Premier Financial, Inc. v. Matthew Stankiewicz et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 127)

I

FACTS

Before the court is the plaintiff's motion for summary judgment as to liability only against both of the defendants, Matthew Stankiewicz and Amy Massaro a/k/a Amy Stankiewicz (“the defendants”).¹  The plaintiff's motion is DENIED because the plaintiff has failed to meet its burden of establishing that it is a holder in due course of the note.

This action concerns an attempt to enforce a promissory note.   By way of a one-count complaint filed on June 12, 2012, the plaintiff, Premier Financial, Inc. (“PFI” or “the plaintiff”), seeks to recover amounts due under a promissory note executed by the defendants in favor of nonparty Premier Building and Development, Inc. (“PBDI”), a related entity of the plaintiff, on August 8, 2008, in the original principal amount of $100,000.   The plaintiff alleges that on September 10, 2009, PBDI transferred all of its rights and interest in the note to the plaintiff and claims that the defendants ceased making monthly payments on the note in April 2011,² resulting in the default of their obligations under the note.   The plaintiff has elected to accelerate the debt and now seeks the amount of $92,990.59.

On September 17, 2012, the defendants filed their answer, five special defenses, and counterclaim.   The first special defense alleges payment in full of the note.   The second special defense alleges that the plaintiff is not a holder in due course of the note.   The third special defense claims common law and statutory set-off pursuant to General Statutes § 52–139.   The fourth special defense claims recoupment.   The fifth special defense alleges a failure of consideration.

On February 7, 2013, the plaintiff filed a motion for summary judgment as to liability only on the ground that there is no genuine issue of material fact and it is entitled to judgment as a matter of law.   The motion is accompanied by the affidavit of Patrick Snow (“Snow affidavit”), who is the president and a shareholder of the plaintiff and also the president and sole shareholder of PBDI. Also accompanying the motion are authenticated exhibits A–P, constituting:  a house/lot purchase agreement that is related to the promissory note;  a copy of the promissory note;  a mortgage given by the defendants to PBDI for property located at 3 Applewood Road, Cromwell, Connecticut (“the mortgage”), which was executed as security for the promissory note; ³  an assignment of the mortgage from PBDI to the plaintiff;  documents evidencing the transfer of money between the plaintiff and PBDI in relation to the assignment of mortgage;  documents from the court's file in an action related to this case under the caption of Stankiewicz v. Snow, Superior Court, judicial district of Middlesex, Docket No. CV–10–5007983–S (“Stankiewicz I ”);  and correspondence between the parties.⁴

On March 12, 2013, the defendants filed an objection and memorandum in support thereof.   The objection is accompanied by three affidavits:  the affidavit of the defendants' attorney of the August 8, 2008 closing, Richard Pentore;  the affidavit of Matthew Stankiewicz;  and the affidavit of Amy Massaro.⁵  The objection is also accompanied by authenticated exhibits 5–11 & 13, as well as unauthenticated exhibits 4, 12 and 14.⁶  Collectively, these exhibits are comprised of:  an award of arbitrator that the defendants obtained in Stankiewicz I;  correspondence between the defendants and Snow concerning the construction of the home for which the note and mortgage were issued;  and documents from the court's file in Stankiewicz I, including a writ of attachment of assets owned by PBDI that was entered in favor of the defendants.   Also accompanying the objection is an unlabeled exhibit consisting of a letter from the plaintiff to the defendants informing them that their mortgage had been assigned by the plaintiff.⁷

II

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

“[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

The plaintiff moves for summary judgment as to liability only on its one count complaint on the ground that there is no genuine issue of material fact regarding (1) whether the plaintiff is a holder in due course of the note, (2) that the defendants are in default and therefore liable pursuant to the terms of the note, and (3) that the defendant's second through fifth special defenses each go to the issue of damages and do not, therefore, preclude judgment as to liability only.   Because the court determines that the plaintiff has failed to met its burden on summary judgment of establishing that it is a holder of the note, the court does not reach the plaintiff's second or third grounds.⁸

With respect to the plaintiff's first ground, that it is a holder in due course, the plaintiff contends that on August 12, 2008, the defendants executed a purchase money note in the amount of $100,000 in favor of PBDI that was secured by the mortgage on the property.   The plaintiff explains that the listing of PBDI as the lender on the note was the result of a scrivener's error, that the plaintiff was the lender in fact, and that all parties involved understood the plaintiff to be the lender.   Accordingly, the defendants were advised that they were to make the monthly payments required by the note to PBDI until “the error was corrected.”

On May 13, 2009, the plaintiff purchased the note from PBDI for $96,914.39.   The plaintiff contends that by doing so it satisfied the requirements of General Statutes § 42a–3–303(a)(1),⁹ thereby becoming a holder in due course.¹⁰  The plaintiff argues that thereafter, on September 10, 2009, PBDI assigned all of its rights an interest in the “[n]ote and [m]ortgage to [the plaintiff].”   In May of 2011, the defendants ceased making payments to the plaintiff, placing themselves in default under the terms of the note.   The plaintiff claims that the defendants have failed and refused to cure the default despite the plaintiff's demand.

As evidentiary support for the above, the plaintiff relies upon the copy of the note it submitted, the copy of the mortgage, the copy of the assignment of mortgage from PBDI to the plaintiff, a copy of a check that the plaintiff claims evidences funds paid by the plaintiff to PBDI for the note, and a copy of a Webster Bank statement evidencing the application of those funds to a line of credit owned by PBDI. The plaintiff also relies heavily upon averments Snow makes in his affidavit.   In particular, and significant to the present motion, Snow states the following in his affidavit:

“13. It was the intention of PBDI that [the plaintiff] would be the lender on the [n]ote and [m]ortgage.

“14. In drafting the [n]ote and [m]ortgage, PBDI's closing attorney mistakenly named PBDI as the lender on said documents, rather than [the plaintiff].

“15. With knowledge of this scrivener's error, and that the [n]ote and [m]ortgage would subsequently be assigned to [the plaintiff], [the defendants] executed the [n]ote and [m]ortgage in favor of PBDI.

“16. On May 13, 2009, [the plaintiff] purchased the [n]ote and [m]ortgage from PBDI for the sum of $96,914.39 ․

“18. Said sum was used to pay down a line of credit PBDI had with Webster Bank ․

“20. As consideration for said sum, PBDI executed an assignment of the Note and Mortgage to [the plaintiff] (“Assignment”) ․

“22. [The defendants] were advised of the [a]ssignment at the time it was executed.”

Snow affidavit, ¶ 13–22.

In response, the defendants present three separate reasons why the plaintiff is not a holder in due course pursuant to General Statutes § 42a–3–302.   First, the defendants reason that the evidence submitted by the plaintiff does not actually establish that the plaintiff paid $96,914.39 for the note because the plaintiff's name is not listed on any of the bank documents.   Second, the defendants contend that although the plaintiff has submitted an assignment of the mortgage, the plaintiff has failed to produce an assignment of the note.   Third, the defendants argue that the plaintiff has failed to establish that if it did take the note, it took the note in good faith.   Specifically, the defendants contend that Snow and the plaintiff were both parties to Stankiewicz I and the companion case to this action, Stankiewicz II, and that therefore the plaintiff cannot claim that it took the note without notice of the defendants' various claims concerning the validity of the note.   The defendants reason that issues concerning motive and intent are issues of fact.

Whether the plaintiff is a holder in due course is governed by article three of the Uniform Commercial Code, codified at General Statutes § 42a–3–101 et seq.¹¹  Relevant to the present dispute, § 42a–3–302(a) provides, in pertinent part:  “ ‘holder in due course’ means the holder of an instrument if:  ․ (2) The holder took the instrument (I) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in § 42a–3–306, and (vi) without notice that any party has a defense or claim in recoupment described in section 42a–3–305(a).”   In order to become a holder, a party that was not an original party to the instrument must take the instrument via a “negotiation.”   See General Statutes § 42a–3–201(a).   Specifically, § 42a–3–201(a) provides:  “ ‘Negotiation’ means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.”  (Emphasis added.)

In the present case the plaintiff, that is to say, PFI, concedes that it was not an original party to the note when it admits that the defendants executed the note in favor of PBDI. The plaintiff's contention, via the Snow affidavit, that the listing of PBDI as the lender was merely a scrivener's error, and that all relevant parties understood that the note was supposed to have been executed in favor of the plaintiff, is inapposite.

First, the defendants dispute this fact in each of the three affidavits they submit in support of their objection, thereby establishing an issue of fact as to whether the plaintiff was a party to the original note.   This alone is enough to deny the plaintiff's motion as it is presented to the court.

Second, even if the defendants did not dispute the plaintiff's factual assertion, the fact remains that the plaintiff does not attempt to claim that the note was initially payable to it, instead claiming that the defendants were directed to make payments to PBDI until the issue was resolved.   Accordingly, pursuant to § 42a–3–110,¹² which identifies the party to whom an instrument is initially payable as the party to whom the issuer intended to make payment, the note in this case was initially payable to PBDI, not the plaintiff.   For this same reason, the plaintiff implicitly concedes that it was not a party because it acknowledges that the defendants were instructed to make payments to PBDI until the note could be assigned to the plaintiff.

Third, had the note been initially payable to the plaintiff, the plaintiff's attempt to purchase the note from PBDI and subsequent attempted assignment would be nonsensical.   The plaintiff would not have had to take either of these two actions if it had been an original party to the note.   Accordingly, for the foregoing three reasons, the plaintiff's contention that all parties understood that the plaintiff was the lender is unavailing.

The question remains, however, whether the plaintiff successfully became a holder in due course when, as it claims, it purchased the note on May 13, 2009, and was assigned the note by PBDI on September 10, 2009.   As previously noted, in order for a subsequent party to become a holder of a note, that party must take the note via a negotiation.   See General Statutes § 42a–3–201(a) ( “ ‘Negotiation’ means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.”  [Emphasis added.] )   Negotiation, in turn, requires an endorsement by the party to whom the instrument is payable at the time of the transfer.   See, General Statutes § 42a–3–204(a) (“ ‘Endorsement’ means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (I) negotiating the instrument ․”);  General Statutes § 42a–3–203(c) (“Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of a lack of endorsement by the transferor, the transferee has a specifically enforceable right to the unqualified endorsement of the transferor, but negotiation of the instrument does not occur until the endorsement is made.”  [Emphasis added.] )

Here, despite the averments in the Snow affidavit that the plaintiff purchased the note from PBDI on May 13, 2009 and was allegedly assigned the note by PBDI on September 10, 2009, the documentary evidence Snow submits with his affidavit in support of these statements does not support the conclusion that the plaintiff is a holder in due course.   The copy of the note submitted by Snow, identified as “Exhibit B,” and which identifies PBDI as the party to whom the note is payable, does not contain the endorsement of PBDI in favor of the plaintiff;  see General Statutes § 42a–3–205(a) (defining “special endorsement”);  nor does it contain PBDI's endorsement of the note in blank.   See General Statutes § 42a–3–205(b) (defining “blank endorsement”).   In fact, it contains no endorsement of any kind.   Thus, there is simply no indication on the face of the note that it was ever endorsed, much less negotiated, to the plaintiff.

Nevertheless, the plaintiff points to the assignment of the mortgage as evidence that it is a holder in due course of the note.   The assignment of mortgage submitted by the plaintiff, identified as “Exhibit F,” states:  “Premier Building & Development, Inc ․ assigns to Premier Financial, Inc ․ a certain Mortgage from Matthew and Amy (Massaro) Stankiewicz to Premier Building & Development, Inc., in the original principal amount of One Hundred Thousand Dollars and 00/100 ($100,000) Dollars dated August 12, 2008 7 [sic] and recorded in Volume:  1266 at Page:  291 of the Town of Cromwell, CT Land Records.   Said mortgage is secured by property known as 3 Applewood Road, Cromwell, CT.” Crucially, however, the assignment makes no mention of the assignment of the note.   Even if it did, it would not give the plaintiff status a “holder” as that term is understood by the Uniform Commercial Code but, rather, status as a mere transferee—a type of status that the plaintiff does not argue it possesses.¹³

Further, that the plaintiff was assigned the mortgage does not, as a matter of law, serve as dispositive evidence that the plaintiff was also assigned the note.   First, a note and mortgage are two separate legal devices.   See J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 318 (2013) (“It has long been established at common law that [t]he mortgage is an incident only to the debt, which is the principal ․” [Emphasis added;  internal quotation marks omitted.] )

Second, it is true that a mortgage follows a note.   See RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 32 A.3d 307 (2011) (mortgage follows note), overruled on other grounds by J.E. Robert Co. v. Signature Properties, LLC, supra, 309 Conn. 325 n.18;  see also, Id. (mortgage follows note).   The inverse is not, however, also true;  the note does not follow the mortgage.   See Id., 321 citing with approval Wells Fargo Bank, N.A. v. Heath, 280 P.3d 328, 333 (Okla.2012) (party seeking foreclosure can demonstrate its right to enforce instrument under UCC, including as nonholder who has rights of holder, because mortgage follows note not vice versa).   Were it true that a note follows the mortgage, the Uniform Commercial Code's scheme of negotiability would be irreparably hampered.

Accordingly, in the present case, the plaintiff has not met its burden of satisfying the court that it is quite clear what the truth is—that is to say, the plaintiff has not met its burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law as the defendants' liability on the note to the plaintiff.   No showing the plaintiff has made establishes that the plaintiff is a holder in due course of the note, or even a mere holder, of the note.   The plaintiff's motion must therefore be denied.

Given the foregoing conclusion, the court will not address the parties' arguments concerning whether the plaintiff took the instrument for value and in good faith without notice of the defendants' claims concerning the validity and enforcement of the instrument, nor will the court address whether defendants are in default or whether the defendants have stated valid special defenses that would defeat summary judgment.

III

CONCLUSION

For the foregoing reasons, the plaintiff's motion for summary judgment (# 127) is DENIED.

BY THE COURT,

Abrams, J.

FOOTNOTES

FN1. This case has a companion case under the caption:  Stankiewicz v. Snow, Superior Court, judicial district of New Britain, Docket No. CV–12–6014215–S (“Stankiewicz II ”), in which Massaro is identified as “Amy Stankiewicz.”   The record before the court reflects that at various times this defendant has utilized both names.   In order to avoid confusion, the court identifies Massaro as “Massaro” when it is appropriate to refer to this defendant individually..  FN1. This case has a companion case under the caption:  Stankiewicz v. Snow, Superior Court, judicial district of New Britain, Docket No. CV–12–6014215–S (“Stankiewicz II ”), in which Massaro is identified as “Amy Stankiewicz.”   The record before the court reflects that at various times this defendant has utilized both names.   In order to avoid confusion, the court identifies Massaro as “Massaro” when it is appropriate to refer to this defendant individually.

FN2. At least once in its moving papers, the plaintiff refers to May 2011 as the month during which the defendants ceased making payments on the note.   This discrepancy is not material to the dispositive issue on this motion, which is whether the plaintiff is a holder in due course of the note..  FN2. At least once in its moving papers, the plaintiff refers to May 2011 as the month during which the defendants ceased making payments on the note.   This discrepancy is not material to the dispositive issue on this motion, which is whether the plaintiff is a holder in due course of the note.

FN3. Although the plaintiff submits a copy of the mortgage that secures the promissory note, the plaintiff does not seek in the present action to foreclose the mortgage..  FN3. Although the plaintiff submits a copy of the mortgage that secures the promissory note, the plaintiff does not seek in the present action to foreclose the mortgage.

FN4. Although the court may not explicitly refer to each exhibit individually throughout the course of this memorandum, the court has duly considered each of the exhibits submitted by the various parties..  FN4. Although the court may not explicitly refer to each exhibit individually throughout the course of this memorandum, the court has duly considered each of the exhibits submitted by the various parties.

FN5. The affidavit identifies the affiant as Amy Stankiewicz.   See footnote 1 of this opinion..  FN5. The affidavit identifies the affiant as Amy Stankiewicz.   See footnote 1 of this opinion.

FN6. “Despite the rule that all evidence supporting and opposing a motion for summary judgment must be admissible at trial, a court has discretion to consider unauthenticated evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).”  (Internal quotation marks omitted.)   Clukey v. Sweeney, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–06–5001731–S (December 30, 2009, Bellis, J.).   The plaintiff has not objected to the admissibility of any of the documentary evidence submitted by the defendants.   The court will therefore consider those documents admissible for the purposes of the present motion..  FN6. “Despite the rule that all evidence supporting and opposing a motion for summary judgment must be admissible at trial, a court has discretion to consider unauthenticated evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).”  (Internal quotation marks omitted.)   Clukey v. Sweeney, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–06–5001731–S (December 30, 2009, Bellis, J.).   The plaintiff has not objected to the admissibility of any of the documentary evidence submitted by the defendants.   The court will therefore consider those documents admissible for the purposes of the present motion.

FN7. The court also treats this exhibit as admissible.   See footnote 6 of this opinion..  FN7. The court also treats this exhibit as admissible.   See footnote 6 of this opinion.

FN8. The court is aware that, with respect to the second and third grounds asserted by the plaintiff, the parties hotly dispute whether the defendants are in default in light of the attachment of assets issued by the court, Holzberg, J., in Stankiewicz I. Because the plaintiff has failed to establish the legal theory upon which it claims it is entitled to payment on the note, the court does not address this issue..  FN8. The court is aware that, with respect to the second and third grounds asserted by the plaintiff, the parties hotly dispute whether the defendants are in default in light of the attachment of assets issued by the court, Holzberg, J., in Stankiewicz I. Because the plaintiff has failed to establish the legal theory upon which it claims it is entitled to payment on the note, the court does not address this issue.

FN9. Section 42a–3–303(a) provides:  “An instrument is issued or transferred for value if:  (1) the instrument is issued or transferred for a promise of performance, to the extent the promise has been performed ․”.  FN9. Section 42a–3–303(a) provides:  “An instrument is issued or transferred for value if:  (1) the instrument is issued or transferred for a promise of performance, to the extent the promise has been performed ․”

FN10. As analyzed more completely below, despite arguing that the note was transferred for value, which is a prerequisite to becoming a holder in due course;  see General Statutes § 42a–3–302(a)(2)(I) (holder in due course statute requires holder to take instrument “for value”);  the plaintiff does not attempt to argue or otherwise show that the note was “negotiated” as that term is understood by Article three of the Uniform Commercial Code..  FN10. As analyzed more completely below, despite arguing that the note was transferred for value, which is a prerequisite to becoming a holder in due course;  see General Statutes § 42a–3–302(a)(2)(I) (holder in due course statute requires holder to take instrument “for value”);  the plaintiff does not attempt to argue or otherwise show that the note was “negotiated” as that term is understood by Article three of the Uniform Commercial Code.

FN11. Typically, whether a party is a holder in due course is irrelevant until there has been a showing that the note in question is a negotiable instrument as defined by § 42a–3–104.   Here, however, neither party has raised the issue of whether the note properly qualifies as a negotiable instrument, each instead choosing to argue only whether the plaintiff qualifies as a holder in due course.   Accordingly, the court construes the parties to have implicitly agreed, for the purposes of this motion, that the note is a negotiable instrument governed by the strictures of article three of the Uniform Commercial Code..  FN11. Typically, whether a party is a holder in due course is irrelevant until there has been a showing that the note in question is a negotiable instrument as defined by § 42a–3–104.   Here, however, neither party has raised the issue of whether the note properly qualifies as a negotiable instrument, each instead choosing to argue only whether the plaintiff qualifies as a holder in due course.   Accordingly, the court construes the parties to have implicitly agreed, for the purposes of this motion, that the note is a negotiable instrument governed by the strictures of article three of the Uniform Commercial Code.

FN12. Section 42a–3–110(a) provides, in relevant part:  “The person to whom an instrument is initially payable is determined by the intent of the person, whether or not authorized, signing as, or in the name or behalf of, the issuer of the instrument.”.  FN12. Section 42a–3–110(a) provides, in relevant part:  “The person to whom an instrument is initially payable is determined by the intent of the person, whether or not authorized, signing as, or in the name or behalf of, the issuer of the instrument.”

FN13. Connecticut's version of the Uniform Commercial Code permits a party that is not a holder of an instrument but who otherwise has acquired the rights of a holder to enforce the instrument.   See General Statutes § 42a–3–203(b) (“Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course ․”) and General Statutes § 42a–3–301 (defining “Person entitled to enforce” an instrument as a nonholder in possession of the instrument who has the rights of a holder).   Here, the plaintiff has not offered any substantive analysis regarding whether it is a nonholder in possession with the rights of a holder.   See also, e.g., J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (standing to enforce mortgage based upon underlying note is defined, in part, by Uniform Commercial Code's provisions in Article three regarding which parties may enforce a note).   Although the plaintiff does contend that it was “assigned” the note, which could be construed as an attempt to argue that it is a nonholder transferee with the rights of a holder, the evidence submitted by the plaintiff does not support this contention and, in any case, the plaintiff's analysis on that point stops there.   Instead, the plaintiff focuses its efforts on its contention that it is a holder in due course.   The court will not, therefore, endeavor to analyze whether the plaintiff, despite having failed to establish that it is a holder in due course of the instrument, otherwise possesses the rights of a holder in due course..  FN13. Connecticut's version of the Uniform Commercial Code permits a party that is not a holder of an instrument but who otherwise has acquired the rights of a holder to enforce the instrument.   See General Statutes § 42a–3–203(b) (“Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course ․”) and General Statutes § 42a–3–301 (defining “Person entitled to enforce” an instrument as a nonholder in possession of the instrument who has the rights of a holder).   Here, the plaintiff has not offered any substantive analysis regarding whether it is a nonholder in possession with the rights of a holder.   See also, e.g., J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (standing to enforce mortgage based upon underlying note is defined, in part, by Uniform Commercial Code's provisions in Article three regarding which parties may enforce a note).   Although the plaintiff does contend that it was “assigned” the note, which could be construed as an attempt to argue that it is a nonholder transferee with the rights of a holder, the evidence submitted by the plaintiff does not support this contention and, in any case, the plaintiff's analysis on that point stops there.   Instead, the plaintiff focuses its efforts on its contention that it is a holder in due course.   The court will not, therefore, endeavor to analyze whether the plaintiff, despite having failed to establish that it is a holder in due course of the instrument, otherwise possesses the rights of a holder in due course.

Abrams, James W., J.