November 25, 2014
by Christopher R. Thompson
Bendett & McHugh, P.C. – USFN Member (Connecticut)
A recent Connecticut Appellate Court opinion addressed the frequently litigated matter of a mortgagee’s standing to foreclose a mortgage, in light of an alleged issue regarding the authenticity of the underlying promissory note. The court ultimately concluded that the defendant failed to meet his burden of establishing a genuine issue of fact that required a full evidentiary hearing and, therefore, affirmed the trial court’s foreclosure judgment. [Mengwall v. Rutkowski, 152 Conn. App. 459].
Pertinent facts: The defendant contested foreclosure. Throughout the course of litigation, the plaintiff entered into evidence two different versions of the note: first a copy, and then the original document (the record explains that the plaintiff initially believed the original document to be lost, but it was subsequently located). Significantly, the copy of the note, which was originally entered into evidence, contained a signature in one corner of the document, but that signature was not present on the original note.
The plaintiff eventually obtained a foreclosure judgment, and the defendant appealed. The Appellate Court briefly surveyed the applicable case law regarding standing, as follows: Production of an original note by a plaintiff creates a presumption that the party producing the note has standing to enforce it. [RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011)]. Further, a full evidentiary hearing on the alleged standing issue is only warranted if a defendant can establish the existence of a genuine issue of jurisdictional fact. [Equity One, Inc. v. Shivers, 310 Conn. 119, 135, 74 A.3d 1225 (2013)].
On appeal, the defendant argued that the discrepancy between the two documents created a “genuine issue of jurisdictional fact” regarding the authenticity of the original note and, therefore, the plaintiff’s standing to enforce it. Thus, the defendant claimed that the trial court’s failure to conduct a full evidentiary hearing on the alleged standing issue constituted reversible error.
The Appellate Court disagreed, finding that the discrepancy between the two notes did not constitute a “genuine issue of jurisdictional fact” that would have warranted the full evidentiary hearing sought by the defendant. The court noted, “[t]he additional signature on the copy of the note admitted into evidence during the summary judgment proceeding does nothing to vitiate the authenticity of the original note admitted into evidence during the motion to dismiss proceeding.” The court then affirmed the trial court’s foreclosure judgment.
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