Countrywide Home Loans Servicing, LP v. Creed

Citation75 A.3d 38,145 Conn.App. 38
Decision Date20 August 2013
Docket NumberNo. 33477.,33477.
CourtAppellate Court of Connecticut

145 Conn.App. 38
75 A.3d 38

Diane CREED.

No. 33477.

Appellate Court of Connecticut.

Argued March 20, 2013.
Decided Aug. 20, 2013.

[75 A.3d 40]

Kevin Creed, for the appellant (defendant).

Oscar L. Suarez, for the appellee (substitute plaintiff).



[145 Conn.App. 40]In this foreclosure action, the defendant, Diane Creed,1 appeals from the judgment

[75 A.3d 41]

of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Aurora Loan Services, LLC.2 On appeal, the defendant claims that (1) the court improperly failed to hold an evidentiary hearing to determine if it had subject matter jurisdiction after she raised the issue of the plaintiff's standing, and (2) neither the original [145 Conn.App. 41]plaintiff nor the substitute plaintiff had standing to bring the action. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are pertinent to our consideration of the issues on appeal. On November 9, 2006, the defendant executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS),3 as nominee for American Brokers Conduit, which secured a debt evidenced by a $420,000 promissory note executed on the same date and made payable to American Brokers Conduit. Prior to the commencement of this action, the note, endorsed in blank, was negotiated and delivered to Countrywide. On May 21, 2007, Countrywide initiated this foreclosure action based on the defendant's alleged failure to make required payments due on the note and mortgage after February 1, 2007. In April, 2008, Countrywide transferred possession of the note to the plaintiff. The plaintiff became a party to the foreclosure action by way of a motion to substitute after MERS assigned the mortgage[145 Conn.App. 42]to it in June, 2008.4 The defendant did not object to the plaintiff's motion to substitute and it was granted by the court, Agati, J., on July 14, 2008.

The trial court file reflects that the defendant made numerous discovery requests during the pendency of the matter and that the court was requested to address

[75 A.3d 42]

multiple objections and motions to compel with respect to the production of requested documents.5 In April, 2010, the plaintiff filed a motion for summary judgment as to liability against the defendant. Attached to the plaintiff's motion were two affidavits; by Cheryl Marchant, a vice president of the plaintiff, and John Cook, a title searcher retained by the plaintiff. Also attached to the plaintiff's motion for summary judgment were copies of the mortgage deed, the note, and the assignment of the mortgage from MERS filed on the Southbury land records. The court, Abrams, J., denied the plaintiff's motion on the ground that there was a genuine issue of material fact regarding whether the plaintiff had failed to credit payments made by the defendant.

After another series of discovery disputes and the entry of a default against the defendant for failure to respond to requests for admission, the plaintiff filed a motion for a judgment of strict foreclosure. At the hearing on the motion on May 2, 2011, the defendant questioned the plaintiff's chain of title to the note and challenged whether Countrywide held the note at the commencement of the action. In response, the plaintiff produced the original note, which had two cancelled [145 Conn.App. 43]endorsements to Countrywide and one endorsement in blank, the original mortgage executed in favor of MERS, and the assignment of the mortgage from MERS to the plaintiff. On the basis of these documents, the court, Matasavage, J., determined that the plaintiff was the holder of the note and rendered a judgment of strict foreclosure. The defendant filed the present appeal, which initiated an automatic stay of the foreclosure. See Practice Book § 61–11(a).

On July 11, 2011, the plaintiff successfully moved to terminate the appellate stay of execution. The defendant filed a motion to review the court's termination of stay order, which subsequently was denied by this court on September 1, 2011. In October, 2011, the defendant filed a postjudgment motion to dismiss the action in the trial court, claiming that the plaintiff did not have standing to bring the foreclosure action and that, therefore, the court lacked subject matter jurisdiction. In connection with her motion to dismiss, the defendant filed a request for a full evidentiary hearing. The plaintiff objected to the motion and the court, Trombley, J., denied the defendant's motion. Judge Trombley determined that he would not order an evidentiary hearing on the standing issue because Judge Matasavage had examined the issue when he rendered the judgment of strict foreclosure on May 2, 2011. He further determined that the plaintiff had produced the original note at the hearing before Judge Matasavage, which was sufficient to confer standing on the plaintiff.

Thereafter, on January 10, 2012, the plaintiff filed a motion to open the judgment of foreclosure and reenter judgment after a termination of the appellate stay. By memorandum of decision dated February 7, 2012, the court, Taylor, J., granted the plaintiff's motion to open and reenter judgment. Judge Taylor found that the plaintiff had established that it held the note and that the defendant had failed to rebut the evidence establishing [145 Conn.App. 44]the plaintiff's right to maintain the action. Thereafter, on March 19, 2012, Judge Taylor rendered a judgment of strict foreclosure

[75 A.3d 43]

and set a new law day of April 10, 2012.6 The defendant subsequently filed an amended appeal in which she claimed that the trial court had once again improperly rendered a judgment of strict foreclosure.7 On May 24, 2012, the plaintiff filed another motion to terminate the appellate stay. Judge Taylor denied that motion on December 4, 2012, and wrote in his memorandum of decision that after the first appellate stay was terminated, several issues had arisen warranting the continuation of the appellate stay, including whether the plaintiff's showing regarding its claimed status as the holder of the note was sufficient in the absence of an evidentiary hearing. We now turn to the defendant's claims on appeal.


The defendant first claims that the court improperly failed to conduct an evidentiary hearing to determine [145 Conn.App. 45]whether it had subject matter jurisdiction when she raised the issue of the plaintiff's standing. Specifically, the defendant argues that she raised questions of fact regarding the dates of the various assignments of the note and the validity of the assignments and that, therefore, she was entitled to an evidentiary hearing to resolve the jurisdictional factual dispute. We are not persuaded.

As a preliminary matter, we set forth the standard of review. “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 229, 32 A.3d 307 (2011). “We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.... Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented....

[75 A.3d 44]

The court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 778, 15 A.3d 1150 (2011).

“In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case.... Nevertheless, the court must [145 Conn.App. 46]determine whether it has the power to hear the general class [of cases] to which the proceedings in question belong.... Because the elements of subject matter jurisdiction are dependent upon both law and fact ... in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear.... Further, [w]hen issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, 125 Conn.App. 201, 204–205, 9 A.3d 379 (2010), cert. granted, 300 Conn. 936, 17 A.3d 474 (2011).

The defendant relies on various precedents from this court to support her claim that if a defendant raises an issue of the plaintiff's standing, the court must hold a full “trial-like” evidentiary hearing. For example, in Equity One, Inc. v. Shivers, supra, 125 Conn.App. at 201, 9 A.3d 379 this court held that because the trial court did not specifically find that the plaintiff was the holder of the note at the time that it instituted the action, the trial court failed to determine the pertinent facts necessary to ascertain whether it had subject matter jurisdiction. Consequently, this court remanded the case with direction to the trial court to hold an evidentiary hearing to determine the necessary jurisdictional issue of fact concerning whether the plaintiff was the holder of the note at the time it commenced the action. Id., at 206, 9 A.3d...

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    ...of promissory note endorsed in blank is valid holder and entitled to enforce note); Countrywide Home Loans Servicing, LP v. Creed , 145 Conn. App. 38, 51–52, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). At that point, the court properly concluded that the plaintiff was the o......
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