Bank of N.Y. Mellon v. Tope

• Decision Date: 09 February 2021
• Docket Number: AC 40959
• Citation: 246 A.3d 4,202 Conn.App. 540
• Court: Connecticut Court of Appeals
• Parties: The BANK OF NEW YORK MELLON v. Achyut M. TOPE et al.

202 Conn.App. 540

246 A.3d 4

The BANK OF NEW YORK MELLON

v.Achyut M. TOPE et al.

AC 40959

Appellate Court of Connecticut.

Argued September 10, 2020

Officially released February 9, 2021

Thomas P. Willcutts, Hartford, for the appellant, with whom, on the brief, was Achyut M. Tope, self-represented, the appellant (named defendant).

William R. Dziedzic, Farmington, for the appellee (plaintiff).

Elgo, Cradle and Devlin, Js.

CRADLE, J.

The defendant Achyut M. Tope¹ appeals from the denial of his motion to open and vacate the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, The Bank of New York Mellon, formerly known as The Bank of New York, as Successor to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2004-3. The defendant claims that the trial court erred in denying his motion to open and vacate because the plaintiff lacked standing to commence this action and, consequently, the trial court lacked subject matter jurisdiction over it. The plaintiff contends that it had standing to commence this action and that this appeal constitutes an impermissible collateral attack on the court's foreclosure judgment, which initially was entered in 2014 and from which the defendant did not appeal. We agree with the plaintiff that the defendant's appeal from the motion to open and vacate constitutes an impermissible collateral attack on the foreclosure judgment, and, accordingly, affirm the trial court's denial of the defendant's motion to open and vacate.

The record reveals the following relevant factual and procedural history. On October 31, 2003, the defendant executed a promissory note in the amount of $134,000, payable to HSBC Mortgage Corporation (USA) (HSBC). To secure that note, the defendant mortgaged property located at 387 Sherman Avenue in New Haven (property) to HSBC. The note was later endorsed to "JPMorgan Chase Bank, as Trustee." On January 15, 2014, HSBC assigned the mortgage to the plaintiff.²

On July 17, 2014, the plaintiff filed the present action seeking to foreclose on the mortgage. The defendant filed his appearance on October 9, 2014, and, on October 28, 2014, he was defaulted for failing to plead. On November 10, 2014, the court, Hon. Thomas J. Corradino , judge trial referee, entered a judgment of foreclosure by sale, with a sale date set for February 7, 2015.

On January 20, 2015, the defendant filed his first motion to open and extend the sale date. The court granted the motion and set a new sale date for June 20, 2015. The defendant subsequently filed three additional motions to open the foreclosure judgment—on March 9, 2015, August 31, 2015, and January 6, 2016—resulting in further extensions of the sale date.³ On March 8, 2016, the defendant filed a fifth motion to open, claiming that there was more than $100,000 of equity in the property and he had applied for a loan modification. On April 11, 2016, the court granted the defendant's motion and vacated the foreclosure judgment.

On June 17, 2016, the plaintiff filed a motion for a judgment of strict foreclosure. On November 21, 2016, the court, Avallone, J ., entered a judgment of foreclosure by sale and set a sale date for February 11, 2017.⁴

On January 3, 2017, the defendant filed a motion to open and stay the judgment on the ground that he had obtained a financial audit that "provides strong supporting documentation that the plaintiff does not have standing to pursue a foreclosure action with respect to the property in this action."⁵ The defendant sought to stay this action "to preserve his rights" because he filed a new action involving additional properties that he owns, which, he claimed, was being removed to federal court.

On January 4, 2017, the defendant filed a motion for summary judgment alleging, inter alia, that the plaintiff lacked standing to bring this action because the plaintiff failed to show "the proper chain of ownership, assignment and control of the note and mortgage and property with affidavits from persons with knowledge ...."⁶ At the February 6, 2017 hearing on the defendant's motion to open, the defendant represented to the court, Avallone, J ., that the arguments in his motion to open and motion for summary judgment were "generally" the same. Accordingly, the court allowed the defendant, at his request, to argue his motion for summary judgment at that hearing. Following extensive argument by the defendant, the court denied both of his motions. The court expressly rejected the defendant's challenge to the plaintiff's standing, stating: "I've given you sufficient opportunity to make your arguments. I don't believe that they hold water." On March 1, 2017, the defendant filed a motion to reargue both motions, which the court summarily denied.

On February 10, 2017, the defendant filed a motion to dismiss, again alleging lack of subject matter jurisdiction on the ground that the plaintiff did not have standing to commence this action.⁷ On February 27, 2017, the defendant filed another motion to dismiss the action for lack of subject matter jurisdiction, citing to the arguments that he previously raised in his motion for summary judgment. On March 24, 2017, the defendant filed a third motion to dismiss, "in addition to and [in] further [support of]" his prior two motions to dismiss and his motion for summary judgment, for lack of subject matter jurisdiction.

On April 17, 2017, the court, Avallone, J ., held a hearing on the defendant's motion to dismiss dated February 27, 2017. At the hearing, the defendant argued that he had two copies of the note which were irreconcilably different, thereby proving that the plaintiff was not the holder of the note and therefore did not have standing. The defendant presented those two copies to the court. The defendant argued: "[T]he original note that I signed ... which I have asked over and over and over in ... court, docketed in many times, many motions, many pleadings, has not been shared. And I don't know whether ... the first time when the court approved ... the foreclosure sale and the second time when it did, the court must have looked at the two original documents." In response, the plaintiff presented the original note to the defendant. The defendant acknowledged that his signature was on the original note.

The court then asked the defendant how the two copies of the note that he had presented were relevant since the foreclosure judgment was entered on the basis of the original note. The defendant "object[ed] [to] whether Judge Corradino had possession of the original note" when he entered the foreclosure judgment in 2014. The court explained to the defendant that it had already heard the defendant's arguments a "multitude" of times, but agreed to review the proceedings that occurred before Judge Corradino in 2014. The court recessed briefly to do so.

Upon resuming the hearing, the court stated that it had listened to the recording of the proceeding before Judge Corradino in 2014 and explained that "[t]here is nothing out of order ... in Judge Corradino's actions in the court that day that would lead me to believe that there is any evidence, that there is anything improper as to the documents that were ... filed." The court explained to the defendant: "I've listened to your arguments consistently. You've made an argument about the notes. I don't accept your argument that there is anything inappropriate by there being copies, multiple copies of a note." The defendant pressed his argument regarding his claimed improprieties with the assignments, and the court responded: "I have looked at the original note. That's what ... I'm concerned with. And I'm satisfied that there is nothing inappropriate ... by this court's action or by the actions of Judge Corradino. And you've presented nothing to me that ... would ... make me think otherwise. And so I've denied your motion to dismiss." The court set a new sale date of August 19, 2017. On April 24, 2017, the court, Avallone, J ., marked off the defendant's motion to dismiss that was filed on February 10, 2017. On May 1, 2017, the defendant filed another motion to dismiss challenging the plaintiff's standing to pursue this action.

On May 30, 2017, the court, Pittman, J ., held a hearing on the defendant's February 10, 2017 motion to dismiss. At that hearing, the defendant again was afforded the opportunity to present his arguments challenging the plaintiff's standing, the same arguments that he made in his previous motion to dismiss dated February 27, 2017, and his motion for summary judgment. The defendant summarized his argument by again asserting that the plaintiff was not the holder of the note. The court told the parties that it would consider all of the prior filings regarding standing and indicated that it would issue a written decision. On June 6, 2017, the court, Pittman, J. , issued a written order denying the February 10, 2017 motion to dismiss. The court explained: "This motion, #162, was previously considered by Judge Avallone in open court on April 24, 2017. At that time, Judge Avallone marked this motion off, having determined that it raised the same issues as #164, which was denied by Judge Avallone on April 17, 2017, #164. The court will not continue to revisit issues that have been previously decided and that constitute the law of the case. Moreover, a judgment has entered in this matter and a motion to dismiss is not properly before the court in the absence of an order granting a motion to open the judgment."

On June 28, 2017, the defendant filed a motion to open and to extend the sale date on the ground that he was making progress in his efforts to sell the subject property. The court extended the sale date to October 21, 2017.

On September 28, 2017, the defendant filed a motion to open and to vacate the judgment of foreclosure by sale, wherein he again argued that the plaintiff...