Opinion
FSTCV136018500S
08-16-2016
Bank of New York Mellon et al. v. Donald A. Orlando et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANTS' ORAL MOTION TO DISMISS DATED NOVEMBER 30, 2015
Hon. Kevin Tierney, Judge
The question before this court is whether defendants in a residential foreclosure lawsuit have the right to file and prosecute an oral motion to dismiss alleging that the plaintiff, the foreclosing party, lacks standing and therefore the court is deprived of subject matter jurisdiction? That question is answered in the affirmative in this Memorandum of Decision.
" Indeed, once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." Deutsche Bank National Trust Company v. Bialobrzeski, 123 Conn.App. 791, 798, 3 A.3d 183 (2010). " It is the plaintiff who bears the burden of proving subject matter jurisdiction, whenever and however raised." Deutsche Bank National Trust Company v. Thompson, 163 Conn.App. 827, 836, 136 A.3d 1277 (2016). " The objection of want of jurisdiction may be made at any time . . . and the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430-31, 829 A.2d 801 (2003).
The Practice Book sections regarding motions to dismiss do not specifically require that the motion be filed in a written format. A strong inference of a written requirement is contained within P.B. § 10-30 since it requires the motion to dismiss to be " filed." " Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." P.B. § 10-30(b) The motion to dismiss requires the filing of a supporting memorandum. " This motion shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent on the record." P.B. § 10-30(c). These provisions have been in the Practice Book for many years and yet our appellate decisions still state: " . . . the question of lack of jurisdiction of a court must be disposed of no matter in what form it is presented." This court believes that our appellate courts have furnished judicial gloss to the Practice Book rules thereby permitting oral motions to dismiss. The court will hear and decide the defendants' oral Motion to Dismiss presented in open court on November 30, 2015.
This residential foreclosure action commenced on May 16, 2013. The Operative Complaint is the one-count May 5, 2013 Original Complaint. The loan being foreclosed was from Countrywide Home Loans, Inc. in the amount of $650,000 dated May 23, 2006 secured by a mortgage on real property at 282 Bruce Park Avenue, Unit 2, Greenwich, Connecticut. The plaintiff's April 28, 2015 Motion for Judgment of Strict Foreclosure (#118.00) was duly assigned on the foreclosure short calendar for Monday, November 30, 2015. The defendant, Donald A. Orlando, appearing by counsel of record, told the court at that November 30, 2015 short calendar that the plaintiff had no standing to commence and prosecute this foreclosure action and therefore the court was deprived of subject matter jurisdiction. On November 30, 2015 the short calendar judge ordered the defendants' attorney to file a motion to dismiss on or before December 11, 2015 and assigned the motion to dismiss for a March 31, 2016 hearing before the undersigned (#133.00). On December 11, 2015, the defendant, by counsel of record, filed a Motion to Dismiss (#137.00). From this court's review of the December 11, 2015 Motion to Dismiss, it appears that seven separate arguments were made supporting the defendants' claim that the court lacked subject matter jurisdiction. Simultaneously with the Motion to Dismiss, the defendants filed a December 11, 2015 Memorandum of Law in Support of the Motion to Dismiss (#138.00). The defendants' counsel then withdrew his appearance for both defendants orally on March 31, 2016. New counsel appeared for the defendants on April 15, 2016 in lieu of prior counsel. The court then continued the hearing on the motion to dismiss and thereafter conducted three days of evidentiary hearings on April 19, April 20 and July 21, 2016. Post-hearing briefs were filed by both parties.
In the interim this court noted that the December 11, 2015 Memorandum of Law in Support of the Motion to Dismiss (#138.00) referenced entities and events that were not related to the underlying loan. This Memorandum of Law (#138.00) further argued that there was a failure to record the documents in the New Milford, Connecticut land records. Upon further questioning of counsel in open court, it was clear to this court that the supporting Memorandum of Law was filed in regard to other litigation not involving either of the parties in this current foreclosure. The court found that the written December 11, 2015 Motion to Dismiss (#137.00) was no longer supported by a Memorandum of Law that was related to the facts of this case and the filed Motion to Dismiss. On April 20, 2016 plaintiff's new counsel withdrew the December 11, 2015 Motion to Dismiss (#137.00, #146.00). The court therefore proceeded on the motion to dismiss made by prior defendants' counsel at the November 30, 2015 foreclosure short calendar that was presented to the court orally on the record.
This current lawsuit was not the first litigation between the parties. Returnable on May 12, 2009 was a residential foreclosure for this same note and mortgage on this same property brought by the Bank of New York against Donald A. Orlando and Rose Russo, the two individual defendants in this current foreclosure action. The Bank of New York Mellon et al. v. Donald A. Orlando et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 09-5011441 S. This action was withdrawn by the plaintiff on August 12, 2009. The two foreclosure actions were not pending at the same time.
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . and a judgment rendered without subject matter jurisdiction is void . . ." Deutsche Bank National Trust Company v. Bialobrzeski, supra, 123 Conn.App. 798. Although the defendants filed their motion to dismiss alleging lack of subject matter jurisdiction, the burden of demonstrating that a party has standing to bring an action and that the court has subject matter jurisdiction is on the plaintiff. Id. 798; Seymour v. Region One Board of Education et al., 274 Conn. 92, 104, 874 A.2d 742; cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
In this case the defendants are alleging that the plaintiff lacks standing therefore the court is deprived of subject matter jurisdiction. Although motions to dismiss alleging personal jurisdiction deficiencies must be raised within a certain time limit from the filing of an appearance by that party, no such time limit exists for a motion to dismiss alleging lack of subject matter jurisdiction. " Because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013).
" Standing is the legal right to set the judicial process in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of the action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticeable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity . . . Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." The Investors Mortgage Company, Trustee v. Rodia, 31 Conn.App. 476, 479, 625 A.2d 833 (1993). " Standing does not hinge on whether the plaintiff will ultimately be entitled to relief on the merits of an action, but on whether he is entitled to seek the relief." Cottman Transmission Systems, Inc. v. Hocap Corporation, 71 Conn.App. 632, 638, 803 A.2d 402 (2002).
It is well established that the holder of a note has standing to bring an action for strict foreclosure. New England Savings Bank v. Bedford Realty Corporation, 238 Conn. 745, 759, 680 A.2d 301 (1996) " A holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17. The possession by the bearer of a note endorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there . . . It is for the defendant to set up and prove the facts which limit or change the plaintiff's rights." Equity One, Inc. v. Shivers, supra, 310 Conn. 135. In addition to establishing standing, there must be evidence to when the note came into the plaintiff's possession. Deutsche Bank National Trust Company v. Thompson, supra, 163 Conn.App. 832. As already stated, it is the plaintiff's burden to prove the above elements to satisfy that this court has subject matter jurisdiction over this residential foreclosure action. Id., 836.
On the first day of the evidentiary hearing, April 19, 2016, the plaintiff produced a blue ink version of the Note, a photocopy of that blue inked adjustable rate note, a certified copy of the mortgage deed, a certified copy of the assignment of the mortgage, and a notice from the plaintiff's law firm showing the law firm's 2011 receipt of the possession of the blue ink version of the note. Exhibits 1, 2, 3, and 4. The court, the defendant, Donald A. Orlando, and his attorney conducted an examination of each of these documents. The blue ink note was thereafter returned to plaintiff's counsel for safekeeping and the photocopy of the blue ink note was marked as Ex. 1. The court, the defendant, Donald A. Orlando, and the defendant's attorney had ample opportunity to examine and to compare in detail the blue ink note along with the photocopy, Ex. 1. This procedure satisfied the court's inspection obligations. Equity One, Inc. v. Shivers, supra, 310 Conn. 123-24, 129, 131; Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 43-44, 75 A.3d 38 (2013).
The court noted from its examination that the blue ink note was endorsed in blank. The photocopy marked in evidence contains that blank endorsement. Ex. 1. The lender on the note is Countrywide Home Loans, Inc.
The court finds that the plaintiff is in possession of the blue ink note at issue in this foreclosure, which note has been endorsed in blank, the plaintiff's lawyer was in possession of the blue ink note from 2011, and thus the plaintiff has proven it was in possession of the note as of the commencement of this lawsuit in May 2013. The holder of a note is presumed to be the rightful owner of the underlying debt and unless the party defending against the foreclosure action rebuts that presumption, the holder has standing to foreclose the mortgage; the holder only has to produce the note to establish that presumption. RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011). Based upon this evidence, the court finds that the plaintiff has sustained its burden of proof to show that it has standing.
The court now turns to the defendants' claims as well as review the evidence and documents offered by the defendants at the evidentiary hearing. As of the conclusion of the evidentiary hearing on July 21, 2016, the court had no written claims submitted by the defendants as to the legal or factual basis upon which they are claiming that the plaintiff had no standing and therefore the court lacked subject matter jurisdiction. As of the conclusion of the evidentiary hearing the court had five sources for information as to why the defendants are claiming that the plaintiff lacks standing and the court therefore lacks subject matter jurisdiction. These five sources are: (1) The defendants' May 28, 2013 Answer (#105.00); (2) The defendants' December 11, 2015 Motion to Dismiss (#137.00); (3) The December 11, 2015 Memorandum of Law in Support of the Motion to Dismiss (#138.00). (4) The statement of lack of standing made in court at the November 30, 2015 foreclosure short calendar; and (5) The evidence offered by the defendant, Donald A. Orlando, the only witness at the hearing on the Motion to Dismiss held by this court in 2016. The court will review each of those sources.
The May 28, 2013 Answer (#105.00) was prepared by a Connecticut licensed attorney who has offices in New York. No special defenses were filed. The Answer contains eight Claims for Relief and yet the Answer contains no setoff or counterclaim. There are nineteen separate pleadings also contained in the Answer, each defined as an Affirmative Defense. The Answer fails to comport with Connecticut Practice Book and is fashioned in a way that does not assist the court. For example, the 2nd Affirmative Defense states in its entirety: " This court lacks jurisdiction over the subject matter." The 3rd Affirmative Defense states in its entirety: " Plaintiff lacks standing to maintain and to bring this action." The 4th Affirmative Defense states in its entirety: " Plaintiff lacks standing at the time this action was filed." The court cannot consider the May 28, 2013 Answer (#105.00) as guiding this court as to why the plaintiff has no standing and the court therefore lacks subject matter jurisdiction.
The Memorandum of Law in Support of the Motion to Dismiss (#138.00) is dated December 11, 2015 and was filed on the same day as the Motion to Dismiss (#137.00). This court read the memorandum of law on a few occasions. It is incomprehensible. It deals with facts and circumstances as well as loans that have no bearing on this foreclosure action. It appears that it is a memorandum prepared in support of other litigation not involving neither the plaintiff nor the defendant. The memoranda discusses a different loan, mortgage and real property. The court can find no support for the defendant's oral motion to dismiss in this memorandum. The court will disregard the contents of the December 11, 2015 Memorandum of Law (#138.00). The court also notes that the withdrawal of the underlying December 11, 2015 Motion to Dismiss has the effect of withdrawing the December 11, 2015 Memorandum of Law (#146.00).
The December 11, 2015 Motion to Dismiss contains what this court believes is seven separate reasons for lack of subject matter jurisdiction. These seven reasons are as follows:
1. The plaintiff does not own the defendants' note.
2. The plaintiff does not hold the defendants' note.
3. This foreclosure has not been brought by the real party in interest.
4. One of the copies of the note has been altered by an endorsement stamp.
5. An endorsement stamp was signed by an individual who the defendants believe was not employed by the note holder at the time that it was signed.
6. The plaintiff has engaged in the coverup of the mishandling of the note by prior note holders.
7. The note has been bifurcated from the mortgage.
The defendant has withdrawn this written December 11, 2015 Motion to Dismiss in open court on April 20, 2016 (#146.00). The deficiencies in the Memorandum of Law in Support of the Motion to Dismiss were noted on the record to defendants' current counsel of record at the May 31, 2015 hearing The defendants had ample time to refile a new Memorandum of Law prior to the April 19, 2015 hearing. Since the defendants have withdrawn the December 11, 2015 Motion to Dismiss, none of the reasons set forth in the motion can be considered by this court in deciding the oral motion to dismiss now before this court.
The defendant did not offer a transcript of the November 30, 2015 foreclosure short calendar hearing. There was no testimony offered as to the statements made by Attorney Salvatore J. Liga on behalf of the defendants' standing claim at that short calendar hearing. The current counsel for the defendants was not counsel for the defendants at the November 30, 2015 foreclosure short calendar hearing. Judge Mintz's order of November 30, 2015 assigning this matter to this court for an evidentiary hearing does not indicate the legal or factual basis for the claim of lack of standing (#133.00). No testimony or documents were offered to this court, that support or refer to the information, facts and/or legal claims presented to the November 30, 2015 short calendar Judge. None of the legal and/or factual reasons presented to the court orally on November 30, 2015 were brought to the attention of this trial judge.
That leaves this court with the testimony and documents offered by Donald A. Orlando at the 2016 evidentiary hearings as the only source for the basis of claim of lack of subject matter jurisdiction. In reviewing this court's hearing notes, the court is able to glean six different claims made by the defendant, Donald A. Orlando, supporting his oral Motion to Dismiss. They are as follows: (1) The defendants were not served with all the foreclosure documents; (2) The Adjustable Rate Note is dated May 23, 2013 and the attached Prepayment Penalty Addendum rider contains both the dates of May 22, 2013 and May 23, 2013; (3) The defendant, Donald A. Orlando, is not sure if that is his signature on the blue ink note that was examined in open court; (4) The defendants have received three different versions of the note and the endorsement, which documents were marked Ex. 9, 10 and 11 at the evidentiary hearing, these documents originated from the plaintiff's New York counsel, the loan servicer and the Bank of America; (5) Some copies of the note obtained from Ex. 9, 10 and 11 contain the Prepayment Penalty Addendum rider and some do not contain the rider; and (6) The previous 2009 foreclosure lawsuit alleges that the plaintiff is the holder of the note, Ex. 6, whereas the current 2013 foreclosure's allegations contain no statement that the plaintiff is " the holder of said Note" but allege that the plaintiff is " the party entitled to collect the debt" and " enforce said mortgage."
The court will discuss each of these six claims in light of whether or not they impact the plaintiff's standing and thus deprive this court of subject matter jurisdiction.
1. Not all documents were served on the defendants . The parties agreed that the return of service in this file is dated May 16, 2013. The court notes that return of service was prepared and signed by Mark A. Pesiri, a State Marshal. The defendant did not request State Marshal Pesiri to testify. This foreclosure action was returnable to the Superior Court on May 28, 2013. The two individual defendants were Donald A. Orlando, a/k/a Donald A. Orlando, Jr. a/k/a Donald Orlando and Rose Russo a/k/a Rose M. Russo a/k/a Rose Orlando. Both parties were represented by Attorney Salvatore Joseph Liga who filed an appearance for both individual defendants by his appearance dated May 29, 2013. This issue of lack of service and/or incomplete service was first brought to the court's attention by Mr. Orlando's testimony on April 20, 2016, well more than 30 days after Attorney Liga filed his appearance for both defendants. Lack of jurisdiction over the person and insufficiency of process are two of the grounds that can be raised by a motion to dismiss. P.B. § 10-30(a)(2) and (3). " Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." P.B. § 10-32. P. B. § 10-30(b) states: " Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." The issue as to whether or not an individual defendant and/or defendants received the entirety of all of the documents at the time of service has been waived by the issue not being raised in a timely fashion. In any event such an issue does not go to lack of subject matter jurisdiction.
2. There is a one-day difference between the Note and the Prepayment Penalty Addendum rider . The Note in the amount of $650,000 is dated May 23, 2016. A photocopy is marked as a full exhibit, which contains the same date. Ex. 1. The blue ink Note examined by this court and the defendants in open court, contains the date of May 23, 2016. Attached to and part of that Note is a Prepayment Penalty Addendum rider that contains a May 22, 2013, one day before the closing of the transaction as well as the May 23, 2013 date. The Note that is being foreclosed is dated May 23, 2016. There is no evidence that the plaintiff is foreclosing on the Prepayment Penalty Addendum rider.
The entire note is seven pages: pages 1-5 are consecutively numbered on the bottom of the Adjustable Rate Note and pages 1-2 are consecutively numbered on the bottom of the Prepayment Penalty Addendum rider. Each is a preprinted form. Above the word " Date" on the Adjustable Rate Note is typed May 23, 2006 on page 1. After the word " dated" on the Prepayment Penalty Addendum rider is typed May 23, 2016. The court finds both documents are dated the same day, May 23, 2013. Ex. 1.
The court finds that if the Prepayment Penalty Addendum rider is dated May 22, 2013, it was ratified by the defendant by the closing that took place the following day on May 23, 2006.
At the top left corner of the Prepayment Penalty Addendum rider is a section that has been typed all in capital letters. One line is " DATE: 05/22/2006." Above that section is typed " Prepared by: VANESSA GARY, COUNTRYWIDE HOME LOANS, INC." From this addition this court finds that the closing documents were prepared on behalf of the lender on May 22, 2013, one day before the closing and the Note and rider were both dated May 23, 2013. Ex. 1.
This is an issue that can be categorized as a typographical error. Typographical errors do not impact the plaintiff's standing and deprive the court of subject matter jurisdiction. Cunniffe v. Cunniffe, 141 Conn.App. 227, 229, fn. 2, 60 A.3d 1051 (2013); Miller v. Krause, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket Number CV 94-536196, (August 23, 1994, Freed, J.); R. F. Daddario & Sons, Inc. v. Shelansky, 123 Conn.App. 725, 743, 3 A.3d 957 (2010); Bespuda v. Orange Town Plan and Zoning Commission, Superior Court, judicial district of Ansonia-Milford, Docket Number CV 04-0084881 S, (May 25, 2005, Upson, J.)
3. The defendant does not know if that is his signature . The defendant, Donald A. Orlando, is claiming that the underlying Note is a fake and that his signature on the Note although admittedly having a great deal of similarity to his actual signature, could not have been his signature because Donald A. Orlando signs his name with a heavy hand. Therefore there should be an impression of his signature on the back page of the Note. The defendant, Donald A. Orlando, states that when he felt the blue ink copy of the Note in court, the Note now being in plaintiffs' counsel possession, no such impression was felt by him on the back of the page containing the purported blue ink signature.
The defendants offered no hand writing expert. He offered no exemplars of his signature that were prepared prior to this litigation that show that he signs with a heavy hand and therefore his signature would leave an impression on the back side of the paper. He only offered exemplars of signatures that were prepared either while he was on the witness stand or prepared the day before he testified.
The court is the trier of fact and is empowered to determine the validity of signatures without the assistance of an expert. The trier of fact has sufficient authority to compare signatures. " The law in Connecticut for over 100 years has been comparisons may be made by the trier of fact, be it a judge or jury, with or without the aid of expert testimony." Tyler v. Todd, 36 Conn. 218, 222 (1869); General Electric Capital Corporation v. Barber, Superior Court, judicial district of Litchfield, Docket Number CV 03-0059327, (April 5, 2004, Brunetti, J.)
In addition it is customary that exemplars of signatures made prior to the litigation in question and the signature in question must be used or else the opportunity for a party to change their signature to conform to that at issue would occur. " It is customary for signature examiners, both expert and trier of fact, to look at exemplars, that is handwriting samples which were prepared prior to the signature in question. These exemplars are independently verified." Bank of America National Association v. Nino, Superior Court judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 10-6004691 S, (December 31, 2015, Tierney, J.T.R.) . The defendant has failed to furnish sufficient exemplars for this court to make a determination concerning the weight of impression and imprint of a signature. " The court was entitled to determine the authenticity of signatures on the note by comparison with other signatures which were shown to be genuine." Shakro v. Haddad, 149 Conn. 160, 163, 177 A.2d 221 (1961); Lyon v. Lyman, 9 Conn. 55, 62 (1831). It is for the defendant to be able to show such exemplars that predated the May 23, 2013 signature. C.R. Burr & Co., Inc. v. Brigham, 3 Conn.Supp. 277, 278-79 (1936).
The general rules concerning whether or not a signature imprint binds the party has been discussed by a number of cases. A printed signature has been held to be a valid signature. Baum v. Sundstrom, 14 Conn.Supp. 426 (1946). A signature by a rubber stamp made by an agent duly authorized is a valid signature in Connecticut. In re Deep River National Bank, 73 Conn. 341, 346, 47 A. 675 (1900); Kilday v. Schancupp, 91 Conn. 29, 34, 98 A. 335 (1916). Neither of these two types of signatures, recognized as valid in Connecticut, would leave an impression on the back of the page.
The court has been able to locate only one signature impression case. It originated in the days when carbon paper was in common use. C.R. Burr & Co., Inc. v. Brigham, supra, 3 Conn.Supp. 277. This case does not support the defendants' claims.
Donald A. Orlando did not contest the signature on the mortgage deed. Ex. 2. He did not offer other documents from the May 23, 2013 closing that customarily would have the borrower's signature. He did not offer any of the signed customary loan preparation documents such as a loan application. He admitted he received the loan funds. He offered no explanation as to why he made mortgage payments on a contested note.
The defendants have failed to furnish any legal authority that the claim of an invalid signature deprives the plaintiff of standing and the court lacks subject matter jurisdiction. To the contrary, it is the court that must make a determination as to whether a signature is valid. It would appear that would be an issue for a trial. The validation of a signature should not be determined by a motion to dismiss.
4. Some copies of the Notes have no endorsement . The blue ink Note examined by this court and the defendants on the record contained a blank endorsement. BAC Home Loans Servicing, LP v. Farina, 154 Conn.App. 265, 270, 107 A.3d 972 (2014). An endorsement stamp was placed on the signature page of the May 23, 2013 Note. See Ex. 1, a photocopy of the Note which also contains that same endorsement. The defendant, Donald A. Orlando, made three timely requests under his rights as a borrower for a Qualified Written Request (QWR). Sec. 12 U.S.C. § 2605. On July 9, 2014 he received a letter from Specialized Loan Servicing, LLC containing a copy of the May 23, 2013 Note with a blank endorsement. Ex. 10. On May 23, 2012 he received from the plaintiff's New York law firm, Blank, Rome, LLP a copy of the May 23, 2013 Note that contained no endorsement. Ex. 9. On July 29, 2014 he received from the Bank of America a copy of the May 23, 2013 Note with no endorsement. Ex. 11.
Although not before this court in this hearing, the court has had testimony from a number of witnesses in other contested foreclosure cases who have familiarity with how national lenders scan in their records into computers in order to create electronic copies of paper documents. The first scanning into the lender's computer record would likely occur immediately after a closing. It is likely that the scanned Note would not be endorsed. That scanned Note with no endorsement would remain in the lender's computer system. Sometime later after the first scanning an endorsement was placed on the Note. The Note with an endorsement would then be scanned into the computer. State v. Foreman, 288 Conn. 684, 713-14, 954 A.2d 135 (2008); Germain v. Town of Manchester, Superior Court, judicial district of New Britain, Docket Number CV 10-5014885 S (January 6, 2011, Cohn, J.) [51 Conn.L.Rptr. 255, ], affirmed, 135 Conn.App. 202, 41 A.3d 1100 (2012); State v. Gojcaj, 151 Conn.App. 183, 200-01, 92 A.3d 1056 (2014). There would then be two Notes that would have been scanned into the computer; one with an endorsement and one without an endorsement. The defendants did not offer a sufficient explanation to dissuade this court that such a circumstance could very well have occurred.
The defendants failed to offer sufficient legal authority that two different notes, one with an endorsement and one without an endorsement, deprived the plaintiff of standing and deprived this court of subject matter jurisdiction.
5. Some copies obtained by the defendant were missing the Prepayment Penalty Addendum rider .
Ex. 1 is the photocopy of the May 23, 2013 Note and the May 23, 2013 Prepayment Penalty Addendum rider. It is a seven-page document: five pages of the Note and 2 pages of the Addendum rider of the three documents obtained by David A. Orlando through his QWR rights, none contained the Prepayment Penalty Addendum rider. Ex. 9, 10 and 11. The May 23, 2013 Blank, Rome, LLP letter on page 1 states that it is enclosing " Prepayment Penalty Addendum" as well as many other documents. The defendant only furnished the court with a portion QWR compliance sent by Blank, Rome, LLP. Each of those documents, Ex. 9, 10 and 11, contained an identical copy of the May 23, 2013 Note upon which the plaintiff commenced and is prosecuting this foreclosure. There is no evidence that the plaintiff is commencing foreclosure by reason of any violation of the Prepayment Penalty Addendum rider. This court does not lack subject matter jurisdiction over those inconsistencies.
6. The first foreclosure lawsuit was commenced by an April 17, 2009 complaint . The first foreclosure FST CV 09-5011441 S was offered in exhibit form. Ex. 5. Ex. 6. In the April 12, 2009 complaint in Paragraph 5 the plaintiff alleged: " The Plaintiff is the holder of said Note and Mortgage . . ." That lawsuit was withdrawn on August 12, 2009. The current complaint dated May 5, 2013 alleges in paragraph 7 as follows: " On or before July 15, 2011, the Plaintiff became and at all times since then has been the party entitled to collect the debt evidenced by said note and is the party entitled to enforce said mortgage." There is no allegation in the current complaint that the plaintiff is the holder of either the note and/or the mortgage.
There is no obligation for the plaintiff to allege that it is the holder and/or owner of the note. Bank of America, N.A. v. DiLuca, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 09-5011073 S (April 30, 2013, Tierney, J.T.R.) [56 Conn.L.Rptr. 44, ], affirmed, 154 Conn.App. 906, 105 A.3d 966 (2015); New England Savings Bank v. Bedford Realty Corporation, 246 Conn. 594, 610, 717 A.2d 713 (1998). Connecticut law permits " the person entitled to recover the money secured by" to commence and prosecute a foreclosure. Gen. Stat. § 49-17; Gen. Stat. § 42a-3-201; U.S. Bank National Association v. Weigand, Superior Court, judicial district of Windham, Docket Number CV 08-5003346 S, (May 14, 2009, Riley, J.); United States Bank, N.A. v. Ugrin, 150 Conn.App. 393, 401, 91 A.3d 924 (2014); J.E. Robert Company, Inc. v. Signature Properties, LLC, 309 Conn. 307, 319-20, 71 A.3d 492 (2013). Regardless of the fact that the plaintiff has alleged that it is the party to collect the debt and the party to enforce the mortgage, the plaintiff has produced the Note and has proven that it is the holder of the note now and at the time of the commencement of this foreclosure action.
This court finds that the plaintiff is the holder of the Note, has possession of the Note, is the party entitled to collect the debt, and is the party to enforce the mortgage. No authority has been furnished to this court that the failure to make the claimed " holder" allegations in the foreclosure complaint deprive this court of subject matter jurisdiction.
On August 4, 2016 the defendants filed a Memorandum of Law entitled Defendant's Donald Orlando Brief (#150.00). The court was able to glean six new claims that the plaintiff lacks standing to commence and prosecute this foreclosure. The court will now review each of these six claims.
1. Some Other Unknown and Unspecified Third Party Had Possession of the Alleged Promissory Note at the Time of Filing
The only evidence offered by the defendants of this claim is by referencing the following allegations of the May 5, 2013 complaint in paragraph 6; " The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate holders of the CWACT, Inc., Alternative Loan Trust 2006-OA10 Mortgage Pass-Through Certificates, Series 2006-OA10, directly or through an agent, has possession of the promissory note." The plaintiff offered evidence at the hearing on the oral Motion to Dismiss that the plaintiff's law firm possessed the Note commencing in 2011 and has possession of the Note on March 16, 2013, when this foreclosure action was commenced. Ex. 4. In addition the plaintiff provided the Note for this court's and defendant's examination in open court on the record on April 19, 2016. The evidence discloses that the plaintiff's agent in possession of the Note was the plaintiff's law firm, Bennett & McHugh, P.C. This was the same law firm that commenced and prosecuted the 2009 foreclosure action. Ex. 5, Ex. 6. There is no mystery third party. The agent is known. The evidence on April 19, 2016 specified who the plaintiff's agent was that possessed the Note. The defendants have offered no evidence or documents to the contrary. Their sole evidence of this claim is the above quoted language of paragraph 6 leaving out of their recitation the evidence offered on April 19, 2016 before this court.
This claim of the defendants is rejected.
2) The Conflicting Allegations of Paragraph 6 of the Complaint Cancel Each Other Out
The defendants have offered no argument or evidence in support of this claim other then the one sentence that outlines this claim. (#150.00, page 1). The court has not been apprised of what the " conflicting allegations" are. The court has already dealt with the issue of the difference between the 2009 complaint and the 2012 complaint. It is possible the defendants are claiming that the word " or" in " directly or though an agent" are in conflict. Parties are entitled to plead in the alternative and allege inconsistent theories. Dreier v. The Upjohn Company, 196 Conn. 242, 245-46, 492 A.2d 164 (1985).
This claim is rejected by the court.
3) The Alleged MERS Assignment Dated September 16, 2011 is Invalid
The plaintiff offered a certified copy of the September 16, 2011 assignment along with a certified copy of the mortgage deed. Ex. 2, Ex. 3. The mortgage deed names Mortgage Electronic Registration System (MERS) as the nominal mortgagee. " MERS is a separate corporation that is acting solely as nominee for Lender and Lender's successors and assignees." Ex. 2, page 1.
Even if the mortgage assignment was invalid or did not exist, the plaintiff could still commence and prosecute this foreclosure. Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003); Gen. Stat. § 49-17.
The utilization of MERS in mortgage conveyancing has been approved by our appellate courts in a number of decisions. MERSCORP. Holdings, Inc. v. Malloy, 320 Conn. 448, 452-58, 131 A.3d 220 (2016); Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 576-77, 989 A.2d 606 (2010); Equity One, Inc. v. Shivers, supra, 310 Conn. 122, fn.1.
The defendants offered no testimony or documentation at the three days of evidentiary hearing on this MERS claim.
The court rejects this claim.
4) MERS Never Acquired Any Real Beneficial Ownership of the Note and Mortgage
The court rejects this claim for the reasons and authorities cited in the previous paragraph 3 above.
5) The Trust Was Already Closed at the Time of the Execution of the Alleged MERS Assignment in 2011
No documentation or evidence on this claim was offered by the defendants. The securitization documents were not provided to this court. This issue has already been resolved by our appellate courts adverse to the defendant's claim. Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 403, 89 A.3d 392 (2014); Deutsche Bank National Trust Company v. G.L.A.D. Enterprises, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 08-502013, (April 4, 2015, Jennings, J.T.R.). No Pooling and Servicing Agreement was offered into evidence. The " closing date" was not before this court.
The court rejects this claim.
6. The Court Must Take Judicial Notice
The defendants attempt to fill in their lack of proof at the evidentiary hearing by asking this court to take Judicial Notice. The defendants' August 4, 2016 Brief (#150.00) requests Judicial Notice ten times, an extraordinary request. All parties have the right to a hearing on whether and to what extent a trial court may take judicial notice. Izard v. Izard, 88 Conn.App. 506, 509-10, 869 A.2d 1278 (2005); Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977). No such opportunity was offered to the plaintiff. This is trial by ambuscade as to the plaintiff. State v. Dyous, 153 Conn.App. 266, 278, 100 A.3d 1004 (2014); Dauti Constr., LLC v. Planning & Zoning Comm'n of Newtown, 125 Conn.App. 655, 674-75, 10 A.3d 92 (2010). This court refuses to take the judicial notices requested by the defendants.
The court rejects this claim.
The court rejects each of the six claims set forth in the evidence as presented by the defendant, Donald A. Orlando, at the three-day evidentiary hearing and the six claims in the August 4, 2016, Defendant's Donald Orlando Brief (#150.00). The court further finds that the defendants have failed to rebut the presumption under Gen. Stat. § 49-17; RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 231-32.
The court finds that the plaintiff, the Bank of New York Mellon, et al., has standing to commence and prosecute this foreclosure and this court is not deprived of subject matter jurisdiction.
The defendants' oral Motion to Dismiss dated November 30, 2015 is denied.