U.S. Bank, N.A. v. Ugrin

• Decision Date: 27 May 2014
• Docket Number: No. 35266.,35266.
• Citation: 150 Conn.App. 393,91 A.3d 924
• Court: Connecticut Court of Appeals
• Parties: U.S. BANK, N.A., Trustee v. Lesley UGRIN et al.

150 Conn.App. 393

91 A.3d 924

U.S. BANK, N.A., Trustee

v.Lesley UGRIN et al.

No. 35266.

Appellate Court of Connecticut.

Argued Dec. 2, 2013.

Decided May 27, 2014.

David Eric Ross, Westport, for the appellant (named defendant).

Benjamin T. Staskiewicz, Hartford, for the appellee (plaintiff).

BEAR, KELLER and HARPER, Js.^*

HARPER, J.

The defendant Lesley Ugrin appeals from the judgment of foreclosure by sale rendered in favor of the plaintiff, U.S. Bank, N.A., as trustee.¹ The defendant claims that the court erred by failing to conduct an additional evidentiary hearing, and thereby improperly denied his motion to dismiss. We affirm the judgment of the trial court.

The record contains the following relevant facts and procedural history. On November 1, 2006, the defendant executed a note in the amount of $1,787,500, payable to the order of Chevy Chase Bank, F.S.B. (Chevy Chase Bank), and secured by a mortgage on property at 57 Warner Hill Road in Fairfield. On September 10, 2008, the plaintiff, the then owner of the note, commenced the present action alleging that the note was in default and seeking to foreclose the mortgage securing the note.² The court granted the plaintiff's motion for a default judgment for failure to plead, and, on September 21, 2009, the court rendered a judgment of foreclosure by sale. The defendant filed a motion to dismiss on February 10, 2012,³ arguing that the plaintiff did not have standing to bring the present action, and therefore the court lacked subject matter jurisdiction. On May 2, 2012, the court held a hearing on the motion to dismiss.

At the hearing, the plaintiff presented the court with the original note. ⁴ The defendant argued that the note had been altered, and, as a result, there was an issue of fact as to whether the plaintiff was the holder of the note at the time the present action was commenced. In support of this claim, the defendant called Maria Tomasky, his stepdaughter and the person who possessed his power of attorney.⁵ She testified regarding her contact with the defendant.

Tomasky testified that she received a letter from the law firm of Hunt Leibert Jacobson, P.C. (Hunt), dated April 22, 2008, stating that the firm represented Chevy Chase Bank and that the defendant owed an outstanding balance on the note. Tomasky then requested proof of the debt, and in response, Hunt sent a letter dated July 26, 2008. The caption of the July 26 letter contained the same loan number as in the previous letter, but did not reference Chevy Chase Bank. Instead, the letter stated that it was regarding “ U.S. Bank NA as Trustee v. Lesley Ugrin,” but the letter did confirm the validity of the debt. Hunt enclosed with the July 26 letter a copy of the note endorsed in blank. ⁶ Tomasky conceded that she had received this letter, along with a copy of the note endorsed in blank, prior to the commencement of the present action. Furthermore, she stated that she had no evidence that the plaintiff was not the owner of the note when the action was commenced.

In support of its objection to the motion to dismiss, the plaintiff submitted an affidavit from Thaddeus Larimer, an employee of Specialized Loan Servicing, LLC, the loan servicing agent for the plaintiff. ⁷ Larimer affirmed, on the basis of the servicer's business records, that Chevy Chase Bank specially endorsed the note over to the plaintiff and that the plaintiff was the holder of the note prior to when the present action commenced on September 10, 2008.⁸ Attached to the affidavit was a copy of the note. Unlike the copy of the note enclosed with the July 26 letter to Tomasky, however, the copy of the note appended to the Larimer affidavit was specially endorsed to the plaintiff. The defendant argued that this is evidence of an “illegal” alteration because the note was endorsed in blank when it was sent to Tomasky and specially endorsed to the plaintiff in Larimer's records. Therefore, the defendant claimed, genuine issues of fact remained regarding who had the authority to alter the note, and whether the plaintiff was the holder of the note at the time the present action was commenced. ⁹

After the defendant raised this argument, the plaintiff requested that the court order supplemental briefing on the issue of whether a note endorsed in blank subsequently could be specially endorsed. The court granted the request from the bench, set a briefing schedule, and the parties filed posthearing memoranda of law. In doing so, the court noted: “[The plaintiff's counsel] has already asked for time to file a supplemental memorandum, which will of course be granted. But we may well be back here. There's a court reporter problem, as everyone is aware.... We have a court reporter until 11 a.m. for this legal argument. So counsel are free to take as long as they want, just understand in all likelihood we'll all be back here in any event on this.” At approximately 11 a.m., the defendant raised an additional issue regarding whether an accurate property description was attached to the complaint, which he claimed also implicated the court's subject matter jurisdiction.¹⁰ The court stated that this was a new issue and indicated that more time was needed to hear the arguments. The defendant, however, suggested that he “include that [issue] in [his posthearing] brief here, that would give [the plaintiff] the opportunity to respond to it.” The court then stated: “You can put that in your brief ... and [the plaintiff] can reply. And if we need anything else on it, we'll address that when necessary.... So I will await the briefs on this matter.”

On August 2, 2012, three months after the previous hearing and two months after the posthearing briefs had been filed, the court subsequently denied the defendant'smotion to dismiss. The court found that the plaintiff demonstrated that it was the holder of the note. The court specifically found that the defendant failed to present evidence to contradict this finding. The court denied the defendant's motion to reargue his motion to dismiss, and this appeal followed.¹¹

On appeal, the defendant claims that the court improperly denied his motion to dismiss for lack of subject matter jurisdiction because it “failed to conduct and complete a full evidentiary hearing on [the matter].” Specifically, the defendant contends that the court erred by failing to conduct an additional evidentiary hearing because (1) the court stated that it was going to conduct a future hearing, and (2) the defendant raised a “material factual dispute” with respect to the plaintiff's standing and therefore was entitled to a second evidentiary hearing. We disagree.

We first address the defendant's argument that the court stated that it was going to hold an additional hearing, and therefore was required to do so. At the hearing on the motion to dismiss, the court noted that the hearing could be cut short because the court reporter was available only until 11 a.m. Around that time, the defendant raised a new issue regarding whether an accurate property description was attached to the complaint. Although the court stated that more time would be needed to argue the issue, the defendant then suggested that the issue could be addressed sufficiently in the parties' posthearing briefs.

After a careful review of the record, we conclude that the court's statements at the evidentiary hearing did not indicate that the court was ordering a subsequent hearing on the matter. On the contrary, the defendant suggested that there was no need for a future hearing because any remaining issues could be addressed sufficiently in posthearing briefs. Because the defendant encouraged the court to rely on the parties' briefs alone without the need for an additional evidentiary hearing, we will not conclude that the court erred by following the defendant's suggestion. See State v. Coward, 292 Conn. 296, 305 n. 12, 972 A.2d 691 (2009) (“[i]t is well established that a party who induces an error cannot be heard to later complain about that error” [internal quotation marks omitted] ).

The defendant did request an additional evidentiary hearing in his posthearing brief, arguing that he had raised an issue of fact regarding the plaintiff's standing.¹² He claims on appeal that due to the existence of an issue of fact, the court improperly denied this request to hold a second hearing before determining whether the plaintiff had standing to commence the foreclosure action. “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 ... 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). “[S]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it....” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn.App. 791, 798, 3 A.3d 183 (2010). “[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.” (Internal quotation marks omitted.) Id., at 799, 3 A.3d 183. “[O]ur review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.... Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous.” (Internal quotation marks omitted.) Id., at 795, 3 A.3d 183.

Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is...