September 7, 2018
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 and tried
to the court, Heller, J.; judgment of strict foreclosure;
thereafter, the court granted the plaintiffs motion to
substitute Wilmington Trust, N.A., as the plaintiff, and the
defendant Brian Stein appealed to this court. Affirmed.
Stein, self-represented appellant (defendant Brian Stein).
Crystal L. Cooke, for the appellee (substitute plaintiff).
Lavine, Sheldon and Bright, Js.
present appeal concerns the foreclosure of real property
located at 983 New Norwalk Road in New Canaan (property). The
self-represented defendant, Brian Stein,  appeals from the
judgment of strict foreclosure rendered in favor of the
substitute plaintiff, Wilmington Trust, N.A. (Wilmington
Trust), as successor trustee to the plaintiff, Citibank, N.A.
(Citibank), as trustee of the holders of Bear Stearns Alt-A
Trust 2006-6, Mortgage Pass-Through Certificates, Series
2006-6. On appeal, the defendant claims that the trial court,
Heller, J., (1) erred by denying his motion to
dismiss, (2) abused its discretion by denying his motion to
reargue and for reconsideration, (3) abused its discretion by
refusing to consider, after the June 2015 trial, documents
the defendant considered newly discovered evidence, (4) erred
in finding that the mortgagor had defaulted on the note and
default notice, and (5) erred under J.E. Robert Co.
v. Signature Properties, LLC, 309 Conn. 307, 71
A.3d 492 (2013), in concluding that Citibank had proven its
right as a nonholder in possession to bring the foreclosure
action. We affirm the judgment of the trial court.
memoranda of decision issued on January 7, 2016, and on
February 21, 2017, the trial court set forth the following
relevant facts and procedural history. On July 7, 2006, Laura
A. Stein, the defendant's then wife, executed and
delivered an interest only adjustable rate note to
Countrywide Bank, N.A. (Countrywide Bank), in the principal
amount of $1, 650, 000. Countrywide Bank endorsed the note to
Countrywide Home Loans, Inc. (Home Loans). Home Loans,
thereafter, endorsed the note in blank and provided it to
Citibank. To secure the note, the defendant and Laura Stein
executed in duplicate a mortgage on the property and
delivered it to Mortgage Electronic Registration Systems,
Inc. (MERS), as nominee for Countrywide Bank. MERS assigned
the mortgage to Citibank on November 25, 2009.
court also found, pursuant to paragraph 3 (A) of the note,
that Laura Stein was to make monthly payments of interest
only on the first day of each month, commencing on September
1, 2006. She and the defendant last made a monthly payment on
the note on July 16, 2008. On September 16, 2008, Home Loans,
which was the servicer of the loan on behalf of the holder of
the note at that time, sent a letter to Laura Stein advising
her that the loan was in default and of the amount required
to cure the default and reinstate the loan.Laura Stein and
the defendant failed to cure the default. Citibank elected to
accelerate the balance due on the note, declare the note due
in full, and foreclose the mortgage securing the
note. Citibank commenced the present foreclosure
action by service of process on July 13, 2009. The complaint
alleges, in relevant part, that Citibank, as trustee, is the
holder of the note and mortgage.
defendant and Laura Stein filed an answer and special
defenses on March 19, 2010. Their special defenses alleged
that Citibank lacked standing as a trustee under General
Statutes § 52-106, but that if Citibank had standing, it
was required to modify the mortgage pursuant to an agreement
between the Connecticut Attorney General and Countrywide
Bank. They also alleged that Citibank did not provide the
original note, and, therefore, could not commence the action,
and that the complaint failed to establish that Citibank was
the current holder and owner of the note and mortgage.
Citibank pleaded a general denial in response to the special
September 27, 2010, Citibank filed a motion for summary
judgment as to liability only. The defendant and Laura Stein
objected to the motion for summary judgment on the ground
that there were genuine issues of material fact as to whether
Citibank was the holder of the note and mortgage. The court,
Mintz, J., sustained the defendant's objection
to the motion by granting additional time for discovery on
the issue of Citibank's standing and ordering that the
motion for summary judgment be set down for argument on
November 17, 2014. Judge Heller found that Citibank's
motion for summary judgment was never argued.
September 10, 2014, Laura Stein filed a motion to dismiss in
which she contended, among other things, that Citibank lacked
standing to pursue the present action under General Statutes
§§ 42a-3-301 and 52-106. She withdrew her motion to
dismiss, however, on the first day of trial, stipulated to
certain facts, and consented to the entry of summary judgment
against her as to liability only.
19, 2015, five days before trial, the defendant filed a
motion to dismiss on the ground that Citibank lacked standing
to pursue the action against him. After hearing from counsel
for the parties, Judge Heller determined that she would hear
and decide the defendant's motion to dismiss at the same
time and, in connection with, the merits of Citibank's
foreclosure case. The parties, all represented by counsel,
appeared before the court for trial on June 24, 25 and 26,
2015. On January 7, 2016, after the parties had
submitted posttrial briefs, the court issued a memorandum of
decision in which it denied the defendant's motion to
dismiss and rendered a judgment of strict foreclosure in
favor of Citibank.
January 19, 2016, the defendant filed a motion for a new
trial and on January 27, 2016, filed a motion for reargument
and reconsideration of the court's ruling on his motion
to dismiss. Citibank objected to both motions. The court
granted the motion for reargument, and counsel for Citibank
and the defendant appeared for argument before the court on
February 16, 2016.The court reserved reconsideration of its
ruling on the motion to dismiss and determined to open the
record and take additional testimony from Citibank's
witness, Johnny Nguyen of Nationstar Mortgage LLC
(Nationstar), the servicer of the subject
August 29, 2016, Citibank filed a motion to substitute
Wilmington Trust as the plaintiff because the mortgage had
been assigned to Wilmington Trust after the present action
was commenced. OnAugust30, 2016, the court heard additional
testimony from Nguyen. Before commencing the hearing, the
court granted Citibank's motion to substitute Wilmington
Trust as the plaintiff. On September 19, 2016, the defendant
filed a motion for reargument and reconsideration of
Citibank's motion to substitute Wilmington Trust as the
plaintiff. The court heard argument from counsel on the
defendant's motion for reargument and reconsideration on
November 28, 2016. On February 1, 2017, counsel for the
defendant filed a memorandum in further support of his motion
to reargue the motion to substitute, and the defendant
submitted a statement and memorandum of his own. Wilmington
Trust filed an objection to the motion to reargue on February
February 21, 2017, the court issued a memorandum of decision
on the defendant's three pending motions before it, to
wit, his motion for a new trial, filed on January 19, 2016;
his motion for reargument on his motion to dismiss, filed on
January 27, 2016; and his motion for reargument on
Citibank's motion to substitute Wilmington Trust as the
plaintiff, filed on September 19, 2016. The court denied all
three of the defendant's reargument motions and opened
the judgment of strict foreclosure previously entered for the
purpose of setting the law days. The defendant timely
appealed to this court.
defendant first claims that the court erred in finding that
Citibank had standing to bring this foreclosure action
against him and, thus, that it had subject matter
jurisdiction over the action. Specifically, he claims that
the court (1) erred by denying his motion to dismiss because
Citibank lacked standing to commence the action and (2)
abused its discretion by failing to grant his motion to
reargue and for reconsideration of his motion to
dismiss. We reject the defendant's claims.
defendant's claims require us to examine the court's
memoranda of decision in detail. The court's decisions
set forth the following facts and legal analyses.
to the start of trial in June, 2015, the defendant filed a
motion to dismiss claiming that he had a good faith belief
that Citibank lacked standing to pursue the action. In its
January 7, 2016 memorandum of decision, the trial court found
that the defendant had argued that Citibank lacked standing
because (i) it was not the owner of the note and the debt at
issue and/or it was not the holder of the note and (ii) it
was not authorized by the owner of the note and the debt to
prosecute the action on behalf of the owner. The defendant
also argued that Citibank lacked standing under General
Statutes § 52-106. Citibank contended that it had
standing as both the holder of the note and as trustee.
court credited the uncontroverted testimony of Nguyen that
Citibank was the holder of the note that had been endorsed in
blank. The court cited the statutory and common-law
definitions of "holder." General Statutes §
42a-3-104 (a) provides, in relevant part, that a holder is
"[t]he person in possession of a negotiable instrument
that is payable either to bearer or to an identified person
that is the person in possession." "The holder is
the person or entity in possession of the instrument if the
instrument is payable to bearer. . . . When an instrument is
endorsed in blank, it becomes payable to bearer and may be
negotiated by transfer of possession alone . . . ."
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Equity One, Inc. v.
Shivers, 310 Conn. 119, 126, 74 A.3d 1225 (2013).
The court concluded, therefore, that because Citibank was the
holder of the note, it had proved that it was the owner
because "the note holder is presumed to be the owner of
the debt, and unless the presumption is rebutted, may
foreclose the mortgage under [General Statutes] §
49-17." (Internal quotation marks omitted.) American
Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.App.
127, 133-34, 117 A.3d 500, cert, denied, 317 Conn. 915, 117
A.3d 854 (2015). Citing Anderson v.
Litchfield, 4 Conn.App. 24, 28, 492 A.2d 210
(1985), for the law regarding the burden
necessary to rebut the presumption of ownership, the court
found that the defendant had failed to offer sufficient and
persuasive contradictory evidence to disprove the presumption
that Citibank was the holder of the note.
defendant further argued that Nguyen's testimony alone
was insufficient to prove that Citibank was authorized to
commence and pursue the action without the relevant business
records, particularly the pooling and service agreement,
being offered into evidence. The court found that the
defendant offered no evidence to contradict Nguyen's
testimony, which was predicated on his personal knowledge of
Nationstar's business records. It disagreed that Citibank
was required to produce its business records to support its
claim. "Appellate courts in this state have held that
[the evidentiary] burden is satisfied when the mortgagee
includes in its submission to the court a sworn affidavit
averring that the mortgagee is the holder of the promissory
note in question at the time it commenced the action."
GMAC Mortgage, LLC v. Ford, 144 Conn.App.
165, 176, 73 A.3d 742 (2013).
court also concluded that Citibank had standing to prosecute
the foreclosure action as holder of the note and as a
trustee. Section 52-106 provides, "[a]n
executor, administrator, or trustee of an express trust may
sue or be sued without joining the persons represented by him
and beneficially interested in the action." "[T]he
trustee's standing to sue arises out of its legal title
to the trust res." (Internal quotation marks omitted.)
Chase Home Finance, LLC v. Fequiere, 119 Conn.App.
570, 580, 989 A.2d 606, cert, denied, 295 Conn. 922, 991 A.2d
564 (2010). Moreover, "[o]ur appellate courts have not
required a foreclosure plaintiff to produce evidence of
ownership deriving from a pooling and servicing agreement in
making its prima facie case . . . ." Wells Fargo
Bank, N.A. v. Strong, 149 Conn.App. 384, 399,
89 A.3d 392, cert, denied, 312 Conn. 923, 94 A.3d 1202
relevance of securitization documents on a lender's
standing to foreclose a mortgage is questionable. Simply put,
a borrower has a contract-the note and mortgage-with the
owner or holder of the loan documents. The borrower, however,
is not a party to the pooling and servicing agreement,
commonly referred to as a 'trust' document. . . . It
is a basic tenet of contract law that only parties to an
agreement may challenge its enforcement. . . . [C]lose
scrutiny of trust documents and challenges to their veracity
appear to offer little benefit to the court in determining
the owner or holder of a note in a particular case. If
admissible evidence of holder status has been presented, a
borrower must then challenge those facts by competent
evidence addressed to the delivery of the loan documents. In
most instances, a borrower's challenge to the content of
trust documents or other borrower claims appear to have
little relevance to the issue of standing." (Internal
quotation marks omitted.) Id., 393-94.
court continued quoting that "[t]he law of trusts limits
the ability of a borrower to challenge whether conditions in
the pooling and servicing agreement were satisfied. ... [A]
stranger to a trust, when sued by the Trustee, cannot set up
as a defense a violation of the rights of the Trust by the
Trustee. . . . Generally, the parties to a pooling and
servicing agreement are the certificate holders, who own
interests in the mortgages, a trustee, a depositor of the
assets, and a servicer. Borrowers, however, have no
contractual privity with the parties to a pooling and
servicing agreement." (Citations omitted; internal
quotation marks omitted.) Id., 394. The court found
that Citibank had standing to prosecute the present action
and that the action was not barred by any of the
defendant's remaining special defenses. The court,
therefore, denied the defendant's motion to dismiss.
After hearing appraisal evidence and the amount of debt, the
court found that the debt far exceeded the fair market value
of the property. It issued a judgment of strict foreclosure
in favor of Citibank and set law days.
previously stated, the defendant filed a motion for
reargument and reconsideration of his motion to dismiss. The
defendant contended that following the hearing on the motion
to dismiss and the foreclosure trial, he discovered new
evidence to the effect that Citibank was not the owner of the
note and debt at issue and had not been for some time.
According to the defendant, Wilmington Trust was the owner.
The defendant first raised the argument in his posttrial
memorandum filed on August 24, 2015, in which he asked the
court to take judicial notice of certain public documents
that purportedly demonstrated that Wilmington Trust had
succeeded Citibank as trustee for the Holders of Bear Stearns
Alt-A Trust 2006-6. The court declined to do so, noting that
even if it took judicial notice, as requested, the
information would not have afforded a basis for dismissing
the action. See footnote 15 of this opinion. The defendant
also claimed that Wells Fargo Bank was the servicer of the
mortgage, not Nationstar, thus calling into question the
veracity of Nguyen's testimony.
court granted reargument on February 16, 2016, but reserved
decision on reconsideration of the motion to dismiss. On May
26, 2016, the court decided to open the record to take
further testimony from Nguyen to determine whether Citibank,
Wilmington Trust, or some other entity was the trustee of the
trust on June 25, 2015, when Nguyen testified at the
foreclosure trial; whether Nationstar, Wells Fargo, or some
other entity was the mortgage servicer for the
defendant's mortgage when Nguyen testified; and if an
entity other than Nationstar was the mortgage servicer,
whether Nguyen was familiar with the books and records of
such mortgage servicer at the time of trial and was
authorized to testify on its behalf.
court heard further testimony from Nguyen on August 30, 2016.
The court issued its decision in a memorandum of decision on
February 21, 2017. The court credited Nguyen's testimony
and made the following additional findings of fact.
Nationstar has been the primary servicer of the mortgage
since the beginning of 2014 and was the servicer on June 25,
2015, when Nguyen testified at the foreclosure trial and it
continued to be the mortgage servicer. Citibank was the
trustee and the holder of the note at the time the
foreclosure complaint was served in 2009 and had authority to
commence the action. Wilmington Trust became the trustee in
2012, was the trustee on June 25, 2015, and remained the
trustee. It also was the holder of the note in June, 2015.
Two assignments of the mortgage were admitted into evidence.
Citibank assigned it to Nationstar on May 4, 2016, and
Nationstar assigned it to Wilmington Trust on March 30, 2016.
respect to the defendant's motion for reconsideration of
his motion to dismiss, the court stated that the ground of
the defendant's motion for reconsideration was newly
discovered evidence. The court cited the controlling law.
"A party who wishes to reargue a decision or order
rendered by the court shall, within twenty days from the
issuance of notice of the rendition of the decision or order,
file a motion to reargue setting forth the decision or order
which is the subject of the motion, the name of the judge who
rendered it, and the specific grounds for reargument upon
which the party relies." Practice Book § 11-12 (a).
"[T]he purpose of reargument is ... to demonstrate to
the court that there is some decision or some principle of
law which would have a controlling effect, and which has been
overlooked, or that there has been a misapprehension of
facts. . . . [Reargument] also may be used to address alleged
inconsistencies in the trial court's memorandum of
decision as well as claims of law that the [movant] claimed
were not addressed by the court." (Citation omitted;
internal quotation marks omitted.) Opoku v.
Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981
discovered evidence may warrant reconsideration of a
court's decision. However, [f] or evidence to be newly
discovered, it must be of such a nature that [it] could not
have been earlier discovered by the exercise of due
diligence." (Internal quotation marks omitted.)
Durkin Village Plainville, LLC v.Cunningham,97 Conn.App. 640, 656, 905 A.2d 1256
(2006). The court found that the evidence the defendant
offered fell short of this standard. In fact, the court
stated, the defendant never sought to open the record to
introduce evidence that Wilmington Trust was the ...