U.S. Bank National Association, as Trustee v. Jeffrey Boyd et al. (2015)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 141)

The defendant, Jeffrey Boyd, asserts that this court does not have subject matter jurisdiction to consider the plaintiff's complaint.  He argues that the plaintiff does not have standing to bring this foreclosure action as it is a securitized mortgage.  Further, the defendant claims to have developed independent cause for believing that the plaintiff may not be properly authorized to pursue this action based upon a search of records of the Securities and Exchange Commission.  Finally, the defendant requested that the court hold an evidentiary hearing to determine the factual issues raised by this motion.

The plaintiff opposes this motion to dismiss and asserts that it has established its standing to bring and maintain this action and that it is the defendant who has failed to properly support any claim that would adversely impact the plaintiff's standing.

Posture of the Case. This action was commenced in January 2010, by service of the writ, summons and complaint as of record appears.  For two and one-half years there was very minimal pleadings activity in this file.  On July 21, 2014, the plaintiff filed a motion for judgment of foreclosure by sale (# 121) which was ultimately granted by the court on November 17, 2014.  The court found the judgment debt to be in excess of $660,000.00 and the fair market value of the property at 111 Scott Road, East Lyme, Connecticut was found to be $295,000.00.  Despite the lack of equity, the court entered a judgment of foreclosure by sale because the United States of America was a defendant in this action.

The foreclosure by sale was scheduled to occur on Saturday, March 14, 2015.  At the time these orders were entered, the court determined that the plaintiff was the holder of the note and the mortgage they sought to foreclose based upon a physical examination of the original note and mortgage.  At the time the judgment was entered, the defendant, Jeffrey Boyd, had not entered an appearance in this action.

Shortly after the foreclosure by sale sign was posted on the premises, the defendant, Jeffrey Boyd, filed an appearance in this action.  On March 3, 2015, the defendant moved to open the judgment, which motion was granted.  A new sale was scheduled to be held on July 18, 2015.

Four days prior to the scheduled foreclosure by sale, the defendant filed this motion challenging the subject matter jurisdiction of the court.

On September 9, 2015, the court heard argument on the motion to dismiss and the plaintiff's objection.  At that hearing, the defendant requested an opportunity to examine the original note and mortgage that were presented to the court at the time the court first entered a judgment of foreclosure by sale.  The court acceded to this request and on October 13, 2015, this court held another hearing on the motion to dismiss.  At that time the court and the defendant had the opportunity to examine the original blue ink promissory note which had been endorsed in blank, the mortgage and assignment of mortgage proffered by the plaintiff.  The affidavit of debt on file with the court stated that the affiant, Sean Bishop, of Ocwen Loan Servicing LLC was the servicer for the plaintiff and that the plaintiff was “the party entitled to enforce the debt.”  The defendant did not present any additional evidence in support of his motion to dismiss.

Discussion

General Statutes § 49–17 codifies the well-established common law principal that the mortgage follows the note pursuant to which only the rightful owner of the note has the right to enforce the mortgage.”  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 230 (2011).  The Appellate court in the case of American Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.App. 127, 133 (2015), discussed what the holder of a note must do to establish a prima facie case that it is standing to support the bringing of a foreclosure action.  “Being the holder of a note satisfies the plaintiff's burden of demonstrating that it is the owner of the note because under our law, the note holder is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49–17.”  “The possession by the bearer of a note endorsed in blank imports prima facie (evidence) that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity.”

The presenting of the original note, endorsed in blank and the supporting affidavits and other documents made the prima facie case that the plaintiff was the holder of the note and entitled to prosecute this foreclosure.  At the hearing that the court held on October 13, 2015, the defendant, Jeffrey Boyd, did not offer any evidence to rebutt the authority of the plaintiff to pursue this foreclosure action.  The defendant did argue that the plaintiff, as trustee, had not demonstrated its authority to act as trustee for the beneficial owners of the note.  Despite the fact that this case has been pending for five years, and the defendant has appeared through an attorney seven months earlier, the defendant did not pursue any discovery of the plaintiff that might provide a foundation for the arguments asserted.

This court is satisfied that the plaintiff has satisfied its burden of establishing prima facie case that it is entitled to pursue this foreclosure action and this court has subject matter jurisdiction.  For these reasons the court denies the defendant's motion to dismiss and will schedule a hearing on the approval of the Committee's report and doings with regard to the July foreclosure sale.

Cosgrove, J.

Cosgrove, Emmet L., J.