Goshen Mortg., LLC v. Androulidakis

• Decision Date: 01 June 2021
• Docket Number: AC 43002
• Court: Connecticut Court of Appeals
• Parties: GOSHEN MORTGAGE, LLC v. ANDREAS D. ANDROULIDAKIS ET AL.

GOSHEN MORTGAGE, LLC
v.
ANDREAS D. ANDROULIDAKIS ET AL.

AC 43002

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 20, 2021
June 1, 2021

Elgo, Alexander and DiPentima, Js.

Syllabus

The plaintiff G Co. sought to foreclosure a mortgage on certain real property owned by the defendant J. The defendant A, J's now former husband, had executed a note for a loan that was used to purchase the property that secured the mortgage, and that loan was now in default. Prior to the commencement of the foreclosure action, A quitclaimed his interest in the property to J as part of a separation agreement. G Co. alleged in its complaint that it was the holder of the note and mortgage. G Co. thereafter filed a motion to substitute T Co. as the plaintiff, explaining that, since the commencement of the action, it had assigned the note and mortgage to T Co. Four days prior to commencing the foreclosure action, however, G Co. assigned the mortgage to T Co. J objected to the motion, claiming that G Co. lacked standing to litigate the action because it had not proven that it was the holder of the note at the time it commenced the action. The trial court granted the motion to substitute. Thereafter, J filed two motions to dismiss arguing that G Co. lacked standing to initiate the foreclosure because the note and mortgage had been assigned before the commencement of the action, which the court denied. Subsequently, T Co. filed a motion for summary judgment as to liability only, which the court granted, and, thereafter, the court rendered a judgment of strict foreclosure. J filed a motion to open the judgment, which the court denied, and J appealed to this court. Held:

1. This court found unavailing J's claim that G Co. lacked standing to initiate the foreclosure action: G Co. was in possession of the note, endorsed in blank, when it commenced the action and, therefore, had standing to do so; the trial court correctly determined that the note was endorsed in blank, and G Co. alleged in its complaint that it was the holder of the note and, although the mortgage was assigned prior to the commencement of the action, there is no indication in the record that the note itself changed hands, as the only evidence before the court indicated that G Co. was in possession of the note when the action was commenced, and it was of no consequence that the mortgage was assigned before the action commenced.

2. The trial court did not abuse its discretion in granting the motion to substitute T Co. as the plaintiff: although the court mischaracterized the nature of the assignment in granting the motion to substitute when it stated that G Co. assigned both the note and mortgage after the commencement of the action, the substitution had no substantive effect on the proceedings because the note, endorsed in blank, remained in possession of G Co., and, thus, the cause of action itself was not assigned to a legally distinct party, the substitution only having served to clarify that G Co. was bringing the foreclosure action in its capacity as trustee for T Co., and in no way prejudiced J's ability to make payments or defend against the claims brought; moreover, the court correctly determined that, contrary to J's claim, the rule of practice (§ 9-20) that allows for the substitution of a plaintiff when an action has been commenced in the name of the wrong plaintiff to cure the lack of standing of the original plaintiff, was inapplicable because G Co. had standing as holder of the note, and it was not the wrong plaintiff.

3. The trial court properly denied J's motions to dismiss; the court made an express factual finding that G Co. held the note endorsed in blank at the time the action commenced and J failed to submit any evidence in support of her motions to dismiss that called into question G Co.'s status as holder of the note.

4. The trial court properly granted T Co.'s motion for summary judgment:

a. T Co. established a prima facie case for foreclosure; the supporting documentation submitted by T Co. in support of its motion for summary judgment established that it was the holder of the note and assignee of the mortgage as well as the terms of the note and mortgage, that A and

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J were in default, and that T Co. or its predecessor were in compliance with the condition precedent to the institution of the action and, J failed to provide an affidavit or exhibit that raised a genuine issue of material fact to counter T Co.'s documentation.
b. J's alleged special defenses were without merit and did not rebut T Co.'s prima facie case; contrary to J's claim, this court has rejected arguments that trust documents or pooling and servicing agreements are relevant to the issue of standing, and, although it may not have been entirely accurate for G Co. to state that it had assigned the mortgage since the commencement of the action, the assignment had no substantive effect on the litigation, and it was not an abuse of the trial court's discretion to decline to characterize this statement as wilful misconduct, the court properly concluded that no statute of limitations applied to the action, and the court properly concluded that a divorce decree between A and J, which stated that J was not assuming any liability on the mortgage, had no effect on the mortgage, which J signed, and was a contract between J and G Co.

5. J's claim that the trial court improperly rendered a judgment of strict foreclosure because it never resolved the issue of standing and should have held an evidentiary hearing to determine when G Co. acquired the note was unavailing, this court having previously determined that G Co. was the holder of the note at the time the foreclosure action was commenced and had standing.

6. The trial court did not abuse its discretion in denying J's motion to open the judgment as the grounds put forth in the motion have been resolved in favor of T Co.

Procedural History

Action to foreclose a mortgage on certain real property owned by the defendant Jameela Androulidakis, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the named defendant was defaulted for failure to appear; thereafter, Goshen Mortgage, LLC, as Separate Trustee for GDBT I Trust 2011-1, was substituted as the plaintiff; subsequently, the court, Genuario, J., granted the substitute plaintiff's motion for summary judgment as to liability; thereafter, the court, Genuario, J., rendered judgment of strict foreclosure; subsequently, the court denied the motion to open filed by the defendant Jameela Androulidakis, and the defendant Jameela Androulidakis appealed to this court. Affirmed.

Jameela Androulidakis, self-represented, the appellant (defendant).

Christopher J. Picard, for the appellee (substitute plaintiff).

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Opinion

DiPENTIMA, J. The self-represented defendant, Jameela Androulidakis,¹ appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Goshen Mortgage, LLC, as Separate Trustee for GDBT I Trust 2011-1. On appeal, the defendant claims that the court improperly (1) determined that the plaintiff, Goshen Mortgage, LLC,² had standing to bring the foreclosure action, and thus erred by granting the plaintiff's motion to substitute and denying the defendant's motion to dismiss, (2) granted the substitute plaintiff's motion for summary judgment, (3) rendered a judgment of strict foreclosure for the substitute plaintiff, and (4) failed to grant the defendant's motion to open the judgment.³ We affirm the judgment of the trial court.

The following facts, viewed in the light most favorable to the defendant, and procedural history are relevant to our resolution of the defendant's appeal. In July, 2007, Andreas D. Androulidakis (Andreas) executed and delivered to Chase Bank USA, N.A. (Chase Bank), a note for a loan in the original principal amount of $649,999. The loan was used to purchase property located at 73 Devils Garden Road in Norwalk (property). Only Andreas signed the note for the loan. On the same date, Andreas and the defendant executed and delivered to Chase Bank a mortgage on the property. The mortgage subsequently was recorded on the land records of the town of Norwalk. On October 9, 2009, ownership of the property was transferred to the defendant from Andreas by quitclaim deed as part of a separation agreement. The terms of that agreement stated that "transfer of the property to the [defendant] shall not result in her assumption of any liability of the mortgage securing the property." Andreas thereafter failed to make payments on the mortgage and eventually declared bankruptcy.

Chase Bank assigned the mortgage to JP Morgan Chase Bank, N.A. (JP Morgan), on September 3, 2009, and assigned the note to JP Morgan by way of an allonge affixed to the note dated November 4, 2009.⁴ JP Morgan subsequently endorsed the note in blank. The note and mortgage were then transferred multiple times between 2009 and 2016, before ultimately being transferred to the plaintiff on June 29, 2016.⁵

On October 28, 2016, the plaintiff commenced this foreclosure action, naming both the defendant and Andreas, and alleged that the defendant was the owner of the property. In its complaint, the plaintiff alleged, inter alia, that it was the holder of the note and mortgage, that the note was in default, and that it was electing to accelerate the balance due on the note and to foreclose on the mortgage securing the note. Further, the plaintiff alleged that the defendant had been pro-

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vided written notice of the default and had failed to cure the default.

Four days before this foreclosure action was commenced, however, the plaintiff assigned the mortgage to the substitute plaintiff and the assignment subsequently was recorded on March 27, 2017. The plaintiff then filed a motion to substitute the plaintiff on October 13, 2017, explaining that "since the commencement of the above entitled action, it has assigned the subject...