Opinion
AC 40959
02-09-2021
The BANK OF NEW YORK MELLON v. Achyut M. TOPE et al.
Thomas P. Willcutts, Hartford, for the appellant, with whom, on the brief, was Achyut M. Tope, self-represented, the appellant (named defendant). William R. Dziedzic, Farmington, for the appellee (plaintiff).
Thomas P. Willcutts, Hartford, for the appellant, with whom, on the brief, was Achyut M. Tope, self-represented, the appellant (named defendant).
William R. Dziedzic, Farmington, for the appellee (plaintiff).
Elgo, Cradle and Devlin, Js.
CRADLE, J. The defendant Achyut M. Tope appeals from the denial of his motion to open and vacate the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, The Bank of New York Mellon, formerly known as The Bank of New York, as Successor to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2004-3. The defendant claims that the trial court erred in denying his motion to open and vacate because the plaintiff lacked standing to commence this action and, consequently, the trial court lacked subject matter jurisdiction over it. The plaintiff contends that it had standing to commence this action and that this appeal constitutes an impermissible collateral attack on the court's foreclosure judgment, which initially was entered in 2014 and from which the defendant did not appeal. We agree with the plaintiff that the defendant's appeal from the motion to open and vacate constitutes an impermissible collateral attack on the foreclosure judgment, and, accordingly, affirm the trial court's denial of the defendant's motion to open and vacate.
Geeta A. Joshi-Tope also was named as a defendant in the underlying foreclosure action, but she is not a party to this appeal. We therefore refer in this opinion to Achyut M. Tope as the defendant.
The record reveals the following relevant factual and procedural history. On October 31, 2003, the defendant executed a promissory note in the amount of $134,000, payable to HSBC Mortgage Corporation (USA) (HSBC). To secure that note, the defendant mortgaged property located at 387 Sherman Avenue in New Haven (property) to HSBC. The note was later endorsed to "JPMorgan Chase Bank, as Trustee." On January 15, 2014, HSBC assigned the mortgage to the plaintiff.
HSBC assigned to the plaintiff: "[T]he said Mortgage having an original principal sum of $134,000.00 with interest, secure thereby, with all moneys now owing or that may hereafter become due or owing in respect thereof, and the full benefit of all the powers and of all the covenants and provisos therein contained, and the said Assignor hereby grants and conveys unto the said Assignee, the Assignor's interest under the Mortgage."
On July 17, 2014, the plaintiff filed the present action seeking to foreclose on the mortgage. The defendant filed his appearance on October 9, 2014, and, on October 28, 2014, he was defaulted for failing to plead. On November 10, 2014, the court, Hon. Thomas J. Corradino , judge trial referee, entered a judgment of foreclosure by sale, with a sale date set for February 7, 2015.
On January 20, 2015, the defendant filed his first motion to open and extend the sale date. The court granted the motion and set a new sale date for June 20, 2015. The defendant subsequently filed three additional motions to open the foreclosure judgment—on March 9, 2015, August 31, 2015, and January 6, 2016—resulting in further extensions of the sale date. On March 8, 2016, the defendant filed a fifth motion to open, claiming that there was more than $100,000 of equity in the property and he had applied for a loan modification. On April 11, 2016, the court granted the defendant's motion and vacated the foreclosure judgment.
The sale date was extended to September 26, 2015, February 27, 2016, and April 30, 2016, respectively. We note that the court held hearings on each of these motions and the defendant appeared and was afforded the opportunity to be heard at those hearings.
On June 17, 2016, the plaintiff filed a motion for a judgment of strict foreclosure. On November 21, 2016, the court, Avallone, J ., entered a judgment of foreclosure by sale and set a sale date for February 11, 2017. On January 3, 2017, the defendant filed a motion to open and stay the judgment on the ground that he had obtained a financial audit that "provides strong supporting documentation that the plaintiff does not have standing to pursue a foreclosure action with respect to the property in this action." The defendant sought to stay this action "to preserve his rights" because he filed a new action involving additional properties that he owns, which, he claimed, was being removed to federal court.
At the November 21, 2016 hearing, at which the defendant was present, the court expressly indicated that it was "reviewing the note of October 31, 2003. I find it to be in order, initialed as an original on each page, signed by the borrowers as an original.
"Open ended mortgage of even date likewise signed and appropriate.
"There's an assignment of that mortgage dated January 15, 2014....
"[The] plaintiff is entitled to bring the action."
The plaintiff refers to "attached exhibit A," but there were no exhibits attached to his motion.
On January 4, 2017, the defendant filed a motion for summary judgment alleging, inter alia, that the plaintiff lacked standing to bring this action because the plaintiff failed to show "the proper chain of ownership, assignment and control of the note and mortgage and property with affidavits from persons with knowledge ...." At the February 6, 2017 hearing on the defendant's motion to open, the defendant represented to the court, Avallone, J ., that the arguments in his motion to open and motion for summary judgment were "generally" the same. Accordingly, the court allowed the defendant, at his request, to argue his motion for summary judgment at that hearing. Following extensive argument by the defendant, the court denied both of his motions. The court expressly rejected the defendant's challenge to the plaintiff's standing, stating: "I've given you sufficient opportunity to make your arguments. I don't believe that they hold water." On March 1, 2017, the defendant filed a motion to reargue both motions, which the court summarily denied.
In his motion for summary judgment, the defendant also alleged "fraud in the concealment"; "fraud in inducement"; "intentional infliction of emotional distress"; "slander of title"; "quiet title"; "violation of ... 15 U.S.C. § 1601 et seq."; and "violation of ... [12] U.S.C. § 2601 et seq."
On February 10, 2017, the defendant filed a motion to dismiss, again alleging lack of subject matter jurisdiction on the ground that the plaintiff did not have standing to commence this action. On February 27, 2017, the defendant filed another motion to dismiss the action for lack of subject matter jurisdiction, citing to the arguments that he previously raised in his motion for summary judgment. On March 24, 2017, the defendant filed a third motion to dismiss, "in addition to and [in] further [support of]" his prior two motions to dismiss and his motion for summary judgment, for lack of subject matter jurisdiction.
We note that the foreclosure auction proceeded as scheduled on February 11, 2017. The court, however, denied the committee's motion to approve the sale because the high bid was too low, and ordered the deposit to be returned to the high bidder.
On April 17, 2017, the court, Avallone, J ., held a hearing on the defendant's motion to dismiss dated February 27, 2017. At the hearing, the defendant argued that he had two copies of the note which were irreconcilably different, thereby proving that the plaintiff was not the holder of the note and therefore did not have standing. The defendant presented those two copies to the court. The defendant argued: "[T]he original note that I signed ... which I have asked over and over and over in ... court, docketed in many times, many motions, many pleadings, has not been shared. And I don't know whether ... the first time when the court approved ... the foreclosure sale and the second time when it did, the court must have looked at the two original documents." In response, the plaintiff presented the original note to the defendant. The defendant acknowledged that his signature was on the original note.
The court then asked the defendant how the two copies of the note that he had presented were relevant since the foreclosure judgment was entered on the basis of the original note. The defendant "object[ed] [to] whether Judge Corradino had possession of the original note" when he entered the foreclosure judgment in 2014. The court explained to the defendant that it had already heard the defendant's arguments a "multitude" of times, but agreed to review the proceedings that occurred before Judge Corradino in 2014. The court recessed briefly to do so.
Upon resuming the hearing, the court stated that it had listened to the recording of the proceeding before Judge Corradino in 2014 and explained that "[t]here is nothing out of order ... in Judge Corradino's actions in the court that day that would lead me to believe that there is any evidence, that there is anything improper as to the documents that were ... filed." The court explained to the defendant: "I've listened to your arguments consistently. You've made an argument about the notes. I don't accept your argument that there is anything inappropriate by there being copies, multiple copies of a note." The defendant pressed his argument regarding his claimed improprieties with the assignments, and the court responded: "I have looked at the original note. That's what ... I'm concerned with. And I'm satisfied that there is nothing inappropriate ... by this court's action or by the actions of Judge Corradino. And you've presented nothing to me that ... would ... make me think otherwise. And so I've denied your motion to dismiss." The court set a new sale date of August 19, 2017. On April 24, 2017, the court, Avallone, J ., marked off the defendant's motion to dismiss that was filed on February 10, 2017. On May 1, 2017, the defendant filed another motion to dismiss challenging the plaintiff's standing to pursue this action.
On May 30, 2017, the court, Pittman, J ., held a hearing on the defendant's February 10, 2017 motion to dismiss. At that hearing, the defendant again was afforded the opportunity to present his arguments challenging the plaintiff's standing, the same arguments that he made in his previous motion to dismiss dated February 27, 2017, and his motion for summary judgment. The defendant summarized his argument by again asserting that the plaintiff was not the holder of the note. The court told the parties that it would consider all of the prior filings regarding standing and indicated that it would issue a written decision. On June 6, 2017, the court, Pittman, J. , issued a written order denying the February 10, 2017 motion to dismiss. The court explained: "This motion, #162, was previously considered by Judge Avallone in open court on April 24, 2017. At that time, Judge Avallone marked this motion off, having determined that it raised the same issues as #164, which was denied by Judge Avallone on April 17, 2017, #164. The court will not continue to revisit issues that have been previously decided and that constitute the law of the case. Moreover, a judgment has entered in this matter and a motion to dismiss is not properly before the court in the absence of an order granting a motion to open the judgment." On June 28, 2017, the defendant filed a motion to open and to extend the sale date on the ground that he was making progress in his efforts to sell the subject property. The court extended the sale date to October 21, 2017.
On September 28, 2017, the defendant filed a motion to open and to vacate the judgment of foreclosure by sale, wherein he again argued that the plaintiff lacked standing to commence this action and, consequently, the court lacked subject matter jurisdiction over it, and asked that the action be dismissed "in its entirety with prejudice." On October 16, 2017, the court, Hon. Thomas J. Corradino, judge trial referee, held a hearing on the defendant's motion, at which the defendant again presented his argument to the court. On October 17, 2017, the court, Hon. Thomas J. Corradino, judge trial referee, issued an order denying the defendant's motion to open and vacate the foreclosure judgment. It is from this denial of the defendant's September 28, 2017 motion to open and vacate the foreclosure judgment, which first entered on November 10, 2014, and was entered again on November 21, 2016, that the defendant now appeals.
Judge Corradino issued the following written order on October 17, 2017: "This complaint was filed in July of 2014. The defendant did not raise arguments as to the plaintiff's standing for over two years. The affidavit filed by the servicer of the loan which was taken out in 2003, and on which no payments have been made since 2013, clearly states that the plaintiff is the holder of the note and the mortgage—this affidavit was filed under oath in September of 2014. It was filed under oath by a party who would have no apparent interest in falsifying its report. For the reasons set forth concisely at pages 5 through 10 of the plaintiff's memorandum in opposition to a prior motion to dismiss (#186) as holder of the note the plaintiff has standing. Fleet National Bank v. Nazareth , 75 Conn. App. 791, 818 A.2d 69 (2003), is not applicable to the facts of this case. This court's conclusion on the lack of standing issue is consistent with the prior rulings raising this issue previously on this case."
The defendant claims that the trial court erred in denying his motion to open and vacate the foreclosure judgment because the plaintiff lacked standing to pursue foreclosure against him and thus the trial court lacked subject matter jurisdiction over this action. The plaintiff has steadfastly maintained throughout the litigation of the defendant's myriad of postjudgment motions that it is the holder of the note and thus has standing to pursue this action. The plaintiff argues that this appeal constitutes an impermissible collateral attack on the foreclosure judgment. We agree with the plaintiff.
We begin by noting that "[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins. , 315 Conn. 196, 226, 105 A.3d 210 (2014). "To be sure, it is often stated that [a] claim that a court lacks subject matter jurisdiction may be raised at any time during the proceedings ... including on appeal ...." (Internal quotation marks omitted.) Rider v. Rider , 200 Conn. App. 466, 478, 239 A.3d 357 (2020).
"Our jurisprudence, however, has recognized limits to raising a collateral attack setting forth a claim of lack of subject matter jurisdiction. ... Although challenges to subject matter jurisdiction may be raised at any time, it is well settled that [f]inal judgments are ... presumptively valid ... and collateral attacks on their validity are disfavored. ...
"The reason for the rule against collateral attack is well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice. ... Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. ... [T]he law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court's decision. ... If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character when it is pleaded or produced in evidence against him in subsequent proceedings. Unless it is entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to indirect assaults upon it. ...
"[I]t is now well settled that, [u]nless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs .... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal. ... [A]t least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. ... Our Supreme Court further explained that such a collateral attack is permissible only in rare instances when the lack of jurisdiction is entirely obvious so as to amount to a fundamental mistake that is so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority ... [or] the exceptional case in which the court that rendered judgment lacked even an arguable basis for jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., at 479–80, 239 A.3d 357.
Here, although the defendant appeared in this case approximately thirty days prior to the entry of the first foreclosure judgment, he never directly challenged that judgment or the November 21, 2016 judgment of foreclosure by sale. See Saunders v. KDFBS, LLC , 335 Conn. 586, 592–94, 239 A.3d 1162 (2020) (judgment of foreclosure by sale is final appealable judgment). We therefore are presented with a collateral attack by the defendant on the foreclosure judgment rendered on November 21, 2016, by way of his September 28, 2017 motion to open, on the basis of a claim that the trial court lacked subject matter jurisdiction over this case. The defendant has failed, however, to demonstrate, or even argue, that the trial court's lack of subject matter jurisdiction is entirely obvious. The defendant did not challenge the plaintiff's standing or the court's jurisdiction until more than two years after he filed his appearance. Following the entry of the second foreclosure judgment, the defendant challenged the plaintiff's standing multiple times, as set forth in detail herein. In response to the defendant's multiple postjudgment motions challenging the plaintiff's standing, three different trial court judges examined the record, considered the defendant's arguments and reviewed the documents that he submitted, and rejected the defendant's challenge to the court's subject matter jurisdiction. The record reflects that Judge Avallone examined the original note upon which both foreclosure judgments were based and specifically found that the plaintiff had standing to commence this action. The record does not reveal a clear lack of standing. Because the defendant has not proven that it was entirely obvious that the trial court lacked jurisdiction in this matter, he has failed to rebut the presumption of the validity of the foreclosure judgment.
The defendant also never challenged the default that had been entered against him.
We disagree with the dissent's contention that the November 21, 2016 foreclosure judgment was no longer operative after the court opened it to extend the sale date. In RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006), our Supreme Court emphasized the "substantive distinction between opening a judgment to modify or to alter incidental terms of the judgment, leaving the essence of the original judgment intact, and opening a judgment to set it aside." Id., at 690, 899 A.2d 586. The court concluded that "when the only change to the original judgment involved the extension of a sale date—an incidental term—the substantive terms of the original judgment remained intact, and the opening of the judgment did not render the original judgment void." Nelson v. Dettmer , 305 Conn. 654, 678 n.19, 46 A.3d 916 (2012), citing RAL Management, Inc. v. Valley View Associates , supra, at 691, 899 A.2d 586. Thus, because the motions to open that followed the November 21, 2016 judgment only extended the sale date of the property, an incidental term ordered to effectuate that judgment, the November 21, 2016 judgment remained intact. And, because the defendant failed to appeal from the November 21, 2016 foreclosure judgment, and the motion to open from which he now appeals was not filed within four months of that judgment, as prescribed by General Statutes § 52-212a, this appeal, in our view, is a collateral attack on the November 21, 2016 foreclosure judgment.
We note that the fact that three different trial court judges heard the defendant's standing arguments and examined the documentary evidence that he submitted, in itself, belies any argument that the lack of subject matter jurisdiction is entirely obvious.
Although the record of the 2014 foreclosure hearing does not expressly reflect that Judge Corradino reviewed the note, our Supreme Court has held that the lack of such an explicit finding is not indicative of error. To the contrary, the court reasoned that in entering the foreclosure judgment, "necessary to the court's finding that the plaintiff had standing to enforce the note is the subsidiary or threshold finding that the plaintiff was, in fact, the holder of that instrument, as the plaintiff alleged in its complaint. See General Statutes § 42a-3-301. Indeed ... under Practice Book § 23-18, the court was required to review the note, mortgage and affidavit of debt before finding ... the [amount of the] debt [and] ... the value of the property and ... [entering the judgment of] foreclosure [by sale]. It is well established that, ‘under the law of evidence, it is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed, the presumption of regularity attending the acts of public officers being applicable to judges and courts and their officers .... The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty. ... The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.’ ... Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6–7, 513 A.2d 1218 (1986) ; see also Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988) (‘we are entitled to assume, unless it appears to the contrary, that the trial court ... acted properly’). Consequently, in the absence of any evidence or other indication to the contrary, it is reasonable to presume that the trial court acted in accordance with law and examined the note and mortgage prior to rendering judgment of ... foreclosure." (Citation omitted.) Equity One, Inc. v. Shivers , 310 Conn. 119, 131–32, 74 A.3d 1225 (2013).
Moreover, because the defendant was afforded multiple opportunities to present his arguments in full to the trial court, it cannot reasonably be argued that the defendant was deprived of a fair opportunity to litigate the issue of standing. The defendant has similarly failed to furnish, nor are we aware of, any strong policy reason to allow this otherwise disfavored collateral attack on the foreclosure judgment. Accordingly, we are not persuaded that the facts and circumstances of this matter constitute the exceptional case in which the lack of jurisdiction was so manifest as to warrant review at this point in the proceedings. We therefore decline to consider this collateral attack to the subject matter jurisdiction of the court.
At oral argument before this court, the plaintiff suggested that this court take judicial notice of documents that it submitted showing succession of the trustee. Because those documents were not presented to the trial court, and are immaterial to our resolution of this appeal, we decline to take judicial notice of them.
The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.
In this opinion, ELGO, J., concurred.
DEVLIN J., dissenting.
The leading Connecticut treatise on mortgage foreclosures observes that "[t]he foreclosure process differs substantially from the more typical form of civil action: Not only can the nature of the judgment vary, [i.e.] strict foreclosure as opposed to a sale, but various interlocutory rulings occur routinely." 2 D. Caron & G. Milne, Connecticut Foreclosures (9th Ed. 2019) § 20-1, p. 32. In the present case, the majority treats the jurisdictional attack on the judgment by the self-represented defendant Achyut M. Tope as collateral, declines to consider it and affirms the judgment of the trial court. I do not see the attack as collateral but, rather, as direct. Moreover, the attack has merit because there can be little doubt that, in the trial court, the plaintiff, The Bank of New York Mellon, did not prove its authority to enforce the note at issue in this case. I would therefore remand the case to the trial court so that an evidentiary hearing can take place to determine the plaintiff's standing. Accordingly, I respectfully dissent.
This is one of the reasons why the four month limitation on opening judgments contained in General Statutes § 52-212a is inapplicable to judgments of strict foreclosure. See General Statutes § 49-15.
References to the defendant in this dissent are to Tope.
"A collateral attack is an attack upon a judgment, decree or order offered in an action or proceeding other than that in which it was obtained, in support of the contentions of an adversary in the action or proceeding ...." (Internal quotation marks omitted.) Warner v. Brochendorff , 136 Conn. App. 24, 32 n.7, 43 A.3d 785, cert. denied, 306 Conn. 902, 52 A.3d 728 (2012). This definition of collateral attack has been applied in a number of cases. See, e.g., Upjohn Co. v. Zoning Board of Appeals , 224 Conn. 96, 97, 616 A.2d 793 (1992) (in zoning enforcement action, company challenged validity of condition attached to permit issued three years prior by planning and zoning commission); Rider v. Rider , 200 Conn. App. 466, 477, 239 A.3d 357 (2020) (in quiet title action, plaintiff challenged validity of prior Probate Court order appointing plaintiff's brother as conservator for their father); Federal National Mortgage Assn. v. Farina , 182 Conn. App. 844, 846, 191 A.3d 206 (2018) (in summary process action, defendant challenged validity of prior mortgage foreclosure judgment); Warner v. Brochendorff , supra, at 27–28, 43 A.3d 785 (in action to foreclose judgment lien, defendant attacked validity of underlying judgment); Morris v. Irwin , 4 Conn. App. 431, 434, 494 A.2d 626 (1985) (in declaratory judgment action, plaintiff sought to challenge two and one-half year old marital dissolution judgment). Connecticut cases have also used the term "collateral attack" in situations in which the attack was made in the same case but, due to the passage of time, the judgment has become final and is beyond the jurisdiction of the court to open. See, e.g., Sousa v. Sousa , 322 Conn. 757, 763, 143 A.3d 578 (2016) (defendant sought to open and vacate modified marital dissolution judgment four years after modification); In re Shamika F. , 256 Conn. 383, 398–99, 773 A.2d 347 (2001) (in appeal from termination of parental rights proceeding, father sought to challenge order of temporary custody entered three years prior); Vogel v. Vogel , 178 Conn. 358, 358–60, 422 A.2d 271 (1979) (plaintiff sought to attack nineteen year old marital dissolution judgment); Monroe v. Monroe , 177 Conn. 173, 174, 413 A.2d 819 (plaintiff sought to attack marital dissolution judgment five years after judgment was rendered), appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979) ; CUDA & Associates, LLC v. Smith, 144 Conn. App. 763, 764, 73 A.3d 848 (2013) (in debt collection case, defendant sought to attack plaintiff's standing twenty-eight months after default judgment was rendered); Urban Redevelopment Commission v. Katsetos , 86 Conn. App. 236, 237–38, 860 A.2d 1233 (2004) (defendant attacked jurisdiction in condemnation proceeding three years after judgment was rendered pursuant to stipulation), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005).
In each of the previously cited cases, even those challenging the court's subject matter jurisdiction, the court rejected the collateral attack without considering its merits. The rationale for this approach was first articulated in Monroe v. Monroe , supra, 177 Conn. at 178, 413 A.2d 819, in which our Supreme Court stated that "[t]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695–97; Restatement (Second), Judgments § 15 (Tent. Draft No. 5 1978)." In the present appeal, the majority adopts the plaintiff's position that the defendant's attack on its standing should be considered collateral and rejected in favor of the finality of the foreclosure judgment. The problem with this approach is that the motion to open the judgment in the present case was not made in a separate action, nor was it filed after the trial court lost jurisdiction to act. More specifically, unlike the parties in Warner , Upjohn Co. , Rider , Farina , and Morris , the defendant in the present case has not challenged the foreclosure judgment in a separate action such as an action for a declaratory judgment or as a defense in a summary process action. In addition, unlike in Sousa , In re Shamika F. , Vogel , Monroe , CUDA & Associates, LLC , and Urban Redevelopment Commission , the trial court in the present case never lost jurisdiction to consider the defendant's claims. Although the case has been pending for several years, it is largely due to various actions by the trial court giving the parties the opportunity to mediate the dispute and the defendant the opportunity to sell the property, and not because the case had reached a stage beyond which the trial court could not act.
In the present case, the trial court rendered a judgment of foreclosure by sale. With respect to such a judgment, the court's jurisdiction to open and modify the judgment generally ends with the approval of the sale and expiration of the applicable appeal period. See, e.g., Wells Fargo Bank of Minnesota, N.A. v. Morgan , 98 Conn. App. 72, 79, 909 A.2d 526 (2006) ; see also 1 D. Caron & G. Milne, supra, § 10-1:2, p. 616 ("[T]he court's jurisdiction to modify a judgment generally ends with the approval of the sale. ... [This] approval ... operates to divest the owner of [the] equity of redemption and consequently places the property beyond the power of the court."). The majority suggests that the defendant's September 28, 2017 motion to open and vacate the judgment of foreclosure by sale was an impermissible collateral attack on the prior judgments entered on November 10, 2014, and November 21, 2016. These judgments, however, were not operative at the time of the defendant's September 28, 2017 motion. Following the entry of the default judgment on November 10, 2014, that judgment was opened, modified, and reentered twice; once on January 26, 2015, by the court, Ecker, J ., and again on September 21, 2015, by the court, Avallone, J . Additionally, Judge Avallone opened and vacated the judgment on April 11, 2016. Thereafter, the plaintiff moved for entry of judgment of strict foreclosure. Pursuant to this motion, on November 21, 2016, Judge Avallone rendered a judgment of foreclosure by sale, which also was twice opened and reentered—first on April 17, 2017, and again on July 3, 2017. In each instance, the order stated: "JUDGMENT OF FORECLOSURE BY SALE ORDERED REOPENED, MODIFIED AS FOLLOWS, AND REENTERED ...."
Our Supreme Court has gone even further, concluding that, for purposes of the four month limitation on opening judgments contained in General Statutes § 52-212a, the court's jurisdiction to open a judgment of foreclosure by sale extends to the date the court renders its supplemental judgment distributing the proceeds of the sale. Citibank, N.A. v. Lindland , 310 Conn. 147, 172, 75 A.3d 651 (2013).
The majority suggests that these actions by the court in opening and modifying the judgment did not affect the operative status of the earlier November 21, 2016 foreclosure judgment. In support of this position, the majority cites to RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006). That case, however, dealt with the opening and modification of a judgment that was on appeal and whether such action rendered the appeal moot. Id., at 674, 899 A.2d 586. The modifications in the present case did not affect a judgment on appeal; but, more importantly, the opinion acknowledges that the opening and modification of a judgment triggers a new four month period under General Statutes § 52-212a. Id., at 689, 899 A.2d 586. Accordingly, at the time that the defendant in the present case made his standing challenge, the door was still open to modification and the challenge was not collateral.
On September 28, 2017, the defendant filed a motion to open and vacate the judgment asserting that the plaintiff lacked standing to bring the action. The operative judgment at the time the defendant filed this motion was the judgment rendered by Judge Avallone on July 3, 2017, because the earlier judgments had all been superseded by orders issued by the court opening and reentering the judgment. See Coxe v. Coxe, 2 Conn. App. 543, 547, 481 A.2d 86 (1984) ("when a court opens a judgment of sale to change the sale date ... the modified judgment ... becomes the only valid judgment in the case"). Because the defendant filed this motion two months and twenty-five days from the July 3, 2017 entry of judgment, well within the four month limit on the court's authority to open judgments under General Statutes § 52-212a, the trial court clearly had authority to consider the motion and, in fact, did consider it; on October 17, 2017, the court, Hon. Thomas J . Corradino, judge trial referee, denied the motion. In support of its denial of the motion, the court ruled that, as the holder of the note, the plaintiff had standing to foreclose the mortgage. On appeal, the defendant challenges that ruling. This situation is completely distinguishable from cases in which a judgment is attacked in a separate proceeding or long after the rendering court lost jurisdiction, because the defendant's motion to dismiss was a direct attack on the operative judgment.
General Statutes § 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. ..."
Considering the attack as direct and therefore within the traditional rule—that subject matter jurisdiction can be challenged at any time, even on appeal—is in accord with other cases from this court that are procedurally comparable to the present case. For example, in Deutsche Bank National Trust Co. v. Thompson , 163 Conn. App. 827, 830, 136 A.3d 1277 (2016), the plaintiff, on August 18, 2009, filed a motion for default for failure to plead and a motion for judgment of strict foreclosure. Due to, inter alia, an intervening foreclosure mediation effort, the trial court did not render judgment until September 16, 2013. Id. Thereafter, the defendant filed a bankruptcy petition and, on August 22, 2014, after the bankruptcy stay was lifted, the plaintiff filed a motion to open the judgment and reset the law days. Id. This motion was granted by the court on September 22, 2014, after which the defendant appealed. Id. On appeal, for the first time and one year after the original judgment, the defendant challenged the plaintiff's standing and the court's subject matter jurisdiction. Id., at 830–31, 136 A.3d 1277. This court considered the claim on its merits, noting that "subject matter jurisdiction ... can be raised by any of the parties, or by the court sua sponte, at any time"; (internal quotation marks omitted) id., at 831, 136 A.3d 1277 ; and that, "because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver ...." (Internal quotation marks omitted.) Id., at 832, 136 A.3d 1277. Finding that the plaintiff had not established its standing, this court remanded the case for further proceedings. Id., at 836, 136 A.3d 1277.
Thus, despite the significant passage of time and various intervening events such as foreclosure mediation and bankruptcy in Deutsche Bank National Trust Co ., the defendant's claim challenging the plaintiff's standing was not dismissed as a collateral attack on a final judgment. To the contrary, this court considered the merits of the jurisdictional claim. In my view, the defendant's claims in the present case should be considered on the merits as well.
I now turn to the merits. The defendant asserts that the court lacked subject matter jurisdiction because the plaintiff lacked standing due to the fact that it was not the holder of the note and not otherwise entitled to enforce the note. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. ... [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Citation omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers , 310 Conn. 119, 125, 74 A.3d 1225 (2013).
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 promissory note. Deutsche Bank National Trust Co. v. Cornelius , 170 Conn. App. 104, 110–11, 154 A.3d 79, cert. denied, 325 Conn. 922, 159 A.3d 1171 (2017). The question, therefore, is whether the plaintiff has the right to enforce the note signed by the defendant as maker and payable to HSBC Mortgage Corporation (USA) (HSBC). "A plaintiff's right to enforce a promissory note may be established under the [Uniform Commercial Code (UCC)]. ... Under the UCC, a [p]erson entitled to enforce an instrument means [inter alia] (i) the holder of the instrument, [or] (ii) a nonholder in possession of the instrument who has the rights of the holder ...." (Citations omitted; footnote omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 319, 71 A.3d 492 (2013).
The UCC defines the "[h]older" of a negotiable instrument as, inter alia, "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession ...." General Statutes § 42a-1-201 (b) (21) (A). As the majority aptly explains, the defendant executed a promissory note in the amount of $134,000 payable to HSBC. The note was later endorsed to "JPMorgan Chase Bank, as Trustee." The note was not further endorsed. The note, therefore, is not a bearer note nor is it payable to the person in possession, the plaintiff. To be a holder, the plaintiff would have to be either (1) in possession of a bearer note, or (2) in possession of a note made payable to it. Because, in the present case, the plaintiff possesses a note made payable to JPMorgan Chase Bank, as Trustee, the plaintiff does not meet the UCC definition of a holder.
A "[b]earer," as is relevant here, means "a person in possession of an instrument ... payable to bearer or endorsed in blank." General Statutes § 42a-1-201 (b) (5).
The issue then becomes whether the plaintiff is a nonholder with the rights of a holder. "A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument .... General Statutes § 42a-3-301.... The UCC's official comment underscores that a person entitled to enforce an instrument ... is not limited to holders. ... A nonholder in possession of an instrument includes a person that acquired rights of a holder ... under [ General Statutes § 42a-3-203 (a) ]. ... Under § 42a-3-203 (b), [t]ransfer of an instrument ... vests in the transferee any right of the transferor to enforce the instrument .... An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. General Statutes § 42a-3-203 (a). Thus, there are two requirements to transfer an instrument under § 42a-3-203 (a) : (1) the transferor must intend to vest in the transferee the right to enforce the instrument; and (2) the transferor must deliver the instrument to the transferee so that the transferee has either actual or constructive possession." (Citation omitted; emphasis omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 319–20, 71 A.3d 492.
In the present case, the defendant asserts that the plaintiff has not demonstrated that it is a person entitled to enforce the note. As discussed previously, although the plaintiff has possession of the note, the note is not payable to bearer and has been endorsed to JPMorgan Chase Bank, as Trustee and not further endorsed to the plaintiff. Accordingly, the plaintiff does not meet the UCC definition of a holder set forth in § 42a-1-201 (b) (21) (A), and the trial court's finding that the plaintiff was a holder entitled to foreclose on the note was incorrect. The plaintiff, however, can enforce the note if it can demonstrate that it is a nonholder in possession with the rights of a holder. See General Statutes § 42a-3-301. That, in turn, requires proof that the transferor delivered the note to the plaintiff intending to vest in it the right to enforce the instrument. See General Statutes § 42a-3-301. The defendant claims that there is no proof in the record to establish such a transfer.
This finding, as well as the position of the servicer of the loan and the plaintiff referenced in the trial court's order, appear to conflate possession of the original note with UCC holder status. Under the circumstances of this case, more is required.
In an apparent attempt to establish its right to enforce the note, the plaintiff asks this court to take judicial notice of a purported transfer of trusteeship from JPMorgan Chase Bank to the plaintiff, as set forth in a document contained in the plaintiff's appendix. This document was not submitted to the trial court, and no findings were made regarding its relevance or authenticity. In addition, the document is outside the type of fact judicially noticed by Connecticut courts. See Conn. Code Evid. § 2-1 (c) ("[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration"). The purported transfer of trusteeship satisfies neither of these conditions. Moreover, it does not appear that the defendant had any opportunity to be heard regarding the admissibility and use of this purported transfer of trusteeship as required by § 2-2 (a) of the Connecticut Code of Evidence. Accordingly, judicial notice of this document would be inappropriate.
Section 2-2 (a) of the Connecticut Code of Evidence provides: "A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties. Before the court determines whether to take the requested judicial notice, any party shall have an opportunity to be heard."
Even if one took judicial notice of this purported transfer, without further explanation, it is impossible to determine if the document transfers to the plaintiff the right to enforce the defendant's note.
At oral argument before this court, the plaintiff argued that J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. 307, 71 A.3d 492, supports its claim of standing. J.E. Robert Co. , however, concerned the question of whether a mortgage servicing company had standing to bring a foreclosure action. Id., at 310–11, 71 A.3d 492. In answering that question, our Supreme Court held that, because the mortgage servicing pooling agreement explicitly gave the servicer the right to enforce the note, the plaintiff had standing. Id., at 328–31, 71 A.3d 492.
In Ditech Financial, LLC v. Joseph , 192 Conn. App. 826, 831, 218 A.3d 690 (2019), this court addressed a claim that the plaintiff bank was not the holder of the note and, therefore, lacked standing. Upon concluding that the record did not permit review of the defendant's jurisdictional claim, this court remanded the matter for further proceedings. Id., at 836, 218 A.3d 690.
In the present case, the trial court, on the record, did examine the original note. At that time, the court stated that the plaintiff was the successor trustee to JPMorgan Chase Bank. There is nothing in the record, however, as to the basis for that statement or what that successor status entailed vis-à-vis the defendant's note. The court made no findings as to the plaintiff's right to enforce the note, which, as discussed, bore only the endorsement to JPMorgan Chase Bank, as Trustee. Nowhere in the record of the trial court is there a finding, one way or the other, that JPMorgan Chase Bank transferred its right to enforce the note to the plaintiff. Where gaps of this nature exist in the record—specifically, gaps relating to documents proving standing or authority to foreclose—this court has consistently held that a case must be remanded for further proceedings. See id. ; Deutsche Bank National Trust Co. v. Thompson , supra, 163 Conn. App. at 836, 136 A.3d 1277 ; Deutsche Bank National Trust Co. v. Bialobrzeski , 123 Conn. App. 791, 799–800, 3 A.3d 183 (2010). Because such a gap exists in the present case, I would reverse the judgment and remand the case for a determination of the jurisdictional issue and for further proceedings according to law.