Deutsche Bank National Trust Co. v. Cornelius , 170 Conn. App. 104 ( 2017 )

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. FREDERICK B. CORNELIUS ET AL.
(AC 37548)
Alvord, Prescott and Norcott, Js.
Argued October 26, 2016—officially released January 10, 2017
(Appeal from Superior Court, judicial district of
Hartford, Wahla, J. [motion to strike]; Vacchelli, J.
[motion for judgment of foreclosure by sale.)
Frederick Cornelius, self-represented, the appellant
(named defendant).
Elizabeth T. Timkovich, with whom, on the brief,
was Pierre-Yves Kolakowski, for the appellee
(plaintiff).
Opinion
ALVORD, J. The defendant, Frederick B. Cornelius,1
appeals from the judgment of foreclosure by sale ren-
dered after the entry of a second default for failure to
plead. On appeal, the defendant claims that (1) the trial
court did not have jurisdiction to adjudicate the present
foreclosure action, (2) the trial court erroneously
denied his motion to strike the complaint, and (3) the
trial court erroneously denied his motion to set aside
the second default for failure to plead. We disagree and,
therefore, affirm the judgment of the trial court.
On May 23, 2001, H. Thomas Cornelius2 executed a
$216,000 note (note) secured by an open-end mortgage
deed (mortgage) in favor of Express Capital Lending,
which encumbered the property located at 1631 Boule-
vard, West Hartford (property). That same day, the note
and the mortgage were assigned to Impac Funding Cor-
poration. The mortgage was subsequently recorded in
the West Hartford land records on May 24, 2001. In
September 2001, H. Thomas Cornelius executed a quit-
claim deed related to the property in favor of the
defendant.
On October 22, 2010, Impac Funding Corporation
assigned the note and mortgage to the plaintiff,
Deutsche Bank National Trust Company, as indenture
trustee under the indenture relating to IMH Assets
Corp., Collateralized Asset-Backed Bonds, Series 2004-
5. On September 25, 2013, the plaintiff filed the opera-
tive complaint seeking to foreclose on the mortgage
and the property.3 The plaintiff named the defendant
in the foreclosure action because he ‘‘may claim an
interest in said premises by virtue of [his] quitclaim
deed . . . .’’ On November 19, 2013, the defendant filed
a pro se appearance in the case.
On February 12, 2014, the plaintiff filed a motion for
default against the defendant for failure to plead, which
was granted on February 24, 2014. On February 25,
2014, the plaintiff filed a motion for judgment of strict
foreclosure. On March 4, 2014, the defendant filed a
motion to open the default, which was granted on March
25, 2014. On June 4, 2014, the plaintiff filed a second
motion for default against the defendant for his contin-
ued failure to plead, which was granted on June 12,
2014. On June 17, 2014, the defendant filed a motion
to strike the complaint, arguing that ‘‘the complaint
does not allege notice of default which is a condition
precedent to an action for foreclosure.’’ On August 4,
2014, the court denied the defendant’s motion to strike,
reasoning that it was inoperative in light of the second
default currently entered in the action. On August 19,
2014, the defendant filed his motion to open the second
default. In that motion, he argued that the second
default was invalid because he never received notice
or a hearing on the motion for default, as purportedly
required by General Statutes § 52-121 (b), and he ‘‘filed
a responsive pleading only a couple days after the clerk
granted the default for failure to plead,’’ namely, a
motion to strike. On September 2, 2012, the court denied
the defendant’s motion to open the second default
because ‘‘the defendant did not show good cause to set
aside the default’’ and ‘‘this was the second default
entered against the defendant.’’4
On December 1, 2014, the defendant filed a motion to
dismiss the foreclosure action, arguing that the plaintiff
lacked standing ‘‘[b]ecause the complaint contains no
allegation of a causal connection between the plaintiff’s
injury and any action of the defendant.’’ On December
15, 2014, the court held a hearing on the defendant’s
motion to dismiss and the plaintiff’s motion for strict
foreclosure.5 At the hearing, the defendant initially
stated that his argument that the plaintiff lacked stand-
ing had ‘‘nothing to do with’’ the plaintiff’s ‘‘ownership
or nonownership of the note.’’ In an abundance of cau-
tion, the court stated that it wanted to ‘‘double check’’
the note, which it stated it had previously reviewed at
the December 1, 2014 hearing, and the plaintiff pre-
sented the note to the court. Because the defendant
insisted that he was not presently contesting the plain-
tiff’s ownership of the note, the court informed the
defendant that he could challenge standing on this basis
later in the hearing if he wanted to and denied the
defendant’s motion to dismiss on the grounds raised in
his motion. After its ruling, the court entertained further
discussion concerning the defendant’s motion to
dismiss.
Eventually, the court addressed the plaintiff’s motion
for strict foreclosure. During that discussion, the defen-
dant interjected that the plaintiff lacked standing
because it failed to establish that it was the holder of
the note prior to the commencement of the foreclosure
action. The plaintiff then presented the court with the
mortgage and the assignments of the note and mort-
gage. The court reviewed the note, the mortgage, and
the assignments. In particular, the court observed that
the allonge on the note that pertained to the plaintiff
stated that the plaintiff became ‘‘entitled to collect the
debt as evidenced by the note’’ ‘‘[o]n/or before Septem-
ber 25, 2012.’’ The court also observed that the assign-
ment of the note and mortgage to the plaintiff ‘‘was
dated October 22, 2010.’’ The court gave the defendant
an opportunity to rebut the plaintiff’s evidence, but
ultimately it held that the plaintiff had established that
it had standing to prosecute the foreclosure action.
On December 16, 2016, the court rendered a judgment
of foreclosure by sale. This appeal followed.
I
We first address the defendant’s claim that the trial
court lacked subject matter jurisdiction because the
plaintiff failed to establish that it owned the note before
it commenced the present foreclosure action and, thus,
had standing to prosecute the action. We disagree.
‘‘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. . . . [When] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
In addition, because standing implicates the court’s sub-
ject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any time.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Equity One, Inc. v. Shivers, 310 Conn. 119, 125–26, 74
A.3d 1225 (2013).
‘‘Generally, in order to have standing to bring a fore-
closure 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 pre-
sented 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 presump-
tion that [the plaintiff] owns the underlying debt. . . .
The defendant [must] set up and prove the facts [that]
limit or change the plaintiff’s rights . . . .’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Deutsche Bank National Trust Co. v. Bliss,
159 Conn. App. 483, 488–89, 124 A.3d 890, cert. denied,
320 Conn. 903, 127 A.3d 186 (2015).
Turning to the facts of the present case, the plaintiff
alleged in its complaint that it possessed the note. The
plaintiff then produced the note at the December 1 and
15, 2015 hearings, and it produced the mortgage and
the assignments of the note and mortgage at the Decem-
ber 15, 2015 hearing. The record expressly reflects that
the court carefully reviewed each of these documents
at the December 15 hearing. The plaintiff’s presentation
of the note in court created a presumption that it had
standing to prosecute the foreclosure action. The plain-
tiff’s presentation of the assignments of the note and
mortgage further buttressed its assertion that it pos-
sessed the note prior to the commencement of the fore-
closure action because the assignment of the note and
mortgage to the plaintiff was dated almost three years
before the foreclosure action was commenced.6 The
defendant did not present any evidence that the note
possessed by the plaintiff is invalid or that the plaintiff
did not possess the note at the time the present action
was commenced. On the basis of the foregoing facts, the
court properly concluded that the plaintiff had standing.
We observe that our Supreme Court has found stand-
ing in circumstances almost identical to the facts pre-
sented in this case. In Equity One, Inc. v. Shivers,
supra, 310 Conn. 129, during a hearing on a motion to
reopen and reenter the judgment of foreclosure, the
defendant argued that the plaintiff did not have standing
because it had not established that it possessed the
note prior to the commencement of the foreclosure
action. The plaintiff produced a copy of the original
note, which the court had previously reviewed at the
hearing on the plaintiff’s motion for strict foreclosure.
Id. The plaintiff also produced and ‘‘the court reviewed
a certified copy of the original mortgage . . . and the
assignment of the note and mortgage . . . to the plain-
tiff,’’ which was dated twenty days before the com-
mencement of the action. Id., 130. After examining the
mortgage and assignment, the court concluded that the
plaintiff had standing.7 See Equity One, Inc. v. Shivers,
supra, 310 Conn. 131. This court reversed the judgment
of strict foreclosure, holding that a full evidentiary hear-
ing was necessary to determine whether the plaintiff
was the holder of the note and therefore had standing
to bring a foreclosure action at the time it was com-
menced. Id., 123–24. Our Supreme Court reversed our
judgment, concluding that the hearing that occurred
was adequate for purposes of determining whether the
plaintiff had standing. Id., 131. The court specifically
stated that ‘‘the [trial] court reasonably and properly
found that the plaintiff had standing to commence the
action’’ based on the ‘‘copy of the original note, which
was endorsed in blank . . . [and] the copy of the mort-
gage and an assignment of the note and mortgage . . .
to the plaintiff, dated [prior to the commencement of
the foreclosure action].’’ Id.
The defendant nevertheless argues that this case is
controlled by our more recent decision in Deutsche
Bank National Trust Co. v. Thompson, 163 Conn. App.
827, 136 A.3d 1277 (2016). In that case, the defendant
for the first time on appeal challenged the plaintiff’s
standing to bring the underlying foreclosure action. Id.,
831. We concluded that the record was inadequate to
review that jurisdictional claim. Id., 836. ‘‘First, after a
thorough review of the record, we [concluded] that
it [contained] no documents demonstrating when the
plaintiff came to hold or own the note. The only note
in the record before us [was] the fixed-rate balloon note
[which] [was] payable to the original lender . . . and
[contained] no endorsement. . . . Although the record
[contained] documents memorializing the assignment
of the mortgage from [the original lender] to the plain-
tiff, there [were] no assignment documents with respect
to the note.8 Thus, the record [provided] no clues as to
when, if ever, the plaintiff acquired the note. Second,
the trial court made no factual finding as to when the
plaintiff acquired the note. No memorandum of decision
[accompanied] the court’s judgment of strict foreclo-
sure or order on the plaintiff’s motion to open judgment
and reset the law days. Additionally, no transcript of
any hearing in which the court might have made such a
finding [had] been provided for our review.’’ (Emphasis
added; footnote added.) Id., 832–33.
The record in the present case does not contain the
same deficiencies that were problematic in Thompson.
The plaintiff produced the note, the mortgage, and the
dated assignments of the note and mortgage at the
December 15, 2015 hearing. After reviewing these docu-
ments and discussing them with the parties, the court
found on the record that the plaintiff possessed the
note prior to the commencement of the foreclosure
action. The defendant did not offer any evidence that
the note presented by the plaintiff was invalid or that
the plaintiff did not possess the note when it com-
menced the foreclosure action. Instead, the defendant
repeats his concern that the court did not make a spe-
cific factual finding as to the date on which the plaintiff
acquired the note. However, our jurisprudence has
never required the court to make a specific factual
finding as to the date on which the plaintiff acquired
the note to establish standing in a foreclosure action.
The plaintiff in a foreclosure action merely has to estab-
lish by a preponderance of the evidence that it pos-
sessed the note at the time the foreclosure action was
commenced. Deutsche Bank National Trust Co. v.
Bliss, supra, 159 Conn. App. 488.
In light of the foregoing facts, we conclude that trial
court properly found that the plaintiff had standing to
prosecute this foreclosure action.
II
The defendant next claims that the trial court erred
when it failed to consider the merits of his motion to
strike the complaint. First, the defendant argues that
because the basis for the motion to strike was the plain-
tiff’s failure to issue notice that the note was in default,
as purportedly required by the mortgage,9 the trial court
and this court lack jurisdiction over the present case.
Second, the defendant argues that the court violated
General Statutes § 52-121 by concluding that his motion
to strike was inoperative and by not considering it on
the merits. We conclude that the mortgage’s notice pro-
vision does not implicate subject matter jurisdiction and
that the trial court did not err in denying the defendant’s
motion to strike.
As a threshold matter, the defendant misunderstands
the nature of the jurisdiction of our courts. ‘‘Although
the term is sometimes loosely used, ‘jurisdiction’ in
proper usage is the power in a court to hear and deter-
mine the cause of action presented to it.’’ LaReau v.
Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969). ‘‘It is
axiomatic that [a court’s] jurisdiction is derived from
the constitutional or statutory provisions by which it
is created, and can be acquired and exercised only in
the manner prescribed. Thus, the determination of the
existence and extent of [a court’s] jurisdiction depends
upon the terms of the statutory or constitutional provi-
sions in which it has its source.’’ (Emphasis added;
internal quotation marks omitted.) Novak v. Levin, 287
Conn. 71, 78–79, 951 A.2d 514 (2008) (holding that the
time periods prescribed in the rules of practice ‘‘are
fixed by a rule of this court . . . [and are] not constitu-
tionally or legislatively created condition precedent to
jurisdiction of this court’’ [internal quotation marks
omitted]). Compare Connecticut Light & Power Co. v.
Lighthouse Landings, Inc., 279 Conn. 90, 103, 900 A.2d
1242 (2006) (failure to comply with the twenty day
limitation of Practice Book § 63-1 [a] does not implicate
the court’s jurisdiction because it is not a ‘‘ ‘constitu-
tionally or legislatively created condition precedent to
. . . jurisdiction’ ’’) with Bayer v. Showmotion, Inc.,
292 Conn. 381, 388, 973 A.2d 1229 (2009) (‘‘ ‘[a]s a condi-
tion precedent to a summary process action, proper
notice to quit [pursuant to General Statutes § 47a–23]
is a jurisdictional necessity’ ’’).
In the present appeal, it is undisputed that the mort-
gage contains a notice provision. This contractual con-
dition precedent, however, merely implicates the rights
and obligations of the parties under the mortgage;10 it
does not implicate the power of our courts to adjudicate
a claim based on the terms of the mortgage. Therefore,
the plaintiff’s purported failure to comply with the mort-
gage’s notice provision did not implicate the jurisdiction
of the trial court and does not deprive this court of
jurisdiction over this foreclosure action.
We also conclude that the court did not err in denying
the defendant’s motion to strike. The defendant argues
that the court erroneously concluded that his motion
to strike was ‘‘inoperative’’ because ‘‘[t]he motion to
strike was filed on June 17, 2014’’ and ‘‘[t]he court did
not render a judgment on the default until December
16, 2014.’’ In particular, the defendant argues that § 52-
121 requires a trial court to consider the merits of a
motion to strike even after a default has been entered
so long as no judgment has been rendered. We disagree.
Section 52–121 (a) provides in relevant part: ‘‘Any plead-
ing in any civil action may be filed after the expiration
of the time fixed by statute or by any rule of the court
until the court has heard any motion for judgment by
default . . . for failure to plead . . . .’’ ‘‘We acknowl-
edge that there is support for the proposition that a
court commits plain error if, prior to rendering a judg-
ment upon default, the court fails to accept for filing
a defaulted party’s pleading solely on the ground that
the pleading is untimely.’’ Deutsche Bank National
Trust Co. v. Bertrand, 140 Conn. App. 646, 662, 59 A.3d
864, appeal dismissed, 309 Conn. 905, 68 A.3d 661
(2013).
In the present case, however, the court did not deny
the defendant’s motion to strike because it was
untimely. The court denied the motion because it could
not act on it while the default was still in effect. ‘‘In an
action at law, the rule is that the entry of a default
operates as a confession by the defaulted defendant of
the truth of the material facts alleged in the complaint
which are essential to entitle the plaintiff to some of
the relief prayed. . . . [I]ts effect is to preclude the
defaulted defendant from making any further defense
and to permit the entry of a judgment against him on
the theory that he has admitted such of the facts alleged
in the complaint as are essential to such a judgment.
. . . Thus, [a] default admits the material facts that
constitute a cause of action . . . and entry of default,
when appropriately made, conclusively determines the
liability of a defendant.’’ (Citation omitted; internal quo-
tation marks omitted.) Connecticut Light & Power Co.
v. St. John, 80 Conn. App. 767, 775, 837 A.2d 841 (2004).
Therefore, the court correctly concluded that it could
not consider the defendant’s motion to strike until the
default was set aside.11
III
Finally, the defendant argues that the court abused
its discretion by denying his motion to open the second
default. We disagree.
Practice Book § 17-42 provides in relevant part that
‘‘[a] motion to set aside a default where no judgment
has been rendered may be granted by the judicial
authority for good cause shown . . . .’’ ‘‘It is well estab-
lished that [the] determination of whether to set aside
[a] default is within the discretion of the trial court
. . . [and] such a determination will not be disturbed
unless that discretion has been abused or where injus-
tice will result. In the exercise of its discretion, the trial
court may consider not only the presence of mistake,
accident, inadvertence, misfortune or other reasonable
cause . . . factors such as [t]he seriousness of the
default, its duration, the reasons for it and the degree
of contumacy involved . . . but also, the totality of the
circumstances, including whether the delay has caused
prejudice to the nondefaulting party.’’ (Internal quota-
tion marks omitted.) Chevy Chase Bank, F.S.B. v. Avi-
don, 161 Conn. App. 822, 833, 129 A.3d 757 (2015).
We conclude that the court did not abuse its discre-
tion in denying the defendant’s motion to open because
the defendant failed to demonstrate that good cause
existed to set aside the second default. The defendant
was initially defaulted for failure to plead on February
24, 2014. The court granted the defendant’s motion to
open the first default on March 25, 2014. By June, 2014,
however, the defendant still had not filed any respon-
sive pleadings, and on June 12, 2014, a second default
for failure to plead was entered. The defendant filed a
motion to open the second default two months later,
but he did not offer any good cause for opening the
default a second time. His only arguments for opening
the second default were that the default was invalid
because he never received notice or a hearing on the
motion for default, as purportedly required by § 52-121
(b), and he ‘‘filed a responsive pleading only a couple
days after the clerk granted the default for failure to
plead,’’ i.e., a motion to strike.12 Both of these claims
lacked merit. Section 52-121 (b) is irrelevant to this
issue; it addresses the proper procedure for the entry
of a default judgment, not a default. Additionally, a
motion to strike is not a responsive pleading that auto-
matically sets aside a default. See Practice Book § 17-
32 (b) (‘‘[i]f a party who has been defaulted under this
section files an answer before a judgment after default
has been rendered by the judicial authority, the default
shall automatically be set aside by operation of law
unless a claim for a hearing in damages or a motion
for judgment has been filed’’ [emphasis added]).13
Therefore, we conclude that the court did not abuse
its discretion in denying the defendant’s motion to open
the second default.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
Several additional parties with interests in the property were named as
defendants in this action, but they have not participated in this appeal. We
therefore refer in this opinion to Frederick B. Cornelius as the defendant.
2
H. Thomas Cornelius passed away on November 7, 2008.
3
In relevant part, the complaint stated that on May 23, 2001, H. Thomas
Cornelius executed and delivered to Express Capital Lending a note for a
loan in the original principal amount of $216,000. ‘‘On said date . . . H.
Thomas Cornelius, to secure said note, mortgaged to Express Capital Lend-
ing [the property]. . . . Said mortgage deed was recorded on the West
Hartford Land Records. . . . Express Capital Lending assigned said mort-
gage to Impac Funding Corporation. . . . Said mortgage was further
assigned to [the plaintiff] by an assignment dated October 22, 2010 and
recorded November 1, 2010 . . . . [The plaintiff] . . . has possession of
the promissory note. The promissory note has been duly endorsed. [The
plaintiff] . . . is the assignee of the security instrument for the refer-
enced loan.’’
4
The court did not initially issue a memorandum of decision concerning
its denial of the defendant’s motion to strike the complaint or his second
motion to open the default. On July 24, 2015, the defendant filed a motion
for articulation. On September 25, 2015, the court articulated the aforemen-
tioned reasons for denying the defendant’s motions.
5
The hearing commenced on December 1, 2014, but the court continued
the hearing to December 15, 2014 so that the defendant could file a memoran-
dum in support of his motion to dismiss.
6
We observe that on appeal, neither party mentioned that the trial court
relied on the date of the assignment of the note and mortgage to find
standing, although, the plaintiff included the assignment of the note and
mortgage in its appendix to its brief. Despite this omission by the parties,
we conclude that it is appropriate for us to rely on the assignment of the
note and mortgage to resolve this jurisdictional issue because the plaintiff
provided it to the trial court at the December 15, 2015 hearing and the court
7
The record in Equity One, Inc., did not expressly reflect whether the
court reviewed the copy of the note at the hearing on the plaintiff’s motion
to reopen and reenter the judgment of foreclosure. See Equity One, Inc. v.
Shivers, supra, 310 Conn. 131. When the defendant raised the issue of
standing at the hearing, the plaintiff explained that it had a copy of the
original note that it presented to the court at the hearing on its motion for
strict foreclosure. Id., 129. The court asked the plaintiff to show it to the
defendant. Id. However, the record did not expressly reflect whether the
plaintiff presented the note to the court anytime thereafter. Id.
8
We also observed, and the plaintiff conceded, that the mortgage was
assigned three months after the commencement of the foreclosure action.
Id., 830 n.4.
9
Section 22 of the mortgage states in pertinent part: ‘‘Lender shall give
notice to Borrower [i.e., H. Thomas Cornelius] prior to acceleration following
Borrower’s breach of any covenant or agreement in this Security Instrument.
. . . The notice shall specify: (a) the default; (b) the action required to cure
the default; (c) a date, not less than 30 days from the date the notice is
given to Borrower, by which the default must be cured; and (d) that failure
to cure the default on or before the date specified in the notice may result
in acceleration of the sums secured by this Security Instrument and foreclo-
sure or sale of the Property.’’
10
We note that the defendant is not a party to the mortgage. It is undis-
puted that the defendant never signed the mortgage or the note and that
he is not a ‘‘Borrower’’ pursuant to the mortgage. ‘‘Contract obligations are
imposed because of conduct of parties manifesting consent, and are owed
only to the specific individuals named in the contract. . . . It is well settled
that one who [is] neither a party to a contract nor a contemplated beneficiary
thereof cannot sue to enforce the promises of the contract. . . . Under this
general proposition, if the plaintiff is neither a party to, nor a contemplated
beneficiary of, [the] agreement, she lacks standing to bring her claim for
breach of [contract].’’ (Citation omitted; internal quotation marks omitted.)
Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384, 401, 89 A.3d 392,
cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014).
11
A party can set aside a default either by filing an answer before judgment
is rendered, pursuant to Practice Book § 17-32 (b), or by filing a motion to
set aside the default, pursuant to Practice Book § 17-42.
12
On appeal, the defendant offers several additional reasons why there
was good cause to set aside the default. However, because the defendant
did not present any of these arguments to the trial court, we decline to
consider them for the first time on appeal.
13
In his motion to open the default, the defendant cited People’s United
Bank v. Bok, 143 Conn. App. 263, 70 A.3d 1074 (2013) for the proposition
that a motion to strike is a responsive pleading capable of setting aside a
default. That case is inapposite. In People’s United Bank, we held that the
clerk’s entry of default was improper because the defendants had filed a
request to revise six days before the entry of default. Id. 272–73.