Bank of America v. Nino

Decision Date31 December 2015
Docket NumberFSTCV106004691S
CourtSuperior Court of Connecticut
PartiesBank of America, National Association v. Ludys Nino

Bank of America, National Association
v.

Ludys Nino

No. FSTCV106004691S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

December 31, 2015


UNPUBLISHED OPINION

CORRECTED MEMORANDUM OF DECISION (CORRECTION TO MEMORANDUM OF DECISION DATED JULY 1, 2014 CORRECTIONS MADE WERE RE RECALCULATION OF DEBT FINDING OF DEFAULT AND ISSUANCE OF PAYMENT CREDITS)

Hon. Kevin Tierney, Judge Trial Referee.

This contested residential foreclosure lawsuit was tried over six days, four of which involved the taking of testimony. The evidentiary hearing on the Motion to Reargue (#224.00) took five trial days.

The court makes the following findings of fact and legal conclusions:

The operative complaint is the plaintiff's Revised Complaint dated October 19, 2011 (#124.00). Paragraph three of the complaint alleges: " On or about December 11, 2006, the Defendant(s), Ludys Nino, executed and delivered to Washington Mutual Bank, FA, a Note (the 'Note') for a loan in the original principal amount of $780, 000.00." Paragraph 4 of the Revised Complaint alleges that the mortgage deed was executed and delivered to Washington Mutual Bank, FA, on December 11, 2006 and recorded in the Greenwich Land Records on December 20, 2006. Paragraph 4 further states that the mortgage " is to be assigned to Bank of America National Association." Paragraph 4 continues with the following allegations: " The Plaintiff, Bank of America National Association, is the holder of said Note. The Plaintiff has standing in this foreclosure action by virtue of C.G.S. § 49-17." The court finds that the plaintiff is Bank of America National Association and throughout this litigation, the only plaintiff has been Bank of America National Association.

At trial the plaintiff offered the testimony of Frank Dean from Westerville, Ohio. Mr. Dean is a home loan research officer for JP Morgan Chase Bank, the servicer of this mortgage loan on behalf of the plaintiff, Bank of America National Association. Mr. Dean testified that he was familiar with the business records of this loan and was able to review the computer records and the original documents. Through Mr. Dean's testimony three exhibits were offered: Exhibit 1, a five-page Fixed/Adjustable Rate Note dated December 11, 2006 in the face amount of $780, 000 due on January 1, 2037, Ludys Nino as borrower and Washington Mutual Bank, FA as lender; Exhibit 2, an Open-End Mortgage Deed for property at 25 Alexander Street, Greenwich, Connecticut from Ludys Nino to Washington Mutual Bank, FA dated December 11, 2006 and recorded in the Greenwich Land Records on December 20, 2006 in Book 5312 at Page 243 in the face amount of $780, 000; and Exhibit 3, an Assignment of Mortgage from " JP Morgan Chase Bank, National Association successor in interest to Washington Mutual Bank f/k/a Washington Mutual Bank, FA" to " Bank of America National Association" dated December 1, 2011 and recorded in the Greenwich Land Records in Book 6280 at Page 206 on February 2, 2012.

The original five-page Fixed/Adjustable Rate Note was presented in court during trial to the undersigned and the defendant, Ludys Nino, for examination along with a five-page photocopy. Both were carefully examined by the court and Ludys Nino. This court determined that the photocopy was an exact copy of the original Fixed/Adjustable Rate Note. The court returned the original Fixed/Adjustable Rate Note to plaintiff's counsel for safe keeping and marked its photocopy as Exhibit 1. The same procedure was done with Exhibit 2, the Open-End Mortgage Deed, the original being returned to plaintiff's counsel and a photocopy being marked as Exhibit 2. Exhibit 3 was a copy of the Assignment of Mortgage certified by the Town Clerk of the Town of Greenwich on March 22, 2012.

The court reviewed the file and found that the original writ, summons and complaint issued by Bank of America, National Association as against the defendant, Ludys Nino, was returnable to the Superior Court on May 4, 2010. The Return of Service in the court file indicates service was made on Ludys Nino on April 21, 2010. The court finds that this foreclosure lawsuit commenced on April 21, 2010. Mr. Dean credibly testified that the plaintiff became the owner of the loan on February 22, 2007 and still is the owner of the loan. The court finds that the plaintiff came into possession of the original Fixed/Adjustable Rate Note and Open-End Mortgage Deed on July 20, 2009. Exhibit 4. The original documents were kept in the possession of JP Morgan Chase Bank as servicer for Bank of America National Association from and after July 20, 2009. The court further finds that the original Fixed/Adjustable Rate Note was endorsed by Washington Mutual Bank, FA, which endorsement appears on page 5 in Exhibit 1. The court finds that this is a blank endorsement. The blank endorsement is undated. U.S. Bank, N.A. v. Ugrin, 150 Conn.App. 393, 396, fn.6, 401-02, 91 A.3d 924 (2014). The court further finds that the plaintiff, Bank of America National Association, had possession of the original Fixed/Adjustable Rate Note and Open-End Mortgage Deed since July 20, 2009 to the date hereof. As of the commencement of the lawsuit on April 21, 2010, the plaintiff was the holder of said Fixed/Adjustable Rate Note and remained the holder of said Fixed/Adjustable Rate Note throughout this litigation. The court finds that the plaintiff has been the owner of this note since February 22, 2007.

Mr. Dean examined the payment records of this loan and determined that the loan service records of JP Morgan Chase indicate that the defendant made certain periodic payments of principal and interest on this loan that were credited to this mortgage loan between December 11, 2006, the date of the Fixed/Adjustable Rate Note, through February 1, 2010 and partially for the March 1, 2010 monthly payment due. At the reargument hearing each of these payments was presented to this court either by checks offered into evidence or by reference to the mortgage payment history. Ex. 41. The court finds Mr. Dean's testimony credible. The court finds that as of February 1, 2010 the defendant was in default of the payments by reason of nonpayment of principal and interest due on December 1, 2009 and thereafter. The court further finds that the plaintiff, acting by its duly authorized agent, Chase Home Finance, LLC, sent a notice of default to the defendant on February 1, 2010. Exhibit 5. This notice of default stated: " You have failed to make the required monthly payments under the terms of your Note ('Note') and related mortgage, ('Security Instrument') since 12/01/2009."

The court finds that the photocopy of the Fixed/Adjustable Rate Note, Exhibit 1, a copy of the Open-End Mortgage Deed, Exhibit 2, along with this court's examination of the originals of both documents satisfies the court's production and examination requirements in a foreclosure action. Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 42-43, 48, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013); Equity One, Inc. v. Shivers, 310 Conn. 119, 124, 74 A.3d 1225 (2013). All loan numbers on all exhibits in evidence were redacted on the record. P.B. § 4-7.

A holder of a note is presumed to be the owner of the debt and unless the presumption is rebutted, may foreclose the mortgage under (General Statutes) § 49-17 . . . The production of the note establishes his case prima facie against the makers and he may rest there . . . It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights. (Internal quotation marks omitted.) Id., 231-32; see also Deutsche National Trust Co. v. Shivers, 136 Conn.App. 291, 297 n.4, 44 A.3d 879 (same) cert. denied, 307 Conn. 938, 56 A.3d 950 (2012)

Countrywide Home Loans Servicing, LP v. Creed, supra, 145 Conn.App. 48, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).

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] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Citation omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 125, 74 A.3d 1225 (2013)
Several general principles concerning mortgage foreclosure procedure also guide our analysis. '[S]tanding to enforce [a] promissory note is [established] by the provisions of the Uniform Commercial Code . . . [See] General Statutes § 42a-1-101 et seq. Under [the Uniform Commercial Code], only a " holder" of an instrument or someone who has the rights of a holder is entitled to enforce the instrument General Statutes § 42a-3-301. The " holder" is the person or entity in possession of the instrument if the instrument is payable to bearer. General Statutes § 42a-1-201(b)(21)(A). When an instrument is endorsed in blank, it " becomes payable to bearer and may be negotiated by transfer of possession alone . . ." General Statutes § 42a-3-205(b).' " (Footnotes omitted.) Equity One, Inc. v. Shivers, supra, 310 Conn. 126. " In addition, General Statutes § 49-17 allows the holder of a note to foreclose on real property even if the mortgage has not been assigned to him. See, e.g., RMS Residential Properties, LLC v. Miller, [303 Conn. 224, 230, 32 A.3d 307 (2011) ([o]ur legislature, by adopting § 49-17, created a statutory right for the rightful owner of a note to foreclose on real property regardless of whether the mortgage has been assigned to him); Chase Home Finance, LLC v. Fequiere, [119 Conn.App. 570, 576, 989 A.2d 606] (§ 49-17 codifies the common-law principle of long
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