Opinion
LLICV146011625S
02-04-2019
BANK OF AMERICA, NATIONAL ASSOCIATION v. Robert BRASS et al.
UNPUBLISHED OPINION
I
STATEMENT OF CASE
The issue before the court is whether the substitute plaintiff’s motion for summary judgment on its foreclosure complaint and on defendant’s six special defenses and counterclaim should be granted.
II
FACTS AND PROCEDURAL HISTORY
The original plaintiff, Bank of America, National Association (BOA) commenced this foreclosure action by service of process against the defendants, Robin B. Brass (Mrs. Brass) on December 9, 2014, and Robert L. Brass (Mr. Brass) on December 11, 2014, returnable to court on December 20, 2014. On December 9, 2016, BOA filed a motion to substitute (# 128) Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity, but solely as trustee for BCAT 2015-14ATT (Wilmington or substitute plaintiff) as the plaintiff in the present action, which was granted (# 128.10). The substitute plaintiff filed a motion to cite in (# 153) Mrs. Brass as the fiduciary of the estate of Mr. Brass because Mr. Brass passed away during the pendency of the present action, which was granted (# 153.10).
Two other defendants were named in this lawsuit. As alleged in the amended complaint, Bank of America, N.A., which is separate and distinct from BOA, claims an interest in the property by virtue of a mortgage lien for $ 155, 000 that was recorded on July 2, 2007 and the United States of America claims an interest in the property by virtue of a money judgment for $ 1, 569, 696.12, which was recorded on October 9, 2012.
For simplicity, all references to arguments made by Mrs. Brass acting as the fiduciary of the estate of Mr. Brass will be to "Mr. Brass."
An amended complaint (# 154) was filed on August 28, 2018, which alleges the following facts. Mr. Brass owned real property located at 45 Calhoun Street, Washington Depot (the property). Mrs. Brass holds an interest in the property as the fiduciary of the estate of Mr. Brass by virtue of her appointment by the probate court. On or about May 25, 2007, the defendants delivered to Nationwide Lending Corporation (Nationwide) a note for a loan in the amount of $ 1, 966, 250. The defendants executed and delivered a mortgage to secure the note to Mortgage Electronic Registration Systems, Inc. (MERS), which was the nominee for Nationwide. The mortgage was recorded on May 25, 2007, in the Washington Depot land records. The mortgage was then assigned from MERS to BOA on February 4, 2012, which was recorded on February 13, 2014. BOA was the holder of the note and mortgage at the time of the commencement of this suit. The mortgage was further assigned to the Wilmington on December 8, 2015, and was recorded on December 18, 2015. The note is in default and BOA, when it was the holder of the mortgage and note, elected to accelerate the balance due. BOA provided written notice of the default in accordance with the terms of the note and mortgage, but the defendants failed to cure the default. The defendants are the owners of the equity of redemption and are in possession of the property. A lis pendens was recorded on the Washington Depot land records. The substitute plaintiff prays for, inter alia, foreclosure of the mortgage, possession of the property, interest, costs of suit, and a deficiency judgment.
On January 15, 2016, Mr. Brass filed an answer, special defenses and a counterclaim (# 118) to the original complaint. Therein, he asserts six special defenses: (1) the plaintiff lacks standing to commence and prosecute the present suit; (2) the court lacks subject matter jurisdiction; (3) the plaintiff is not the proper party in interest to initiate or prosecute the present suit; (4) the present action is barred by res judicata and or collateral estoppel; (5) the cause of action is unenforceable because the plaintiff violated the federal Truth in Lending Act (TILA), 15 U.S.C. § 1635 et seq.; and (6) the cause of action is unenforceable because the plaintiff has not complied with the terms of the note and mortgage deed.
It appears that Mrs. Brass never filed an answer or alleged any special defenses or counterclaims against the original plaintiff or substitute plaintiff. The answer, special defenses, and counterclaim were filed by counsel for Mr. Brass, who do not represent Mrs. Brass. Additionally, Mr. Brass’ answer, special defenses, and counterclaim have not been amended since BOA was substituted for Wilmington.
Mr. Brass alleges the following facts in his counterclaim, which alleges that the substitute plaintiff violated the federal TILA. Both BOA and Wilmington are engaged in the business of extending mortgage loan financing including residential loans, which included extending or offering consumer credit for which a finance charge was or could be imposed by written agreement that was payable in more than four installments with Nationwide. On or about May 25, 2007, Mr. Brass granted a security interest in the property, which is used as his principal residence, and the security interest was not created to finance the acquisition or construction of the property. The consumer credit transaction that Mr. Brass entered into with Nationwide is subject to a right of rescission as set forth in 15 U.S.C. § 1635 and 12 C.F.R. § 226.30 (Regulation Z). Nationwide failed to deliver two copies of a notice of the right to rescind to Mr. Brass that: (1) identified the transaction; (2) clearly and conspicuously disclosed the security interest in the principal dwelling; (3) clearly and conspicuously disclosed Mr. Brass’ right to rescind the transaction; (4) clearly and conspicuously disclosed how to exercise the right to rescind the transaction with a form for that purpose that designated the address of Nationwide’s place of business; (5) clearly and conspicuously disclosed the effects of rescission; and (6) clearly and conspicuously disclosed the date the rescission period expired, which violated various subsections of 15 U.S.C. § 1638. Assignees are fully liable for rescission regardless of whether the violation is apparent on the face of any document. The plaintiff has a continuing right to rescind the transaction until the third business day after receiving the notice described above and all material disclosures. On August 21, 2015, Mr. Brass rescinded the transaction by sending BOA a notice of rescission. BOA has failed to take action necessary to reflect the termination of the security interest created under the transaction or to return any money or property. Mr. Brass prays for, inter alia, rescission, termination of any security interest, return of moneys paid and statutory damages.
On June 8, 2016, BOA filed an answer (# 125) to Mr. Brass’ counterclaim, alleging that the counterclaim is legally insufficient because it fails to state a claim upon which relief may be granted and the counterclaim is time-barred by virtue of the statute of limitations having expired because the transaction was entered into on May 25, 2007, which meant that for rescission to be valid, it must have been sent by May 25, 2010. BOA also denied each of Mr. Brass’ special defenses.
The substitute plaintiff has not amended BOA’s original answer to Mr. Brass’ counterclaim, and, accordingly, it is still the operative pleading.
On January 26, 2017, the substitute plaintiff filed a motion for summary judgment (# 131) on its amended complaint, the special defenses and the counterclaim as well as a memorandum of law in support thereof with evidence attached thereto. On March 10, 2017, Mr. Brass filed an objection (# 134) to the substitute plaintiff’s motion for summary judgment as well as a memorandum of law in support thereof with evidence attached thereto. On May 2, 2017, Mrs. Brass also submitted an objection (# 136) to the substitute plaintiff’s motion for summary judgment. On September 9, 2017, the substitute plaintiff filed a supplemental memorandum of law (# 137) in support of its motion for summary judgment and attached additional evidence thereto. On November 22, 2017, Mr. Brass filed a reply memorandum (# 142) to the substitute plaintiff’s supplemental memorandum of law. On November 24, 2017, Mrs. Brass filed her response (# 144) to the plaintiff’s supplemental memorandum of law and attached an affidavit thereto. On August 29, 2018, the plaintiff filed a request to amend its motion for summary judgment (# 156) to include Mrs. Brass as the fiduciary of the estate of Mr. Brass, which was granted without objection. On December 7, 2018, Mrs. Brass filed a "Notice of Filing for Judicial Review" (# 163) indicating that she had filed additional evidence (# 164) in support of her objection to the substitute plaintiff’s motion for summary judgment. The court heard oral argument on the substitute plaintiff’s motion on January 2, 2019. Later that day, and at the court’s direction, the substitute plaintiff electronically filed a copy of the original note (# 165) presented to the court at the hearing.
III
DISCUSSION
"[I]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party ... we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with the relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Berka v. Middletown, 181 Conn.App. 159, 163, 185 A.3d 596, cert. denied, 328 Conn. 939, 184 A.3d 268 (2018).
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits, and any 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 ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... A material fact is a fact that will make a difference in the outcome of the case ... Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45]." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). "[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). "[I]n considering a motion for summary judgment, [i]t is within the court’s discretion whether to accept or decline [to accept] ... supplemental evidence." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, supra, 167 Conn.App. 364. It is error, however, for a trial court to consider submitted evidence in support of a motion for summary judgment that is unauthenticated. See New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005) (reversing grant of summary judgment solely on ground that trial court considered unauthenticated evidence).
A
Standing to Foreclose
The defendants primarily argue that the substitute plaintiff lacks standing to bring the present foreclosure action. The substitute plaintiff argues that it has standing because it is the current holder of the note.
"[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "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 ... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Citations omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013).
"The rules for standing in foreclosure actions when the issue of standing is raised may be succinctly summarized as follows. When a holder seeks to enforce a note through foreclosure, the holder must produce the note. The note must be sufficiently endorsed so as to demonstrate that the foreclosing party is a holder, either by a specific endorsement to that party or by means of a blank endorsement to bearer. If the foreclosing party shows that it is a valid holder of the note and can produce the note, it is presumed that the foreclosing party is the rightful owner of the debt. That presumption may be rebutted by the defending party, but the burden is on the defending party to provide sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt had passed to another party. It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt. In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note." (Emphasis omitted; internal quotation marks omitted.) Aurora Loan Services, LLC v. Condron, 181 Conn.App. 248, 254-55, 186 A.3d 708 (2018).
In support of its motion for summary judgment, the substitute plaintiff submitted a copy of the original note endorsed in blank with its motion, presented the original note endorsed in blank to the court and filed another copy of the original note endorsed in blank at the court’s direction. The substitute plaintiff also submitted a sworn affidavit of Michael Zerulik (Zerulik), who avers that he is a litigation specialist for Selene Finance LP (Selene), the loan servicing agent for the substitute plaintiff In his affidavit, Zerulik states that the note and mortgage deed attached to the affidavit are true and accurate copies and that the substitute plaintiff is the current holder of the note and its agents are in possession of the original note.
The plaintiff also submitted a bailee letter dated November 18, 2014, which indicates that BOA’s loan servicer, Ocwen Loan Servicing, LLC (Ocwen), transferred the mortgage, note, and allonge to the substitute plaintiff, Wilmington. The plaintiff submitted a supplemental sworn affidavit of Zerulik, in which he states that the bailee letter attached to that affidavit is a true and accurate copy of such. In addition, Zerulik stated that the substitute plaintiff executed a limited power of attorney, dated July 7, 2015, to Selene and that a true and accurate copy of the document is attached to the affidavit. The plaintiff did indeed attach a certified copy of the limited power of attorney and it indicates that Selene is the loan servicing agent for the substitute plaintiff and, as such, is authorized to act as its attorney-in-fact in specifically enumerated instances, such as the preparation and issuance of documents related to the note, mortgage, and foreclosure proceedings. Based on the foregoing, the plaintiff has shown that it is the valid holder of the note and is entitled to a presumption that it is the rightful owner of the debt.
The defendants, however, argue that there was an assignment of mortgage that was recorded prior to the assignment of mortgage referenced in Zerulik’s affidavit, which they contend raises a genuine issue of material fact as to standing. Mr. Brass submitted an assignment of mortgage dated May 6, 2010 and was from MERS to BAC Home Loans. In response, the substitute plaintiff submitted a certificate of filing and letter of certification from the Texas secretary of state’s office approving a merger, which indicates that BAC Home Loans and Domestic Limited Partnership merged into BOA, the original plaintiff in the present action. The court need not consider this, however, because the possible assignment is nothing but a documentary lacuna in the chain of title that merely gives rise to the possibility that another party could own the debt, which is insufficient in the face of the production of the original note. Aurora Loan Services, LLC v. Condron, supra, 181 Conn.App. 254-55. The defendants make additional arguments as to standing, but these attack the admissibility of the evidence the substitute plaintiff relies upon and, as such, will be discussed in the following section. The substitute plaintiff has standing.
The substitute plaintiff, in its supplemental memorandum in support of its motion, asks the court to take judicial notice of this document.
B
Foreclosure Prima Facie Case
The substitute plaintiff moves for summary judgment on its foreclosure complaint on the ground that no genuine issues of material fact exist that it owns the note, the defendants are in default of that note, and the substitute plaintiff has complied with the terms of the note and mortgage. The defendants argue that the evidence the substitute plaintiff relies upon is inadmissible or otherwise defective, which precludes summary judgment.
"In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance 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 mortgage, have been satisfied ... [A] court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense ... A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt. Appellate courts in this state have held that the burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action." (Citations omitted; internal quotation 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).
"[General Statutes § ]49-17 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, supra, 309 Conn. 307.
"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 under § 49-17. 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 circumstances impeaching its validity. The production of the note [endorsed in blank] 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 ... If the defendant rebuts the presumption that the plaintiff was the owner of the debt at the time that the action commenced, then "the burden would shift back to the plaintiff to demonstrate that the owner has vested it with the right to receive the money secured by the note." (Citation omitted; footnote omitted; internal quotation marks omitted.) American Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.App. 127, 133-34, 117 A.3d 500 (2015).
In the present case, the plaintiff attached a copy of the original to its motion for summary judgment and produced the original note at the January 2, 2019 hearing. The note is endorsed in blank. The production of the original note is sufficient to establish the substitute plaintiff’s prima facie case of foreclosure. § 49-17; RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 230; American Home Mortgage Servicing, Inc. v. Reilly, supra, 157 Conn.App. 133-34. The substitute plaintiff is entitled to rest its case there, but has chosen, however, to submit additional evidence.
The substitute plaintiff submitted Zerulik’s sworn affidavit in which he states that the substitute plaintiff is the current holder of the note. Zerulik also states in his sworn affidavit that the defendants have not made their contractually obligated loan payments since their June 1, 2008 payment. This much is obvious based on the substitute plaintiff’s physical production of the original note at the hearing on the present motion. Zerulik then states that the defendants are in default in accordance with the terms of the loan documents and that written notices of default were provided to the defendants. The substitute plaintiff submitted two written notices of default that were sent to the defendants on February 8, 2014, by BOA and on August 18, 2016, by Wilmington. Zerulik stated in his affidavit that these submissions are true and accurate copies of the original notices of default. The substitute plaintiff also submitted a copy of the mortgage deed, which Zerulik stated in his sworn affidavit is true and accurate. The mortgage deed provides that upon a default under the note, the substitute plaintiff is entitled to foreclose on the mortgage. Additionally, the substitute plaintiff submitted several assignments of mortgage. These assignments show that Nationwide, the original mortgagee, transferred the note and mortgage to BOA on February 4, 2012 and then BOA transferred the note and mortgage to the substitute plaintiff on December 8, 2015 after the commencement of the present suit. Zerulik stated in his sworn affidavit that these submitted assignments are true and accurate. Based on the evidence submitted, the substitute plaintiff has proven its prima facie case of foreclosure. It has established that it holds the note, that the defendants are in default, the conditions precedent in the note and mortgage have been complied with, and that it was an assignee of the note after the present suit commenced.
Nevertheless, the defendants argue that the substitute plaintiff has submitted evidence that is defective and, as such, the present motion for summary judgment should be denied. Specifically, the defendants argue that: (1) there is no evidence that the allonge was attached to the note at all times; (2) there is no evidence that Selene is the attorney-in-fact for the substitute plaintiff; (3) Zerulik fails to identify who signed the note’s endorsement on the allonge; (4) Zerulik does not set forth the specific date the substitute plaintiff became the holder of the note; (5) Zerulik’s affidavit, which authenticates every document the substitute plaintiff relies upon, is deficient because it is unclear how Zerulik, a "litigation specialist" for Selene, has personal knowledge regarding the mortgage at issue; and (6) Zerulik fails to make mention of assignments to Countrywide or BAC Home Loans.
With regard to the first argument, the defendants are correct that there is no evidence submitted that indicates that the allonge was attached at all times to the original note. The defendants contend that without such evidence, the specter of fraud looms over the present motion, which they believe is sufficient to preclude summary judgment. The defendants’ argument, however, is an exercise in splitting hairs. All the plaintiff must do is establish that it holds the note, which it did at the January 2, 2019 hearing. Even though there is no evidence that the allonge was always attached to said note, the defendants have relied upon no legal authority to show that such a showing is required. The defendants’ first argument is wholly without merit and borders on the frivolous.
Turning to the defendants’ second argument, Connecticut law permits a loan servicing agent, such as Selene, to prepare an affidavit of debt on behalf of a foreclosing mortgagee on a motion for summary judgment. Bank of Boston Connecticut v. Moniz, 47 Conn.App. 234, 239, 702 A.2d 655 (1997) (person familiar with indebtedness has sufficient personal knowledge to aver to facts regarding such debt). Furthermore, General Statutes § 52-180 "should be liberally interpreted in favor of admissibility [of business records]. The witness introducing the document need not have made the entry himself ... nor have been employed by the organization during the relevant time period." (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 603, 717 A.2d 713 (1998). Zerulik’s affidavit is sufficient to show that he is an agent for a loan servicer, Selene, which he avers keeps books and records of the defendants’ transaction that resulted in the mortgage the substitute plaintiff now holds. It is unnecessary, then, for the substitute plaintiff to establish that Selene is, in fact, the attorney-in-fact for the substitute plaintiff. Even if the substitute plaintiff were required to establish this, it has by submitting Zerulik’s supplemental affidavit in which he states that Selene is the attorney-in-fact for the substitute plaintiff. Additionally, the substitute plaintiff submitted a limited power of attorney document, which Zerulik authenticates in his supplemental affidavit.
Section 52-180(a) provides, in relevant part, that "[a]ny writing or record ... made as a ... record of any ... transaction ... shall be admissible as evidence of the ... transaction ... if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the ... transaction ..."
Turning to the third and fourth contentions, any inability of Zerulik to identify the corporate agent who endorsed the allonge or to specify the date the substitute plaintiff became the holder of the note is irrelevant to the present analysis because neither defect rebuts the substitute plaintiff’s prima facie case of foreclosure. The note and mortgage clearly indicate that one or both defendants signed or initialed each document, which is what matters. Moreover, the substitute plaintiff submitted a bailee letter indicating that the note was assigned to the substitute plaintiff on December 8, 2015.
Fifth, the defendants argue that it is unclear how Zerulik, a litigation specialist for Selene, which is the substitute plaintiff’s mortgage servicer, has personal knowledge of the documents that the substitute plaintiff relies upon. In essence, the defendants argue that Zerulik cannot acquire personal knowledge by reviewing business records. Our Supreme Court, however, has stated that "we know of [no legal authority] that precludes affiants from obtaining personal knowledge of underlying transactions by review of business records. Under ... § 52-180, to be competent to testify, the affiant need only have personal knowledge of the relevant business records." RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 235-36. Moreover, this argument is similar to that in Bank of America, N.A. v. Aubut, supra, 167 Conn.App. 361-65. In that case, the foreclosure defendants argued that the trial court erred in rendering summary judgment because it accepted a sworn affidavit from a "litigation resolution analyst" who averred, in that capacity, that she had reviewed the records of the defendants’ mortgage payments and was personally familiar with these records. Id., 361-62. The Appellate Court rejected the defendants’ argument by reasoning that the affiant "affirmatively demonstrated that she had personal knowledge of the matters stated within her affidavit" because she had reviewed the "payment histories, loan histories, servicing records, and default notices" as they applied to the defendants in that case. Id., 364-65. This is substantially similar to the present case and on that basis, the defendants’ argument fails.
Sixth and finally, the defendants argue that because Zerulik fails to mention the assignment of the present note and mortgage from Countrywide to BAC Home Loans, genuine issues of material fact exist as to who presently holds the note, which they contend should preclude summary judgment. The legislature, in adopting § 49-17, has "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 [it] ." (Citations omitted; emphasis added.) RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 230. This statutory right defeats the argument to the contrary.
In her response to the substitute plaintiff’s supplemental memorandum in support of its motion, Mrs. Brass argues that the evidence the substitute plaintiff relies upon suffers from several inconsistencies. Specifically, Mrs. Brass claims that the note and allonge are not notarized, the signatures are illegible, the mortgage deed does not contain a notary seal, and the adjustable rate rider is not notarized, which she claims renders the note and mortgage fraudulent and are null and void. In support of this contention, Mrs. Brass submitted her own affidavit, in which she avers that Edward Marois, who purportedly signed the mortgage deed on behalf of Nationwide, was not present at the closing of the refinancing transaction on or about May 25, 2007, and is fraudulent. Connecticut foreclosure law does not require a mortgage deed or promissory note to be notarized to be enforceable. All that must be shown is that the foreclosing party must presently hold the note and establish that the mortgagor is in default. American Home Mortgage Servicing, Inc. v. Reilly, supra, 157 Conn.App. 133-34. With regard to Mrs. Brass’ affidavit, it is unsworn and therefore inadmissible. It is error for the court to consider inadmissible evidence when adjudicating a motion for summary judgment. New Haven v. Pantani, supra, 89 Conn.App. 680. While the court must be solicitous of self-represented parties, those parties must still comply with procedural and substantive requirements. Berka v. Middletown, supra, 181 Conn.App. 163. Mrs. Brass has failed to do so. The defendants’ attack on the admissibility of the substitute plaintiff’s evidence fails.
The burden now shifts to the defendant to produce evidence that shows the substitute plaintiff was not the owner of the debt when the action commenced. American Home Mortgage Servicing, Inc. v. Reilly, supra, 157 Conn.App. 133. The defendants submitted an assignment of mortgage document that purports to show that MERS transferred the note and mortgage to BAC Home Loans. The substitute plaintiff objects to this document, however, because the defendants have not submitted an affidavit in support of it, which leaves it unauthenticated. It is error for the court to consider unauthenticated evidence in deciding a motion for summary judgment. See New Haven v. Pantani, supra, 89 Conn.App. 680. As such, the court cannot consider the defendants’ purported submission.
In its supplemental memorandum of law in support of its motion, the substitute plaintiff states that "the [d]efendants do not supply any affidavit or other proper evidence in support of their legal arguments that [the] [p]laintiff lacked standing." While not styled as an objection, the substitute plaintiff is objecting to the defendants’ reliance on improper, i.e., inadmissible, evidence.
Mrs. Brass has also submitted additional evidence in support of her objection: (1) an affidavit of Joseph R. Esquivel (Esquivel), a private investigator licensed in Texas; (2) an affidavit of William McCaffrey (McCaffrey); and (3) a purported chain of title analysis report. Mrs. Brass claims that these submissions show that the substitute plaintiff does not presently hold the note or mortgage, which would defeat the present motion. The substitute plaintiff objected to the court’s consideration of these documents at the January 2, 2019 hearing as hearsay. While hearsay, there is a more fundamental problem with these submissions: they are all unauthenticated or are so illegible that the court cannot rely on them. Both the Esquivel and McCaffrey affidavits purport to be sworn, but on each affidavit’s respective signature page, the documents are riddled with what appears to be typographical errors and random strings of alphanumerical characters that may be the result of computer programming language errors, rendering the documents unintelligible and unauthenticated. The purported chain of title analysis report suffers from similar errors but is also deficient for a separate reason. Assuming that they are sworn and reliable, neither the Esquivel nor the McCaffrey affidavit authenticate the chain of title analysis report. It is error for the court to consider unauthenticated evidence. See New Haven v. Pantani, supra, 89 Conn.App. 680. Accordingly, the court cannot consider Mrs. Brass’ submissions.
The defendants have failed to produce evidence that sets up and proves facts that limit or change the substitute plaintiff’s right to foreclose, thereby failing to rebut the substitute plaintiff’s prima facie case of foreclosure. American Home Mortgage Servicing, Inc. v. Reilly, supra, 157 Conn.App. 133. Accordingly, the substitute plaintiff is entitled to judgment as a matter of law as to liability.
C Special Defenses
The substitute plaintiff moves for summary judgment on Mr. Brass’ special defenses on the grounds that they are legally insufficient and are conclusory. Mr. Brass only responds that genuine issues of material fact exist as to the fifth special defense.
"[A] court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong, supra, 149 Conn.App. 392. "A valid special defense at law to a foreclosure proceeding must ... address the making, validity or enforcement of the mortgage, the note, or both." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). "[T]he party raising a special defense has the burden of proving the facts alleged therein ... If the plaintiff in a foreclosure action has shown that it is entitled to foreclose, then the burden is on the defendant to produce evidence supporting its special defenses in order to create a genuine issue of material fact ... Legally sufficient special defenses alone do not meet this burden. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... Further ... [t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings ... [B]ecause any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried." (Citations omitted; internal quotation marks omitted.) U.S. Bank National Ass’n v. Eichten, 184 Conn.App. 727, 745, 196 A.3d 328 (2018). "[T]he total absence of any factual allegations specific to the dispute renders [the special defense] legally insufficient." (Internal quotation marks omitted.) Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (60 Conn.L.Rptr. 864, 865).
1
Standing, Subject Matter Jurisdiction, and Party in Interest
"[Subject matter] [j]urisdiction ... is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Esposito v. Specyalski, supra, 268 Conn. 348. "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 ... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Citations omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, supra, 309 Conn. 318. If a party is not the real party in interest, then that party lacks standing but standing can be cured if the real party in interest is substituted for the original plaintiff. Fairfield Merritview Ltd. Partnership v. Norwalk, 320 Conn. 535, 552-53, 133 A.3d 140 (2016).
Mr. Brass alleges in his first special defense that the substitute plaintiff lacks standing to commence and prosecute the present lawsuit. In his second special defense, Mr. Brass alleges that the court lacks subject matter jurisdiction over the present lawsuit. In the third special defense, Mr. Brass alleges that the substitute plaintiff is not "the proper party in interest" to initiate or prosecute the present lawsuit. No other facts are alleged in any of these three defenses.
Each of the first three special defenses merely enshrine an attack on the court’s subject matter jurisdiction. This is not the purpose of a special defense. Moreover, these "defenses" can always be sought through a motion to dismiss for lack of subject matter jurisdiction, which may be brought at any time. Practice Book § 10-30(a)(1); New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009) ("[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time" [internal quotation marks omitted]). For these reasons, the substitute plaintiff is entitled to summary judgment as to Mr. Brass’ first, second, and third special defenses.
2
Res Judicata and Collateral Estoppel
"The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation ... and they have been described as related ideas on a continuum ... [C]ollateral estoppel, or issue preclusion ... prohibits 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 otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment 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 characteristics of dicta ... Furthermore, [t]o invoke collateral 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 preclusion 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. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it ... 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, cert. granted, 327 Conn. 982, 186 A.3d 12 (2017).
Mr. Brass alleges in his fourth special defense that "the [p]laintiff’s claims and cause of action asserted in this lawsuit are barred by res judicata and/or collateral estoppel." Nothing more is alleged. This statement is conclusory and, as such, is legally insufficient. Smith v. Jackson, supra, 60 Conn.L.Rptr. 865. Moreover, Mr. Brass has submitted no evidence that indicates that this foreclosure action or their liability to the substitute plaintiff on the note has previously been litigated as to warrant claim or issue preclusion. Accordingly, the substitute plaintiff is entitled to summary judgment as to Mr. Brass’ fourth special defense.
3
Note Unenforceable Under Truth in Lending Act
"Although neither our Supreme Court nor the Appellate Court has addressed the validity of TILA violations as a special defense in mortgage foreclosure actions, several [Superior Courts] have noted that [a] mortgage holder’s failure to comply with state and/or federal truth-in-lending requirements has been held not to constitute a legally sufficient special defense in mortgage foreclosure actions ... These courts reasoned that TILA violations do not present a legal attack on the validity of the note or mortgage, but rather relate to the conduct of the lienholder." (Citations omitted; internal quotation marks omitted.) Countrywide Home Loans, Inc. v. Needham, Superior Court, judicial district of Litchfield, Docket No. CV-07-6000242-S (November 7, 2007, Gallagher, J.); see also Bank of New York v. Conway, 50 Conn.Supp. 189, 201, 916 A.2d 130 (2006); PHH Mortgage Corp. v. Cameron, Superior Court, judicial district of Hartford, Docket No. CV-10-6012369-S (January 10, 2012, Robaina, J.); Ohio Savings Bank v. Wage, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-04-4002598 (April 4, 2007, Tyma, J.); Eastern Savings Bank, FSB v. Mara, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4006305 (June 5, 2006, Dooley, J.); Thanhauser v. Nemickas, Superior Court, judicial district of Danbury, Docket No. CV-01-0341880 (November 28, 2001, Holden, J.); Mundaca Divestment Corp. v. Atwood, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 0319174 (February 21, 1996, Moran, J.); Beneficial Mortgage Co. v. Brassington, Superior Court, judicial district of Danbury, Docket No. 318933 (June 19, 1995, Stodolink, J.).
Mr. Brass alleges in his fifth special defense that "[t]he [p]laintiff’s cause of action is unenforceable due to violations of [TILA]." TILA, however, is not a valid special defense to a foreclosure action because it does not relate to the making, validity, or enforcement of the note. Moreover, no facts are alleged, which makes the defense conclusory. Mr. Brass argues that genuine issues of material fact exist that preclude the grant of summary judgment on this special defense. Specifically, he argues that the statute of limitations period is tolled due to the evidence submitted that purportedly shows fraudulent concealment of the required TILA disclosures. On a motion for summary judgment in a foreclosure action, however, the court is simply required to analyze whether a special defense is legally sufficient. Wells Fargo Bank, N.A. v. Strong, supra, 149 Conn.App. 392. The evidence submitted relative to the TILA claim will be analyzed with regard to the substitute plaintiff’s motion for summary judgment relative to the defendant’s counterclaim. Accordingly, the substitute plaintiff’s motion for summary judgment as to the defendants’ fifth special defense is granted.
4
Unenforceability Due to Noncompliance with Note and Mortgage Deed
"Special defenses fall into two categories: matters of discharge, such as payment; and matters of justification or excuse, such as self-defense ... The plaintiff always bears the onus of alleging and proving a cognizable cause of action. A defendant has no obligation to attempt to address or rectify the failure of a plaintiff in this regard by motion, demurrer, or otherwise ... The defendant can raise this defect by way of summary judgment, evidentiary objection, or motion during or after trial." (Citation omitted; internal quotation marks omitted.) Goodspeed Airport, LLC v. East Haddam, Superior Court, judicial district of Tolland, Docket No. CV-01-0076811 (September 12, 2002, Sferrazza, J.). "In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance 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 mortgage, have been satisfied." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong, supra, 149 Conn.App. 392.
Mr. Brass alleges in his sixth and final special defense that "[t]he [p]laintiff’s cause of action is unenforceable due to its failure to comply with the terms of the [n]ote and [m]ortgage [d]eed." No additional facts are alleged. Failure to comply with the terms of the note and mortgage is fatal to a plaintiff’s prima facie case of foreclosure. See id. The sixth special defense, then, merely enshrines an attack on the substitute plaintiff’s ultimate burden to prove its case. This is not a matter of discharge or excuse and, as such, is not a legally sufficient special defense. Goodspeed Airport, LLC v. East Haddam, supra . Moreover, the substitute plaintiff has submitted ample evidence that it has, in fact, complied with the conditions precedent to foreclosure. The defendants have failed to submit evidence that raises a genuine issue of material fact otherwise. Accordingly, the substitute plaintiff is entitled to summary judgment as to Mr. Brass’ sixth special defense.
5
Time to Foreclose
While not raised as a special defense by either defendant, Mrs. Brass argues in her objection to the substitute plaintiff’s motion for summary judgment that the statute of limitations period to foreclose has expired. An action being time-barred is a valid special defense in Connecticut. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). Mrs. Brass, however, relies upon New York law in claiming that a foreclosure action must be commenced within six years of the time of acceleration of the debt. N.Y.C.P.L.R. § 213(4) (McKinney 2004). New York law is not binding on a Connecticut foreclosure action. Even if it was, BOA commenced this action within six years of acceleration, which is evidenced by the February 8, 2014 notice of default that indicated to the defendants that BOA was accelerating the debt. Mrs. Brass’ argument is, therefore, meritless.
D
Counterclaim
The substitute plaintiff moves for summary judgment on Mr. Brass’ TILA counterclaim on the ground that it is barred because the statute of repose period has expired and cannot be tolled. Mr. Brass contends, though, that the statute of repose period is tolled because there was fraudulent concealment of his right of rescission under TILA.
"The federal Truth in Lending Act ... 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 ... Title 15 of the United States Code, § 1604 provides that [t]he Board [of Governors of the Federal Reserve System] shall prescribe regulations to carry out the purposes of this title [15 U.S.C.S. § 1601 et seq.] The board has promulgated TILA regulations known as Regulation Z, which are codified at 22 C.F.R. § 226.1 et seq. ... The limited right of rescission in a consumer credit transaction generally allows the consumer to rescind the agreement until midnight of the third business day following the consummation of the transaction ... 15 U.S.C. § 1635(a). If the creditor fails completely to provide a rescission notice to the consumer, the consumer has an extended period of three years after the consummation date in which to rescind a consumer transaction." (Citations omitted; internal quotation marks omitted.) Bank of New York v. Conway, supra, 50 Conn.Supp. 197-98; 15 U.S.C. § 1635(f) (limitations period to rescind). The United States Supreme Court has held that the three-year limitations period to rescind cannot be extended regardless of whether it is asserted as a counterclaim or otherwise. Beach v. Ocwen Federal Bank, 523 U.S. 410, 419, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998).
Mr. Brass alleges in his counterclaim that he entered into a consumer credit transaction with Nationwide on or about May 25, 2007. Mr. Brass further alleges that Nationwide did not provide him two copies of a notice of his right to rescind with the various statutory and regulatory requirements laid out in § 1635(a) and 12 C.F.R. § 226.23(b). Mr. Brass alleges that the substitute plaintiff, as an assignee, is fully liable for the failings of Nationwide. Mr. Brass then alleges that he has a continuing right to rescind the transaction, here the mortgage, until the third business day after receiving both the requisite notice and all material disclosures. He then alleges that he rescinded the transaction by sending BOA a notice of rescission on August 21, 2015, but BOA did not take any necessary action to reflect the termination of the mortgage despite having allegedly received the notice.
Pursuant to 15 U.S.C. § 1641(c), the plaintiff is indeed liable if Mr. Brass were to prove that Nationwide did not provide notice of his right to rescind that lacked material provisions.
By Mr. Brass’ own judicial admission in his counterclaim, he gave his notice of rescission more than eight years after the transaction that created the mortgage on the defendants’ home. This notice is over five years too late, for the latest the notice could have been sent would have been May 25, 2010. Mr. Brass’ counterclaim is, accordingly, time-barred.
Nevertheless, Mr. Brass argues that his TILA counterclaim should survive the present motion for summary judgment because he claims that genuine issues of material fact exist as to whether the three-year limitations period is tolled pursuant to General Statutes § 52-595. Section 52-595 provides in relevant part that "[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." Mr. Brass further relies on the case of Boston Safe Deposit & Trust Co. v. Brooks, Superior Court, judicial district of Hartford, Docket No. CV-90-037176-S (March 3, 1993, Satter, J.T.R.) (8 Conn.L.Rptr. 416, 418), in which the court denied a plaintiff’s motion for summary judgment on the defendant’s federal TILA counterclaim because it held that the three-year statute of limitations can be tolled pursuant to § 52-595 and that genuine issues of material fact existed as to whether the plaintiff fraudulently concealed the right to rescind the mortgages. The Brooks court, however, did not have the benefit of the United States Supreme Court’s interpretation of § 1635(f) that the three-year statute of limitations contained may not be tolled under any circumstances. Beach v. Ocwen Federal Bank, supra, 523 U.S. 419. Even if it could be tolled, Mr. Brass has submitted no evidence that indicates that the substitute plaintiff or its predecessors in title fraudulently concealed his right to rescind the transaction under TILA.
For these reasons, the substitute plaintiff’s motion for summary judgment as to Mr. Brass’ counterclaim is granted.
IV
CONCLUSION
For the foregoing reasons, the court grants the substitute plaintiff’s motion for summary judgment.