U.S. Bank National Association as Trustee v. Donna Foote (2012)

MEMORANDUM OF DECISION

This case involves the foreclosure of a residential mortgage.   Defendant filed a Motion to Dismiss dated June 7, 2011 and the plaintiff filed an Objection dated June 11, 2011.   The parties presented oral argument before the court on November 17, 2011 and each filed a post-hearing brief dated December 16, 2011.   The critical issue in this case is whether plaintiff demonstrated by a preponderance of the evidence at the hearing that it was the holder of the note at the time this action commenced.  “[A] note holder must demonstrate ownership of the underlying debt to exercise the equitable power of foreclosure.”  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231 (2011).

While the court recognizes that it is the defendant's burden to rebut the presumption that a holder has the right to foreclose a mortgage, it is still the plaintiff's burden to prove that it was in possession of the note at the time the foreclosure commenced.  Id., 232.   At the hearing of this matter, plaintiff's witness could not equivocally state that U.S. Bank possessed the note at the time the foreclosure commenced.¹  However, the applicable law appears to support that proposition that actual possession of the note by the plaintiff is unnecessary if it is being held by plaintiff's agent, which plaintiff argues in this case was Wells Fargo.   See, Official Comment 1 to Uniform Commercial Code § 3–201, codified as General Statutes § 42a–3–201:  “[N]obody can be a holder without possessing the instrument, either directly or through an agent.”

Even if one were to view the evidence as supporting the proposition that Wells Fargo was serving as plaintiff's agent at the time this action was commenced, plaintiff's witness could not state with any degree of certainty whether Wells Fargo possessed the note at that time.   As a result, plaintiff did not prove by a preponderance of the evidence that it was the holder of the note at the time the action was commenced and defendant's Motion to Dismiss is hereby granted.

James W. Abrams, Judge

FOOTNOTES

FN1. Plaintiff's witness, Crystal Kearse, was actually an employee of plaintiff's agent, American Home Mortgage Servicing, Inc..  FN1. Plaintiff's witness, Crystal Kearse, was actually an employee of plaintiff's agent, American Home Mortgage Servicing, Inc.

Abrams, James W., J.