its decision on the
motion to strike, which conclusion it repeated in its
decision on the foreclosure complaint, that the defen-
dant had not met his burden of proving that the debt
belonged to a person or entity other than the plaintiff.
The defendant’s argument does not demonstrate that
the court’s finding in this regard was clearly erroneous.
Because the plaintiff established the presumption
that it is the owner of the debt and because the defen-
dant has not rebutted that presumption, we conclude
that the trial court properly determined that the plaintiff
had standing to commence the foreclosure action.
II
The defendant next claims that the decision by the
New York Supreme Court in Deutsche Bank National
Trust Co. v. Pototschnig, Docket No. 109449/10 (N.Y.
Sup. July 19, 2016), ‘‘should be accorded res judicata
and collateral estoppel effect,’’ and that the trial court
erred in not so doing. In its memorandum of decision
on the foreclosure complaint, the trial court determined
that ‘‘[n]one of the conclusions reached by the New
York court with regard to a foreclosure initiated by a
different plaintiff seeking to foreclose on a different
mortgage secured by a different note for a different
amount executed on a different date and secured by
different property have any relevance or dispositive
relationship to the claims in the present case.’’ We agree
with the court and are not persuaded by the defen-
dant’s claim.
‘‘The related doctrines of res judicata and collateral
estoppel are based on the public policy that a party
should not be able to relitigate a matter that it already
has had a fair and full opportunity to litigate. . . .
Despite being close cousins, those doctrines are not
alternate expressions of the same. . . . [C]ollateral
estoppel operates to bar the reassertion of an issue
already fully litigated, [while] res judicata precludes
one from raising causes of action, facts or issues that
either already were adjudicated or could have been
litigated fully in a prior action between the same parties
or those in privity with them.’’ (Citation omitted; inter-
nal quotation marks omitted.) Sellers v. Work Force One,
Inc., 92 Conn. App. 683, 685–86, 886 A.2d 850 (2005).
‘‘[C]ollateral estoppel, or issue preclusion . . . pro-
hibits the relitigation of an issue when that issue was
actually litigated and necessarily determined in a prior
action between the same parties or those in privity with
them upon a different claim. . . . An issue is actually
litigated if it is properly raised in the pleadings or other-
wise, submitted for determination, and in fact deter-
mined. . . . An issue is necessarily determined if, in
the absence of a determination of the issue, the judg-
ment could not have been validly rendered. . . . If an
issue has been determined, but the judgment is not
dependent upon the determination of the issue, the
parties may relitigate the issue in a subsequent action.
Findings on nonessential issues usually have the charac-
teristics of dicta. . . . Furthermore, [t]o invoke collat-
eral estoppel the issues sought to be litigated in the
new proceeding must be identical to those considered
in the prior proceeding. . . . Both issue and claim pre-
clusion express no more than the fundamental principle
that once a matter has been fully and fairly litigated,
and finally decided, it comes to rest. . . .
‘‘If a party cannot succeed on a claim of collateral
estoppel, though, it may be able to preclude claims on
the basis of res judicata. [T]he doctrine of res judicata,
or claim preclusion, [provides that] a former judgment
on a claim, if rendered on the merits, is an absolute
bar to a subsequent action [between the same parties
or those in privity with them] on the same claim. . . .
In order for res judicata to apply, four elements must
be met: (1) the judgment must have been rendered on
the merits by a court of competent jurisdiction; (2) the
parties to the prior and subsequent actions must be the
same or in privity; (3) there must have been an adequate
opportunity to litigate the matter fully; and (4) the same
underlying claim must be at issue.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Girolametti v. Michael Horton Associates, Inc., 173
Conn. App. 630, 649–50, 164 A.3d 731 (2017), aff’d, 332
Conn. 67, 208 A.3d 1223 (2019). ‘‘Additionally, the appli-
cability of res judicata and collateral estoppel presents a
question of law over which we employ plenary review.’’
Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010);
see also Bruno v. Geller, 136 Conn. App. 707, 726, 46
A.3d 974 (applying principles of res judicata on basis
of decision of New York court), cert. denied, 306 Conn.
905, 52 A.3d 732 (2012).
Neither collateral estoppel nor res judicata applies
in the present case. The parties in the present case and
the New York case are not the same or in privity and
the issues in both cases are different. In the New York
case, the plaintiff was Deutsche Bank National Trust
Company, as indenture trustee for New Century Home
Equity Loan Trust 2005-3, which is a different entity
than the plaintiff in the present case, which is Deutsche
Bank National Trust Company as Trustee for HSI Asset
Securitization Corporation 2005-NC2 Mortgage Pass-
Through Certificates, Series 2005-NC2. The plaintiff in
the present case and the plaintiff in the New York case
are not in privity because the claims raised in both
cases are factually distinct, involving different loans.5
Moreover, the claims and issues raised in the New York
case and the present case are different. In the New
York case, the defendant asserted in his motion for
summary judgment to dismiss the action that the plain-
tiff lacked standing for multiple reasons including that
New Century went bankrupt in 2007 and therefore did
not exist to assign the note and mortgage in 2010. The
New York Supreme Court agreed with the plaintiff and
concluded that ‘‘[t]he sole allegation in the complaint
supporting [the] plaintiff’s claim of standing is the
alleged assignment to it from New Century approxi-
mately two weeks before the commencement of this
action in July, 2010 . . . . However, as Pototschnig
argued . . . New Century was powerless to make an
assignment after its bankruptcy in 2007.’’ The standing
issues presented in the present case are wholly different
from those in the New York case and can have no
preclusive effect because the issues in the present case
involve a different note and entirely different circum-
stances.
III
The defendant further claims that the court ‘‘erred
in failing to consider whether the securitized trust ever
received the note and mortgage.’’ Specifically, he argues
that, at the October 2, 2015 evidentiary hearing, he
raised the issue and established through testimony that
the plaintiff did not transfer the loan documents and
the note to the securitized trust for which the plaintiff
is acting as trustee, thereby raising an issue of subject
matter jurisdiction that the court never addressed. The
defendant’s claim is unavailing because the court
addressed this argument in its memorandum of decision
on the foreclosure complaint.
The court heard the arguments and testimony pre-
sented by the defendant at the October 2, 2015 hearing
and concluded in its April 21, 2016 decision on the
motion to strike, that the plaintiff had standing to bring
the foreclosure action, that it was the holder of the
original note endorsed in blank at the time of the com-
mencement of the foreclosure action and that the defen-
dant had not proven that the debt belonged to another
person or entity. In its decision on the foreclosure com-
plaint, the court noted that, in his posttrial brief, the
defendant attempted to relitigate the issue of standing
and reiterated its conclusion that the plaintiff had stand-
ing to foreclose. In addressing the defendant’s argument
in his posttrial brief that the note and mortgage were
never transferred to the securitized trust, the court con-
cluded that ‘‘[t]he defendant’s first argument, that the
plaintiff did not prove the note was transferred to it in
compliance with a pooling and service agreement, is
meritless. Not only did the defendant not offer evidence
sufficient to rebut the presumption, established by the
plaintiff, that it is the owner of the debt and entitled
to enforce the terms of the note and mortgage, but it
is not even clear that the defendant has standing to
challenge the nature of the transfer pursuant to the
pooling and service agreement. . . . Accordingly, this
court rejects the defendant’s first argument.’’ (Citation
omitted.) The court clearly rejected the defendant’s
argument, and we agree with the trial court that his
argument lacks merit and does not rebut the presump-
tion that the plaintiff is the owner of the debt.
IV
In his last claim, the defendant challenges several
rulings of the court. He argues that the court improperly
denied his motion for leave to add special defenses,
request to conduct further depositions, and request to
introduce cease and desist orders into evidence at the
October 2, 2015 evidentiary hearing. We are not per-
suaded by these claims.
First, we conclude that the court did not abuse its
discretion in denying the defendant’s motion for leave
to add special defenses. ‘‘Whether to allow an amend-
ment [to a pleading] is a matter left to the sound discre-
tion of the trial court. [An appellate] court will not
disturb a trial court’s ruling on a proposed amendment
unless there has been a clear abuse of that discretion.
. . . It is the [amending party’s] burden . . . to demon-
strate that the trial court clearly abused its discretion.’’
(Internal quotation marks omitted.) Beckenstein v.
Reid & Riege, P.C., 113 Conn. App. 428, 435, 967 A.2d
513 (2009). In denying the defendant’s request to amend
his special defenses, the court stated: ‘‘I’m denying these
requests because it is more than three years since this
action has begun. There’s been every opportunity for
these issues to have been raised and addressed. Judge
Zemetis made a ruling earlier in the life of this case
that he was going to permit ten special defenses to be
interposed, that’s my understanding. I’m going to stand
by his ruling. Ten special defenses were interposed.
The fact that several of those special defenses have
been stricken or dismissed after a hearing held on their
propriety isn’t an invitation to introduce more special
defenses because it will go on potentially indefinitely
if we don’t close the pleadings and have a trial on the
substance of this matter.’’ It was not improper for the
court to deny the defendant’s eleventh hour request to
add more special defenses after the court granted the
plaintiff’s motion in part to strike the defendant’s spe-
cial defenses.
Second, we determine that it was not an abuse of
discretion for the court to deny the defendant’s motions
for commission. The motions to take the deposition
testimony of two out-of-state representatives of Chase,
and the deposition testimony of a representative of HSI
Asset Securitization Corporation were filed in Septem-
ber, 2016, more than three years after the commence-
ment of the foreclosure action and months after the
court’s April, 2016 decision on the motion to strike in
which it determined that the plaintiff had standing. The
defendant argues in his brief that the denial of these
motions ‘‘hamstrung [his] ability to provide evidence
rebutting that presumption [that the plaintiff was the
owner of the debt] by denying discovery as to when,
how and under what circumstances, if any, [the] plain-
tiff . . . came into possession of the note and how,
when, and under what circumstances a signature stamp
bearing Villanueva’s name was stamped as an endorse-
ment on its back.’’
‘‘[T]he granting or denial of a discovery request rests
in the sound discretion of the [trial] court, and is subject
to reversal only if such an order constitutes an abuse
of that discretion. . . . [I]t is only in rare instances that
the trial court’s decision will be disturbed. . . . That
ample discretion is limited, however, by the provisions
of the rules [of practice] pertaining to discovery; Prac-
tice Book §§ 217 [through] 221 [now §§ 13-2 through
13-5]; especially the mandatory provision that discovery
shall be permitted if the disclosure sought would be of
assistance in the prosecution or defense of the action.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Brody v. Brody, 153 Conn. App.
625, 637–38, 103 A.3d 981, cert. denied, 315 Conn. 910,
105 A.3d 901 (2014).
At a hearing on September 19, 2016, the court denied
the defendant’s requests for deposition commissions,
including the ones specified in this appeal. With respect
to two representatives of Chase, the court reasoned
that ‘‘I don’t find any evidence to . . . suggest that
there’s . . . anything faulty with this particular note.
I’m gonna deny the motion for commission for these
two employees of [Chase] unless you demonstrate to
me that either of them has a specific recollection of
this particular instrument.’’ The court was within its
discretion to deny the defendant’s motions in light of
the fact that the defendant failed to show that the Chase
representatives could assist in proving that the note
was faulty and/or endorsed after New Century ceased
to exist as an entity, given that there was nothing dem-
onstrating that they had any knowledge of this particu-
lar note. We further conclude, after a careful review of
the record, that the court did not abuse its discretion
in denying the defendant’s motion for commission to
depose HSI Asset Securitization Corporation. More-
over, the defendant cannot prevail on his claim that the
court hamstrung his ability to rebut the presumption
of ownership for the additional reason that at the con-
clusion of the September 19, 2016 hearing, the court
permitted the defendant to further depose Villanueva
regarding the note.
Third, the court did not abuse its discretion in declin-
ing to admit into evidence at the October 2, 2015 eviden-
tiary hearing cease and desist orders of the New York
State Department of Finance, which were directed at
New Century. ‘‘The trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . [E]videntiary
rulings will be overturned on appeal only where there
was an abuse of discretion and a showing by the defen-
dant of substantial prejudice or injustice.’’ (Internal quo-
tation marks omitted.) Stokes v. Norwich Taxi, LLC,
289 Conn. 465, 489, 958 A.2d 1195 (2008). At the eviden-
tiary hearing, the defendant’s counsel sought to intro-
duce the cease and desist orders issued while New
Century existed, which the defendant believed were a
triggering event in New Century’s filing for bankruptcy,
for the purposes of establishing that New Century
existed, at least as to an enforcement agency, at the
time the cease and desist orders were issued. The court
ruled, ‘‘I don’t think that they’re relevant to the issues
for this hearing. They might be relevant at a trial, but
. . . the issues for this hearing—aren’t centered on any
alleged wrongdoing of New Century.’’ The court did not
abuse its discretion in determining that the case and
desist orders were not relevant to the issue of standing
before the court. At trial, the defendant offered the
cease and desist orders as exhibits for identification,
but did not pursue their admissibility.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The complaint also named as defendants: George Galetti; Douglas Fara-
ldi; United States of America, Internal Revenue Service; and the State of
Connecticut, Department of Revenue Services. The trial court stated that
none of these defendants ‘‘participated in or filed any objections to the
foreclosure.’’ In this opinion, we refer to Hubert Pototschnig as the
defendant.
2
General Statutes § 49-17 provides: ‘‘When any mortgage is foreclosed by
the person entitled to receive the money secured thereby but to whom the
legal title to the mortgaged premises has never been conveyed, the title to
such premises shall, upon the expiration of the time limited for redemption
and on failure of redemption, vest in him in the same manner and to the
same extent as such title would have vested in the mortgagee if he had
foreclosed, provided the person so foreclosing shall forthwith cause the
decree of foreclosure to be recorded in the land records in the town in
which the land lies.’’
3
The defendant attempts to challenge the court’s findings regarding the
credibility of Villanueva’s testimony by referencing two out of state cases,
In re Hunter, 466 B.R. 439 (Bankr. E.D. Tenn. 2012), and In re Wilson,
442 B.R. 10 (Bankr. D. Mass. 2010), which purport to demonstrate that
Villanueva’s stamp with a missing letter ‘‘G’’ was used for endorsements
after she left New Century. In its decision on the foreclosure complaint,
the court found that ‘‘[n]o evidence was adduced at trial which would lead
the court to conclude that . . . Villanueva’s stamped signature on the sub-
ject note in this case was the product of dishonest or unlawful conduct on
her part or on the part of any other party.’’ We decline the defendant’s
invitation to evaluate the credibility of Villanueva, let alone examine her
testimony in the present case in light of findings in other cases regarding
Villanueva’s endorsements. There are a number of reasons why we cannot
engage in such an assessment, but we will simply note the clear rule against
appellate assessment of credibility. ‘‘We cannot second guess the trial court’s
assessment of the credibility of the witnesses . . . . It is the trial court
[that] had an opportunity to observe the demeanor of the witnesses and
parties; thus, it is best able to judge the credibility of the witnesses and to
draw necessary inferences therefrom.’’ (Internal quotation marks omitted.)
Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn.
486, 507, 646 A.2d 1289 (1994).
4
The stamped endorsement on the note contains an incomplete letter ‘‘G.’’
5
‘‘While it is commonly recognized that privity is difficult to define, the
concept exists to ensure that the interests of the party against whom collat-
eral estoppel [or res judicata] is being asserted have been adequately repre-
sented because of his purported privity with a party at the initial proceeding.
. . . A key consideration in determining the existence of privity is the sharing
of the same legal right by the parties allegedly in privity.’’ (Internal quotation
marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813, 695 A.2d
1010 (1997).