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Property Asset Management, Inc. v. Lazarte

Appellate Court of Connecticut

March 15, 2016

PROPERTY ASSET MANAGEMENT, INC.
v.
CARMELA LAZARTE, ET AL

         Argued December 9, 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 Stamford-Norwalk, where U.S. Bank, National Association, as Trustee for the RMAC Trust, Series 2013-3T, was substituted as the plaintiff; thereafter, the court, Mintz, J., granted the substitute plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon; subsequently, the court granted the substitute plaintiff's motion to open the judgment and denied the named defendant's motion to dismiss; thereafter, the court rendered judgment of strict foreclosure, and the named defendant appealed to this court.

          SYLLABUS

         The substitute plaintiff, U Co., as trustee for a certain trust, sought to foreclose a mortgage on certain real property owned by the defendant mortgagor. The defendant originally had executed a note in favor of G Co. and a mortgage in favor of M Co. as nominee for G Co. Subsequently, M Co. made an assignment of the mortgage to W Co., which was undated. Thereafter, W Co. assigned the mortgage to the plaintiff, P Co., which commenced this foreclosure action, alleging that it was the present holder of the note and mortgage. P Co. then filed a motion for summary judgment against the defendant in which it argued that her special defenses to the foreclosure complaint were legally insufficient and did not preclude the granting of the motion for summary judgment. The defendant had claimed in her special defenses, inter alia, that P Co. could not obtain a judgment of foreclosure against her because the assignment of the mortgage from M Co. to W Co. had been undated. The trial court initially denied P Co.'s motion for summary judgment. The court concluded that the fact that the assignment from M Co. to W Co. was undated precluded the granting of the motion for summary judgment. The court thereafter granted P Co.'s motion for reargument of the motion for summary judgment, but no action was taken because the defendant thereafter was defaulted for having failed to comply with certain court-ordered discovery. P Co. then assigned the mortgage to U Co., which was substituted as the party plaintiff. The court thereafter rendered judgment of strict foreclosure in favor of U Co. and set law days, and the defendant did not appeal from that judgment. The defendant then filed two petitions for bankruptcy, both of which were dismissed by the Bankruptcy Court. Thereafter, U Co. filed a motion to open the foreclosure judgment to update the debt, to award certain attorney's fees, and to set new law days. On the day of the hearing on the motion to open the foreclosure judgment, the defendant filed a motion to dismiss the foreclosure action for lack of subject matter jurisdiction. The defendant claimed that because the assignment of the mortgage from W Co. to P Co. had not been executed until after P Co. had initiated the foreclosure action, P Co. therefore did not own the debt when it initiated the foreclosure action and, thus, it lacked standing to obtain a foreclosure judgment against her. The defendant also stated in her motion to dismiss that an evidentiary hearing on her motion was unnecessary. The court denied the defendant's motion to dismiss, granted U Co.'s motion to open the foreclosure judgment, and set new law days. The defendant thereafter appealed to this court, claiming, inter alia, that the trial court had improperly denied her motion to dismiss.

         Held :

         1. The trial court properly denied the defendant's motion to dismiss the foreclosure action on the basis of its finding that she had failed to counter the rebuttable presumption that P Co. had standing to initiate the action: P Co. had standing to initiate the action on the basis of its having been in possession of the note at the time the action was commenced, an affidavit accompanying P Co.'s motion for summary judgment stated that the note had been delivered to P Co. before the foreclosure action was commenced, and the defendant presented no evidence that P Co. had transferred or lost possession of the note prior to commencing the foreclosure action; furthermore, certain language in W Co.'s assignment to P Co. that the mortgage and note had been assigned together did not constitute evidence implicating P Co.'s standing to bring the foreclosure action because a discrepancy in the language of an assignment as to whether the assignment pertains to both the mortgage and the note was not legally pertinent to P Co.'s right to bring a foreclosure action.

         2. Contrary to the defendant's claim, the trial court was not required to conduct an evidentiary hearing on her motion to dismiss, as she had stated in the motion that no evidentiary hearing was necessary and thereafter failed to demonstrate the existence of any relevant jurisdictional fact that was in dispute.

         Peter V. Lathouris, with whom, on the brief, was Richard M. Breen, for the appellant (named defendant).

         Robert J. Wichowski, with whom, on the brief, was David F. Borrino, for the appellee (substitute plaintiff).

         Keller, Prescott and Bear, Js. PRESCOTT, J. In this opinion the other judges concurred.

          OPINION

          PRESCOTT, J.

          [163 Conn.App. 739] The defendant[1] Carmela Lazarte appeals from the trial court's denial of her postjudgment motion to dismiss the underlying foreclosure action. The defendant claims that the original plaintiff, Property Asset Management, Inc., lacked standing to initiate the action because it was not the owner of the debt or vested with the rights of an owner at the time that the action was initiated, and, therefore, the court lacked subject matter jurisdiction to render a judgment of strict foreclosure in favor of the substitute plaintiff, U.S. Bank, National Association, as Trustee for the RMAC Trust, [163 Conn.App. 740] Series 2013-3T. The defendant claims on appeal that the court improperly (1) determined that she failed to produce evidence necessary to rebut the presumption that the original plaintiff had standing by virtue of its possession of the mortgage note, endorsed in blank, at the time that the action was filed and (2) failed to conduct an evidentiary hearing on the motion to dismiss. We affirm the judgment of the court.

         The record reveals the following pertinent facts and procedural history. In January, 2007, the defendant executed a note in favor of GE Money Bank. To secure the note, she also executed a mortgage on real property located at 21 Cold Spring Road in Stamford in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for GE Money Bank.

         On October 14, 2008, the original plaintiff initiated this action to foreclose the mortgage. It alleged that the note was in default because the defendant had failed to make any of the required monthly installment payments since July, 2007. According to the complaint, MERS had assigned the mortgage to WMC Mortgage Corporation on or before November 2, 2007, and WMC Mortgage Corporation later transferred the mortgage to the original plaintiff " by an assignment of mortgage to be recorded on ...


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