Bank of New York Mellon v. Tope

B
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        BANK OF NEW YORK MELLON v. TOPE—DISSENT

   DEVLIN J., dissenting. The leading Connecticut trea-
tise on mortgage foreclosures observes that ‘‘[t]he fore-
closure process differs substantially from the more typi-
cal form of civil action: Not only can the nature of the
judgment vary, [i.e.] strict foreclosure as opposed to a
sale, but various interlocutory rulings occur routinely.’’
2 D. Caron & G. Milne, Connecticut Foreclosures (9th
Ed. 2019) § 20-1, p. 32.1 In the present case, the majority
treats the jurisdictional attack on the judgment by the
self-represented defendant Achyut M. Tope2 as collat-
eral, declines to consider it and affirms the judgment
of the trial court. I do not see the attack as collateral
but, rather, as direct. Moreover, the attack has merit
because there can be little doubt that, in the trial court,
the plaintiff, The Bank of New York Mellon, did not
prove its authority to enforce the note at issue in this
case. I would therefore remand the case to the trial
court so that an evidentiary hearing can take place to
determine the plaintiff’s standing. Accordingly, I
respectfully dissent.
   ‘‘A collateral attack is an attack upon a judgment,
decree or order offered in an action or proceeding other
than that in which it was obtained, in support of the
contentions of an adversary in the action or proceeding
. . . .’’ (Internal quotation marks omitted.) Warner v.
Brochendorff, 

136 Conn. App. 24

, 32 n.7, 

43 A.3d 785

,
cert. denied, 

306 Conn. 902

, 

52 A.3d 728

(2012). This
definition of collateral attack has been applied in a
number of cases. See, e.g., Upjohn Co. v. Zoning Board
of Appeals, 

224 Conn. 96

, 97, 

616 A.2d 793

(1992) (in
zoning enforcement action, company challenged valid-
ity of condition attached to permit issued three years
prior by planning and zoning commission); Rider v.
Rider, 

200 Conn. App. 466

, 477, 

239 A.3d 357

(2020) (in
quiet title action, plaintiff challenged validity of prior
Probate Court order appointing plaintiff’s brother as
conservator for their father); Federal National Mort-
gage Assn. v. Farina, 

182 Conn. App. 844

, 846, 

191 A.3d 206

(2018) (in summary process action, defendant
challenged validity of prior mortgage foreclosure judg-
ment); Warner v. 

Brochendorff, supra

, 27–28 (in action
to foreclose judgment lien, defendant attacked validity
of underlying judgment); Morris v. Irwin, 

4 Conn. App. 431

, 434, 

494 A.2d 626

(1985) (in declaratory judgment
action, plaintiff sought to challenge two and one-half
year old marital dissolution judgment).
   Connecticut cases have also used the term ‘‘collateral
attack’’ in situations in which the attack was made in
the same case but, due to the passage of time, the
judgment has become final and is beyond the jurisdic-
tion of the court to open. See, e.g., Sousa v. Sousa, 

322 Conn. 757

, 763, 

143 A.3d 578

(2016) (defendant sought to
open and vacate modified marital dissolution judgment
four years after modification); In re Shamika F., 

256 Conn. 383

, 398–99, 

773 A.2d 347

(2001) (in appeal from
termination of parental rights proceeding, father sought
to challenge order of temporary custody entered three
years prior); Vogel v. Vogel, 

178 Conn. 358

, 358–60, 

422 A.2d 271

(1979) (plaintiff sought to attack nineteen year
old marital dissolution judgment); Monroe v. Monroe,

177 Conn. 173

, 174, 

413 A.2d 819

(plaintiff sought to
attack marital dissolution judgment five years after
judgment was rendered), appeal dismissed, 

444 U.S. 801

, 

100 S. Ct. 20

, 

62 L. Ed. 2d 14

(1979); CUDA &
Associates, LLC v. Smith, 

144 Conn. App. 763

, 764,

73 A.3d 848

(2013) (in debt collection case, defendant
sought to attack plaintiff’s standing twenty-eight
months after default judgment was rendered); Urban
Redevelopment Commission v. Katsetos, 

86 Conn. App. 236

, 237–38, 

860 A.2d 1233

(2004) (defendant attacked
jurisdiction in condemnation proceeding three years
after judgment was rendered pursuant to stipulation),
cert. denied, 

272 Conn. 919

, 

866 A.2d 1289

(2005).
   In each of the previously cited cases, even those
challenging the court’s subject matter jurisdiction, the
court rejected the collateral attack without considering
its merits. The rationale for this approach was first
articulated in Monroe v. 

Monroe, supra

, 

177 Conn. 178

,
in which our Supreme Court stated that ‘‘[t]he modern
law of civil procedure suggests that even litigation about
subject matter jurisdiction should take into account the
importance of the principle of the finality of judgments,
particularly when the parties have had a full opportunity
originally to contest the jurisdiction of the adjudicatory
tribunal. James & Hazard, Civil Procedure (2d Ed. 1977)
§ 13.16, esp. 695–97; Restatement (Second), Judgments
§ 15 (Tent. Draft No. 5 1978).’’
   In the present appeal, the majority adopts the plain-
tiff’s position that the defendant’s attack on its standing
should be considered collateral and rejected in favor
of the finality of the foreclosure judgment. The problem
with this approach is that the motion to open the judg-
ment in the present case was not made in a separate
action, nor was it filed after the trial court lost jurisdic-
tion to act. More specifically, unlike the parties in War-
ner, Upjohn Co., Rider, Farina, and Morris, the defen-
dant in the present case has not challenged the
foreclosure judgment in a separate action such as an
action for a declaratory judgment or as a defense in a
summary process action. In addition, unlike in Sousa,
In re Shamika F., Vogel, Monroe, CUDA & Associates,
LLC, and Urban Redevelopment Commission, the trial
court in the present case never lost jurisdiction to con-
sider the defendant’s claims. Although the case has been
pending for several years, it is largely due to various
actions by the trial court giving the parties the opportu-
nity to mediate the dispute and the defendant the oppor-
tunity to sell the property, and not because the case
had reached a stage beyond which the trial court could
not act.
   In the present case, the trial court rendered a judg-
ment of foreclosure by sale. With respect to such a
judgment, the court’s jurisdiction to open and modify
the judgment generally ends with the approval of the
sale and expiration of the applicable appeal period. See,
e.g., Wells Fargo Bank of Minnesota, N.A. v. Morgan,

98 Conn. App. 72

, 79, 

909 A.2d 526

(2006); see also 1
D. Caron & G. Milne, supra, § 10-1:2, p. 616 (‘‘[T]he
court’s jurisdiction to modify a judgment generally ends
with the approval of the sale. . . . [This] approval . . .
operates to divest the owner of [the] equity of redemp-
tion and consequently places the property beyond the
power of the court.’’).3
   The majority suggests that the defendant’s September
28, 2017 motion to open and vacate the judgment of
foreclosure by sale was an impermissible collateral
attack on the prior judgments entered on November
10, 2014, and November 21, 2016. These judgments,
however, were not operative at the time of the defen-
dant’s September 28, 2017 motion. Following the entry
of the default judgment on November 10, 2014, that
judgment was opened, modified, and reentered twice;
once on January 26, 2015, by the court, Ecker, J., and
again on September 21, 2015, by the court, Avallone, J.
Additionally, Judge Avallone opened and vacated the
judgment on April 11, 2016. Thereafter, the plaintiff
moved for entry of judgment of strict foreclosure. Pur-
suant to this motion, on November 21, 2016, Judge Aval-
lone rendered a judgment of foreclosure by sale, which
also was twice opened and reentered—first on April
17, 2017, and again on July 3, 2017. In each instance,
the order stated: ‘‘JUDGMENT OF FORECLOSURE BY
SALE ORDERED REOPENED, MODIFIED AS FOL-
LOWS, AND REENTERED . . . .’’4
   On September 28, 2017, the defendant filed a motion
to open and vacate the judgment asserting that the
plaintiff lacked standing to bring the action. The opera-
tive judgment at the time the defendant filed this motion
was the judgment rendered by Judge Avallone on July
3, 2017, because the earlier judgments had all been
superseded by orders issued by the court opening and
reentering the judgment. See Coxe v. Coxe, 2 Conn.
App. 543, 547, 

481 A.2d 86

(1984) (‘‘when a court opens
a judgment of sale to change the sale date . . . the
modified judgment . . . becomes the only valid judg-
ment in the case’’). Because the defendant filed this
motion two months and twenty-five days from the July
3, 2017 entry of judgment, well within the four month
limit on the court’s authority to open judgments under
General Statutes § 52-212a,5 the trial court clearly had
authority to consider the motion and, in fact, did con-
sider it; on October 17, 2017, the court, Hon. Thomas
J. Corradino, judge trial referee, denied the motion. In
support of its denial of the motion, the court ruled that,
as the holder of the note, the plaintiff had standing
to foreclose the mortgage. On appeal, the defendant
challenges that ruling. This situation is completely dis-
tinguishable from cases in which a judgment is attacked
in a separate proceeding or long after the rendering
court lost jurisdiction, because the defendant’s motion
to dismiss was a direct attack on the operative
judgment.
   Considering the attack as direct and therefore within
the traditional rule—that subject matter jurisdiction can
be challenged at any time, even on appeal—is in accord
with other cases from this court that are procedurally
comparable to the present case. For example, in
Deutsche Bank National Trust Co. v. Thompson, 

163 Conn. App. 827

, 830, 

136 A.3d 1277

(2016), the plaintiff,
on August 18, 2009, filed a motion for default for failure
to plead and a motion for judgment of strict foreclosure.
Due to, inter alia, an intervening foreclosure mediation
effort, the trial court did not render judgment until
September 16, 2013.

Id. Thereafter, the defendant

filed
a bankruptcy petition and, on August 22, 2014, after the
bankruptcy stay was lifted, the plaintiff filed a motion
to open the judgment and reset the law days.

Id. This motion was

granted by the court on September 22, 2014,
after which the defendant appealed.

Id. On appeal, for

the first time and one year after the original judgment,
the defendant challenged the plaintiff’s standing and
the court’s subject matter jurisdiction.

Id., 830–31.

This
court considered the claim on its merits, noting that
‘‘subject matter jurisdiction . . . can be raised by any
of the parties, or by the court sua sponte, at any time’’;
(internal quotation marks omitted)

id., 831;

and that,
‘‘because standing implicates the court’s subject matter
jurisdiction, the issue of standing is not subject to
waiver . . . .’’ (Internal quotation marks omitted.)

Id., 832.

Finding that the plaintiff had not established its
standing, this court remanded the case for further pro-
ceedings.

Id., 836.

  Thus, despite the significant passage of time and vari-
ous intervening events such as foreclosure mediation
and bankruptcy in Deutsche Bank National Trust Co.,
the defendant’s claim challenging the plaintiff’s stand-
ing was not dismissed as a collateral attack on a final
judgment. To the contrary, this court considered the
merits of the jurisdictional claim. In my view, the defen-
dant’s claims in the present case should be considered
on the merits as well.
  I now turn to the merits. The defendant asserts that
the court lacked subject matter jurisdiction because
the plaintiff lacked standing due to the fact that it was
not the holder of the note and not otherwise entitled
to enforce the note. ‘‘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 contro-
versy. . . . [When] a party is found to lack standing,
the court is consequently without subject matter juris-
diction to determine the cause.’’ (Citation omitted; inter-
nal quotation marks omitted.) Equity One, Inc. v. Shiv-
ers, 

310 Conn. 119

, 125, 

74 A.3d 1225

(2013).
   Generally, in order to have standing to bring a foreclo-
sure action the plaintiff must, at the time the action is
commenced, be entitled to enforce the promissory note.
Deutsche Bank National Trust Co. v. Cornelius, 

170 Conn. App. 104

, 110–11, 

154 A.3d 79

, cert. denied, 

325 Conn. 922

, 

159 A.3d 1171

(2017). The question, there-
fore, is whether the plaintiff has the right to enforce
the note signed by the defendant as maker and payable
to HSBC Mortgage Corporation (USA) (HSBC). ‘‘A
plaintiff’s right to enforce a promissory note may be
established under the [Uniform Commercial Code
(UCC)]. . . . Under the UCC, a [p]erson entitled to
enforce an instrument means [inter alia] (i) the holder
of the instrument, [or] (ii) a nonholder in possession of
the instrument who has the rights of the holder . . . .’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) J.E. Robert Co. v. Signature Proper-
ties, LLC, 

309 Conn. 307

, 319, 

71 A.3d 492

(2013).
   The UCC defines the ‘‘[h]older’’ of a negotiable instru-
ment as, inter alia, ‘‘[t]he person in possession of a
negotiable instrument that is payable either to bearer
or to an identified person that is the person in posses-
sion . . . .’’ General Statutes § 42a-1-201 (b) (21) (A).
As the majority aptly explains, the defendant executed
a promissory note in the amount of $134,000 payable
to HSBC. The note was later endorsed to ‘‘JPMorgan
Chase Bank, as Trustee.’’ The note was not further
endorsed. The note, therefore, is not a bearer note nor
is it payable to the person in possession, the plaintiff.
To be a holder, the plaintiff would have to be either
(1) in possession of a bearer note,6 or (2) in possession
of a note made payable to it. Because, in the present
case, the plaintiff possesses a note made payable to
JPMorgan Chase Bank, as Trustee, the plaintiff does
not meet the UCC definition of a holder.
   The issue then becomes whether the plaintiff is a
nonholder with the rights of a holder. ‘‘A person may
be a person entitled to enforce the instrument even
though the person is not the owner of the instrument
. . . . General Statutes § 42a-3-301. . . . The UCC’s
official comment underscores that a person entitled to
enforce an instrument . . . is not limited to holders.
. . . A nonholder in possession of an instrument
includes a person that acquired rights of a holder . . .
under [General Statutes § 42a-3-203 (a)]. . . . Under
§ 42a-3-203 (b), [t]ransfer of an instrument . . . vests
in the transferee any right of the transferor to enforce
the instrument . . . . An instrument is transferred
when it is delivered by a person other than its issuer
for the purpose of giving to the person receiving delivery
the right to enforce the instrument. General Statutes
§ 42a-3-203 (a). Thus, there are two requirements to
transfer an instrument under § 42a-3-203 (a): (1) the
transferor must intend to vest in the transferee the right
to enforce the instrument; and (2) the transferor must
deliver the instrument to the transferee so that the
transferee has either actual or constructive posses-
sion.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) J.E. Robert Co. v. Signature
Properties, 

LLC, supra

, 

309 Conn. 319

–20.
    In the present case, the defendant asserts that the
plaintiff has not demonstrated that it is a person entitled
to enforce the note. As discussed previously, although
the plaintiff has possession of the note, the note is not
payable to bearer and has been endorsed to JPMorgan
Chase Bank, as Trustee and not further endorsed to
the plaintiff. Accordingly, the plaintiff does not meet
the UCC definition of a holder set forth in § 42a-1-201
(b) (21) (A), and the trial court’s finding that the plaintiff
was a holder entitled to foreclose on the note was
incorrect.7 The plaintiff, however, can enforce the note
if it can demonstrate that it is a nonholder in possession
with the rights of a holder. See General Statutes § 42a-
3-301. That, in turn, requires proof that the transferor
delivered the note to the plaintiff intending to vest in it
the right to enforce the instrument. See General Statutes
§ 42a-3-301. The defendant claims that there is no proof
in the record to establish such a transfer.
   In an apparent attempt to establish its right to enforce
the note, the plaintiff asks this court to take judicial
notice of a purported transfer of trusteeship from
JPMorgan Chase Bank to the plaintiff, as set forth in a
document contained in the plaintiff’s appendix. This
document was not submitted to the trial court, and no
findings were made regarding its relevance or authentic-
ity. In addition, the document is outside the type of
fact judicially noticed by Connecticut courts. See Conn.
Code Evid. § 2-1 (c) (‘‘[a] judicially noticed fact must
be one not subject to reasonable dispute in that it is
either (1) within the knowledge of people generally
in the ordinary course of human experience, or (2)
generally accepted as true and capable of ready and
unquestionable demonstration’’). The purported trans-
fer of trusteeship satisfies neither of these conditions.
Moreover, it does not appear that the defendant had
any opportunity to be heard regarding the admissibility
and use of this purported transfer of trusteeship as
required by § 2-2 (a) of the Connecticut Code of Evi-
dence.8 Accordingly, judicial notice of this document
would be inappropriate.9
  At oral argument before this court, the plaintiff
argued that J.E. Robert Co. v. Signature Properties,

LLC, supra

, 

309 Conn. 307

, supports its claim of stand-
ing. J.E. Robert Co., however, concerned the question
of whether a mortgage servicing company had standing
to bring a foreclosure action.

Id., 310–11.

In answering
that question, our Supreme Court held that, because
the mortgage servicing pooling agreement explicitly
gave the servicer the right to enforce the note, the
plaintiff had standing.

Id., 328–31.

  In Ditech Financial, LLC v. Joseph, 

192 Conn. App. 826

, 831, 

218 A.3d 690

(2019), this court addressed a
claim that the plaintiff bank was not the holder of the
note and, therefore, lacked standing. Upon concluding
that the record did not permit review of the defendant’s
jurisdictional claim, this court remanded the matter for
further proceedings.

Id., 836.

   In the present case, the trial court, on the record, did
examine the original note. At that time, the court stated
that the plaintiff was the successor trustee to JPMorgan
Chase Bank. There is nothing in the record, however,
as to the basis for that statement or what that successor
status entailed vis-à-vis the defendant’s note. The court
made no findings as to the plaintiff’s right to enforce the
note, which, as discussed, bore only the endorsement
to JPMorgan Chase Bank, as Trustee. Nowhere in the
record of the trial court is there a finding, one way or
the other, that JPMorgan Chase Bank transferred its
right to enforce the note to the plaintiff. Where gaps
of this nature exist in the record—specifically, gaps
relating to documents proving standing or authority to
foreclose—this court has consistently held that a case
must be remanded for further proceedings. See id.;
Deutsche Bank National Trust Co. v. 

Thompson, supra

,

163 Conn. App. 836

; Deutsche Bank National Trust Co.
v. Bialobrzeski, 

123 Conn. App. 791

, 799–800, 

3 A.3d 183

(2010). Because such a gap exists in the present
case, I would reverse the judgment and remand the
case for a determination of the jurisdictional issue and
for further proceedings according to law.
  1
    This is one of the reasons why the four month limitation on opening
judgments contained in General Statutes § 52-212a is inapplicable to judg-
ments of strict foreclosure. See General Statues § 49-15.
  2
    References to the defendant in this dissent are to Tope.
  3
    Our Supreme Court has gone even further, concluding that, for purposes
of the four month limitation on opening judgments contained in General
Statutes § 52-212a, the court’s jurisdiction to open a judgment of foreclosure
by sale extends to the date the court renders its supplemental judgment
distributing the proceeds of the sale. Citibank, N.A. v. Lindland, 

310 Conn. 147

, 172, 

75 A.3d 651

(2013).
  4
    The majority suggests that these actions by the court in opening and
modifying the judgment did not affect the operative status of the earlier
November 21, 2016 foreclosure judgment. In support of this position, the
majority cites to RAL Management, Inc. v. Valley View Associates, 

278 Conn. 672

, 

899 A.2d 586

(2006). That case, however, dealt with the opening
and modification of a judgment that was on appeal and whether such action
rendered the appeal moot.

Id., 674.

The modifications in the present case
did not affect a judgment on appeal; but, more importantly, the opinion
acknowledges that the opening and modification of a judgment triggers a new
four month period under General Statutes § 52-212a.

Id., 689.

Accordingly,
at the time that the defendant in the present case made his standing chal-
lenge, the door was still open to modification and the challenge was not col-
lateral.
   5
     General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or set aside is filed within
four months following the date on which it was rendered or passed. . . .’’
   6
     A ‘‘[b]earer,’’ as is relevant here, means ‘‘a person in possession of an
instrument . . . payable to bearer or endorsed in blank.’’ General Statutes
§ 42a-1-201 (b) (5).
   7
     This finding, as well as the position of the servicer of the loan and the
plaintiff referenced in the trial court’s order, appear to conflate possession
of the original note with UCC holder status. Under the circumstances of
this case, more is required.
   8
     Section 2-2 (a) of the Connecticut Code of Evidence provides: ‘‘A party
requesting the court to take judicial notice of a fact shall give timely notice
of the request to all other parties. Before the court determines whether to
take the requested judicial notice, any party shall have an opportunity to
be heard.’’
   9
     Even if one took judicial notice of this purported transfer, without further
explanation, it is impossible to determine if the document transfers to the
plaintiff the right to enforce the defendant’s note.

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