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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. RODNEY THOMPSON ET AL.
(AC 37362)
Beach, Sheldon and Harper, Js
Argued January 4—officially released March 22, 2016
(Appeal from Superior Court, judicial district of
Hartford, Vacchelli, J.)
Rodney Thompson, self-represented, the appellant
(named defendant).
Jordan W. Schur, for the appellee (substitute
plaintiff).
Opinion
HARPER, J. In this foreclosure action, the self-repre-
sented defendant Rodney Thompson1 appeals from the
judgment of strict foreclosure, rendered in favor of the
plaintiff, Deutsche Bank National Trust Company, as
trustee.2 On appeal, the defendant claims, among other
things, that the plaintiff lacked standing to bring this
action because it was not in possession of the subject
note at the time the action was commenced.3 Because
the resolution of this claim is dependent upon a factual
finding that is not part of the appellate record, and
because this claim implicates the subject matter juris-
diction of the trial court, we are unable to review the
merits of this appeal. We therefore reverse the judgment
of the trial court and remand the case for further pro-
ceedings.
The following facts and procedural history guide our
analysis. On January 25, 2007, the defendant executed
a fixed-rate balloon note in favor of New Century Mort-
gage Company in exchange for a loan in the principal
amount of $213,600 to purchase real property in West
Hartford. On March 9, 2009, the plaintiff commenced
foreclosure proceedings against the defendant. In para-
graph four of the plaintiff’s complaint, it alleged that
the defendant executed and delivered a mortgage to
Mortgage Electronic Registration Systems, Inc.
(MERS), that MERS assigned said mortgage to the plain-
tiff, and that the plaintiff is the holder of said mortgage
and the note securing the mortgage.4
On August 18, 2009, the plaintiff filed a motion for
default for failure to plead, which was granted by the
clerk. The defendant never filed a motion to open judg-
ment following entry of default, nor did he ever move
to set aside the default. Also on August 18, 2009, the
plaintiff filed a motion for judgment of strict foreclo-
sure. The motion for judgment of strict foreclosure was
granted by the court, Vacchelli, J., but not until Septem-
ber 16, 2013—more than four years after it was filed.
The reasons for delay were that the parties underwent
lengthy foreclosure mediation and the defendant
attempted to remove the case to federal court.
On November 6, 2013, the defendant filed a petition
in bankruptcy under chapter 7 of the United States
Code in the United States Bankruptcy Court for the
District of Connecticut. On April 16, 2014, the bank-
ruptcy court, Dabrowski, J., issued a discharge of debtor
order pursuant to 11 U.S.C. § 727. The plaintiff subse-
quently filed a motion to open judgment and reset the
law days on August 22, 2014. This motion was granted
by the court, Vacchelli, J., on September 22, 2014. The
court did not file a memorandum of decision with either
the initial September 16, 2013 judgment of strict foreclo-
sure or the September 22, 2014 order opening the judg-
ment and setting new law days, and no transcript of
any proceedings before the trial court was filed with
this court. This appeal followed.
On appeal, the defendant challenges the plaintiff’s
standing to bring the present foreclosure action. Specifi-
cally, the defendant claims that the plaintiff did not own
or hold the subject note when it filed the foreclosure
complaint, and that the defendant’s mortgage lien—
which the defendant claims is invalid—did not survive
the bankruptcy proceedings. The plaintiff responds that
the record is inadequate for review. The plaintiff further
argues that because it alleged that it was the holder of
the note, and because the defendant failed to plead and
was defaulted, the defendant has admitted these crucial
jurisdictional allegations and cannot challenge them
on appeal.
‘‘We begin our analysis with the subject matter juris-
diction claim and the applicable standard of review.
. . . Subject matter jurisdiction involves the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . [T]his court has often
stated that the question of subject matter jurisdiction,
because it addresses the basic competency of the court,
can be raised by any of the parties, or by the court
sua sponte, at any time.’’ (Citations omitted; internal
quotation marks omitted.) Peters v. Dept. of Social Ser-
vices, 273 Conn. 434, 441–42, 870 A.2d 448 (2005). ‘‘A
court does not have subject matter jurisdiction to hear
a matter unless the plaintiff has standing to bring the
action.’’ Western Boot & Clothing Co. v. L’Enfance Mag-
ique, Inc., 81 Conn. App. 486, 488, 840 A.2d 574, cert.
denied, 269 Conn. 903, 852 A.2d 737 (2004).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . [When] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
In addition, because standing implicates the court’s sub-
ject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any time.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Equity One, Inc. v. Shivers, 310 Conn. 119, 125–26, 74
A.3d 1225 (2013).
It is well established that ‘‘the holder of a note has
standing to bring an action for strict foreclosure . . . .’’
Mengwall v. Rutkowski, 152 Conn. App. 459, 463, 102
A.3d 710 (2014); see also Fleet National Bank v. Naza-
reth, 75 Conn. App. 791, 794–95, 818 A.2d 69 (2003)
(plaintiff who held mortgage but not note lacked stand-
ing to institute foreclosure proceedings). ‘‘[A] holder of
a note is presumed to be the owner of the debt, and
unless the presumption is rebutted, may foreclose the
mortgage under [General Statutes] § 49-17. The posses-
sion by the bearer of a note [e]ndorsed in blank imports
prima facie 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 production of the note establishes his
case prima facie against the makers and he may rest
there.’’ (Internal quotation marks omitted.) Equity One,
Inc. v. Shivers, supra, 310 Conn. 135.
If the plaintiff did not hold the note at the time it
commenced this action, then it would have lacked
standing and the case must be dismissed. The key ques-
tion for us to resolve, therefore, is when the note came
into the plaintiff’s possession. We cannot answer this
question for two reasons. First, after a thorough review
of the record, we conclude that it contains no docu-
ments demonstrating when the plaintiff came to hold
or own the note. The only note in the record before us
is the fixed-rate balloon note. This note is payable to
the original lender, New Century Mortgage Company,
and contains no endorsement. Although the record con-
tains documents memorializing the assignment of the
mortgage from MERS to the plaintiff, there are no
assignment documents with respect to the note. Thus,
the record provides no clues as to when, if ever, the
plaintiff acquired the note. Second, the trial court made
no factual finding as to when the plaintiff acquired the
note. No memorandum of decision accompanies the
court’s judgment of strict foreclosure or order on the
plaintiff’s motion to open judgment and reset the law
days.5 Additionally, no transcript of any hearing in
which the court might have made such a finding has
been provided for our review. At oral argument before
this court, the plaintiff’s counsel asserted that in order
to be entitled to a judgment of strict foreclosure, the
note would have had to have been presented to the
trial court and, therefore, the note must have been pre-
sented in the present case. We have no evidence before
us that this occurred. Because the record lacks a crucial
jurisdictional finding by the trial court, and further con-
tains no evidence of when the plaintiff acquired the
note, we cannot review whether the plaintiff lacked
standing to commence this action.
This court’s holding in Deutsche Bank National Trust
Co. v. Bialobrzeski, 123 Conn. App. 791, 3 A.3d 183
(2010), is instructive to our analysis. The plaintiff in
that case brought an action against the self-represented
defendant to foreclose a mortgage on real property in
New Britain. The plaintiff filed a motion for default for
failure to plead, which was granted by the clerk. Id.,
792–93. The defendant subsequently answered, leaving
the plaintiff to its proof with respect to its allegation
that it was the holder of the note and mortgage. Id.,
793 and n.2. As a result of the defendant’s answer, the
court opened the default. Id., 793.
The plaintiff in Bialobrzeski subsequently filed an
unopposed motion for summary judgment, which was
granted as to liability only. Id. Among the documents
submitted by the plaintiff in support of its motion for
summary judgment was a fixed-adjustable rate note,
which was payable to the original lender, Long Beach
Mortgage Company. Id., 793 n.3. This note was not
endorsed. Id. Subsequently, the defendant filed a motion
to dismiss, arguing that the note contained no endorse-
ment and no date. Id., 796. The trial court denied the
defendant’s motion to dismiss. Id., 794.
On appeal, the defendant in Bialobrzeski claimed
that the plaintiff was not in possession of the subject
note at the time the action was commenced. Id., 792.
This court noted that ‘‘[t]he key to resolving the defen-
dant’s claim is a determination of when the note came
into the plaintiff’s possession.’’ Id., 797. Ultimately, this
court held that ‘‘[w]e cannot review the claim because
[the trial court] made no factual finding as to when the
plaintiff acquired the note. Without that factual determi-
nation, we are unable to say whether [the trial court]
improperly denied the defendant’s motion to dismiss.’’
Id., 797–98. Noting that ‘‘appellate courts do not make
findings of fact’’; id., 800; this court ruled that ‘‘[w]hen
the question regarding the plaintiff’s standing was
raised, the [trial] court should have held a hearing to
determine whether the plaintiff was the owner or holder
of the note at the time the action was commenced.’’
Id., 799–800.
The record in the present case is likewise devoid of
an endorsed note and a factual finding by the trial court
concerning if and when the plaintiff acquired the note.
The plaintiff nevertheless argues that the defendant
cannot challenge the plaintiff’s standing because the
defendant failed to set aside the default judgment. In
the plaintiff’s view, because it alleged that it held the
note, and because a default judgment was rendered
in its favor, its status as holder of the note has been
conclusively established and cannot be challenged by
the defendant on appeal. We disagree. ‘‘A default admits
the material facts that constitute a cause of action . . .
and entry of default, when appropriately made, conclu-
sively determines the liability of a defendant.’’
(Emphasis altered; internal quotation marks omitted.)
Whitaker v. Taylor, 99 Conn. App. 719, 725, 916 A.2d 834
(2007). Although it is established that entry of default
conclusively establishes the liability of a defendant,
the plaintiff offers no authority to support its position
that entry of default conclusively establishes the subject
matter jurisdiction of the court. Moreover, we disagree
with this position because it essentially posits that a
party can waive a subject matter jurisdiction challenge
by virtue of a pleading deficiency, namely, a failure to
reply to jurisdictional allegations during the pleading
stage. This is wholly unsupportable because ‘‘[a] subject
matter jurisdictional defect may not be waived . . .
[or jurisdiction] conferred by the parties, explicitly or
implicitly.’’ (Internal quotation marks omitted.) Kleen
Energy Systems, LLC v. Commissioner of Energy &
Environmental Protection, 319 Conn. 367, 380–81, 125
A.3d 905 (2005).
Additionally, we reject the plaintiff’s argument that an
inadequate record precludes our review of its standing.
‘‘The duty to provide this court with a record adequate
for review rests with the appellant. . . . It is incumbent
upon the appellant to take the necessary steps to sustain
its burden of providing an adequate record for appellate
review. Practice Book § [60-5]. . . . It is not the func-
tion of this court to find facts. . . . Our role is . . .
to review claims based on a complete factual record
developed by a trial court. . . . Without the necessary
factual and legal conclusions furnished by the trial court
. . . any decision made by us respecting [the defen-
dant’s claims] would be entirely speculative.’’ (Internal
quotation marks omitted.) Macricostas v. Kovacs, 67
Conn. App. 130, 133, 787 A.2d 64 (2001). Even if we
were to accept that the record is inadequate, we are
not foreclosed from considering the standing issue. To
begin with, although it is indeed the burden of the defen-
dant, as the appellant, to provide an adequate record
for review, it is ‘‘[t]he plaintiff [who] bears the burden
of proving subject matter jurisdiction, whenever and
however raised.’’ (Internal quotation marks omitted.)
Fort Trumbull Conservancy, LLC v. New London, 265
Conn. 423, 430 n.12, 829 A.2d 801 (2003). In Bialobrz-
eski, a case with similar facts and circumstances, this
court held that ‘‘[a]lthough it is the appellant’s responsi-
bility to provide an adequate record for review; see
Practice Book §§ 60-5 and 61-10; that cannot be the end
of the matter because [whether a bank acquired a note
before the commencement of a foreclosure action] con-
cerns the trial court’s subject matter jurisdiction.’’
Deutsche National Bank Trust Co. v. Bialobrzeski,
supra, 123 Conn. App. 798. On the basis of the foregoing
analysis, we, like the court in Bialobrzeski, are unable
to review the defendant’s subject matter jurisdiction
claim.
The judgment is reversed and the case is remanded
for a determination of the jurisdictional issue and for
further proceedings according to law.
In this opinion the other judges concurred.
1
Also named as a defendant in this action was Mortgage Electronic Regis-
tration Systems, Inc., but it did not participate in this appeal. We refer to
Thompson as the defendant.
2
The trial court granted the plaintiff’s motion to substitute Deutsche Bank
National Trust Company as Trustee for the Registered Holders of Morgan
Stanley ABS Capital I, Inc., Trust 2007-NC4 Mortgage Pass-Through Certifi-
cates, Series 2007-NC4, as the party plaintiff. We refer to the substitute
plaintiff as the plaintiff in this opinion.
3
The defendant raised a number of additional claims on appeal, including
claims that the mortgage was discharged in bankruptcy and that his due
process rights were violated. Because we conclude that we are unable to
review the defendant’s subject matter jurisdiction claim, we do not address
these additional claims.
4
Although the plaintiff alleged that it was the holder of the mortgage as
of the filing of the complaint in March, 2009, the assignment of mortgage
between it and MERS is dated June 24, 2009. At oral argument before this
court, the plaintiff’s counsel conceded that the mortgage had not been
assigned to the plaintiff until after the complaint was filed.
5
The court made a number of factual findings in granting the motion to
open judgment and reset the law days, such as the balance of the debt and
the property’s fair market value, but none concerning the plaintiff’s status
as holder of the note.