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IP Media Products, LLC v. Success, Inc.

Appellate Court of Connecticut

July 30, 2019

IP MEDIA PRODUCTS, LLC
v.
SUCCESS, INC., et al.

         Argued February 8, 2019.

         Appeal from Superior Court in the judicial district of Fairfield, Hon. Michael Hart-mere, judge trial referee.

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[Copyrighted Material Omitted]

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          Stephen R. Bellis, for the appellant (plaintiff).

         Barbara M. Schellenberg, with whom, on the brief, was Vincent M. Marino, for the appellee (defendant JD’s Café I, Inc.).

         DiPentima, C.J., and Prescott and Elgo, Js.

          OPINION

         DiPENTIMA, C.J.

         [191 Conn.App. 415] In this appeal, the plaintiff, IP Media Products, LLC, brought a foreclosure action against the defendant, JD’s Café I, Inc.,[1] seeking to enforce a mortgage and note that were conveyed and signed, respectively, by a purportedly different entity, namely, JD’s Café I, LLC. On appeal, the plaintiff claims that the trial court improperly concluded that it could not recover against the defendant because (1) the complaint contained no allegations against the defendant; (2) the entity that conveyed the mortgage and signed the note was not the named defendant; and (3) the mortgage and note were executed without the requisite corporate authority. As to the third claim, the plaintiff does not challenge the court’s finding of lack of corporate authority, but argues for the first time on appeal that, because it is a holder in due course, this defense does not apply to it. We conclude that because this argument was not preserved, the plaintiff’s third claim fails. Moreover, because we affirm the judgment of the trial court on this basis, we need not address the remainder of the plaintiff’s claims.[2]

          The following undisputed facts and procedural history are relevant to this appeal. On August 25, 2004, Gus [191 Conn.App. 416] Curcio, Jr., acquired all of the corporate stock in the defendant and, at a shareholder meeting on November 11, 2005, became the defendant’s president and director. On July 19, 2007, the defendant acquired 3010 Huntington Road, in Stratford (Stratford property), from Curcio Jr.’s mother. The next day, July 20, 2007, Curcio, Jr., as president of Curcio Carting, Inc., executed a promissory note with Dade Realty Company I, LLC (Dade Realty), in the amount of $110,000. The note indicated that it was secured by a lien on trucks owned by Curcio Carting, Inc., and a mortgage on the Stratford property. The note and mortgage were signed by Curcio, Jr., as president of Curcio Carting, Inc., and Robin Cummings as the president of JD’s Café I, LLC.

         On August 26, 2014, Dade Realty assigned the note to the plaintiff and shortly

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thereafter, on October 14, 2014, the plaintiff commenced a foreclosure action against the defendant and several other parties. Although service was made on the defendant, the allegations in the complaint are asserted against JD’s Café I, LLC, and not the defendant. Nonetheless, in its answer, the defendant admitted the plaintiff’s allegation that JD’s Café I, LLC, was the record owner of the Stratford property at the time the mortgage was conveyed. The defendant denied that it had conveyed a mortgage to Dade Realty, or that it was indebted to the plaintiff. In the same responsive pleading, the defendant also asserted several special defenses, alleging, inter alia, that the mortgage and note were unenforceable because they were conveyed and signed, ...


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