U.S. BANK, NATIONAL ASSOCIATION, TRUSTEE
CHRISTOPHER M. FITZPATRICK ET AL.
January 30, 2019
to foreclose a mortgage on certain of the named
defendant's real property, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Truglia, J., denied the named
defendant's motion to dismiss; thereafter, the court
granted the plaintiffs motion for summary judgment as to
liability; subsequently, the court, Hon. Alfred J.
Jennings, Jr., judge trial referee, rendered a judgment
of foreclosure by sale, from which the named defendant
appealed to this court. Affirmed.
P. Driscoll, with whom, on the brief, was Richard J. Buturla,
for the appellant (named defendant).
JefferyM. Knickerbocker, for the appellee (plaintiff).
DiPentima, C. J., and Alvord and Eveleigh, Js.
DIPENTIMA, C. J.
defendant Christopher M. Fitzpatrick appeals from the denial of
his motion to dismiss and from the summary judgment rendered
in favor of the plaintiff, U.S. Bank, National Association,
as trustee for MASTR 2007-2. On appeal, the defendant claims
that the court improperly (1) denied his motion to dismiss by
concluding that the plaintiff had standing to commence and
maintain its foreclosure action and (2) granted the
plaintiffs motion for summary judgment by determining that no
genuine issues of material fact existed with respect to the
plaintiffs standing and his special defenses of laches and
unclean hands. We disagree and, accordingly, affirm the
denial of the defendant's motion to dismiss and the
summary judgment rendered in favor of the plaintiff.
following detailed recitation of the facts and procedural
history is necessary for the resolution of the
defendant's appeal. The origin of the present case lies
in a prior foreclosure action commenced on October 21, 2009,
by SunTrust Mortgage, Inc. (SunTrust), against the defendant
concerning property located at 48 Second Avenue in Stratford.
On June 14, 2010, SunTrust filed a motion to substitute the
plaintiff in the present case as the plaintiff, stating that
the subject mortgage deed and note had been assigned to the
plaintiff. The court granted this motion on July 6, 2010. An
unsuccessful mediation effort ensued.
SunTrust action, on September 27, 2013, the court, Tyma,
J., granted the plaintiffs motion for summary judgment
as to liability only. SunTrust Mortgage, Inc. v.
Fitzpatrick, Superior Court, judicial district of
Fairfield, Docket No. CV-09-6004428-S (September 27, 2013).
First, the court noted that the plaintiff had presented
evidence, by way of an affidavit, a copy of the note and two
allonges, that SunTrust had been the proper party to initiate
the foreclosure action and that the plaintiff was the current
owner of the debt and, thus, the proper party to maintain the
foreclosure action. Id. Additionally, the court
concluded: "Having failed to present any evidence
rebutting the presumption that SunTrust was the rightful
owner of the debt at the time that it commenced the
foreclosure action, and that the . . . plaintiff is presently
the rightful owner, the defendant had failed to satisfy his
burden of providing any evidentiary foundation to demonstrate
the existence of a genuine issue of material fact concerning
the note holder." Id.
5, 2014, the plaintiff moved for a judgment of strict
foreclosure, and the defendant filed an objection fifteen
days later. On June 26, 2014, the court, Bellis, J.,
issued an order dismissing the action. The plaintiff
unsuccessfully moved to open the judgment of dismissal.
plaintiff subsequently commenced the present action in May,
2016. In its complaint, the plaintiff alleged that the
defendant and Comp-U-Fund Mortgage Corporation (Comp-U-Fund)
had executed a promissory note in the amount of $580, 000 on
August 16, 2007. The note was secured by a mortgage on the
defendant's property, located at 48 Second Avenue in
Stratford, in favor of Mortgage Electronic Registration
Systems, Inc. (MERS) as nominee for
Comp-U-Fund. The mortgage was executed on August 16,
2007, and recorded on the Stratford land records on August
plaintiff further alleged that on or before May 26, 2015, it
became, and at all times thereafter has been, the party
entitled to collect the debt evidenced by the August 16, 2007
note. It further alleged that as a result of the
defendant's nonpayment of the monthly installment of
principal and interest starting on May 1, 2009, the note was
in default. The plaintiff accelerated the balance on the
note, declaring it to be due in full, and sought to foreclose
on the mortgage.
an unsuccessful mediation, the defendant filed an answer and
counterclaim on March 2, 2017. On December 22, 2017, the
plaintiff moved for summary judgment as to liability,
attaching a supporting affidavit, documentary evidence and a
memorandum of law to its motion. In its memorandum of law,
the plaintiff argued that it had established a prima facie
of the defendant's liability in this mortgage foreclosure
action. Additionally, the plaintiff directed the court to the
attached mortgage, note, assignments of the mortgage and
affidavit of Shaundra Hunt, an officer employed by SunTrust.
The plainitff claimed that these documents established that
no genuine issue of material fact remained, and, therefore,
it was entitled to summary judgment as to the liability with
respect to its foreclosure complaint.
February 5, 2018, the defendant filed an objection to the
plaintiffs motion for summary judgment. Specifically, he
argued that genuine issues of material fact existed as to
whether his special defenses of laches and unclean hands, as
set forth in his amended answer, barred the plaintiffs claim.
With respect to the former, the defendant argued that
"[a] genuine issue of material fact exists as to whether
there was an inexcusable delay and whether that delay
prejudiced [the defendant] by unnecessarily increasing his
alleged debt and/or by decreasing the value of his collateral
through the passage of time." Specifically, the
defendant contended that six years had elapsed from the
claimed nonpayment until the commencement of the present
action. With respect to the unclean hands defense, the
defendant argued: "Here, given the considerable passage
of time between the alleged default and the [p]laintiffs
commencement of the foreclosure, there are genuine issues of
material fact as to whether the [plaintiff's]
'sitting on its rights' for many years has been fair,
equitable, and honest."
the trial court decided the plaintiffs motion for summary
judgment, the defendant initiated, on two fronts, an attack
on the plaintiffs standing to bring its foreclosure action.
First, on March 2, 2018, he filed a motion to dismiss,
pursuant to Practice Book § 10-30, arguing that the
plaintiff lacked standing. In his accompanying memorandum of
law, the defendant asserted that the court lacked subject
matter jurisdiction because the plaintiff was not a holder of
the note or the mortgage. In support thereof, the defendant
argued that he had executed the note with Comp-U-Fund on
August 16, 2007. The defendant claimed that Comp-U-Fund
transferred the note to SunTrust via the special
endorsement in the first allonge attached to the
note.A second allonge to the note was specially
endorsed by SunTrust to the plaintiff; however, this document
was stamped "VOID." The defendant argued,
therefore, that the note had not been transferred to the
plaintiff, and, therefore, it lacked standing to foreclose on
defendant also challenged the plaintiffs standing in a March
2, 2018 supplemental objection to the plaintiffs motion for
summary judgment wherein he repeated the legal argument set
forth in his memorandum of law in support of his motion to
dismiss. Specifically, the defendant asserted that the note
had been transferred from Comp-U-Fund to SunTrust via the
special endorsement in the first allonge. The second allonge,
which would have transferred the note from SunTrust to the
plaintiff, was stamped "VOID" and therefore was
ineffective. In conclusion, the defendant stated: "The
evidence produced to date shows that there is a genuine issue
of material fact as to whether [the plaintiff] is entitled to
enforce the note. Therefore, [the plaintiffs] motion for
summary judgment should be denied."
March 2, 2018, the plaintiff filed an objection to the
defendant's motion to dismiss. It emphasized that page
three of the note contained an endorsement in blank, executed
by SunTrust, and, therefore, the note was payable to the
bearer. See, e.g., Equity One, Inc. v.
Shivers, 310 Conn. 119, 126, 74 A.3d 1225 (2013). Thus,
the plaintiff maintained that it did not need to be in
possession of a specifically endorsed note to pursue this
foreclosure action. It also argued that the defendant had
offered only speculation rather than proof, in challenging
the plaintiffs standing.
court conducted a hearing on March 5, 2018, during which it
first addressed the defendant's motion to dismiss. The
defendant repeated its argument that the plaintiff lacked
standing, stating that the note was not a negotiable
instrument payable to the bearer because the first allonge
contained the SunTrust spe- cific endorsement. The plaintiffs
counsel responded that he was in possession of the original
note, which contained a blank endorsement executed by
SunTrust and the allonges. The court examined the original
note and concluded that it contained a blank endorsement,
making it a bearer instrument. After hearing further
argument, the court denied the defendant's motion to
court then turned to the plaintiffs motion for summary
judgment. The plaintiffs counsel argued that the court, in
denying the defendant's motion to dismiss, had considered
and rejected the standing argument raised in the
defendant's supplemental objection. The
plaintiffs counsel then turned to the special defenses of
laches and unclean hands. He argued that the defendant had
failed to present any evidence in support of his special
defenses. The defendant's counsel countered that genuine
issues of material fact existed as to laches and unclean
hands, and, therefore, the court should deny the motion for
March 14, 2018, the court issued a memorandum of decision
granting the plaintiffs motion for summary judgment. It
concluded that no genuine issues of material fact existed as
to the defendant's liability and that the plaintiff had
demonstrated a prima facie case for foreclosure. It further
concluded that the defendant had failed to provide any
evidence in support of his unclean hands and laches defenses.
The court also denied the defendant's motion for
reconsideration of its denial of the motion to dismiss.
March 15, 2018, the plaintiff moved for a judgment of strict
foreclosure. One week later, the court rendered a judgment of
foreclosure by sale. This appeal followed. Additional facts
will be set forth as necessary.
defendant first claims that the court improperly denied his
motion to dismiss. Specifically, he argues that the plaintiff
lacked standing to prosecute the foreclosure action because
the note had become payable to SunTrust and there was no
evidence that the note had been assigned to the plaintiff.
The plaintiff counters that its standing was established by
its possession of the note, endorsed in blank, and thereby
payable to the bearer. We conclude that the court ...