October 11, 2017
to foreclose a mortgage on certain real property of the named
defendant et al., and for other relief, brought to the
Superior Court in the judicial district of Stamford-Norwalk,
where the defendant National City Bank was defaulted for
failure to plead; thereafter, the court, Mintz, J.,
granted the plaintiff's motion to substitute Nationstar
Mortgage, LLC, as the plaintiff; subsequently, the court,
Mintz, J., denied the substitute plaintiff's
motion for summary judgment; thereafter, the defendant
People's United Bank et al. were defaulted for failure to
appear; subsequently, the matter was tried to the court,
Heller, J.; judgment of strict foreclosure, from
which the named defendant et al. appealed to this court.
Reversed; judgment directed.
Christopher G. Brown, for the appellants (named defendant et
Christopher S. Groleau, with whom, on the brief, was Jonathan
Adamec, for the appellee (substitute plaintiff).
Alvord, Elgo and Sullivan, Js.
defendants, Karen Condron and James L. Condron,
appeal from the judgment of strict foreclosure rendered by
the trial court in favor of the plaintiff Nationstar
Mortgage, LLC. On appeal, the defendants claim that the
court improperly rendered judgment of strict foreclosure
because (1) the plaintiff failed to satisfy a contractual
condition precedent to foreclosure, namely, compliance with
the requirement of notification by mail specified in the
mortgage deed; (2) the plaintiff failed to satisfy a
statutory condition precedent, as required by the Emergency
Mortgage Assistance Program (mortgage program) pursuant to
the provisions of General Statutes § 8-265ee (a); and
(3) the plaintiff lacked the authority to foreclose. The
judgment is reversed and the case is remanded with direction
to dismiss the action.
following facts and procedural history are relevant to the
present appeal. On February 16, 2007, the defendants executed
and delivered an adjustable rate promissory note (note)
payable to the order of Lehman Brothers Bank, FSB (bank), in
the original principal amount of $980, 000. The loan was
secured by a mortgage (mortgage deed) on the property. The
mortgage deed was executed and delivered on February 16,
2007, to Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for the bank. The bank specially endorsed
the note to Lehman Brothers Holdings, Inc., which endorsed
the note in blank.
March 1, 2007, Aurora Loan and Lehman Brothers Holdings,
Inc., entered into a written servicing agreement (servicing
agreement). Structured Asset Securities Corporation, Wells
Fargo Bank, N.A. (Wells Fargo), and Aurora Loan entered into
a written trust agreement, dated March 1, 2007 (trust
agreement). Under the trust agreement, the defendants'
note and mortgage deed became part of the trust. Wells Fargo,
as trustee, is the owner of the debt under the trust
agreement. Aurora Loan, or any successor in interest,
identified in the trust agreement as the master servicer and
as a servicer. MERS, as nominee for the bank, assigned
the mortgage deed to Aurora Loan by virtue of a corporate
assignment of the mortgage deed.
defendants have been in default on the note and mortgage deed
since at least May 1, 2009. On June 19, 2009, Aurora Loan, as
the servicer of the loan at the time, sent a letter to the
defendants, by certified mail, return receipt
requested, notifying them that the loan was in default
and advising them of the amount required to cure the default
and reinstate the loan as of that date. On the same date,
Aurora Loan also provided notice to the defendants by
certified mail of their rights under the mortgage program,
pursuant to the provisions of General Statutes §§
8-265cc through 8-265kk. The defendants failed to cure the
default and Aurora Loan elected to accelerate the balance due
on the note, declare the note due in full, and foreclose the
mortgage deed securing the note. Aurora Loan commenced the
present foreclosure action against the defendants on November
19, 2009. Aurora Loan assigned the mortgage to the plaintiff
by virtue of a corporate assignment of mortgage on June 29,
2012. On August 22, 2012, Wells Fargo, as trustee, provided a
limited power of attorney to the plaintiff, as assignee of
Aurora Loan. The plaintiff was in possession of the note and
presented it to the court and to the defendants' counsel
for inspection at the foreclosure trial. On April 8, 2013,
Aurora Loan moved to substitute Nationstar Mortgage, LLC, as
the plaintiff in the present action, and the court granted
the motion to substitute on May 1, 2013.
action was tried to the court on August 25, 2015. At trial,
the defendants claimed that they did not receive either the
default notice or the mortgage program notice from Aurora
Loan. No evidence was offered by either party to show that
the mortgage program notice or the default notice had been
returned to Aurora Loan by the United States Postal Service
(USPS) with an endorsement showing failure of delivery. In
addition, no evidence was offered of a return receipt
confirming actual delivery. In its memorandum of decision,
the court concluded that (1) the plaintiff had standing to
prosecute the present foreclosure action; (2) the plaintiff
had proven compliance with the notice provisions of the
mortgage deed by a preponderance of the evidence; (3) the
plaintiff had proven by a preponderance of the evidence that
the mortgage program notice was sent to the defendants by
certified mail on June 19, 2009; and (4) the plaintiff was
entitled to a judgment of strict foreclosure against the
defendants. On appeal, the defendants challenge the propriety
of that decision. Additional facts will be provided as
first address the issue of standing because an absence of
subject matter jurisdiction would deprive this court of the
opportunity to review any other matters raised in the present
appeal. See Wells Fargo Bank, N.A. v. Henderson, 175
Conn.App. 474, 481, 167 A.3d 1065 (2017). The defendants
claim that the plaintiff failed to demonstrate that it had
standing to foreclose because the plaintiff does not own the
note and the note's owner, Wells Fargo, as trustee, did
not authorize the plaintiff to foreclose in its own name. The
plaintiff maintains that it has standing to foreclose in its
own name because it was the holder of the note and it
provided sufficient evidence of its authority to foreclose.
We agree with the plaintiff.
is the legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court unless
he [or she] has, in an individual or representative capacity,
some real interest in the cause of action, or a legal or
equitable right, title or interest in the subject matter of
the controversy. . . . Where a party is found to lack
standing, the court is consequently without subject matter
jurisdiction to determine the cause. . . . Our review of this
question of law is plenary.'' (Citations omitted;
internal quotation marks omitted.) J.E. Robert Co.
v. Signature Properties, LLC, 309 Conn. 307, 318, 71
A.3d 492 (2013).
rules for standing in foreclosure actions when the issue of
standing is raised may be succinctly summarized as follows.
When a holder seeks to enforce a note through foreclosure,
the holder must produce the note. The note must be
sufficiently endorsed so as to demonstrate that the
foreclosing party is a holder, either by a specific
endorsement to that party or by means of a blank endorsement
to bearer. If the foreclosing party shows that it is a valid
holder of the note and can produce the note, it is presumed
that the foreclosing party is the rightful owner of the debt.
That presumption may be rebutted by the defending party, but
the burden is on the defending party to provide sufficient
proof that the holder of the note is not the owner of the
debt, for example, by showing that ownership of the debt had
passed to another party. It is not sufficient to provide that
proof, however, merely by pointing to some documentary lacuna
in the chain of title that might give rise to the
possibility that some other party owns the debt. In order to
rebut the presumption, the defendant must prove that
someone else is the owner of the note and debt. Absent that
proof, the plaintiff may rest its standing to foreclose on
its status as the holder of the note.'' (Emphasis
added; internal quotation marks omitted.) Wells Fargo
Bank, N.A. v. Henderson, supra, 175 Conn.App.
defending against an action to enforce a note, a debtor may
be able to produce evidence demonstrating that the plaintiff,
who might otherwise appear to be entitled to enforce the debt
nevertheless lacks standing, perhaps because ownership of the
debt has passed to another party.'' J.E. Robert
Co. v. Signature Properties, LLC, supra, 309
Conn. 325. ‘‘[I]t is the foreclosing party's
burden, when the issue of standing is raised, to demonstrate
by way of proper documentation that it has the right to
enforce the note. It may, for example, produce documents
showing a valid transfer of the right to enforce the note
between the original holder and the foreclosing
party.'' U.S. Bank, National Assn. v.
Schaeffer, 160 Conn.App. 138, 150-51, 125 A.3d 262
present case, Aurora Loan, the original plaintiff, was the
holder of the note when it commenced the present action in
November, 2009. Aurora Loan assigned its rights, title, and
interest in the mortgage deed to the plaintiff by a corporate
assignment of the mortgage on June 29, 2012. As a result, the
court granted Aurora Loan's motion to substitute
Nationstar Mortgage, LLC, as the plaintiff in the present
action, and the plaintiff is now the holder of the note
endorsed in blank. The plaintiff presented the note to the
court at the foreclosure trial. According to the trust
agreement, however, Wells Fargo is the owner of the debt.
issue is whether the plaintiff, despite not owning the note,
demonstrated that it had the authority to foreclose on the
mortgage deed securing the note. See American Home
Mortgage Servicing, Inc. v. Reilly, 157 Conn.App. 127,
134, 117 A.3d 500, cert. denied, 317 Conn. 915, 117 A.3d 854
(2015). ‘‘[A] plaintiff, in establishing the loan
servicer's authority to enforce the instrument, must
provide sufficient evidence of such authority to demonstrate
that the principals unequivocally manifested their intention
to authorize [the loan servicer] to exercise [those] rights .
. . .'' (Internal quotation marks omitted.) J.E.
Robert Co. v. Signature Properties, LLC, supra, 309
Conn. 328 n.19.
defendants argue that the plaintiff failed to present
evidence of an unequivocal manifestation of intent for Wells
Fargo to authorize the plaintiff to foreclose on the mortgage
deed. The plaintiff provided evidence of the
trust agreement, the servicing agreement, the limited power
of attorney, and the testimony of Keith Kovalic, a litigation
resolution analyst for the plaintiff. On the basis of that
evidence, the trial court held that the plaintiff satisfied
its burden of proving that it had standing to foreclose the
review of that evidence supports the trial court's
findings and conclusion on the issue of standing. The
plaintiff presented to the court the trust agreement and
Kovalic testified as to the contents of the trust agreement,
which pertained to Wells Fargo's authorization for the
plaintiff to enforce the debt. The trust agreement defines
‘‘Master Servicers'' as
‘‘[Aurora Loan], or any successor in interest, or
if any successor master servicer shall be appointed as herein
provided, then such successor master servicer.'' The
plaintiff is, accordingly, a ‘‘Master
Servicer'' as defined by the trust agreement because
the parties have stipulated to the fact that the plaintiff is
a successor in interest to Aurora Loan.
9.04 (a) of the trust agreement provides in pertinent part
that a Master Servicer ‘‘shall have full power
and authority (to the extent provided in the applicable
Servicing Agreement) to do any and all things that it may
deem necessary or desirable in connection with the servicing
and administration of the Mortgage Loans, including but not
limited to the power and authority . . . to effectuate
foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan . . .
Wells Fargo, as trustee, provided a limited power of attorney
to the plaintiff. The limited power of attorney provided that
the plaintiff has ‘‘full authority and power to
execute and deliver on behalf of the Trustee . . . all
documents and instruments necessary to conduct any (a)
foreclosure, or (b) the taking of any deed in lieu of
foreclosure, or (c) any judicial or non-judicial foreclosure
or termination, cancellation, or rescission of any such
foreclosure, or (d) any similar procedure (collectively, as
applicable, a ‘Foreclosure') . . . .''
record supports the trial court's finding that Wells
Fargo unequivocally manifested its intention to authorize the
plaintiff to exercise its rights to enforce the debt.
Accordingly, we conclude that the plaintiff had standing to
maintain the foreclosure action.
defendants next claim that the court improperly determined
that Aurora Loan satisfied a contractual condition precedent
to the commencement of the present foreclosure action
regarding notification by mail because (1) Kovalic's
testimony about certain documents not in evidence was
inadmissible hearsay and, as a result, there is no proof of
mailing; (2) the notice was not sent by first class mail and,
therefore, requires proof of actual delivery; and (3) there
was no substantial compliance with the notice provision
because there was no notice at all. We address each claim in
defendants claim that Kovalic's testimony regarding the
contents of business records that were not in evidence is
inadmissible hearsay. Kovalic testified that he reviewed
notes in the file, which indicated that the default letter
was sent. The notes themselves were not introduced
into evidence. As such, the defendants' counsel objected
to the testimony as inadmissible hearsay, but was overruled.
The defendants now challenge that evidentiary ruling.
standard under which we review evidentiary claims depends on
the specific nature of the claim presented. . . . To
the extent a trial court's admission of evidence is based
on an interpretation of [law], our standard of review is
plenary. For example, whether a challenged statement properly
may be classified as hearsay and whether a hearsay exception
properly is identified are legal questions demanding plenary
review. . . . We review the trial court's decision to
admit evidence, if premised on a correct view of the law,
however, for an abuse of discretion. . . . In other words,
only after a trial court has made the legal determination
that a particular statement is or is not hearsay, or is
subject to a hearsay exception, is it vested with the
discretion to admit or to bar the evidence based upon
relevancy, prejudice, or other legally appropriate grounds
related to the rule of evidence under which admission is
being sought.'' (Citations omitted; internal
quotation marks omitted.) State v. Smith, 289 Conn.
598, 617-18, 960 A.2d 993 (2008).
out-of-court statement offered to prove the truth of the
matter asserted in the statement is hearsay. . . . Unless
subject to an exception, hearsay is inadmissible.''
(Citation omitted.) Connecticut Bank & Trust Co.,
N.A. v. Reckert, 33 Conn.App. 702, 708, 638 A.2d 44
(1994). In his testimony, Kovalic referenced the content of
notes which were partof computer records that were not
offered into evidence. Those notes, which were offered to
prove that the default letter was sent, are out-of-court
statements offered to prove the truth of the matter asserted.
See Bell Food Services, Inc. v. Sherbacow, 217 Conn.
476, 488-89, 586 A.2d 1157 (1991); see also New England
Savings Bank v. Bedford Realty Corp., 238 Conn. 745,
757, 680 A.2d 301 (1996). As such, they are inadmissible
hearsay in the absence of any exception.
determination, however, does not end our analysis.
‘‘It is well established that before a party is
entitled to a new trial because of an improper evidentiary
ruling, that party has the burden of establishing that the
improper ruling was harmful. . . . When determining that
issue in a civil case, the applicable standard is whether the
improper ruling would likely affect the result. . . . If the
improperly admitted testimony is merely cumulative of other
evidence presented in the case, its admission does not
constitute reversible error.'' (Citations omitted;
internal quotation marks omitted.) Doe v. Thames Valley
Council for Community Action, Inc., 69 Conn.App. 850,
866-67, 797 A.2d 1146, cert. denied, 261 Conn. 906, 804 A.2d
to the record to determine whether Kovalic's testimony
regarding the notation in the file likely would have affected
the outcome or whether it was merely cumulative of properly
admitted evidence that notice was sent by certified mail. See
Swenson v. Sawoska,215 Conn. 148, 153, 575 A.2d 206
(1990). In this regard, we note that the defendants do not
contest the ...