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FLAGSTAR BANK, FSB v. CHRISTINE KEPPLE ET AL.
(AC 41185)
DiPentima, C. J., and Alvord and Moll, Js.
Syllabus
The plaintiff bank, F Co., sought to foreclose a mortgage on certain real
property owned by the defendants, M and C. In its complaint, F Co.
alleged, inter alia, that the defendants originally had executed a note
in favor of A Co. and a mortgage in favor of M Co. as nominee for A
Co., that F Co. was the owner of the subject note and mortgage by
virtue of an assignment of the mortgage, and that the note was in default
for nonpayment. After the defendants were defaulted for failure to dis-
close a defense, they filed a motion to dismiss, claiming that F Co.
lacked standing to bring the action because I Co., and not F Co., owned
the underlying debt. In support of their motion, the defendants filed an
affidavit by M, as well as a document produced by M Co., which identified
I Co. as the investor. F Co. responded by arguing that it had standing
as the holder of the note. The court denied the defendants’ motion to
dismiss, concluding that F Co., which had produced a copy of the note
endorsed by A Co. to F Co., established a prima facie case for foreclosure
against the defendants and, thus, had standing to commence the action.
After the parties unsuccessfully participated in a foreclosure mediation
program for approximately two years, the plaintiff filed a motion for a
judgment of strict foreclosure. The defendants originally objected to
that motion but withdrew their objection at the hearing on the motion.
Subsequently, the court concluded that the plaintiff was the holder of
the note and mortgage, and rendered judgment of foreclosure by sale,
from which the defendants appealed to this court. Held that the defen-
dants could not prevail on their claim that the trial court lacked jurisdic-
tion as a result of F Co.’s lack of standing, as they failed to rebut the
presumption that F Co., as the holder of the note, was the rightful owner
of the underlying debt: the defendants withdrew their objection to F
Co.’s motion for a judgment of strict foreclosure, and at the hearing on
that motion, or any other time, they did not present the court with the
compilation of evidence regarding F Co.’s alleged lack of standing on
which they relied on appeal to rebut the presumption that F Co. was
the owner of the underlying debt, and because the defendants failed to
seek an evidentiary hearing to proffer their compilation of evidence on
which they relied on appeal, which purportedly demonstrated F Co.’s
lack of standing, the plaintiff was deprived of the ability to present
evidence demonstrating, in the event the presumption was rebutted,
that the owner had vested it with the right to receive the money secured
by the note, and the trial court was deprived of the ability to consider
the evidence, rule on its admissibility and make findings as to whether
the defendants rebutted the presumption enjoyed by F Co.; moreover,
with respect to the compilation of evidence on which the defendants
relied on appeal, the trial court previously had determined that certain
statements in M’s affidavit and the attached exhibits constituted inadmis-
sible hearsay, which the defendants did not challenge on appeal, certain
statements made in the foreclosure mediator’s report and in letters
attached to M’s affidavit were of questionable probative value, and a
statement of the trial court that it appeared that I Co. was the owner
of the note did not constitute a finding of fact in light of the trial court’s
repeated decisions indicating that the defendants had not presented
sufficient evidence to rebut the presumption that F Co., as the holder
of the note, was the owner of the debt.
Argued February 4–officially released June 4, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendants, and for other relief,
brought to the Superior Court in the judicial district of
New London, where the defendants were defaulted for
failure to disclose a defense; thereafter, the court, Cos-
grove, J., denied the defendants’ motion to dismiss and
motion for an order to produce certain documentation;
subsequently, the court granted the defendants’ motion
for a stay; thereafter, the defendants filed counter-
claims; subsequently, the court granted the plaintiff’s
motion to lift the stay; thereafter, the court, Nazzaro, J.,
granted the plaintiff’s motion to strike the defendants’
counterclaims; subsequently, the court, Cosgrove, J.,
rendered judgment of foreclosure by sale, from which
the defendants appealed to this court. Affirmed.
Albert L.J. Speziali, with whom, on the brief, were
Paul M. Geraghty and Mark R. Kepple, self-represented,
for the appellants (defendants).
Scott H. Bernstein, for the appellee (plaintiff).
Opinion
MOLL, J. The defendants, Christine Kepple and Mark
Kepple,1 appeal from the judgment of foreclosure by
sale rendered in favor of the plaintiff, Flagstar Bank,
FSB. On appeal, the defendants claim that the trial court
lacked subject matter jurisdiction over this action as a
result of the plaintiff’s alleged lack of standing. We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to the resolution of the defendants’ claim on
appeal. The plaintiff filed this action in February, 2011,
seeking to foreclose a residential mortgage on property
located at 140 Elm Street in Stonington. According to
the complaint, on November 19, 2004, Mark Kepple
executed a promissory note payable to the order of
Atlantis Mortgage Co., Inc., in the amount of $322,700.
To secure the note, the defendants executed a mortgage
on the property in favor of Mortgage Electronic Regis-
tration Systems, Inc., as nominee for Atlantis Mortgage
Co., Inc. The complaint alleged that the plaintiff was
the owner of the note and mortgage by virtue of an
assignment of the mortgage dated February 3, 2011.
The complaint further alleged that the note was in
default and that the plaintiff was exercising its option
to declare the entire balance on the note due and pay-
able. On October 23, 2017, the court rendered a judg-
ment of foreclosure by sale. The court thereafter denied
the defendants’ motion to reconsider, and the defen-
dants filed the present appeal.
On appeal, the defendants claim that the trial court
lacked subject matter jurisdiction over this action
because of the plaintiff’s alleged lack of standing. Spe-
cifically, the defendants argue that (1) the plaintiff
merely was the holder of the note and not the owner
of the debt, and (2) the evidence in the record, taken
as a whole, rebutted the presumption that the plaintiff,
as the holder of the note, was the owner of the debt.2
We disagree.
At the outset, we note that ‘‘[t]he issue of standing
implicates [the] court’s subject matter jurisdiction. . . .
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
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Because
standing implicates the court’s subject matter jurisdic-
tion, the plaintiff ultimately bears the burden of estab-
lishing standing.’’ (Citation omitted; internal quotation
marks omitted.) JPMorgan Chase Bank, National Assn.
v. Simoulidis, 161 Conn. App. 133, 142, 126 A.3d 1098
(2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016).
‘‘Because a determination regarding the trial court’s
subject matter jurisdiction raises a question of law,
[the standard of] review is plenary.’’ (Internal quotation
marks omitted.) Id. ‘‘In addition, because standing
implicates the court’s subject matter jurisdiction, the
issue of standing is not subject to waiver and may be
raised at any time.’’ (Internal quotation marks omitted.)
U.S. Bank, National Assn. v. Schaeffer, 160 Conn. App.
138, 145, 125 A.3d 262 (2015).
The following additional facts are necessary for the
resolution of the defendants’ claim. On March 14, 2012,
the plaintiff filed a motion for default for failure to
disclose a defense, which the court, Martin, J., granted
on March 26, 2012. On April 3, 2012, Mark Kepple filed
(1) an appearance as a self-represented party in lieu of
the appearance filed by his initial attorney and (2) a
motion for inclusion in the foreclosure mediation pro-
gram. On August 13, 2012, Attorney Paulann Hosler
Sheets filed an appearance for the defendants in addi-
tion to the self-represented appearance filed by Mark
Kepple. The defendants then filed a motion to open the
default, an answer, and a motion to dismiss, claiming
that the plaintiff lacked standing to prosecute the action
because it did not own the underlying debt.
In support of the motion to dismiss, the defendants
filed an affidavit of Mark Kepple with accompanying
exhibits. In the affidavit, Mark Kepple stated facts in
support of the defendants’ claim that Federal Home
Loan Bank of Indianapolis was the owner of the mort-
gage and that the plaintiff lacked standing to bring this
action.3 The defendants also submitted a document pro-
duced by Mortgage Electronic Registration Systems,
Inc., indicating that Federal Home Loan Bank of India-
napolis was the ‘‘investor.’’ At a hearing on the defen-
dants’ motion to dismiss on September 7, 2012, the
defendants argued that the owner of the underlying
debt was Federal Home Loan Bank of Indianapolis and
not the plaintiff.4 The plaintiff responded by arguing
that it had standing to bring the foreclosure action as
the holder of the note.5 The plaintiff also argued that the
affidavit submitted in support of the motion to dismiss
contained inadmissible hearsay.
In a memorandum of decision dated September 21,
2012, the court, Cosgrove, J., denied the defendants’
motion to dismiss, concluding that the plaintiff had
standing to commence the action. In its decision, the
court noted that the plaintiff had produced a copy of
the note, endorsed by Atlantis Mortgage Co., Inc., to
the plaintiff, and established a prima facie case for
foreclosure against the defendants. With regard to Mark
Kepple’s affidavit, the court stated: ‘‘Absent some
exception to the hearsay rule, which is not present here,
the statements of third parties contained within Mark
Kepple’s affidavit constitute hearsay and cannot be con-
sidered by the court for the truth of the matters con-
tained therein. Even if considered . . . Kepple’s
statement would not, alone, rebut the presumption cre-
ated by possession of the note in this case. In viewing
the remainder of the available evidence, the court finds
that the defendants failed to rebut the presumption that
the plaintiff owns the underlying debt, and thus the
plaintiff has standing to commence the present foreclo-
sure action.’’
On October 2, 2012, the court denied the defendants’
motion to open the default and granted the defendants’
motion to participate in the foreclosure mediation pro-
gram. The parties participated in the foreclosure media-
tion program from October, 2012 through August, 2014.
The final foreclosure mediation took place on August
6, 2014. The foreclosure mediator’s report from that
mediation stated in part that ‘‘[t]he parties have been
in mediation since [October 26, 2012] and the same
issues are brought up at every mediation without reso-
lution.’’
Following the denial of the defendants’ motion to
dismiss, and after almost two years in the foreclosure
mediation program, the defendants continued to raise
the plaintiff’s alleged lack of standing in various pro-
ceedings over the next several years. On August 21,
2014, the defendants filed a petition for reinclusion in
the foreclosure mediation program and a motion to
order the plaintiff to produce documentation of a pur-
ported investor restriction. In the latter motion, the
defendants contended that the plaintiff repeatedly had
denied their request for a loan modification because of
an alleged investor restriction and sought, inter alia, an
order that the plaintiff produce evidence of the pur-
ported investor restriction. On September 4, 2014, the
defendants filed a second motion to open the default
for failure to disclose a defense. In that motion, the
defendants argued that they were waiting for the plain-
tiff to disclose any agreements between itself and Fed-
eral Home Loan Bank of Indianapolis regarding the
servicing, including modification, of the defendants’
loan. According to the defendants, these documents
were relevant to their defense that the plaintiff lacked
standing to bring this action.
On September 8, 2014, a hearing took place on the
defendants’ petition for reinclusion in the foreclosure
mediation program and the defendants’ motion to order
the plaintiff to produce documentation of a purported
investor restriction. At that hearing, counsel for the
defendants argued that this matter should be referred
back to mediation and that the court should order the
plaintiff to produce documentation regarding the rela-
tionship and the restrictions between the investor, Fed-
eral Home Loan Bank of Indianapolis, and the plaintiff.
The plaintiff argued in response that the defendants
were not entitled to any of the documents requested
and that the defendants were trying to interfere with
the contractual relationship between the plaintiff and
Federal Home Loan Bank of Indianapolis. The plaintiff
further argued that the defendants were pursuing such
discovery as a means to effectuate a settlement. During
the argument on the defendants’ motions, the court
engaged in a colloquy with counsel for the plaintiff
regarding the distinction between the owner and the
holder of the note.6
On September 17, 2014, the court denied the defen-
dants’ petition for reinclusion in the foreclosure media-
tion program, stating: ‘‘This case has been through an
extended mediation process. Most recently, the media-
tor filed a report with the court indicating in part that
the mortgagor was denied relief due to ‘debt to income
ratio.’ Further, the mediator stated she had no material
reason to disagree with the response. The court cannot
find that further mediation has a high probability of
success.’’ On September 17, 2014, the court also denied
the defendants’ motion to order the plaintiff to produce
documentation of a purported investor restriction.
On October 14, 2014, during a hearing on the defen-
dants’ second motion to open the default, the court
questioned counsel for the plaintiff regarding whether
the plaintiff was a bank or a servicer of the loan. In
response, counsel for the plaintiff stated: ‘‘They’re a
bank and the servicer of this loan. They’re also the
holder of the note authorized to commence the foreclo-
sure action which has already been resolved by the
prior motion to dismiss, which is a standing issue [that]
counsel’s attempting to raise again, which has already
been denied.’’ On December 5, 2014, the court denied
the defendants’ second motion to open the default.7
On December 19, 2014, the defendants filed a motion
for a stay, contending that this action was barred by a
September 29, 2014 consent order entered into between
the federal Consumer Financial Protection Bureau and
the plaintiff regarding deceptive and unfair practices
committed by the plaintiff. On January 21, 2015, the
defendants filed an affidavit of Mark Kepple in support
of their motion to stay the foreclosure proceedings. The
defendants attached as exhibits (1) some of the same
documents that were previously found to be inadmissi-
ble hearsay by the trial court when it ruled on the
defendants’ motion to dismiss, and (2) additional corre-
spondence from the plaintiff to the defendants. Specifi-
cally, Mark Kepple included a letter from the plaintiff to
the defendants dated August 8, 2012, identifying Federal
Home Loan Bank of Indianapolis as the investor of the
mortgage loan, and letters from the plaintiff dated July
22, August 27, and November 2, 2013, in which the
plaintiff identified itself as the servicer of the defen-
dants’ mortgage loan. The latter two letters each stated
that the defendants were ‘‘not approved for loss mitiga-
tion options by the investor/owner of the loan.’’8
On December 24, 2014, the plaintiff filed an objection
to the defendants’ motion for a stay, along with an
affidavit of Susan Dowd, an officer of the plaintiff.9 A
hearing on the motion for a stay took place on January
26, 2015. During a colloquy with counsel for the defen-
dants at the conclusion of the hearing, the court com-
mented that it appeared that the owner of the note was
Federal Home Loan Bank of Indianapolis.10 On January
26, 2015, the court entered a stay in this matter without
prejudice to the plaintiff demonstrating that the defen-
dants’ loan was not covered by the consent order
entered into by the plaintiff with the Consumer Finan-
cial Protection Bureau. On May 19, 2016, the plaintiff
filed a motion for an order requesting that the court
lift the stay. In that motion, the plaintiff maintained that
(1) the defendants’ loan was not covered by the consent
order and (2) even if it were covered, which was denied,
the plaintiff had offered the defendants the very relief
they had been seeking, namely, a new loan modification
review. In this connection, the motion detailed the
efforts that the plaintiff had made between January,
2015, and May, 2016, to obtain a completed loan modifi-
cation application from the defendants; the defendants
did not, however, submit a loan modification applica-
tion. On July 25, 2016, the court granted the plaintiff’s
motion and lifted the stay.
On August 3, 2016, the plaintiff filed a motion to
strike the defendants’ counterclaims, which sounded
in negligence, breach of the duty of good faith and fair
dealing, negligent misrepresentation, and violation of
the Connecticut Unfair Trade Practices Act, General
Statutes § 42-110a et seq. On December 20, 2016, the
court, Nazzaro, J., granted the plaintiff’s motion to
strike. In its memorandum of decision, the court stated
that ‘‘[t]he note and mortgage are now owned by the
plaintiff by virtue of assignment on February 3, 2011.’’
On October 10, 2017, the plaintiff filed a motion for
a judgment of strict foreclosure and finding of entitle-
ment of possession.11 In connection with the motion,
the plaintiff filed the affidavit of Vanessa M. Ellison, a
loan administration analyst employed by the plaintiff.
In the affidavit, Ellison stated, inter alia, that she was
‘‘duly authorized to make this Affidavit for [the plaintiff]
in its capacity as the holder of the note and servicer of
the mortgage loan . . . .’’ On October 17, 2017, the
defendants filed an objection to the plaintiff’s motion
for a judgment of strict foreclosure; the defendants did
not reassert therein that the plaintiff lacked standing
to bring this action. On October 23, 2017, at a hearing
on the plaintiff’s motion for a judgment of strict foreclo-
sure, the defendants, through counsel, withdrew their
objection to the plaintiff’s motion. Thereupon, the court
stated: ‘‘All right. I have a promissory note, and it—
November 19, 2004, in favor of Atlantis Mortgage Com-
pany, Inc. It’s a wet-ink original, and it’s endorsed in
favor of [the plaintiff] by Atlantis Mortgage Company
[Inc.] through the Independence Community Bank,
attorney-in-fact. And then it is endorsed in blank by
[the plaintiff].
‘‘And the mortgage has been recorded on the land
records contemporaneously with the closing. And I
have an assignment of mortgage from [Mortgage Elec-
tronic Registration Systems, Inc.,] as nominee for Atlan-
tis [Mortgage Company, Inc.] in favor of [the plaintiff].
That assignment is dated February 3, 2011. . . . So I’ll
find that the plaintiff is the holder of the note and
mortgage that they seek to foreclose.’’ Thereafter, the
court rendered a judgment of foreclosure by sale.
On November 10, 2017, the defendants filed a motion
to reconsider the court’s order rendering a judgment
of foreclosure by sale. In the motion, the defendants
argued that Mark Kepple had come to the courtroom
on October 23, 2017, but, following a discussion with
counsel for the plaintiff, became ill and had to leave
and, therefore, was unable to attend the hearing.12 The
defendants also argued that, on the basis of a colloquy
between counsel for the plaintiff and the court at a
hearing on September 8, 2014; see footnote 6 of this
opinion; the court had made a judicial finding that the
plaintiff did not own the debt and the plaintiff had
admitted that it did not own the debt. The plaintiff filed
an objection to the defendants’ motion to reconsider.
On December 4, 2017, the court denied the defendants’
motion, stating: ‘‘The issues raised by the defendants
have previously been presented to the court in various
contexts. Defendants’ counsel withdrew objections.
Appropriate grounds for reconsideration or reargument
have not been presented.’’ This appeal followed.
On January 22, 2018, while this appeal was pending,
the plaintiff filed a motion for an order conditioning the
continuation of the appellate stay pursuant to Practice
Book § 61-11 upon the defendants reimbursing the
plaintiff for its payments of property taxes and insur-
ance premiums in connection with the subject property
during the pendency of the appeal. On April 2, 2018,
this court referred the motion and the defendants’ oppo-
sition thereto to the trial court for consideration. On
May 31, 2018, the trial court, Cosgrove, J., issued its
memorandum of decision, concluding that it would be
equitable to condition the maintenance of the appellate
stay upon the defendants’ prompt reimbursement of
property taxes and insurance premiums paid by the
plaintiff during the pendency of the appeal. In its deci-
sion, the court stated: ‘‘This court always examines the
note and mortgage, endorsements or allonges and any
assignments of mortgage recorded in the land records
prior to the entry of judgment. The issues of standing
had been raised and addressed several times earlier in
this litigation and now is the thrust of the [defendants’]
appeal. . . . The court was presented with the original
note and mortgage documents and examined the
allonges, endorsements and assignments. No credible,
persuasive or admissible evidence has been presented
to rebut the [plaintiff’s] standing.’’13
Against the backdrop of this extensive factual and
procedural background, we now consider the defen-
dants’ claim that the trial court lacked jurisdiction over
this action on the basis of the plaintiff’s alleged lack of
standing. ‘‘The ability to enforce a note in Connecticut
is governed by the adopted provisions of the Uniform
Commercial Code. Pursuant to General Statutes § 42a-
3-301, a [p]erson entitled to enforce an instrument
means . . . the holder of the instrument . . . . When
a note is endorsed in blank . . . the note becomes pay-
able to the bearer of the note. See General Statutes
§ 42a-3-205 (b); see also RMS Residential Properties,
LLC v. Miller, 303 Conn. 224, 231, 32 A.3d 307 (2011),
overruled in part on other grounds by J.E. Robert Co.
v. Signature Properties, LLC, [supra, 309 Conn. 325
n.18]. When a person or entity has possession of a note
endorsed in blank, it becomes the valid holder of the
note. General Statutes § 42a-1-201 (b) (21) (A). There-
fore, a party in possession of a note, endorsed in blank
and thereby made payable to its bearer, is the valid
holder of the note, and is entitled to enforce the
note. . . .
‘‘In RMS Residential Properties, LLC v. Miller, supra,
303 Conn. 231, our Supreme Court stated that to seek
enforcement of a note through foreclosure, a holder
must be able to demonstrate it is the owner of the
underlying debt. It noted, however, that a holder of a
note is presumed to be the rightful owner of the underly-
ing debt, and that unless the party defending against
the foreclosure action rebuts that presumption, the
holder has standing to foreclose. . . . A holder merely
needs to produce the note to establish that presump-
tion. The production of the note establishes his case
prima facie against the [defendant] 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.’’
(Citations omitted; emphasis in original; footnotes omit-
ted; internal quotation marks omitted.) U.S. Bank,
National Assn. v. Schaeffer, supra, 160 Conn. App.
146–47.
‘‘The rules for standing in foreclosure actions when
the issue of standing is raised may be succinctly summa-
rized as follows. When a holder seeks to enforce a note
through foreclosure, the holder must produce the note.
The note must be sufficiently endorsed so as to demon-
strate that the foreclosing party is a holder, either by
a specific endorsement to that party or by means of a
blank endorsement to bearer. If the foreclosing party
shows that it is a valid holder of the note and can
produce the note, it is presumed that the foreclosing
party is the rightful owner of the debt. That presumption
may be rebutted by the defending party, but the burden
is on the defending party to provide sufficient proof
that the holder of the note is not the owner of the debt,
for example, by showing that ownership of the debt
has passed to another party. It is not sufficient to pro-
vide that proof, however, merely by pointing to some
documentary lacuna in the chain of title that might give
rise to the possibility that some other party owns the
debt. In order to rebut the presumption, the defendant
must prove that someone else is the owner of the note
and debt. Absent that proof, the plaintiff may rest its
standing to foreclose on its status as the holder of the
note.’’ (Emphasis in original; footnote omitted.) Id., 150.
In the event of such proof, ‘‘the burden would shift
back to the plaintiff to demonstrate that the owner has
vested it with the right to receive the money secured
by the note.’’ J.E. Robert Co. v. Signature Properties,
LLC, supra, 309 Conn. 325 n.18.
The defendants argue that they successfully rebutted
the presumption that the plaintiff, as the holder of the
note, is the owner of the debt, and, therefore, has stand-
ing to seek enforcement of the note through foreclo-
sure. The defendants rely in part on a foreclosure
mediator’s report filed on November 27, 2013, in which
the mediator referred to the plaintiff as the servicer of
the loan and Federal Home Loan Bank of Indianapolis
as the investor.14 The defendants also rely on the letters
from the plaintiff to the defendants in which the plaintiff
referred to itself as the servicer of the loan and to
Federal Home Loan Bank of Indianapolis as the inves-
tor. The defendants specifically refer to the letter dated
November 4, 2014, indicating that Mark Kepple had
communicated directly with Federal Home Loan Bank
of Indianapolis. See footnote 8 of this opinion. Addition-
ally, the defendants contend that statements of counsel
for the plaintiff—made at hearings during the litigation
and indicating that (1) a contractual relationship existed
between the plaintiff and Federal Home Loan Bank of
Indianapolis and (2) the plaintiff was the servicer of
the loan—constituted judicial admissions. Finally, the
defendants argue that the court’s statement that ‘‘it
seem[ed] . . . that the owner as opposed to the holder
of the note [was] . . . Federal Home Loan Bank [of
Indianapolis],’’ made during the hearing on the defen-
dants’ motion to stay; see footnote 10 of this opinion;
constituted a factual finding that Federal Home Loan
Bank of Indianapolis was the owner of the underlying
debt. The plaintiff counters that the defendants failed
to rebut the presumption of standing in the plaintiff’s
favor. We agree with the plaintiff that the defendants
failed to rebut the presumption that the plaintiff was
the owner of the debt.
As a threshold matter, we note that the defendants
do not challenge on appeal any particular ruling of the
trial court relating to the plaintiff’s standing. Rather,
they rely on a compilation of purported evidence cherry
picked from the record, which they argue should be
‘‘taken as a whole’’ on appeal. Notably, when the trial
court rendered judgment of foreclosure by sale on Octo-
ber 23, 2017, the defendants did not renew their motion
to dismiss based on the plaintiff’s alleged lack of stand-
ing and did not present to the trial court, during the
October 23, 2017 hearing or at any other time, the compi-
lation of purported evidence on which they rely on
appeal. Instead, they withdrew their objection to the
plaintiff’s motion for judgment of foreclosure at the
October 23, 2017 hearing. See Wells Fargo Bank, N.A.
v. Tarzia, 150 Conn. App. 660, 665–66, 92 A.3d 983
(rejecting defendant’s argument that plaintiff failed to
state claim for strict foreclosure by pleading and prov-
ing its status as holder of note and mortgage when
defendant did not file opposition to plaintiff’s motion
for summary judgment and, therefore, never attempted
to rebut presumption that plaintiff owned debt and had
right to foreclose mortgage), cert. denied, 314 Conn.
905, 99 A.3d 635 (2014).
Moreover, in the six years following the court’s denial
of their motion to dismiss on September 21, 2012, which
the defendants do not challenge on appeal, the defen-
dants apparently did not seek an evidentiary hearing
in order to proffer to the trial court the compilation of
purported evidence on which they now rely. Their fail-
ure to do so deprived the plaintiff of the ability to
present evidence demonstrating, in the event the pre-
sumption was rebutted, ‘‘that the owner has vested it
with the right to receive the money secured by the
note.’’ J.E. Robert Co. v. Signature Properties, LLC,
supra, 309 Conn. 325 n.18. The defendants’ failure to
present the compilation in an evidentiary hearing also
deprived the trial court of the ability to consider the
proffered evidence, rule on its admissibility, and make
specific findings relating to whether the presumption
had been rebutted. Although it is axiomatic that subject
matter jurisdiction can be raised at any time, the defen-
dants’ attempt to have this court make evidentiary
determinations regarding their compilation of pur-
ported evidence and make factual findings based
thereon is wholly improper. See Gianetti v. Norwalk
Hospital, 266 Conn. 544, 560, 833 A.2d 891 (2003)
(‘‘[o]rdinarily it is not the function of [our Supreme
Court] or [this court] to make factual findings’’).
Accordingly, we reject the defendants’ claim.
We also highlight certain reviewability problems with
the defendants’ compilation of purported evidence. We
initially note that some of the statements upon which
the defendants rely were deemed inadmissible hearsay
by the trial court when it denied the defendants’ motion
to dismiss on September 21, 2012. The defendants do
not address those evidentiary determinations on appeal
and, thus, they remain undisturbed. The subsequent
letters from the plaintiff to the defendants, in which
the plaintiff identified itself as the servicer of the defen-
dants’ loan, were attached as exhibits to Mark Kepple’s
affidavit filed in support of the defendants’ motion to
stay. These letters were not introduced into evidence.
Moreover, we question the probative value of the corre-
spondence from the plaintiff to the defendants and the
statements in the foreclosure mediator’s report identi-
fying the plaintiff as the servicer of the loan and Federal
Home Loan Bank of Indianapolis as the investor. In
JPMorgan Chase Bank, National Assn. v. Simoulidis,
supra, 161 Conn. App. 139–40, 147, we affirmed the trial
court’s finding that the deposition testimony of a home
lending research officer employed by the plaintiff, who
testified that the plaintiff was the holder of the note,
servicer, and mortgagee, and that Freddie Mac was the
investor of the debt, did not rebut the presumption in
favor of the plaintiff, where the employee did not define
what an ‘‘investor’’ is in this context and did not testify
that the plaintiff was not the owner of the debt. As in
Simoulidis, the documents upon which the defendants
rely in this case do not define the role of the investor
with regard to the loan. In addition, with respect to the
foreclosure mediator’s report, the defendants do not
explain how the mediator’s statement in such report
would be admissible where it is not based on personal
knowledge regarding ownership of the debt.
With regard to whether the statements15 of counsel
for the plaintiff—in which counsel indicated that a con-
tractual relationship existed between the plaintiff and
Federal Home Loan Bank of Indianapolis and that the
plaintiff was the servicer of the loan—constituted judi-
cial admissions, we note that ‘‘[t]he determination of
whether a party’s statement is a judicial admission or
an evidentiary admission is a question of fact for the
trial court.’’ (Internal quotation marks omitted.) O & G
Industries, Inc. v. All Phase Enterprises, Inc., 112
Conn. App. 511, 524, 963 A.2d 676 (2009). A witness or
a party should not be presumed to have made a judicial
admission without a finding of the trial court. Id. In the
present case, the defendants have not pointed to any
finding by the trial court indicating that these state-
ments were judicial admissions. In the absence of such
a finding, we cannot conclude that these statements
are conclusive regarding the plaintiff’s standing to bring
the action.16
Finally, we disagree with the defendants that the
court’s statement, made during the hearing on the
defendants’ motion to stay and indicating that ‘‘it
seem[ed] . . . that the owner as opposed to the holder
of the note [was] . . . Federal Home Loan Bank [of
Indianapolis],’’ constitutes a finding of fact. This conclu-
sion necessarily follows from the court’s repeated deci-
sions indicating that the defendants had not presented
evidence sufficient to rebut the presumption that the
plaintiff had standing.
On the basis of our review of the record, we conclude
that at no time did the defendants rebut the presumption
enjoyed by the plaintiff and, thus, the plaintiff had stand-
ing to prosecute this foreclosure action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Bank of America N.A., Westerly Hospital, and the United States of
America also were named as defendants in the foreclosure action. Bank of
America N.A. and Westerly Hospital, which were defaulted for failure to
appear in the trial court, have not appealed from the judgment of foreclosure
or participated in the present appeal. The plaintiff withdrew this action as
to the United States of America in the trial court. Accordingly, we refer to
Christine Kepple and Mark Kepple as the defendants in this opinion.
2
The defendants also argue that the plaintiff failed to produce any evidence
that it was authorized by Federal Home Loan Bank of Indianapolis, as the
purported owner of the debt, to prosecute the action. In light of our conclu-
sion that the defendants failed to rebut the presumption that the plaintiff
was the owner of the debt, we need not address this issue.
3
Specifically, Mark Kepple stated that since April, 2011, he had pursued
an application for a loan modification and that, after being told by the plaintiff
that his application was complete, he was told that certain documents were
stale and needed to be updated. According to the affidavit, on March 2,
2012, the plaintiff informed Mark Kepple that it was unable to proceed with
his application, as he had not returned some of the missing documents,
and that it deemed the application withdrawn. Mark Kepple immediately
contacted the plaintiff about the mistake and was informed that his applica-
tion was, in fact, complete and had been referred to the underwriting
department.
Mark Kepple also stated that on July 31, 2012, he called the plaintiff’s
loss mitigation department, as he had been doing on a monthly basis, and
spoke to an individual who informed him that he would have a decision on
his application within thirty days. On August 6, 2012, however, Mark Kepple
received a letter from the plaintiff dated July 25, 2012, informing him that
his loan modification application had been denied because it did ‘‘ ‘not fulfill
investor requirements/guidelines.’ ’’ Upon inquiry with the plaintiff’s loss
mitigation department, Mark Kepple spoke with a different individual, who
informed him that the investor of the loan was Federal Home Loan Bank
of Indianapolis. According to the affidavit, Mark Kepple then called Federal
Home Loan Bank of Indianapolis and spoke with Mark Holt in the mortgage
purchasing department, who confirmed that Federal Home Loan Bank of
Indianapolis was the investor and had bought the note.
4
The defendants filed an amended affidavit of Mark Kepple, with the
permission of the court, following oral argument on the defendants’ motion
to dismiss.
5
The transcript reveals the following colloquy:
‘‘The Court: There’s a—let me just hear on that simple issue. Is it your
position that the plaintiff, Flagstar, [FSB] is the owner of the note as of the
date that this action was commenced in February of 2011?
‘‘[The Plaintiff’s Counsel]: Our position is that Flagstar, [FSB] as the
commencement of this action, because of assignment they’re the—they have
the right to enforce the debt, and as the holder of the negotiable interest,
we have every right to initiate this foreclosure proceeding.’’
6
The transcript reveals the following:
‘‘The Court: What about the issue if there’s a question, as I have read this
briefly, that the investor has a restriction, and that investor is the owner of
the note.
‘‘[The Plaintiff’s Counsel]: Correct, the owner of the debt.
‘‘The Court: The owner of the note, what’s the difference? I don’t get it.
‘‘[The Plaintiff’s Counsel]: There’s a difference between holder and owner,
Your Honor. There’s a distinct difference between holder and owner.
‘‘The Court: You’re drawing that distinction between that and a servicer?
‘‘[The Plaintiff’s Counsel]: No, Your Honor. There’s a difference between—
a party can be a holder—
‘‘The Court: Educate me, what’s the difference?
‘‘[The Plaintiff’s Counsel]: Look at the [J.E. Robert Co. Inc. v. Signature
Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013)] decision, Your Honor.
It states that the party who’s holding the note has the opportunity to enforce
that note, provided that they have the authority to do so. That’s not the
question that’s before this court today; the issue that’s raised in J.E. [Robert]
is not what’s before the court.’’
7
The court’s order stated: ‘‘The defendants have not demonstrated good
cause for the opening of the default for failure to disclose a defense that
was entered approximately two and one-half years earlier.’’
8
The defendants also attached a letter from the plaintiff to the defendants
dated November 4, 2014. In addition to referencing Federal Home Loan
Bank of Indianapolis as the investor and the plaintiff as the servicer of the
defendants’ loan, this letter indicated that, after the defendants’ application
for a loan modification had been denied, Mark Kepple contacted and spoke
with Federal Home Loan Bank of Indianapolis regarding what he would
need to do to have his loan modification application reconsidered.
9
In the affidavit, Dowd stated that on September 29, 2014, the plaintiff
had entered into a consent order with the Consumer Financial Protection
Bureau pursuant to which certain loss mitigation actions were to be taken
by the plaintiff, including reviews of prior loss mitigation decisions. Dowd
further stated, however, that the defendants’ loan was not among the loans
subject to the consent order requirement to review prior loss mitigation
decisions.
10
The transcript reveals the following:
‘‘[The Defendants’ Counsel]: I mean, they have not amended their pleading,
their complaint, to delete the claim that they’re an owner.
‘‘The Court: Well . . . it seems to me from reviewing the extensive work
that [Mark] Kepple has done that there has been identification that the
owner as opposed to the holder of the note is this Federal Home Loan Bank
from the—I can’t remember the precise name.
‘‘[The Defendants’ Counsel]: Federal Home Loan Bank of Indianapolis.’’
11
On February 14, 2017, after the granting of the plaintiff’s motion to strike
and before the plaintiff filed its motion for judgment of strict foreclosure,
the trial court, Nazzaro, J., granted the plaintiff’s motion for a protective
order with regard to discovery requests served by the defendants seeking
information concerning the plaintiff’s standing in the foreclosure action.
12
We note that the defendants’ counsel attended the hearing.
13
The court also stated: ‘‘Although the . . . defendants’ attorney has made
strenuous arguments to the court regarding the standing of the plaintiff to
pursue this foreclosure action over the course of almost seven years of
litigation at the trial court level, none of these arguments have been sup-
ported by evidence or persuasive to the court for the reasons that were
previously stated in the memoranda of decision resolving the motions filed
by the defendant[s].’’
14
The foreclosure mediator’s report stated that ‘‘[the plaintiff] is the ser-
vicer of the loan but does not have the authority to approve any retention
options. All decisions must be made by the investor, Federal Home Loan
Bank [of Indianapolis]. Federal Home Loan Bank [of Indianapolis] reviews
the application based on the information [the plaintiff] sends them for
review.’’
15
The statements were made by counsel for the plaintiff during hearings
on the defendants’ petition for reinclusion in the foreclosure mediation
program, the defendants’ motion to order the plaintiff to produce documenta-
tion of a purported investor restriction, and the defendants’ second motion
to open the default.
16
‘‘Judicial admissions are voluntary and knowing concessions of fact by
a party or a party’s attorney occurring during judicial proceedings. . . .
They excuse the other party from the necessity of presenting evidence on
the fact admitted and are conclusive on the party making them. . . . The
statement relied on as a binding admission [however] must be clear, deliber-
ate and unequivocal.’’ (Citation omitted; internal quotation marks omitted.)
O & G Industries, Inc. v. All Phase Enterprises, Inc., supra, 112 Conn. App.
523 n.5. Although the trial court in this case did not make a finding that the
statements of counsel for the plaintiff constituted judicial admissions, it
appears that the trial court did not consider the statements to be conclusive
regarding the plaintiff’s standing to bring the present action.