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Citimortgage, Inc. v. Tanasi

Court of Appeals of Connecticut

October 3, 2017

CITIMORTGAGE, INC.
v.
RICHARD TANASI ET AL.

          Argued June 1, 2017

          Christopher G. Brown, for the appellants (named defendant et al.).

          Donald E. Frechette, with whom was Tara Trifon, for the appellee (plaintiff).

          Alvord, Prescott and Kahn, Js.

         Syllabus

         The plaintiff bank sought to foreclose a mortgage on certain real property owned by the defendants C and T. After execution and delivery of the note underlying that mortgage, the plaintiff entered into an agreement selling the debt of C and T to a second bank, H Co. Under the terms of the agreement, the plaintiff agreed to service the debt for H Co. and was authorized to institute foreclosure proceedings on H Co.'s behalf. C and T subsequently failed to make the required monthly payments and the plaintiff commenced the present action alleging, inter alia, that it was the holder of the note. Attached to the complaint was a copy of the note, endorsed in blank. After the trial court denied a motion to strike the foreclosure related prayers for relief from the complaint filed by C and T, it granted the plaintiff's motion for summary judgment as to liability. Thereafter, C and T filed a motion to dismiss, claiming that the plaintiff lacked standing to foreclose because the plaintiff did not own the debt and had not been given authority to foreclose by H Co. In response, the plaintiff produced a copy of the agreement, which had also been provided to C and T previously during mediation. C and T were given the opportunity to review the agreement during a one hour recess, and the provision of the agreement granting the plaintiff the authority to foreclose was read into the record. The court subsequently denied the motion to dismiss and rendered a judgment of strict foreclosure in favor of the plaintiff, from which C and T appealed. Held:

         1. The trial court properly denied C and T's motion to dismiss, as the plaintiff had standing to foreclose on behalf of H Co.; the plaintiff having provided the court with a copy of the agreement at the hearing on the motion to dismiss, and the relevant portions of the agreement having been read into the record and considered by the court, the record was adequate to review the question of whether the agreement gave the plaintiff the authority to foreclose, and the plain and unambiguous language of the agreement provided the plaintiff, as the holder of the note endorsed in blank, with authority to foreclose on behalf of H Co., the owner of the note.

         2. C and T could not prevail on their claim that the plaintiff should be judicially estopped from proceeding under a theory that H Co. owned the debt; the plaintiff's introduction of the agreement was not untimely but, rather, was responsive to the attempt by C and T to meet their burden of rebutting the presumption of ownership afforded to the plaintiff as a holder of the note, C and T were provided with ample opportunity to review the agreement, and they failed to demonstrate that they were prejudiced by the introduction of the agreement during the hearing on the motion to dismiss.

         3. C and T could not prevail on their claim that the trial court erred by failing to dismiss the foreclosure action, with prejudice, on the basis of fraud; under the relevant burden shifting framework, the plaintiff was presumed to be the owner of the debt when it produced the note endorsed in blank and had no burden of proving ownership, but once that presumption was challenged by C and T, the plaintiff had the burden to demonstrate that it owned the debt or had the authority from the owner of the note, H Co., to foreclose, and, therefore, it was not fraudulent for the plaintiff to demonstrate that it had authority to foreclose on behalf of H Co. in response to the motion to dismiss filed by C and T.

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., brought to the Superior Court in the judicial district of Middlesex, where the court, Domnarski, J., denied the motion to strike filed by the named defendant et al.; thereafter, the defendant PNC Bank, National Association, was defaulted for failure to appear; subsequently, the court, Aurigemma, J., granted the plaintiff's motion for summary judgment as to liability; thereafter, the court, Aurigemma, J., denied the motion to dismiss filed by the named defendant et al.; subsequently, the court, Aurigemma, J., granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant et al. appealed to this court; thereafter, the court, Aurigemma, J., issued an articulation of its decision. Affirmed.

          OPINION

          KAHN, J.

         The defendants, Richard Tanasiand Athanasula S. Casberg Tanasi, [1] appeal from the judgment of strict foreclosure rendered by the court in favor of the plaintiff, CitiMortgage, Inc. The defendants claim that the court erred in denying their motion to dismiss the foreclosure action because the plaintiff (1) lacked standing to commence foreclosure proceedings, (2) improperly relied on a document as a basis for standing, and (3) committed fraud warranting dismissal of the action with prejudice. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts are relevant to our resolution of this appeal. On August 2, 2007, the defendants executed and delivered a note in the principal amount of $656, 250 to ABN AMRO Mortgage Group, Inc. (Mortgage Group), which was secured by a mortgage on real property known as 27 Briarwood Drive in Old Saybrook. In late August 2007, the plaintiff acquired Mortgage Group by merger. In November, 2007, the plaintiff entered into a ‘‘Master Mortgage Loan Purchase and Servicing Agreement'' (agreement) with Hudson City Savings Bank (Hudson). Under the agreement, Hudson purchased certain mortgage loans from the plaintiff, including the defendants' loan. The agreement identifies Hudson as the ‘‘[i]nitial [p]urchaser'' and the plaintiff as the ‘‘[s]eller and [s]ervicer.'' The plaintiff possessed the original note, endorsed in blank, at the time of the commencement of the foreclosure action. When the defendants failed to make the required monthly payments on the loan, the plaintiff sent the defendants a notice of default. The defendants subsequently failed to cure their default, and the plaintiff accelerated the sums due under the note. The plaintiff commenced a foreclosure action in July, 2011, and alleged in its complaint that it ‘‘is the holder of [the defendants'] [n]ote and [m]ortgage.''

         The parties proceeded to mediation. It is not disputed that, during mediation, the plaintiff provided the defendants with a copy of the agreement. After participating in fourteen court-annexed mediation sessions, the plaintiff filed a ...


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