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AS Peleus, LLC v. Success, Inc.

Appellate Court of Connecticut

February 2, 2016

AS PELEUS, LLC
v.
SUCCESS, INC., ET AL

         Argued December 1, 2015

          Action to foreclose a mortgage on certain of the named defendant's real property, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant City Streets, Inc., et al. was defaulted for failure to appear; thereafter, the matter was tried to the court, Hon. George N. Thim, judge trial referee; judgment of strict foreclosure, from which the named defendant appealed to this court.

          Affirmed.

          SYLLABUS

         The plaintiff sought to foreclose mortgages on certain real property of the defendant S Co. The matter was tried to the court, and R, the chief operating officer of the plaintiff's mortgage servicing company, testified that he was personally familiar with the books and records of the plaintiff and maintained them in the ordinary course of his business. R testified, inter alia, that the plaintiff purchased the note approximately six months prior to the commencement of this action. In its posttrial brief, S Co. argued for the first time that the plaintiff failed to prove that R was the plaintiff's agent, and therefore the trial court should not accept his testimony. The trial court rendered a judgment of strict foreclosure in favor of the plaintiff, and S Co. appealed.

         Held :

         1. The trial court's finding that the plaintiff was the owner and holder of the note and mortgage deeds in question was not clearly erroneous; the documentary and testimonial evidence at trial established that the plaintiff was in possession of the original note, which included a series of allonges under which ownership of the note was transferred by special endorsement to various entities terminating in the assignment to the plaintiff, and was thus the holder of the note and entitled to enforce it, and as the holder of a note the plaintiff was presumed to be the rightful owner of the underlying debt unless S Co. rebutted that presumption, which it failed to do.

         2. This court declined to review S Co.'s unpreserved evidentiary claim that the trial court improperly accepted R's testimony, as S Co. did not object to R's testimony during trial, question R's authority to testify during cross-examination, or proffer any evidence at trial that refuted R's testimony in any respect.

         Jonathan J. Klein, with whom, on the brief, were John R. Bryk and Barry C. Knott, for the appellant (named defendant).

         Andrew P. Barsom, with whom, on the brief, was Alena C. Gfeller, for the appellee (plaintiff).

         Gruendel, Alvord and Prescott, Js.

          OPINION

          [162 Conn.App. 751] GRUENDEL, J.

          The defendant Success, Inc.,[1] appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, AS Peleus, LLC. The defendant claims that the court (1) erroneously found that the plaintiff was the owner and holder of the promissory note and mortgage deeds in question and (2) improperly accepted the testimony of a representative of the plaintiff's mortgage servicing company. We affirm the judgment of the trial court.

          [162 Conn.App. 752] This appeal concerns real property owned by the defendant and known as 520 Success Avenue (property).[2] That property is partially situated in Stratford and partially situated in Bridgeport. On June 26, 2007, the defendant executed a promissory note (note) in favor of Greenpoint Mortgage Funding, Inc. (Greenpoint), in the principal amount of $525,000. The note was secured by two identical mortgage deeds on the property that encumbered the ...


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