GMAC Mortgage, LLC v. Ford

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
 GMAC MORTGAGE, LLC v. ERIC M. FORD ET AL.
(AC 38712)
Alvord, Sheldon and Mullins, Js.*

Syllabus

The plaintiff G Co. sought to foreclose a mortgage on certain real property
previously owned by the defendant F. In its complaint, G Co. alleged
that it was the holder of a promissory note that was secured by a
mortgage on the subject property and that F was in default of his
obligation under the note. The trial court granted G Co.’s motion for
summary judgment and rendered a judgment of strict foreclosure, from
which F appealed to this court, which affirmed the judgment and
remanded the case to the trial court for the purpose of setting new law
days. On remand, G Co. filed a motion to substitute W Co., as trustee
for the H trust, as the plaintiff, alleging that W Co. was the real party
in interest, as it had acquired the right to collect the debt due on the
subject note through G Co.’s assignment of the mortgage to it. F did
not object to the substitution, and the trial court granted the motion.
Thereafter, W Co. filed a motion to open the judgment of strict foreclo-
sure for the purpose of setting new law days. In his opposition to the
motion to open, F argued, inter alia, that, pursuant to Jesinoski v.
Countrywide Home Loans, Inc. (135 S. Ct. 709), which held that if a
borrower notifies his creditor of his intention to rescind a loan within
three years after the loan is consummated, the rescission is timely under
the Truth in Lending Act (15 U.S.C. § 1601 et seq.), he had not defaulted
on the note and mortgage because he had exercised his right to rescind
the loan by mailing to G Co. a notice of right to cancel within the
statutory rescission period. The trial court granted W Co.’s motion to
open the judgment of strict foreclosure and set new law days. Prior to
the trial court’s ruling on W Co.’s motion to open, F had filed a motion
to open the judgment, arguing that the judgment should be opened
because Jesinoski had overruled any conclusion by this court in his
prior appeal that his rescission of the loan was not effective under the
Truth in Lending Act. The trial court denied F’s motion to open the
judgment, and F appealed, challenging the trial court’s rulings on the
parties’ respective motions to open the judgment. Held:
1. F could not prevail on his claim that the trial court erred in granting W
Co.’s motion to open the judgment of strict foreclosure for the purpose
of setting new law days and denying his motion to open the judgment:
F’s reliance on Jesinoski to support his claim was misplaced, as that
case did not stand for the proposition that his purported rescission of
the subject loan was effective as a matter of law to forestall the foreclo-
sure action simply because he alleged that he had mailed a notice of
right to cancel to G Co. within three years of the loan’s consummation,
and, therefore, Jesinoski was inapplicable to the facts of the present
case, and the trial court did not abuse its discretion in granting W Co.’s
motion to open the judgment for the purpose of setting new law days.
2. F’s claim that W Co. lacked standing to maintain the foreclosure action
because the H trust did not legally exist was unavailing: F presented
no competent evidence, either at the time of the unopposed substitution
of W Co. as the plaintiff or on appeal, that the H trust had no legal
existence, nor any proof to rebut G Co.’s jurisdictional allegations in
its complaint that it was the holder of the subject note and mortgage
when it commenced the action; moreover, because a substitute plaintiff
stands in the shoes of the original plaintiff, the court was entitled to
take the facts alleged in the complaint, as augmented by the facts alleged
in the motion to substitute, and to conclude that W Co.’s standing had
been established on that basis.
Argued September 11—officially released November 28, 2017

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the defendant Ali Shah Bey, and for
other relief, brought to the Superior Court in the judicial
district of Fairfield, where the court, Hartmere, J.,
denied the named defendant’s motion to dismiss; there-
after, the court, Hon. Edward F. Stodolink, judge trial
referee, granted the plaintiff’s motion for summary; sub-
sequently, the court, Hartmere, J., rendered a judgment
of strict foreclosure, and the named defendant appealed
to this court, which affirmed the judgment and
remanded the case for the purpose of setting new law
days; thereafter, Wells Fargo Bank, N.A., as Trustee for
Harborview Mortgage Loan Trust 2006-10 was substi-
tuted as the plaintiff; subsequently, the court, Hon.
Alfred J. Jennings, Jr., judge trial referee, granted the
substitute plaintiff’s motion to open the judgment and
extend the law days; thereafter, the court, Hon. Edward
F. Stodolink, judge trial referee, denied the named
defendant’s motion to open the judgment, and the
named defendant appealed. Affirmed.
Eric M. Ford, self-represented, the appellant
(named defendant).
Marissa I. Delinks, for the appellee (substitute
plaintiff).
 Opinion

ALVORD, J. The self-represented defendant in this
residential mortgage foreclosure action, Eric M. Ford,1
appeals2 from the judgment of the trial court granting
the motion of the plaintiff Wells Fargo Bank, N.A., as
Trustee for Harborview Mortgage Loan Trust 2006-10
(Wells Fargo),3 to open a judgment of strict foreclosure
and to extend the law days, and denying the defendant’s
motion to open the judgment. On appeal, the defendant
claims that (1) in light of the United States Supreme
Court’s decision in Jesinoski v. Countrywide Home
Loans, Inc., U.S. , 135 S. Ct. 790, 190 L. Ed. 2d
650 (2015), the trial court erred in granting the plaintiff’s
motion to open and denying his motion to open; and
(2) the plaintiff lacks standing to maintain this action.
We affirm the judgment of the trial court.
We adopt, in relevant part, the following facts and
procedural history set forth in this court’s opinion in
GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 73
A.3d 742 (2013) (Ford I): ‘‘In July, 2006, the defendant
executed a note in the amount of $177,000 along with
a mortgage on property located at 123 Roosevelt Street
in Bridgeport (subject property) as security for the note.
On March 15, 2010, the plaintiff commenced this action,
alleging that the defendant had defaulted on his pay-
ment obligations under the note and had failed to cure
the default after being notified, and that the plaintiff
had exercised its right to accelerate the balance due,
to declare the note due in full and to foreclose the
mortgage securing the note. The defendant filed an
appearance in this matter on August 19, 2010.
***
‘‘On April 18, 2011, the plaintiff filed a motion for
summary judgment. . . . The defendant filed a two
page objection to the motion for summary judgment
on May 31, 2011. On June 9, 2011 . . . [t]he defendant
. . . filed an amended opposition to the motion for
summary judgment . . . . The defendant did not sub-
mit any opposing affidavits or other documentary proof
in support of his original or amended oppositions. . . .
On July 28, 2011, the parties appeared before the court
to argue the plaintiff’s motion for summary judgment,
and, following a brief hearing, the court orally granted
the motion.
***
‘‘On May 7, 2012, the plaintiff filed a motion for a
judgment of strict foreclosure. The motion was heard
by the court on May 29, 2012. After brief arguments by
the parties, the court granted the motion orally, making
all the necessary factual findings and setting law days
to commence on August 28, 2012.’’ (Footnotes omitted.)
Id., 168–72. On June 20, 2012, the defendant appealed
from the judgment of strict foreclosure to this court,
granted the plaintiff’s motion for summary judgment as
to liability on the foreclosure complaint and rendered
a judgment of strict foreclosure. Id., 168. On July 16,
2013, this court affirmed the judgment of the trial court
and remanded the case for the purpose of setting new
law days. Id., 187.
On May 20, 2015, on remand, GMAC moved to substi-
tute Wells Fargo as the plaintiff pursuant to Practice
Book §§ 9-16 and 9-23. In its memorandum of law in
support of this motion, GMAC argued that Wells Fargo
was the real party in interest, as it had acquired the
right to collect the debt due on the loan in foreclosure
through an assignment of the mortgage. GMAC attached
a copy of the assignment of the mortgage to its memo-
randum. The defendant did not object to the substitu-
tion, and the trial court, Hon. Richard P. Gilardi, judge
trial referee, granted the motion to substitute on June
8, 2015.
On July 9, 2015, the plaintiff moved to open the judg-
ment of strict foreclosure for the purpose of setting
new law days. The defendant objected, arguing, inter
alia, that (1) this court did not rule on all of his issues
in his prior appeal, (2) he ‘‘did not default on the alleged
note and mortgage’’ in 2009 because he ‘‘exercised his
federal right to cancel under the Truth in Lending Act’’
(TILA), 15 U.S.C. § 1601 et seq.,4 and (3) the issue of
standing, raised by the plaintiff,5 was never resolved.
In his objection, the defendant cited Jesinoski for the
first time.
On July 27, 2015, the defendant filed a supplemental
objection to the plaintiff’s motion to open the judgment.
He primarily argued that he rescinded his loan within
the statutory rescission period because Jesinoski ‘‘clari-
fied that a TILA rescission disputed or undisputed is
effectuated at the moment the notice of right to cancel
is timely mailed within three years of the loan date
. . . .’’ The supplemental objection referred to a notice
of right to cancel, signed and sworn to by the defendant
on July 10, 2009, which was recorded in the Bridgeport
land records on September 29, 2009. The defendant
previously had filed this notice with the trial court on
June 20, 2011, but did not attach a copy to his supple-
mental objection. On October 13, 2015, the trial court,
Hon. Alfred J. Jennings, Jr., judge trial referee, over-
ruled the defendant’s objections and granted the plain-
tiff’s motion to open the judgment. The court set new
law days, pursuant to this court’s remand order, to
commence on November 17, 2015.
However, on November 2, 2015, the defendant filed
a motion for reargument. On November 20, 2015, the
plaintiff objected to this motion, claiming that reargu-
ment was not warranted because the defendant had
not alleged some principle of law that would have a
controlling effect but was overlooked by the court, nor
were there claims of law that the court had failed to
address. On December 8, 2015, the trial court, Hon.
Alfred J. Jennings, Jr., judge trial referee, denied the
defendant’s motion for reargument.
During this period of time, on October 9, 2015, the
defendant moved to open the judgment, citing ‘‘evi-
dence to submit that lends to my defense.’’ The plaintiff
objected to this motion, arguing that the defendant was
engaging in dilatory behavior in an attempt to delay the
foreclosure. On November 13, 2015, the defendant filed
a memorandum to ‘‘supplement . . . defendant’s
motion to open,’’ in which he argued that Jesinoski,
which the Supreme Court decided subsequent to this
court’s decision in Ford I, overruled any conclusion
by this court that his alleged TILA rescission was not
effective. He also filed an affidavit, to which he attached
the July 10, 2009 notice of right to cancel. After a brief
hearing on November 17, 2015, the trial court, Hon.
Edward F. Stodolink, judge trial referee, denied the
defendant’s motion to open the judgment and sua
sponte set new law days to commence on December
8, 2015.
On December 7, 2015, the defendant filed an addi-
tional motion to reargue, a motion for articulation, and
a motion to dismiss.6 On December 14, 2015, the defen-
dant filed this appeal.7
I
The defendant first argues that on remand, the trial
court erred in granting the plaintiff’s motion to open
the judgment of strict foreclosure, and denying his
motion to open the judgment. Specifically, the defen-
dant argues that, based on Jesinoski, ‘‘a TILA notice is
effective as long as it is in writing and is mailed to a
creditor within three years from the consummation of
the loan.’’ Thus, he claims that his alleged rescission
of the loan was effective as a matter of law in this
foreclosure action, and that the trial court erred in rul-
ing on the motions at issue without considering the
effect of Jesinoski.8 We disagree.
We begin by setting forth the applicable standard of
review. We review a trial court’s ruling on motions to
open under an abuse of discretion standard. Valentine
v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert.
denied, 280 Conn. 933, 909 A.2d 963 (2006). Under this
standard, we give every reasonable presumption in
favor of a decision’s correctness and will disturb the
decision only where the trial court acted unreasonably
or in a clear abuse of discretion. Id. ‘‘As with any discre-
tionary action of the trial court . . . the ultimate [ques-
tion for appellate review] is whether the trial court
could have reasonably concluded as it did.’’ (Internal
quotation marks omitted.) Id., 451–52.
Pursuant to General Statutes § 49-15 (a) (1), a trial
court may, at its discretion, open and modify a judgment
of strict foreclosure upon written motion of any person
having an interest in the judgment and for cause shown.
‘‘Because opening a judgment is a matter of discretion,
the trial court [is] not required to open the judgment
to consider a claim not previously raised. The exercise
of equitable authority is vested in the discretion of the
trial court and is subject only to limited review on
appeal. . . . In light of the extremely deferential stan-
dard of review governing the disposition of new claims
raised posttrial and without the benefit of the trial
court’s reasoning as to those claims . . . the defen-
dant’s arguments are entitled to brief consideration
only.’’ (Internal quotation marks omitted.) Coun-
trywide Home Loans Servicing, L.P. v. Peterson, 171
Conn. App. 842, 849, 158 A.3d 405 (2017).
The defendant’s reliance on Jesinoski to support his
objection to the plaintiff’s motion to open the judgment
of strict foreclosure, and his motion to open the judg-
ment, is misplaced. In Jesinoski, a unanimous United
States Supreme Court resolved a split among the federal
circuit courts as to whether a borrower exercising his
right to rescind a loan pursuant to TILA must file an
action before the three year period elapses, or whether
he may merely provide written notice to the lender
during that time. Jesinoski v. Countrywide Home
Loans, Inc., supra, 135 S. Ct. 791. The petitioners, the
Jesinoskis, refinanced the mortgage on their home by
borrowing $611,000 from the respondent Countrywide
Home Loans, Inc. (Countrywide). Id. Exactly three
years after consummating the loan, the Jesinoskis
mailed Countrywide and the respondent Bank of
America Home Loans, which had acquired Coun-
trywide, a letter purporting to rescind the loan. Id. After
the respondent Bank of America Home Loans refused
to acknowledge the validity of the rescission, the Jesi-
noskis filed an action in federal district court, seeking
a declaration of rescission and damages. Id. The action
was filed four years and one day after the consumma-
tion of the loan. Id. The District Court, concluding that
TILA requires a borrower seeking rescission to file an
action within three years of the loan’s consummation,
rendered judgment on the pleadings in favor of the
respondents. Id. The United States Court of Appeals
for the Eighth Circuit affirmed the judgment. Id. Relying
on the language of TILA, the Supreme Court concluded
that ‘‘[t]he language leaves no doubt that rescission is
effected when the borrower notifies the creditor of his
intention to rescind.’’ Id., 792. The court held that ‘‘so
long as the borrower notifies within three years after
the transaction is consummated, his rescission is timely.
The statute does not also require him to sue within
three years.’’ Id. The court reversed the judgment of
the Eighth Circuit affirming the dismissal of the com-
plaint and remanded the case for further proceedings.
Id., 793.
Contrary to the defendant’s arguments, Jesinoski
does not stand for the proposition that, as a matter
of law, his purported TILA rescission was effective to
discontinue this foreclosure action simply because he
contended that he mailed the notice of right to cancel
within three years of the loan’s consummation. Jesi-
noski resolved the issue of whether a borrower was
required to mail notice and to file an action, as opposed
to only mailing notice, within three years of the loan’s
consummation to effectuate a TILA rescission. That
case was about the means by which a borrower may
provide notice of rescission under TILA, not whether
evidence of merely mailing a notice of right to cancel
conclusively establishes rescission in a foreclosure
action.9 The defendant here misunderstands Jesinoski’s
effect, and essentially argues that simply alleging the
mailing of a rescission notice is sufficient to forestall
a foreclosure action.10 This is not so. On the basis of
the foregoing, particularly Jesinoski’s clear inapplica-
bility to the facts of this case,11 we conclude that the
court did not abuse its discretion in granting the plain-
tiff’s motion to open the judgment of strict foreclosure
for the purpose of setting new law days and denying
the defendant’s motion to open the judgment.12
II
The defendant next calls our attention to the plain-
tiff’s standing to maintain this action. Specifically, the
defendant argues for the first time to this court that
the Harborview Mortgage Loan Trust 2006-10 does not
legally exist, and, therefore, Wells Fargo Bank, N.A., as
Trustee for Harborview Mortgage Loan Trust 2006-10,
lacks standing to sue. We disagree, as the defendant
has suggested no competent evidence, either at the time
of the unopposed substitution of Wells Fargo as the
plaintiff13 or now, that the Harborview Mortgage Loan
Trust 2006-10 ‘‘has no legal existence.’’
We are guided by the general principles governing a
trial court’s disposition of a motion to dismiss that
challenges jurisdiction. Where, as here, ‘‘the defendant
submits either no proof to rebut the plaintiff’s jurisdic-
tional allegations . . . or only evidence that fails to
call those allegations into question . . . the plaintiff
need not supply counteraffidavits or other evidence to
support the complaint, but may rest on the jurisdictional
allegations therein.’’ (Internal quotation marks omit-
ted.) Rocky Hill v. SecureCare Realty, LLC, 315 Conn.
265, 278, 105 A.3d 857 (2015). Here, the defendant has
presented no proof to rebut the plaintiff’s jurisdictional
allegations in its complaint that it is ‘‘the holder of
[the] note and mortgage.’’ See, e.g., U.S. Bank, National
Assn. v. Schaeffer, 160 Conn. App. 138, 150, 125 A.3d
262 (2015) (because defendant provided no proof that
holder of note was not owner of debt, defendant had
not rebutted presumption that as holder of note, plain-
tiff had standing to foreclose); see also Equity One,
Inc. v. Shivers, 310 Conn. 119, 133–35, 74 A.3d 1225
(2013) (‘‘The production of the note establishes [the
plaintiff’s] case prima facie against the makers and he
may rest there. . . . It [is] for the defendant to set up
and prove the facts which limit or change the plaintiff’s
rights.’’ [Internal quotation marks omitted.]). The sub-
stituted plaintiff stands in the shoes of the original plain-
tiff, and a court is entitled to take the facts alleged in
the complaint, as augmented by the facts alleged in the
motion to substitute, and to conclude that standing
has been established on that basis. Accordingly, the
defendant’s jurisdictional claim fails.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Ali Shah Bey is also named as a defendant in this action, but has not
participated in the appeal. For this reason, we refer to Ford as the defendant
throughout this opinion.
2
This is the third appeal stemming from this foreclosure action. The
defendant filed the first appeal in November, 2011. This court dismissed
that appeal for failure to comply with Practice Book § 63-4 requirements.
The defendant filed the second appeal in June, 2012. This court affirmed
the judgment of strict foreclosure. GMAC Mortgage, LLC v. Ford, 144 Conn.
App. 165, 73 A.3d 742 (2013). The second appeal will be discussed further
throughout this opinion.
3
GMAC Mortgage, LLC (GMAC), was the original plaintiff in this action,
as holder of the promissory note secured by the mortgage to be foreclosed
by this action. The mortgage was assigned to the Wells Fargo Bank, N.A.,
as Trustee for Harborview Mortgage Loan Trust 2006-10 on October 1, 2014,
and GMAC successfully moved to substitute Wells Fargo as the plaintiff.
4
TILA provides to a borrower the unconditional right to rescind a loan
within three days of the loan’s consummation. See 15 U.S.C. § 1635 (a). The
right to rescind pursuant to TILA may be extended for up to three years,
but only if a lender fails to make certain required disclosures to the borrower.
See 15 U.S.C. § 1635 (f).
5
In response to a motion to dismiss filed by the defendant, the plaintiff
raised the issue of standing in anticipation of a challenge by the defendant.
Ford I, supra, 144 Conn. App. 169. The plaintiff contended that it was in
possession of the original note before the action commenced and, thus, had
standing to foreclose the mortgage securing the note. Id. On January 21,
2011, for the reasons stated in the plaintiff’s opposition, the court denied
the defendant’s motion to dismiss. Id.
6
The trial court has not ruled on these motions.
7
The defendant first appealed to our Supreme Court, and the appeal
subsequently was transferred to this court.
8
The defendant also argues that, in light of Jesinoski, this court must
revisit its decision in Ford I. He claims that Jesinoski declares his TILA
rescission effective as a matter of law. Accordingly, he argues that the
burden of proof at summary judgment should have been placed on the
plaintiff, as the movant, to disprove the effectiveness of his TILA rescission,
and that in affirming the trial court’s summary judgment and judgment of
strict foreclosure, this court decided that his TILA rescission was ineffec-
tive—a decision that ‘‘conflicts with the [United States] Supreme Court.’’
We reject this argument for two reasons. First, Jesinoski does not apply to
the facts of this case. Second, the defendant has appealed to this court
seeking review of the trial court’s judgment granting the plaintiff’s motion
to open and denying the defendant’s motion to open, not whether this court’s
decision in Ford I is proper in light of Jesinoski.
9
Although we do not reach the merits of the defendant’s arguments regard-
ing the requirements of a TILA rescission, we note that a TILA rescission
within the three year statutory period also requires that ‘‘the information
and forms required under this section or any other disclosures required
under this part have not been delivered’’ to the borrower. 15 U.S.C. § 1635
(f); see also Jesinoski v. Countrywide Home Loans, Inc., supra, 135 S. Ct.
792 (‘‘[the TILA] regime grants borrowers an unconditional right to rescind
for three days, after which they may rescind only if the lender failed to
satisfy the Act’s disclosure requirements’’). Where a defendant in a foreclo-
sure action alleges a TILA rescission within three years of the loan’s consum-
mation date, the issue is whether the defendant was entitled to the three
year rescission period because he did not receive the required disclosures,
not merely whether the defendant mailed the notice within the three year
period.
10
The defendant argues that the mailing of a rescission notice, whether
disputed by the lender or undisputed, is sufficient. Specifically, he claims
that ‘‘Jesinoski shows that the presence of a disputed claim has no bearing
on the effectiveness of a TILA notice.’’ This language from the Supreme
Court’s opinion was in response to an argument advanced by the respondents
that, although written notice of rescission would suffice for undisputed
claims, an action would be required, in addition to written notice, where the
parties disputed the adequacy of the disclosures. Jesinoski v. Countrywide
Home Loans, Inc., supra, 135 S. Ct. 792. The Supreme Court’s conclusion
that ‘‘[s]ection 1635 (a) nowhere suggests a distinction between disputed
and undisputed rescissions, much less that a lawsuit would be required for
the latter;’’ id.; is of no significance to the facts of the present case.
11
The plaintiff argues that Jesinoski does not apply retrospectively to
this action. The defendant responds that the plaintiff waived this argument
by failing to raise it before the trial court and, alternatively, that Jesinoski
would apply to the facts of his case because it was pending when the
decision was released. Because we conclude that Jesinoski does not apply
to the facts of this case, we decline to address these arguments.
12
The defendant also argues the significance of the facts that the plaintiff’s
complaint listed, as a possible encumbrance to title, the rescission notice
filed in the Bridgeport land records, and that the plaintiff has not denied
receiving the rescission notice. These arguments are immaterial to this
appeal. The defendant argued rescission before the trial court. The trial
court granted the plaintiff’s motion for summary judgment and entered a
judgment of strict foreclosure, which this court affirmed, concluding that
‘‘[t]he defendant presented no documentary evidence or other proof to
support his allegations that the note and mortgage were properly rescinded
in accordance with [TILA].’’ Ford I, supra, 144 Conn. App. 178. The only
new element of the defendant’s argument is Jesinoski. In light of Jesinoski’s
inapplicability to this case, we need not consider these arguments. To the
extent that the defendant also argues that his constitutional rights have
been violated, that this litigation has been unfair, and that it would be
‘‘manifest injustice’’ if this court does not overturn Ford I, those arguments
likewise need not be considered in light of our reading of Jesinoski.
13
As noted in footnote 3 of this opinion, GMAC was the original plaintiff in
this action and successfully moved to substitute Wells Fargo as the plaintiff.