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Deutsche Bank National Trust Co. v. Pardo

Court of Appeals of Connecticut

February 14, 2017

DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE
v.
CARLOS A. PARDO ET AL.

          Argued October 26, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Mintz, J.

          Peter V. Lathouris, for the appellant (named defendant).

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

          Beach, Mullins and Lavery, Js. [*]

          OPINION

          LAVERY, J.

         The defendant Carlos A. Pardo appeals from the denial of his motion to dismiss and motion to open the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Deutsche Bank National Trust Company, as Trustee under the Pooling Servicing Agreement relating to IMPAC Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2007-3.[1] He claims that the court improperly (1) denied his motion to dismiss for lack of subject matter jurisdiction, and (2) dismissed, pursuant to General Statutes § 49-15, [2]his motion to open the judgment of strict foreclosure as moot.[3] We conclude that neither of these claims are persuasive and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are pertinent to this appeal. The plaintiff commenced this action for strict foreclosure against the defendant on April 29, 2014. The plaintiff alleged the following facts in its complaint. On April 9, 2007, the defendant executed a promissory note in favor of IMPAC Funding Corporation d/b/a IMPAC Lending Group (IMPAC) in exchange for a loan in the amount of $627, 500, which was secured by a mortgage on the defendant's real property located at 123 Jeanne Court in Stamford (property). The mortgage, originally executed in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for IMPAC, was assigned to the plaintiff on August 30, 2012, by virtue of an assignment of mortgage agreement. The plaintiff is ‘‘the holder of [the] note and mortgage.'' The defendant executed loan modification agreements on May 4, 2010, and October 3, 2012, increasing the unpaid principal balance due under the note. The defendant has defaulted on the note, and the plaintiff has elected to declare the unpaid balance under the note to be due in full and to foreclose the mortgage securing the note. Copies of the note, mortgage, and assignment of mortgage, which named the plaintiff as the assignee, were appended to the complaint as exhibits.

         On August 8, 2014, the court granted the plaintiff's motion for entry of default against the defendant for failure to appear. On September 3, 2014, the plaintiff filed a motion for a judgment of strict foreclosure. On December 8, 2014, following a hearing, the court granted the plaintiff's motion, rendered a judgment of strict foreclosure, and set January 20, 2015, as the law day. Thereafter, the court granted the plaintiff's motion to open the judgment of strict foreclosure, reset the date of judgment to February 2, 2015, and extended the law day to May 19, 2015.

         On May 12, 2015, the defendant filed a motion to open the judgment of strict foreclosure, asserting that the plaintiff lacked standing to commence the action, along with a motion to dismiss for lack of subject matter jurisdiction. In support of his motion to dismiss, the defendant argued that the plaintiff was not a ‘‘ ‘holder' '' of the note, and thus lacked standing to foreclose the mortgage, because the note was not a ‘‘negotiable instrument'' within the meaning of General Statutes § 42a-3-104.[4] Specifically, the defendant argued that the note ceased to be an unconditional promise or order to pay under General Statutes § 42a-3-106 (a)[5] because, as pleaded in the complaint, the terms of the note were modified by loan modification agreements executed on May 4, 2010, and October 3, 2012. The loan modifications, the defendant maintained, made the promises and obligations set forth in the original note ‘‘subject to or governed by'' other writings and, consequently, rendered the original note ‘‘conditional'' under § 42a-3-106 (a) (ii) and (iii). The defendant did not request a hearing on his motion to open or motion to dismiss prior to the May 19, 2015 law day.

         Following a hearing on the defendant's motion to open, held on May 26, 2015, the court ordered the parties to submit briefs, and scheduled the motion for further argument at the June 16, 2015 short calendar. At the short calendar, the defendant contended that, notwithstanding § 49-15, which precludes trial courts from opening judgments of strict foreclosure after title to the mortgaged property vests following the running of the law days, [6] the court retained authority to open the judgment because he filed a motion to dismiss challenging the court's subject matter jurisdiction on May 12, 2015, which, he asserted, tolled the running of the May 19, 2015 law day. The court disagreed and, pursuant to § 49-15, dismissed the defendant's motion to open as moot. The court then scheduled the motion to dismiss for argument on a later date and ordered the plaintiff not to transfer title to the property until after the motion was heard.

         At a hearing held on June 22, 2015, the court denied the defendant's motion to dismiss. The court noted that, at the time it rendered the judgment of strict foreclosure, it had found that the foreclosure documents were in order and that the plaintiff was the holder of the note. The court further found that the note remained a negotiable instrument regardless of the modification agreements and that the plaintiff had standing to foreclose the mortgage.[7] This appeal followed.

         I

         The defendant first claims that the court improperly denied his motion to dismiss on the basis of its finding that the plaintiff was a holder of the note with standing to commence this action. Specifically, the defendant argues that the plaintiff was not a holder of the note because the note was not a ...


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