U.S. Bank National v. Cheryl Pearlman (2000)

ARTICULATION

The Defendant/Appellant, CHERYL PEARLMAN, has moved this court for an articulation of both it's denial of the movant's motion to dismiss (# 113) and the granting of the Plaintiff/Appellee's motion for summary judgment (# 109).

As to both motions, it was Pearlman's contention that the plaintiff has failed to properly plead and prove that it is the “actual holder of the mortgage.”   It is her contention that absent a clear showing of who is the actual holder of the mortgage, the Plaintiff/Appellee, U.S. Bank National, cannot aver in its motion for summary judgment that there are no genuine issues of fact and neither can it defend against a motion to dismiss which is predicated upon the claim that it has no standing to bring this action.

Based on the arguments of counsel, the pleadings and the testimony in the form of affidavits submitted by both sides, the Court finds that at all times hereto, the Plaintiff/Appellee was in actual possession of the note and, therefore, was the proper holder and owner of the note at all times relevant to this litigation.

Even if this loan were transferred to any other entity since the commencement of this action, U.S. Bank National can move, pursuant to Practice Book § 9-16, to substitute any successor in interest as the substitute plaintiff and as the real party in interest.   That successor in interest may also elect under C.G.S. § 52-118;  Jacobson v. Robington, 139 Conn. 532 (1953);  and Dime Savings Bank of Wallingford v. Arpavia, 55 Conn.App. 180 (1999), to continue this current action in the name of the assignor as allowed by statute and applicable case law.

In its memorandum of law filed in opposition to Pearlman's motion to dismiss, U.S. Bank National has presented an exhaustive and relevant citation of the applicable case law, statutes and Practice Rules which apply not only to issues raised in its motion for summary judgment, but also to issues raised in Pearlman's motion to dismiss.

Without reiterating that exhaustive recitation, the Court adopts it in its entirety as the basis for the Court's ruling on both the motion for summary judgment and the motion to dismiss.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.