March 6, 2015
by Alex-John Ricciardone
Bendett & McHugh, P.C. – USFN Member (Connecticut, Maine, Vermont)
In a recent Connecticut Appellate Court opinion, the court addressed whether a mortgagor can challenge standing to foreclose a mortgage on appeal if the party failed to challenge it at trial. [Eastern Savings Bank v. Cortese, 2014 Conn. App. LEXIS 546]. The court concluded that a mortgagor who does not object or challenge a mortgagee’s introduction of an original, signed promissory note and mortgage into evidence at trial cannot raise the issue on appeal. Once a trial court accepts the mortgagee’s prime facie case and finds the mortgagee a holder of a note entitled to enforce it without objection and enters judgment, the issue is settled.
In Cortese, the plaintiff sought to foreclose two mortgages on real property that a defendant owned. The defendant filed an answer, special defenses, and a counterclaim that resulted in the matter going to a bench trial. At trial, the plaintiff proffered the original, signed promissory notes and mortgages into evidence to prove its prima facie case that it was the holder of the notes and entitled to enforce them. The defendant submitted no objection to the admission of evidence. At the conclusion of the trial, the court entered judgment for the plaintiff on the complaint and counterclaim.
During a post-trial hearing to determine the amount of debt, the defendant challenged subject matter jurisdiction on the grounds that the complaint did not contain an allegation that the plaintiff was the holder of the note, and thereby standing was lacking for the entry of the judgment of foreclosure. The plaintiff petitioned the court to allow it to file an amended complaint to include the allegation. The court rejected the defendant’s arguments, and allowed the plaintiff to amend its complaint to conform to the uncontested facts presented at trial.
On appeal, the defendant challenged the trial court’s subject matter jurisdiction and its discretion in allowing the plaintiff to amend its complaint. The appellate court quickly disposed of the subject matter challenge, and held that the trial court’s determination that the plaintiff was the holder of the note (based upon the plaintiff’s uncontested admission of evidence) was “not erroneous.” The court pointed out that, at trial, the defendant never objected to the admission of the evidence, nor challenged the prima facie evidence showing that the plaintiff was the note holder.
In addressing the defendant’s argument that the trial court abused its discretion, the appellate court reiterated that a trial court has discretion in allowing a plaintiff to amend its complaint after judgment. The court held that since it was clear that the plaintiff was foreclosing on the mortgages as the holder of notes, the amendment “did nothing more than conform the complaint to the proof adduced at trial.” There were no surprises to the defendant, nor was there any prejudice. The court then affirmed the trial court’s foreclosure judgment. This appellate judicial decision should help foreclosure plaintiffs in Connecticut combat dilatory pleadings challenging standing after judgment has already been entered in a case.
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