Wachovia Mortgage, FSB v. Toczek ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
WACHOVIA MORTGAGE, FSB v. PAWEL
TOCZEK ET AL.
(AC 41851)
Elgo, Devlin and Harper, Js.
Syllabus
The plaintiff M Co. sought to foreclose a mortgage on certain real property
owned by the defendants A and T following their default on a promissory
note secured by the mortgage. Thereafter, W Co., which had been substi-
tuted as the plaintiff in the action following its acquisition of M Co.,
filed a motion for summary judgment as to liability. In support of its
motion, W Co. attached an affidavit from H, the vice president of loan
documentation for M Co., who attested concerning the debt owed under
the note and that W Co. was the current holder of the note. H included
with his affidavit a copy of both the note and the mortgage, which he
referenced therein. No objection to the motion was filed. The trial court
granted W Co.’s motion for summary judgment as to liability, which it
treated as unopposed, concluding that H’s affidavit in conjunction with
the note and mortgage constituted a prima facie case for a judgment
of strict foreclosure and that W Co. had met its burden of showing that
it was entitled to judgment as a matter of law. Thereafter, the trial court
granted W Co.’s motion for a judgment of strict foreclosure and rendered
judgment thereon. The trial court subsequently denied A’s motion to
reargue, and A appealed to this court. Held:
1. A could not prevail on her claim that the trial court lacked subject matter
jurisdiction because W Co. did not have standing because it was not
the holder of the subject note, which was premised on her claim that
the note was a nonnegotiable instrument pursuant to the relevant statute
(§ 42a-3-104 (a)) because it was not for a fixed amount of money and
was governed by federal law; because A’s claim challenged the validity
of the note, as opposed to W Co.’s actual possession of the note or
ownership of the mortgage, it implicated the merits of the foreclosure
action and, therefore, was not jurisdictional.
2. Contrary to A’s claim, the trial court properly granted W Co.’s motion for
summary judgment as to liability, as W Co. established its prima facie
case for foreclosure by pleading that it was the holder of the note on
which A had defaulted and submitting H’s affidavit, which included and
incorporated by reference copies of the note and mortgage, the record
did not reflect any issues with regard to conditions precedent to foreclo-
sure, and A did not attempt to rebut W Co.’s status as the holder of
the note and, in fact, failed to file any opposition to the motion for
summary judgment.
3. The trial court did not abuse its discretion by granting W Co.’s motion
for a judgment of strict foreclosure; contrary to A’s claim that W Co.
failed to follow the procedures set forth in the rule of practice (§ 23-
18) pertaining to proof of debt in foreclosure actions because it did not
provide a preliminary statement of debt or affidavit of debt no less than
five days before the hearing on the motion for a judgment of strict
foreclosure, W Co. complied with § 23-18, as the plain language of that
rule of practice only requires that the preliminary statement of the
plaintiff’s monetary claim be filed no less than five days prior to the
hearing, and W Co. filed its preliminary statement of its monetary claim
almost nine years prior to the hearing and, thereafter, filed several
additional affidavits of debt, informing A as to how much she owed
under the note.
4. The trial court did not abuse its discretion when it denied A’s motion to
reargue the judgment of strict foreclosure: A’s claim that that court
overlooked the fact that the requirement in the applicable rule of practice
(§ 23-18) that the plaintiff’s preliminary statement of debt be filed no
less than five days before a hearing on a motion for a judgment of strict
foreclosure was mandatory was unavailing, as the court had before it
several affidavits containing a preliminary statement of W Co.’s monetary
claim that were filed far in advance of five days before the June, 2018
hearing, including the preliminary statement of monetary claim filed in
September, 2009; moreover, A failed to proffer any additional or new
evidence separate from that which the trial court heard in the prior
proceeding, nor did she demonstrate a misapprehension of facts or
claims of law that the court failed to address.
Argued October 17, 2019—officially released February 25, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the named defendant
et al. filed a counterclaim; thereafter, Wells Fargo Bank,
N.A., was substituted as the plaintiff; subsequently, the
court, Hon. Alfred J. Jennings, Jr., judge trial referee,
granted the substitute plaintiff’s motion for summary
judgment as to liability on the complaint and as to
the counterclaim; thereafter, the court, Genuario, J.,
granted the substitute plaintiff’s motion for a judgment
of strict foreclosure and rendered judgment thereon;
subsequently, the court, Genuario, J., denied the
motion to reargue filed by the defendant Aleksandra
Toczek, and the defendant Aleksandra Toczek appealed
to this court; thereafter, the defendant Aleksandra Toc-
zek filed an amended appeal. Affirmed.
Aleksandra Toczek, self-represented, the appellant
(defendant).
David M. Bizar, with whom was J. Patrick Kennedy,
for the appellee (substitute plaintiff).
Opinion
HARPER, J. The defendant Aleksandra Toczek1
appeals from the judgment of strict foreclosure ren-
dered in favor of the substitute plaintiff, Wells Fargo
Bank, N.A.2 On appeal, the defendant claims that the
trial court (1) lacked subject matter jurisdiction
because the plaintiff did not have standing, (2) improp-
erly granted the plaintiff’s motion for summary judg-
ment as to liability, (3) improperly granted the plaintiff’s
motion for a judgment of strict foreclosure in violation
of Practice Book § 23-18, and (4) abused its discretion
when it denied the defendant’s motion to reargue the
judgment of strict foreclosure. We disagree with the
defendant and, accordingly, affirm the judgment of the
trial court.
The record reveals the following facts and procedural
history. On May 10, 2007, Pawel Toczek signed a promis-
sory note (note) payable to World Savings Bank, FSB,
for a principal amount of $880,000. Shortly thereafter,
he and the defendant executed a mortgage in favor of
World Savings Bank, FSB, on real property located at
113 Soundview Court, Stamford. The note required
biweekly principal and interest payments beginning on
June 11, 2007, lasting until maturation on May 28, 2037.
Since July 7, 2008, neither Pawel Toczek nor the defen-
dant has made any payments as required by the note
secured by the mortgage.
On February 12, 2009, the original plaintiff, Wachovia
Mortgage, FSB (Wachovia), notified both the defendant
and Pawel Toczek that they were in default and that
failure to cure would result in acceleration of the debt.
Neither Pawel Toczek nor the defendant took steps to
cure the default; thus, Wachovia elected to accelerate
the sums due. Wachovia then commenced the present
action and, in July, 2009, moved for a judgment of strict
foreclosure and a finding of entitlement of possession.
Then, on November 2, 2010, the plaintiff moved for
summary judgment as to liability on the allegations of
the complaint and the defendant’s special defenses, as
well as to the defendant’s counterclaim.
In support of the motion for summary judgment, the
plaintiff attached an affidavit attested to by Thomas S.
Hermann (Hermann affidavit), the vice president of loan
documentation for Wachovia, confirming the debt owed
by the defendant and the plaintiff’s possession of the
note at issue. Referenced in and included with the affi-
davit was a copy of both the note and the mortgage. Only
the plaintiff filed affidavits and exhibits with regard to
the motion for summary judgment. Therefore, the trial
court treated the motion for summary judgment as
unopposed. Prior to the motion for summary judgment,
the defendant had filed an answer, a setoff, special
defenses, and a counterclaim. The court, however, con-
cluded that no facts were alleged, but, rather, the defen-
dant’s responses were merely conclusory and failed to
state any claims. On June 21, 2011, the trial court, Hon.
Alfred J. Jennings, Jr., judge trial referee, granted the
plaintiff’s motion for summary judgment as to liability
on its complaint and summary judgment in the plaintiff’s
favor on the defendant’s setoff and counterclaim. The
court concluded that the contents of the Hermann affi-
davit in conjunction with the note and mortgage consti-
tuted a prima facie case for a judgment of strict foreclo-
sure and that, because the defendant failed to plead
facts to support any special defenses, the plaintiff met
its burden of showing that it was entitled to judgment
as a matter of law.
Despite having been filed in July, 2009, the motion
for a judgment of strict foreclosure was heard by the
court and granted on June 21, 2018. Several months
later, the court issued a memorandum of decision and
recognized that ‘‘there had been numerous procedural
and substantive causes for delay including multiple
bankruptcy filings, multiple motions to dismiss, [and]
significant discovery disputes among others.’’ Addition-
ally, the court found the following facts: summary judg-
ment as to liability had entered against the defendant,
the plaintiff was the current holder of the note, the
defendant’s debt totaled $1,480,218.51, and the debt
exceeded the property value by more than $800,000.
On July 11, 2018, the defendant filed a motion to
reargue the court’s June 21, 2018 judgment of strict
foreclosure. The defendant argued that (1) because the
note, by its own terms, was governed by federal law,
such designation precludes the application of this
state’s adoption of the Uniform Commercial Code
(UCC) and, thus, eliminates the plaintiff’s standing, and
(2) the court erred in proceeding when the most recent
affidavit of debt was filed less than five days before the
June 21, 2018 hearing. The court, Genuario, J., denied
the defendant’s motion, having concluded that ‘‘there
is nothing inconsistent with a determination that a note
is governed by federal law and the application of the
principles embodied in the UCC as many federal courts
have applied those principles as a body of federal com-
mon law,’’ the plaintiff is the holder of the note, and
the plaintiff complied with the timeliness requirement
for filing an affidavit of debt pursuant to Practice Book
§ 23-18. This appeal followed.3
I
The defendant first contends that the court lacked
subject matter jurisdiction because the plaintiff does
not have standing. In particular, she argues that the
plaintiff lacks standing because it is not the holder of
the note, a claim premised solely on her assertion that
the note is a nonnegotiable instrument pursuant to Gen-
eral Statutes § 42a-3-104 (a).4 According to the defen-
dant, the note is nonnegotiable because it is not for a
fixed amount of money pursuant to § 42a-3-104 (a) and
it contains conspicuous language recognizing federal
law, as opposed to the UCC, as the governing law.
The defendant’s assumption that the negotiability of
the note implicates standing is without support under
Connecticut law. Instead, such claims go to the merits of
the case and are not jurisdictional. We find this court’s
holding in Wells Fargo Bank, N.A. v. Strong, 149 Conn.
App. 384, 89 A.3d 392, cert. denied, 312 Conn. 923, 94
A.3d 1202 (2014), instructive.
In Wells Fargo Bank, N.A., this court stated: ‘‘The
defendants make much of the maxim that standing
implicates the subject matter jurisdiction of the court
and may be raised at any time. The defendants, how-
ever, fail to understand that there is a difference
between challenging a party’s standing to maintain a
cause of action and challenging the merits of the cause
of action itself. The question of standing does not
involve an inquiry into the merits of the case. It merely
requires the party to make allegations of a colorable
claim of injury to an interest which is arguably protected
or regulated by the statute . . . in question. . . .
‘‘When the defendants argued . . . that the plaintiff
was not a proper holder of the note, their argument
went to the merits of the case, that is, to whether the
plaintiff should prevail. Although they called their claim
a lack of subject matter jurisdiction, we do not view it
as such. We view it, instead, as a claim that goes to the
heart of the issues that would have had to be resolved
. . . [at] trial. . . .
‘‘To prevail in an action to enforce a negotiable instru-
ment, the plaintiff must be a holder of the instrument
or nonholder with the rights of a holder. . . . This sta-
tus is an element of an action on a note. . . . The failure
to plead this fact properly is challenged by a motion to
strike. . . . The failure to prove such element will
result in a judgment for the defendants. . . . In neither
event is jurisdiction implicated. . . . [W]e conclude
that [a] defendant’s challenge to the validity of the
plaintiff’s status as owner of the note and mortgage, as
opposed to the plaintiff’s actual possession of the note
and ownership of the mortgage, implicates the merits
of the . . . foreclosure action, not the plaintiff’s stand-
ing to bring the action.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Id.,
399–400.
In the present case, the defendant does not dispute
the plaintiff’s actual possession of the note or the own-
ership of the mortgage. In her claim that the note is
not for a fixed sum and governed by federal law, the
defendant challenges the validity of the note itself
which, as Wells Fargo Bank, N.A, provides, is a claim
that goes to the merits of the foreclosure action and is
not jurisdictional. Therefore, the defendant’s subject
matter jurisdiction claim fails.
II
Next, the defendant claims that the court erred when
it granted the plaintiff’s motion for summary judgment
as to liability. More specifically, she argues that the
plaintiff was unable to meet its burden to make a prima
facie case for foreclosure because the note was nonne-
gotiable. The defendant, again, contends that the note
is nonnegotiable because it contained conspicuous lan-
guage that it was governed by federal law and that it
was not for a fixed amount. Further, the defendant
argues that the court failed to consider that the term
‘‘holder’’ means ‘‘ [a] person in possession of a negotia-
ble [note] that is payable either to bearer or to an identi-
fied person that is the person in possession . . . .’’ We
disagree with the defendant.
We begin our analysis by setting forth the standard
of review. ‘‘Our review of the trial court’s decision to
grant [a] motion for summary judgment is plenary. . . .
[I]n seeking summary judgment, it is the movant who
has the burden of showing . . . the absence of any
genuine issue as to all the material facts [that], under
applicable principles of substantive law, entitle him to
a judgment as a matter of law. . . .
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant [a motion for] summary judgment as to liability
in a foreclosure action if the complaint and supporting
affidavits establish an undisputed prima facie case and
the defendant fails to assert any legally sufficient special
defense.’’ (Internal quotation marks omitted.) U.S.
Bank, National Assn. v. Fitzpatrick, 190 Conn. App.
773, 788–89, 212 A.3d 732, cert. denied, 333 Conn. 916,
217 A.3d 1 (2019).
‘‘When a party files a motion for summary judgment
and there [are] no contradictory affidavits, the court
properly [decides] the motion by looking only to the
sufficiency of the [movant’s] affidavits and other proof.’’
(Internal quotation marks omitted.) Lefebvre v. Zarka,
106 Conn. App. 30, 38–39, 940 A.2d 911 (2008). ‘‘[I]f the
affidavits and the other supporting documents [of the
nonmoving party] are inadequate, then the court is justi-
fied in granting the [motion for] summary judgment,
assuming that the movant has met his burden . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) Mott v. Wal-Mart Stores East, LP, 139 Conn. App.
618, 631, 57 A.3d 391 (2012).
In the present case, the plaintiff pleaded that it was
the holder of the note on which the defendant had
defaulted and the plaintiff foreclosed. The plaintiff also
submitted to the court an affidavit that included and
incorporated by reference copies of the note and mort-
gage that it has possessed since it acquired Wachovia.
See footnote 2 of this opinion. Additionally, the record
does not reflect any issues with regard to conditions
precedent to foreclosure. The plaintiff, therefore, estab-
lished its prima facie case. The defendant did not
attempt to rebut the plaintiff’s status as a holder of the
note—in fact, the defendant did not file any opposition
to the plaintiff’s motion for summary judgment.
Because the plaintiff established a prima facie case
that it is the holder of the note in dispute, and the
defendant did not contest that showing, we reject the
defendant’s claim that the court erred when it granted
the plaintiff’s motion for summary judgment as to lia-
bility.
III
The defendant’s third claim is that the court improp-
erly granted the plaintiff’s motion for a judgment of
strict foreclosure in violation of Practice Book § 23-18.
Specifically, she argues that the plaintiff failed to follow
the procedures outlined in § 23-18, in that it did not
provide a preliminary statement of debt or affidavit of
debt no less than five days before the hearing. We
disagree.
We first set forth our standard of review. ‘‘The stan-
dard of review of a judgment of . . . strict foreclosure
is whether the trial court abused its discretion. . . .
In determining whether the trial court has abused its
discretion, we must make every reasonable presump-
tion in favor of the correctness of its action. . . . Our
review of a trial court’s exercise of the legal discretion
vested in it is limited to the questions of whether the
trial court correctly applied the law and could reason-
ably have reached the conclusion that it did.’’ (Internal
quotation marks omitted.) Bank of America, N.A. v.
Gonzalez, 187 Conn. App. 511, 514, 202 A.3d 1092 (2019).
As discussed previously in this opinion, ‘‘[i]n order
to establish a prima facie case in a mortgage foreclosure
action, the plaintiff must prove by a preponderance of
the evidence that it is the owner of the note and mort-
gage, that the defendant mortgagor has defaulted on
the note and that any conditions precedent to foreclo-
sure, as established by the note and mortgage, have
been satisfied.’’ (Internal quotation marks omitted.)
U.S. Bank, National Assn. v. Fitzpatrick, supra, 190
Conn. App. 788–89. Additionally, Practice Book § 23-18
(b) provides: ‘‘No less than five days before the hearing
on the motion for judgment of foreclosure, the plaintiff
shall file with the clerk of the court and serve on each
appearing party, in accordance with Sections 10-12
through 10-17, a preliminary statement of the plaintiff’s
monetary claim.’’
On appeal, the defendant argues that the plaintiff’s
June 18, 2018 affidavit of debt was untimely because it
was filed less than five days prior to the June 21, 2018
hearing on the motion for a judgment of strict foreclo-
sure. We disagree.
The plain language of Practice Book § 23-18 (b) only
requires that the preliminary statement of the plaintiff’s
monetary claim be filed no less than five days prior to
a hearing on a motion for a judgment of strict foreclo-
sure. In the present case, the plaintiff filed its prelimi-
nary statement of its monetary claim on September 9,
2009—almost nine years prior to the hearing on the
motion for a judgment of strict foreclosure. Thereafter,
the plaintiff filed additional affidavits of debt, informing
the defendant how much she owed, including on April
8, 2010, December 31, 2013, February 17, 2017, and June
18, 2018. Therefore, the plaintiff properly complied with
Practice Book § 23-18 (b), and the court did not abuse
its discretion by granting the motion for a judgment of
strict foreclosure.5
IV
Lastly, the defendant claims that the court abused
its discretion when it denied the defendant’s motion
reargue the judgment of strict foreclosure. She asserts
that the trial court ‘‘overlooked the fact that the require-
ment that the preliminary statement of debt be filed no
less than five days [before a hearing on a motion for a
judgment of strict foreclosure] in Practice Book [§] 23-
18 was mandatory and that the defendant should be
informed of the amount of the debt including interest
to the date of the hearing.’’ (Emphasis omitted.) We
disagree.
‘‘[I]n reviewing a court’s ruling on a motion to open,
reargue, vacate or reconsider, we ask only whether
the court acted unreasonably or in clear abuse of its
discretion. . . . When reviewing a decision for an
abuse of discretion, every reasonable presumption
should be given in favor of its correctness. . . . As
with any discretionary action of the trial court . . . the
ultimate [question for appellate review] is whether the
trial court could have reasonably concluded as it did.
. . . [T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address . . . claims of law that the [movant] claimed
were not addressed by the court. . . . [A] motion to
reargue [however] is not to be used as an opportunity
to have a second bite of the apple . . . .’’ (Citation
omitted; internal quotation marks omitted.) Gianetti v.
Gerardi, 122 Conn. App. 126, 129, 998 A.2d 807 (2010).
Again, because the court had before it several affida-
vits containing a preliminary statement of the plaintiff’s
monetary claim that were filed far in advance of five
days before the hearing on the motion for a judgment of
strict foreclosure, including the preliminary statement
filed on September 9, 2009, the court did not overlook
the five day requirement of Practice Book § 23-18. See
part III of this opinion. In addition, the defendant failed
to proffer any additional or new evidence separate from
that which the court heard in the prior proceeding,
nor did she demonstrate a misapprehension of facts or
claims of law that the court failed to address. Accord-
ingly, the court did not abuse its discretion when it
denied the defendant’s motion to reargue the judgment
of strict foreclosure.
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
Pawel Toczek and Metro Roofing Supplies, Inc., were also named as
defendants but are not involved in this appeal. We therefore refer in this
opinion to Aleksandra Toczek as the defendant.
2
The original plaintiff, Wachovia Mortgage, FSB, formerly known as World
Savings Bank, FSB, was acquired on November 1, 2009, by Wells Fargo
Bank, N.A., which was substituted as the plaintiff in this case on April 12,
2010. We therefore refer in this opinion to Wells Fargo Bank, N.A., as
the plaintiff.
3
The defendant filed an amended appeal on July 30, 2018. Her appeal
form indicates that she is appealing from the following: (1) motion for a
judgment of strict foreclosure, (2) motion to dismiss, (3) motion to open
summary judgment, (4) motion for summary judgment, (5) discovery
motions, (6) motion to reargue the judgment of strict foreclosure, and (7)
motion for a protective order. In her appellate brief and in her oral argument
before this court, the defendant did not address claims two, three, five, or
seven; therefore, we will only address claims one, four, and six, as well as
her subject matter jurisdiction claim. See Nowacki v. Nowacki, 129 Conn.
App. 157, 163, 20 A.3d 702 (2011) (‘‘[i]t is well settled that [w]e are not
required to review claims that are inadequately briefed’’ [internal quotation
marks omitted]).
4
General Statutes § 42a-3-104 (a) provides in relevant part: ‘‘Except as
provided in subsections (c) and (d), ‘negotiable instrument’ means an uncon-
ditional promise or order to pay a fixed amount of money, with or without
interest or other charges described in the promise or order . . . .’’
5
In Bank of New York Mellon v. Horsey, 182 Conn. App. 417, 433–34, 190
A.3d 105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018), the parties
presented similar arguments concerning the five day notice provision of
Practice Book § 23-18 (b). Similar to the present appeal, the plaintiff in Bank
of New York Mellon filed multiple affidavits of debt. Id. The first affidavit
was filed many years before the trial court conducted its hearing on a motion
for a judgment of strict foreclosure, while the most recent affidavit was
filed four days prior to the hearing. Id. The issue of timeliness, however,
was not raised properly before the trial court, and, thus, this court did not
address ‘‘whether Practice Book § 23-18 was satisfied by the filing of the
initial affidavit of debt . . . .’’ Id., 434.