Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Knows About Standing
In a November 2008 decision, the Connecticut Superior Court found that a plaintiff which filed suit four months before it acquired its interest in the subject mortgage was NOT entitled to summary judgment affirming thefinding of the trial court.  Curiously, the appellate court decided that the trial court had jurisdiction, a holding contrary to the law in most states that standing is based upon justiciability at the comencement of the suit.

But for the reasons shown in the opinion below, the court found that the unexplained acquisition of the subject mortgage post-filing of the suit precluded entitlement to a summary judgment.

In my LAY view, showing the Court the United States Supreme Court authority for the proposition that the plaintiff's standing is to be determined from the suit's inception might still assist another plaintiff is obtaining an even more appropriate disposition -- dismissal for want of standing.

But the decision still should be viewed as favorable to mortgage defendants subject to the ongoing mischief perpetrated by servicers and the mortgage foreclosure bar.

The full text of the decision appears below:    

2008 Conn. Super. LEXIS 3002,*

Aurora Loan Services, LLC v. Ann L. Nuzzo et al.

NNHCV075011888S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN
2008 Conn. Super. LEXIS 3002

November 13, 2008, Decided

November 13, 2008, Filed

NOTICE:  
THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES:    [*1]  Bruce L. Levin, Judge of the Superior Court.

OPINION BY:   Bruce L. Levin

OPINION  

MEMORANDUM OF DECISION

In this action to foreclose a mortgage, the plaintiff moves for summary judgment. The issue is whether it is entitled to summary judgment, indeed whether the court even has jurisdiction, where the plaintiff was not the holder of the note or mortgage when it commenced the action, though it is the holder now.

The plaintiff, Aurora Loan Services, LLC, commenced this foreclosure action by service of process on the defendants, Ann Nuzzo, Frederick Nuzzo and Peter Minore, on June 12, 2007. n1 The plaintiff filed a complaint alleging the following facts: On May 11, 2004, Ann Nuzzo and Frederick Nuzzo, the defendants, executed and delivered to Long Beach Mortgage Company a note for a loan in the amount of $ 310,000 secured by a mortgage on real property located at 102 Kings Highway in North Haven, Connecticut. In January 2005, Long Beach Mortgage Company assigned the mortgage to Deutsche Bank National Trust Company, as trustee for the Long Beach Mortgage Loan Trust. On a date not specified in the complaint, Deutsche Bank assigned the mortgage to the plaintiff, which is now the holder of the note and the mortgage.  [*2]  The note is in default, the plaintiff provided the defendants with written notice of the default, the defendants have failed to cure the default, and the plaintiff has elected to accelerate the balance due on the note.

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Peter Minore failed to appear and, on August 3, 2007, the court granted the plaintiff's motion for default against him.
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The defendants filed an answer in which they admitted that Ann Nuzzo owns the property being foreclosed, that she owns the equity of redemption of the property, and that she is in possession of the property. They defendants deny that they are in default on the note.

On October 9, 2007, the plaintiff filed a motion for summary judgment as to liability only on the ground that there is no factual dispute that it owns the note and mortgage and that the defendants defaulted thereon. In support of the motion, the plaintiff submitted a memorandum of law, an affidavit from Joseph Bershas, its vice president, a copy of the note and mortgage, a copy of the assignments of the note and mortgage, and a copy of the notice of default.

The defendants, acting pro se, filed an objection to the motion for summary judgment in which they argued, inter alia, that they were  [*3]  not properly notified of their supposed default and that the plaintiff was not the proper holder of the note and mortgage. They also requested "more time to formally respond" to the motion "by way of testimony or affidavit" or "to get an attorney if possible . . ."

On March 25, 2008, Judge Crawford denied the plaintiff's motion for summary judgment, noting that "[t]here is a genuine issue of material fact as to whether the plaintiff . . . owned the note and mortgage at the time of bringing the action. Assignment from Deutsch Bank to Aurora was 10/1/07." This date, October 1, 2007, is four months after the plaintiff commenced the action.

The plaintiff filed a motion to reargue, asserting that it did not receive the defendants' original opposition, that the defendants' supplemental opposition was not timely filed, that it did not have an opportunity to respond to the supplemental opposition, and that there are "numerous Connecticut statutes and appellate authorities" demonstrating that it held the note and mortgage at the time it commenced the action. Judge Crawford granted the plaintiff's motion to reargue. Thereafter, the plaintiff filed a reply memorandum in response to the defendants'  [*4]  opposition, essentially arguing that it held the note and mortgage when it brought the action and citing Connecticut statutes and case law that it claims support its argument. n2

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Practice Book §11-12(c) provides in part: "If the judge grants the motion [to reargue], the judge shall schedule the matter for hearing on the relief requested." Because of judicial reassignments, Judge Crawford no longer was available in this judicial district to hear the motion for summary judgment. The parties acquiesced in the undersigned deciding the motion.
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Under Practice Book §17-49, summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book §17-49; see also Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In 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, which, under applicable principles of substantive law, entitle him to a judgment of law . . . To satisfy his burden the movant must make a showing that  [*5]  it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The plaintiff argues that the court should grant its motion for summary judgment as to liability because the evidence establishes that it owns the note and mortgage, the note is in default, the plaintiff provided the defendants with written notice of the default, and the defendants have failed to cure the default. The defendants counter that they have "never even heard of or dealt with" the plaintiff, and that the plaintiff is not the "proper holder of the note and mortgage."
To make out a prima facie case in an action to foreclose a mortgage, the foreclosing party must prove that it is the owner of the note and mortgage and that the mortgagor has defaulted on the note. Ocwen Federal Bank, FSB v. Charles, 95 Conn.App. 315, 319 n.5, 898 A.2d 197,  [*6]  cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). The plaintiff has satisfied its burden of proof as to these matters for purposes of its motion for summary judgment. The problem, of which the plaintiff had notice at oral argument, is that when it commenced this action, the plaintiff neither owned the note nor the mortgage. This raises the question of whether the court has subject jurisdiction of this action now.

"[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he 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 . . . [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent . . . Standing [however] is not a technical  [*7]  rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).

"A party must be aggrieved to have standing to invoke the jurisdiction of the court . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 199, 844 A.2d 224 (2004).

A party who has never owned the note that is secured by the  [*8]  mortgage lacks standing to foreclose the mortgage. Fleet National Bank v. Nazareth, 75 Conn.App. 791, 794-95, 818 A.2d 69 (2003). The plaintiff did not own the note when it commenced this action but does so now.

General Statutes §52-109 is not literally applicable to this matter but is relevant to its resolution. Section 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." This statute applies to actions to foreclose a mortgage. See Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 84-85, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993); Washington Mutual Bank, FA v. Krishna, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4004925 (November 28, 2006, Jennings, J.) (42 Conn. L. Rptr. 421, 422, 2006 Conn. Super. LEXIS 3615, *6-7); First Franklin Financial Corp. v. Davis, Superior Court, judicial district of New Britain, Docket No. CV 05 4007055S (March 24, 2006, Shaban, J.) [41 Conn. L. Rptr. 111, 2006 Conn. Super. LEXIS 1010];  [*9]  Flagstar Bank v. Silvestri, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180425, 2002 Conn. Super. LEXIS 1785 (May 21, 2002, Hickey, J.). A substitution of the plaintiff under §52-109 "relate[s] back to and correct[s], retroactively, any defect in a prior pleading concerning the identity of the real party in interest." Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., supra, 31 Conn.App. 84.
General Statutes §52-109 is not applicable here because, although this action was commenced in the name of the wrong person as plaintiff, that person now is the proper person to maintain the action and need not be substituted or added as a party. A statute that is not literally applicable to a common-law issue may nonetheless be applicable by analogy:
"Statutes are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time . . . Hardly ever is a statute now regarded as a candidate for narrow construction because it may be in derogation of the common law. More often, the issue is rather to what extent a statute is itself a source of policy for consistent common law development." (Footnote omitted. Emphasis added.)  [*10]  Peters, "Common Law Judging in a Statutory World: An Address," 43 U.Pitt.L.Rev. 995, 998 (1982); see generally Calabresi, A Common Law For The Age Of Statutes (1982). We find General Statutes §33-369 to be a sound and effective "source of policy for consistent common law development." Peters, supra. As our Chief Justice has aptly noted: "[w]e need to learn how to think about statutes by analogy as aggressively and as extensively as we presently think about cases by analogy." Id., 1002.

Canton Motorcar Works, Inc. v. DiMartino, 6 Conn.App. 447, 454, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986) (statute governing rights of successor corporation following merger used as precedent for determining rights of partnership as successor entity following merger). The court concludes that General Statutes §52-109 is applicable to the issue before the court by analogy; therefore, the court has jurisdiction and may proceed with the plaintiff's motion if the action was commenced by the wrong person as plaintiff through "mistake." Moreover, in deciding this issue, this court is informed by Judge Corradino's opinion in Wilson v. Zemba, 49 Conn.Sup. 542, 896 A.2d 862 (2004) [38 Conn. L. Rptr. 272],  [*11]  except that negligence of the plaintiff may be a factor for the court to weigh.

The plaintiff's motion for summary judgment does not address why this action was commenced in the name of the present plaintiff when it did not hold the note or mortgage. For that reason, the motion is denied.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

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Most people get intimidated or deceived into accepting a summary judgment or B.K. depriving themselves of a right to a trail by jury and/or validating a fraudulent judgment or partially fraudulent judgment.

Glad the judges are returning to sanity.

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