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Deutsche Bank National Trust Co. v. Cornelius

Court of Appeals of Connecticut

January 10, 2017

DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE
v.
FREDERICK B. CORNELIUS ET AL.

          Argued October 26, 2016

         Appeal from Superior Court, judicial district of Hartford, Wahla, J. [motion to strike]; Vacchelli, J. [motion for judgment of foreclosure by sale.)

          Frederick Cornelius, self-represented, the appellant (named defendant).

          Elizabeth T. Timkovich, with whom, on the brief, was Pierre-Yves Kolakowski, for the appellee (plaintiff).

          Alvord, Prescott and Norcott, Js.

          OPINION

          ALVORD, J.

         The defendant, Frederick B. Cornelius, [1]appeals from the judgment of foreclosure by sale rendered after the entry of a second default for failure to plead. On appeal, the defendant claims that (1) the trial court did not have jurisdiction to adjudicate the present foreclosure action, (2) the trial court erroneously denied his motion to strike the complaint, and (3) the trial court erroneously denied his motion to set aside the second default for failure to plead. We disagree and, therefore, affirm the judgment of the trial court.

         On May 23, 2001, H. Thomas Cornelius[2] executed a $216, 000 note (note) secured by an open-end mortgage deed (mortgage) in favor of Express Capital Lending, which encumbered the property located at 1631 Boulevard, West Hartford (property). That same day, the note and the mortgage were assigned to Impac Funding Corporation. The mortgage was subsequently recorded in the West Hartford land records on May 24, 2001. In September 2001, H. Thomas Cornelius executed a quitclaim deed related to the property in favor of the defendant.

         On October 22, 2010, Impac Funding Corporation assigned the note and mortgage to the plaintiff, Deutsche Bank National Trust Company, as indenture trustee under the indenture relating to IMH Assets Corp., Collateralized Asset-Backed Bonds, Series 2004-5. On September 25, 2013, the plaintiff filed the operative complaint seeking to foreclose on the mortgage and the property.[3] The plaintiff named the defendant in the foreclosure action because he ‘‘may claim an interest in said premises by virtue of [his] quitclaim deed . . . .'' On November 19, 2013, the defendant filed a pro se appearance in the case.

         On February 12, 2014, the plaintiff filed a motion for default against the defendant for failure to plead, which was granted on February 24, 2014. On February 25, 2014, the plaintiff filed a motion for judgment of strict foreclosure. On March 4, 2014, the defendant filed a motion to open the default, which was granted on March 25, 2014. On June 4, 2014, the plaintiff filed a second motion for default against the defendant for his continued failure to plead, which was granted on June 12, 2014. On June 17, 2014, the defendant filed a motion to strike the complaint, arguing that ‘‘the complaint does not allege notice of default which is a condition precedent to an action for foreclosure.'' On August 4, 2014, the court denied the defendant's motion to strike, reasoning that it was inoperative in light of the second default currently entered in the action. On August 19, 2014, the defendant filed his motion to open the second default. In that motion, he argued that the second default was invalid because he never received notice or a hearing on the motion for default, as purportedly required by General Statutes § 52-121 (b), and he ‘‘filed a responsive pleading only a couple days after the clerk granted the default for failure to plead, '' namely, a motion to strike. On September 2, 2012, the court denied the defendant's motion to open the second default because ‘‘the defendant did not show good cause to set aside the default'' and ‘‘this was the second default entered against the defendant.''[4]

         On December 1, 2014, the defendant filed a motion to dismiss the foreclosure action, arguing that the plaintiff lacked standing ‘‘[b]ecause the complaint contains no allegation of a causal connection between the plaintiff's injury and any action of the defendant.'' On December 15, 2014, the court held a hearing on the defendant's motion to dismiss and the plaintiff's motion for strict foreclosure.[5] At the hearing, the defendant initially stated that his argument that the plaintiff lacked standing had ‘‘nothing to do with'' the plaintiff's ‘‘ownership or nonownership of the note.'' In an abundance of caution, the court stated that it wanted to ‘‘double check'' the note, which it stated it had previously reviewed at the December 1, 2014 hearing, and the plaintiff presented the note to the court. Because the defendant insisted that he was not presently contesting the plaintiff's ownership of the note, the court informed the defendant that he could challenge standing on this basis later in the hearing if he wanted to and denied the defendant's motion to dismiss on the grounds raised in his motion. After its ruling, the court entertained further discussion concerning the defendant's motion to dismiss.

         Eventually, the court addressed the plaintiff's motion for strict foreclosure. During that discussion, the defendant interjected that the plaintiff lacked standing because it failed to establish that it was the holder of the note prior to the commencement of the foreclosure action. The plaintiff then presented the court with the mortgage and the assignments of the note and mortgage. The court reviewed the note, the mortgage, and the assignments. In particular, the court observed that the allonge on the note that pertained to the plaintiff stated that the plaintiff became ‘‘entitled to collect the debt as evidenced by the note'' ‘‘[o]n/or before September 25, 2012.'' The court also observed that the assignment of the note and mortgage to the plaintiff ‘‘was dated October 22, 2010.'' The court gave the defendant an opportunity to rebut the plaintiff's evidence, but ultimately it held that the plaintiff had established that it had standing to prosecute the foreclosure action.

         On December 16, 2016, the court rendered a judgment of foreclosure by sale. This appeal followed.

         I

         We first address the defendant's claim that the trial court lacked subject matter jurisdiction because the plaintiff failed to establish that it owned the note before it commenced the present foreclosure ...


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