Goshen Mortg., LLC v. Androulidakis

• Decision Date: 01 June 2021
• Docket Number: AC 43002
• Citation: 205 Conn.App. 15,257 A.3d 360
• Parties: GOSHEN MORTGAGE, LLC v. Andreas D. ANDROULIDAKIS et al.
• Court: Connecticut Court of Appeals

205 Conn.App. 15

257 A.3d 360

GOSHEN MORTGAGE, LLC

v.Andreas D. ANDROULIDAKIS et al.

AC 43002

Appellate Court of Connecticut.

Argued January 20, 2021

Officially released June 1, 2021

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

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

Elgo, Alexander and DiPentima, Js.

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 provided 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 mortgage deed and note, and the cause of action, to Goshen Mortgage, LLC, as Separate Trustee for GDBT I Trust 2011-1 by written instrument ...." The plaintiff attached as an exhibit to the motion the notarized assignment of mortgage, bearing a seal indicating that the document had been recorded with the town clerk of Norwalk. The defendant objected to the substitution, arguing that the plaintiff had not proven adequately that it was the holder of the note at the time of commencement of the action and, thus, did not have standing to litigate the action. The court granted the motion to substitute.⁶

The defendant then filed a motion to dismiss on December 4, 2017, arguing again that the plaintiff lacked standing to initiate the foreclosure action because the note and mortgage had been assigned before the commencement of the action. The court denied the motion. The defendant filed a second motion to dismiss on April 24, 2018, arguing, again, that the plaintiff lacked standing to pursue the action, and specifically claiming that the plaintiff was not the owner of the note. The court denied the second motion to dismiss.

On July 31, 2018, the substitute plaintiff filed a motion for summary judgment as to liability under the note and mortgage, attaching as exhibits the note endorsed in blank and each of the prior assignments of the mortgage. In response, the defendant argued, inter alia, that (1) the plaintiff was not registered with the Securities and Exchange Commission (SEC), (2) a statute of limitations prevented the plaintiff from initiating the action, (3) the plaintiff was not in possession of the note "at the time it brought this current suit" and thus the substitute plaintiff lacked standing to pursue the suit brought by the plaintiff, (4) the foreclosure suit should be pursued against "the nonappearing defendant, Andreas" and (4) her due process rights had been violated. The court granted the motion for summary judgment on October 3, 2018, concluding that "the affidavit and attachments in support of the motion establish that the [substitute] plaintiff is the holder of the note and the assignee of the mortgage, as well as the terms of the note and mortgage." The court subsequently rendered a judgment of strict foreclosure, setting a law day of July 9, 2019.

On March 21, 2019, the defendant filed a motion to open the judgment, which she amended on April 24, 2019, arguing, again, that the statute of limitations barred the plaintiff's action and that the plaintiff did not have possession of the mortgage and note at the time that it brought this action. The substitute plaintiff filed an objection to the motion to open the judgment, which the court sustained. The court thus denied the motion to open the judgment. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant's claims regarding standing. Specifically, the defendant claims that the court erred in finding that the plaintiff had standing to bring this foreclosure action against her and, thus, that it had subject matter jurisdiction over the action.⁷ She further contends, as a result of that alleged lack of standing, that the court improperly granted the plaintiff's motion to substitute and improperly denied her first and second motions to dismiss. We reject the defendant's arguments.

The following undisputed facts are relevant to these claims. The note in question was endorsed in blank by JP Morgan. The plaintiff alleged in its complaint, dated October 24, 2016, that it had been assigned the mortgage on June 29, 2016, and that it "is the holder of said note." That same day, the plaintiff assigned the mortgage to the substitute plaintiff. Service was then effectuated on October 28, 2016, thus commencing the action.⁸ Almost one year later, the plaintiff represented in its motion to substitute, dated October 13, 2017, that "since the commencement of the above entitled action, it has assigned the subject mortgage deed and note, and the cause of action, to [the substitute plaintiff] by written instrument, a copy of which is attached hereunto as Exhibit A."

A

We first address whether the plaintiff had standing to initiate the foreclosure action, as many of the defendant's claims on appeal revolve around the argument that the plaintiff lacked standing to do so. The defendant argues that because the mortgage was assigned prior to October 28, 2016, the date this action was commenced, the plaintiff lacked standing to commence the action. We are not persuaded.

We begin by setting forth the law of standing in the context of foreclosure actions. "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. ... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. ... Our review of this question of law is plenary." (Citations omitted; internal quotation marks omitted.) J.E. Robert Co . v. Signature Properties, LLC , 309 Conn. 307, 318, 71 A.3d 492 (2013).

"Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is commenced, be entitled to enforce the promissory note that is secured by the property. ... The plaintiff's possession of a note endorsed in blank is prima facie evidence that it is a holder and is entitled to enforce the note, thereby conferring standing to commence a foreclosure action. ... After the plaintiff has presented this prima facie evidence, the burden is on the defendant to impeach the validity of [the] evidence that [the plaintiff] possessed the note at the time that it commenced the ... action or to rebut the presumption that [the plaintiff] owns the underlying debt." (Internal quotation marks omitted.) Bank of America, N.A . v. Kydes , 183 Conn. App. 479, 487, 193 A.3d 110, cert. denied, 330 Conn. 925, 194 A.3d 291 (2018).

"The rules for standing in foreclosure actions when the issue of standing is raised may be succinctly summarized as follows. When a holder seeks to enforce a note through foreclosure, the holder must produce the note. The note must be sufficiently endorsed so as to demonstrate that the foreclosing party is a holder,...