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Flagstar Bank, FSB v. Kepple

Appellate Court of Connecticut

June 4, 2019

FLAGSTAR BANK, FSB
v.
Christine KEPPLE et al.

         Argued February 4, 2019

         Appeal from the  Superior Court, Judicial District of New London, Cosgrove, J.

Page 629

[Copyrighted Material Omitted]

Page 630

          Albert L.J. Speziali, with whom, on the brief, were Paul M. Geraghty, New London, and Mark R. Kepple, self-represented, for the appellants (defendants).

          Scott H. Bernstein, for the appellee (plaintiff).

         DiPentima, C. J., and Alvord and Moll, Js.

          OPINION

         MOLL, J.

Page 631

          [190 Conn.App. 314] The defendants, Christine Kepple and Mark Kepple,[1] appeal from the judgment of foreclosure by sale rendered in favor of the plaintiff, Flagstar Bank, FSB. On appeal, the defendants claim that the trial court lacked subject matter jurisdiction over this action as a result of the plaintiff’s alleged lack of standing. We disagree and, accordingly, affirm the judgment of the trial court.

          The following facts and procedural history are relevant to the resolution of the defendants’ claim on appeal. The plaintiff filed this action in February, 2011, seeking to foreclose a residential mortgage on property located at 140 Elm Street in Stonington. According to the complaint, on November 19, 2004, Mark Kepple executed a promissory note payable to the order of Atlantis Mortgage Co., Inc., in the amount of $ 322,700. To secure the note, the defendants executed a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Atlantis Mortgage Co., Inc. The complaint alleged that the plaintiff was the owner of the note and mortgage by virtue of an assignment of the mortgage dated February 3, 2011. The complaint further alleged that the note was in default and that the plaintiff was exercising its option to declare the entire balance on the note due and payable. On October 23, 2017, the court rendered a judgment of foreclosure by sale. The court thereafter denied the defendants’ motion to reconsider, and the defendants filed the present appeal.

         [190 Conn.App. 315] On appeal, the defendants claim that the trial court lacked subject matter jurisdiction over this action because of the plaintiff’s alleged lack of standing. Specifically, the defendants argue that (1) the plaintiff merely was the holder of the note and not the owner of the debt, and (2) the evidence in the record, taken as a whole, rebutted the presumption that the plaintiff, as the holder of the note, was the owner of the debt.[2] We disagree.

          At the outset, we note that "[t]he issue of standing implicates [the] court’s subject matter jurisdiction.... Standing 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.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the

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issue .... Because standing implicates the court’s subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing." (Citation omitted; internal quotation marks omitted.) JPMorgan Chase Bank, National Assn. v. Simoulidis, 161 Conn.App. 133, 142, 126 A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016). "Because a determination regarding the trial court’s subject matter jurisdiction raises a question of law, [the standard of] review is plenary." (Internal quotation marks omitted.) Id. "In addition, because standing implicates the court’s subject matter jurisdiction, the issue of standing is not subject to waiver and may be [190 Conn.App. 316] raised at any time." (Internal quotation marks omitted.) U.S. Bank, National Assn. v. Schaeffer, 160 Conn.App. 138, 145, 125 A.3d 262 (2015).

          The following additional facts are necessary for the resolution of the defendants’ claim. On March 14, 2012, the plaintiff filed a motion for default for failure to disclose a defense, which the court, Martin, J ., granted on March 26, 2012. On April 3, 2012, Mark Kepple filed (1) an appearance as a self-represented party in lieu of the appearance filed by his initial attorney and (2) a motion for inclusion in the foreclosure mediation program. On August 13, 2012, Attorney Paulann Hosler Sheets filed an appearance for the defendants in addition to the self-represented appearance filed by Mark Kepple. The defendants then filed a ...


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