March 31, 2014
by Valerie Finney
Bendett & McHugh, P.C. – USFN Member (Connecticut, Maine, Vermont)
In the case of Deutsche Bank National Trust Company, Trustee v. Torres, (AC 35838), decided on March 25, 2014, the Connecticut Appellate Court reversed the Superior Court’s ruling granting a motion to dismiss filed by the self-represented borrower. The basis of the motion was an allegation that the plaintiff lacked standing to commence the foreclosure action. The appellate court concluded that the plaintiff bank had standing to foreclose because it was in possession of the original note endorsed in blank, which was provided to the trial court at the hearing on the motion.
The appellate court relied upon several recent Connecticut Appellate and Supreme Court decisions regarding standing to foreclose, specifically referring to the Uniform Commercial Code’s (C.G.S. § 42a-1-201(b)(21)(A)) definition of a holder of a note in conjunction with Connecticut General Statutes § 49-17, which “allows the holder of a note to foreclose on real property even if the mortgage has not been assigned to him.” The recent cases supporting the Torres decision were Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570 (2010); RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011); J.E. Roberts Co. v. Signature Properties, LLC, 309 Conn. 307 (2013); and Equity One, Inc. v. Shivers, 310 Conn. 119 (2013). All of these decisions comprised the legal authority for reversing the trial court’s ruling.
Most importantly, the appellate court held that because the plaintiff had alleged itself to be the holder of the note payable to bearer and had presented the note to the judicial authority and defendant for review, the plaintiff had raised the presumption of standing, to which the defendant failed to rebut. Once a plaintiff alleges in its complaint the right to foreclose, the burden then shifts to the defendant to rebut that presumption with concrete evidence.
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