Bank of America, N.A. v. Kydes

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BANK OF AMERICA, N.A. v. ANDREW D. KYDES
(AC 39350)
Alvord, Sheldon and Bear, Js.

Syllabus

The plaintiff B Co. sought to foreclose a mortgage on certain real property
owned by the defendant. After commencing this action, B Co. served
the defendant with requests for admission, including that he admit that
B Co. was the holder of the note when the action was commenced and
that he had defaulted on his obligation to make payments under the
note. In response, the defendant filed a motion for a protective order,
asserting that the requests for admission were improper. The trial court
sustained B Co.’s objection to the defendant’s motion. More than six
weeks after the expiration of the thirty day period within which the
defendant was required to answer or object to the requests for admission
pursuant to the applicable rule of practice (§ 13-23 [a]), the defendant
denied the requests for admission without limitation or qualification. B
Co. then filed a motion for summary judgment as to liability on the
ground that the defendant, by failing to timely answer or object to its
requests for admission, had admitted all matters as to which admissions
had been requested, which included all facts necessary to establish both
its standing to bring this action and its right to prevail against the
defendant. Thereafter, B Co. assigned the subject mortgage to C Co.,
which was substituted as the plaintiff, and the court granted the motion
for summary judgment as to liability, finding that there was no genuine
issue of material fact as to B Co.’s standing or the defendant’s liability
on the note. Subsequently, the court granted C Co.’s motion for a judg-
ment of strict foreclosure and rendered judgment thereon, from which
the defendant appealed to this court. Held:
1. The defendant’s claim that the trial court improperly relied on his admis-
sions, which he claimed resulted from a ‘‘procedural default,’’ as a basis
for finding that B Co. had standing to bring this action and for rendering
summary judgment was unavailing; in light of this court’s decision in
JPMorgan Chase Bank, N.A. v. Eldon (144 Conn. App. 260), in which
this court, on facts indistinguishable from the facts of the present case,
affirmed a summary judgment rendered by the trial court on the basis
of admissions resulting from a party’s failure to respond in timely fashion
to its opponent’s requests for admission, there was no merit to the
defendant’s claim.
2. The defendant could not prevail on his claim that the trial court erred in
failing to hold an evidentiary hearing on his challenge to B Co.’s standing
to bring this action; the defendant never presented any evidence that
might have called B Co.’s standing into question, and because B Co.
alleged that it possessed the note at the time it commenced the action
and the defendant failed to raise a genuine issue of fact as to whether
B Co. was the holder of the note when it commenced this action, the
trial court was not required to hold an evidentiary hearing on that issue.
Argued May 23—officially released July 17, 2018

Procedural History

Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, where Christiana Trust was substituted as the
plaintiff; thereafter, the court, Heller, J., granted the
substitute plaintiff’s motion for summary judgment as to
liability; subsequently, the court, A. William Mottolese,
judge trial referee, granted the substitute plaintiff’s
motion for a judgment of strict foreclosure and ren-
dered judgment thereon, from which the defendant
appealed to this court. Affirmed.
Hugh D. Hughes, for the appellant (defendant).
Jeffrey M. Knickerbocker, for the appellee (substi-
tute plaintiff).
Opinion

SHELDON, J. The defendant, Andrew D. Kydes,
appeals from the judgment of strict foreclosure ren-
dered by the trial court in favor of the substitute plain-
tiff, Christiana Trust, a Division of Wilmington Savings
Fund Society, FSB Not in Its Individual Capacity but
as Trustee of ARLP Trust 5 (Christiana Trust).1 On
appeal, the defendant claims that the trial court erred:
(1) in relying upon a ‘‘procedural default’’ to find that
the named plaintiff, Bank of America, N.A. (Bank of
America), had standing to bring the instant action, and
thus that the court had subject matter jurisdiction over
the action; and (2) in failing to hold an evidentiary
hearing on his claim that Bank of America lacked stand-
ing to bring this action. We disagree, and thus affirm
the judgment of the trial court.
The following procedural history is relevant to the
defendant’s claims on appeal. In 2012, Bank of America
commenced this action against the defendant. On
March 13, 2014, the defendant filed an answer and sev-
eral special defenses, including the special defense
alleging that Bank of America ‘‘has made false and ficti-
tious claims without any supporting admissible evi-
dence,’’ and thus that it lacked standing to bring this
action.
On March 13, 2015, the defendant filed a motion to
dismiss this action on the ground, inter alia, that Bank
of America lacked standing to bring it. On April 29,
2015, the court denied the motion to dismiss because
the defendant failed to appear on the date the motion
was scheduled for argument.2
On May 14, 2015, Bank of America served the defen-
dant with requests for admission pursuant to Practice
Book § 13-22, in which it asked the defendant to admit,
inter alia, that Bank of America was the holder of the
underlying promissory note when this action was com-
menced and that the defendant had defaulted on his
obligation to make payments to it under the note. On
June 4, 2015, the defendant, without answering or
objecting to the requests for admission, filed a motion
for a protective order, pursuant to Practice Book § 13-
5, in which he asserted that the plaintiff’s requests for
admission, in their entirety, were ‘‘fraudulent’’ and
‘‘made in bad faith . . . as a perpetuation of systematic
unfair and deceptive practices.’’ He further asserted that
the ‘‘requests for admission and its content is outside
of the scope of allowable discovery, and seeks an admis-
sion of facts which are known by [the] plaintiff to be
false.’’ On June 5, 2015, Bank of America filed an objec-
tion to the defendant’s motion for a protective order.
On June 19, 2015, the defendant filed a corrected
motion for a protective order concerning several addi-
tional discovery requests that Bank of America had
directed to him. On July 17, 2015, the court sustained
Bank of America’s objection to the defendant’s original
motion for a protective order and summarily denied his
corrected motion for a protective order.
On July 29, 2015, Bank of America filed a ‘‘Notice of
Intent to Rely on [the] Requests to Admit,’’ in which it
asserted that the defendant’s failure to respond to its
requests for admission had resulted in his admission of
all matters as to which admissions had been requested
pursuant to Practice Book § 13-23 (a).3 On July 31, 2015,
more than six weeks after the thirty day period within
which the defendant was required to answer or object
to the requests for admission pursuant to Practice Book
§ 13-23 (a) had expired, the defendant finally responded
to such requests for admission, denying them all with-
out limitation or qualification.
On July 31, 2015, Bank of America filed a motion for
summary judgment as to liability only. Bank of America
reiterated, in support of that motion, that by failing to
answer or object to its requests for admission in the
time required by law, the defendant had admitted all
matters as to which admissions had been requested,
which included all facts necessary to establish both its
standing to bring this action and its right to prevail
against the defendant. The defendant filed an objection
to Bank of America’s motion for summary judgment,
claiming, inter alia, that the underlying note was fraudu-
lent, that Bank of America had not been the holder of
the note prior to the commencement of this action, and
thus that it lacked standing to pursue this foreclosure
action. The defendant filed no affidavits or other evi-
dence in support of his standing challenge.
On September 8, 2015, the court held a hearing on
the motion for summary judgment and the defendant’s
objection thereto. At the hearing, Bank of America
argued that the defendant’s failure to timely answer or
object to its requests for admission had resulted in
his admission, inter alia, that when Bank of America
commenced this action, it was the holder of the underly-
ing note, and that the defendant had defaulted on his
obligation to make payments to it under the note. Bank
of America, through its counsel, also presented to the
court the original note. The defendant sought to have
the hearing on the motion for summary judgment con-
tinued and requested an evidentiary hearing thereon.
In support of that request, the defendant argued that
an evidentiary hearing was necessary so that he might
submit ‘‘[t]wo certified sealed depositions from entities
in this case, who are admitting that they did not sign
documents in other cases.’’ When asked about his fail-
ure to timely answer or object to the plaintiff’s requests
for admission, the defendant argued that he had not
been properly served with those requests because they
had been served upon his counsel electronically. The
court responded by observing that the defendant had
not filed any motion asserting that the plaintiff’s
requests for admission had not been properly served.
Because, moreover, notwithstanding the defendant’s
eleventh hour claim that the requests for admission had
not been properly served upon him, he had previously
moved for a protective order with respect to such
requests and later denied them, the court ruled that he
had waived his claim of improper service. The court
finally noted that the defendant had not filed any motion
‘‘asking the court to be relieved from the failure to
initially file responses to the request[s] for admission,
[pursuant to Practice Book § 13-24 (a)]4 and the time
has passed.’’ (Footnote added.) The court thereafter
informed the parties that it would consider the motions
on the papers.
On September 18, 2015, Bank of America filed a
motion to substitute Christiana Trust as the party plain-
tiff, claiming that it had assigned the underlying mort-
gage to it. On October 2, 2015, the trial court summarily
granted the motion to substitute.5
On December 30, 2015, the court issued the following
order: ‘‘Having heard the plaintiff’s motion for summary
judgment . . . the court finds that no genuine issue of
material fact exists as to . . . (i) the plaintiff’s standing
to prosecute this foreclosure action and (ii) the liability
of the defendant . . . on the note and mortgage.
Accordingly, the plaintiff’s motion for summary judg-
ment as to liability only is hereby granted with respect
to the defendant. A determination of the amount of
indebtedness is deferred until such time as the plaintiff
seeks a judgment of foreclosure. Practice Book §§ 17-
44 through 17-51.’’ On February 4, 2016, the defendant
filed a motion to reargue, which the court denied on
May 13, 2016, reasoning as follows: ‘‘The defendant
. . . has failed to demonstrate a controlling decision
or principle of law that has been overlooked, a misap-
prehension of facts, inconsistencies in the court’s order
. . . granting the plaintiff’s motion for summary judg-
ment as to liability on its complaint against the defen-
dant . . . or claims of law that were not addressed;
rather, the defendant improperly seeks to have a ‘sec-
ond bite of the apple’ under the guise of a motion for
reconsideration.’’
On March 24, 2016, Christiana Trust filed a motion
for judgment of strict foreclosure. An evidentiary hear-
ing on the motion was held on June 15, 2016. At that
hearing, the defendant repeatedly attempted to reargue
the motion for summary judgment, but not on the
ground that Christiana Trust lacked standing. Instead,
the defendant argued that Christiana Trust did not have
a valid lien against him. The court repeatedly reminded
the defendant at the hearing that his argument was
improper because it had already ruled that Bank of
America had standing to pursue its foreclosure claim
against him and that he was liable to Christiana Trust
on the underlying note. Later that same day, the court
rendered a judgment of strict foreclosure, determined
the amount of the debt and set the law day for July 19,
2016. This appeal followed.
On appeal, the defendant claims that the trial court
erred in relying upon a ‘‘procedural default’’ as the basis
for finding that Bank of America had standing to bring
the instant action against him, and in failing to hold
an evidentiary hearing on his challenge to Christiana
Trust’s standing.
‘‘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. . . .
‘‘Generally, in order to have standing to bring a fore-
closure action the plaintiff must, at the time the action
is commenced, be entitled to enforce the promissory
note that is secured by the property. . . . The plaintiff’s
possession of a note endorsed in blank is prima facie
evidence that it is a holder and is entitled to enforce
the note, thereby conferring standing to commence a
foreclosure action. . . . After the plaintiff has pre-
sented this prima facie evidence, the burden is on the
defendant to impeach the validity of [the] evidence that
[the plaintiff] possessed the note at the time that it
commenced the . . . action or to rebut the presump-
tion that [the plaintiff] owns the underlying debt. . . .
The defendant [must] set up and prove the facts [that]
limit or change the plaintiff’s rights . . . .’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Deutsche Bank National Trust Co. v. Corne-
lius, 170 Conn. App. 104, 110–11, 154 A.3d 79, cert.
denied, 325 Conn. 922, 159 A.3d 1171 (2017).
‘‘If . . . the defendant submits either no proof to
rebut the plaintiff’s jurisdictional allegations . . . or
only evidence that fails to call those allegations into
question . . . the plaintiff need not supply counteraffi-
davits or other evidence to support the complaint, but
may rest on the jurisdictional allegations therein.’’
(Internal quotation marks omitted.) Rocky Hill v.
SecureCare Realty, LLC, 315 Conn. 265, 278, 105 A.3d
857 (2015).
Here, the defendant filed a motion for a protective
order in response to Bank of America’s requests for
admission, arguing that they were all improper, but did
not file a written answer or objection to those requests
in accordance with § 13-23 (a). The defendant’s failure
to timely answer or object to the requests for admission
pursuant to § 13-23 (a), and his subsequent failure to
ask the court for permission to withdraw or amend
those admissions pursuant to § 13-24 (a), resulted in
his admission of all the matters as to which admissions
were requested.
The defendant claims that the court erred in relying
on his admissions, which he claims to have resulted
from a ‘‘procedural default,’’ as a basis for finding that
Bank of America had standing to bring this action
against him. The defendant’s argument must be
rejected, however, on the basis of this court’s decision
in JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn.
App. 260, 265, 73 A.3d 757, cert. denied, 310 Conn. 935,
79 A.3d 889 (2013). In that case, the plaintiff bank failed
to timely respond to the defendant’s requests for admis-
sion in accordance with the rules of practice. This court
recited the ground asserted in the defendant’s motion
for summary judgment, that ‘‘due to the plaintiff’s fail-
ure to respond to the request[s] for admission, the rele-
vant admissions—that the plaintiff had no legal or
equitable interest in the note and mortgage and that
the note had been paid in full by a third party—were
deemed admitted.’’ Id., 265. On the basis of those admis-
sions, the trial court rendered summary judgment in
favor of the defendant, and this court affirmed that
judgment. The facts of JPMorgan Chase Bank, N.A. are
indistinguishable from the facts of this case, as both
cases involved the rendering of summary judgment on
the basis of party admissions resulting from a party’s
failure to respond in timely fashion to its opponent’s
requests for admission. We therefore conclude that the
defendant’s claim that the court improperly relied on
such admissions as a basis for rendering summary judg-
ment in this case is without merit.
As for the defendant’s claim that the trial court erred
in failing to hold an evidentiary hearing on his oft-
repeated challenge to Bank of America’s standing to
bring this action, that claim must be rejected for the
simple reason that the defendant never presented any
evidence that might have called Bank of America’s
standing into question. Because Bank of America duly
alleged that it possessed the note at the time it com-
menced this action, it was entitled to rely upon that
allegation unless the defendant presented facts to the
contrary, which he did not. Because the defendant failed
to raise a genuine issue of fact as to whether Bank of
America was the holder of the note when it commenced
this action, the trial court was not required to hold an
evidentiary hearing on that issue. See Equity One, Inc.
v. Shivers, 310 Conn. 119, 136, 74 A.3d 1225 (2013).
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
On June 15, 2015, the named plaintiff, Bank of America, N.A., assigned
the subject note and mortgage to Christiana Trust. Consequently, on October
2, 2015, Christiana Trust was substituted as the plaintiff in place of the
named plaintiff.
2
The record indicates that the defendant filed two additional motions to
dismiss on the ground that the court lacked subject matter jurisdiction, but
it does not appear that the defendant ever pursued those motions.
3
Practice Book § 13-23 (a) provides: ‘‘Each matter of which an admission
is requested is admitted unless, within thirty days after the filing of the
notice required by Section 13-22 (b), or within such shorter or longer time
as the judicial authority may allow, the party to whom the request is directed
files and serves upon the party requesting the admission a written answer
or objection addressed to the matter, signed by the party or by his attorney.
Any such answer or objection shall be inserted directly on the original
request. In the event that an answer or objection requires more space than
that provided on a request for admission that was not served electronically
and in a format that allows the recipient to electronically insert the answers
in the transmitted document, it shall be continued on a separate sheet of
paper which shall be attached to the response. Documents sought to be
admitted by the request shall be filed with the response by the responding
party only if they are the subject of an answer or objection. If objection is
made, the reasons therefor shall be stated. The answer shall specifically
deny the matter or set forth in detail the reasons why the answering party
cannot truthfully admit or deny the matter. A denial shall fairly meet the
substance of the requested admission, and when good faith requires that a
party qualify his or her answer or deny only a part of the matter of which
an admission is requested, such party shall specify so much of it as is true
and qualify or deny the remainder. An answering party may not give lack
of information or knowledge as a reason for failure to admit or deny unless
such party states that he or she has made reasonable inquiry and that the
information known or readily obtainable by him or her is insufficient to
enable an admission or denial. A party who considers that a matter of which
an admission has been requested presents a genuine issue for trial may not,
on that ground alone, object to the request; the party may deny the matter
or set forth reasons why he or she cannot admit or deny it. The responding
party shall attach a cover sheet to the response which shall comply with
Sections 4-1 and 4-2 and shall specify those requests to which answers and
objections are addressed.’’
4
Practice Book § 13-24 provides: ‘‘(a) Any matter admitted under this
section is conclusively established unless the judicial authority on motion
permits withdrawal or amendment of the admission. The judicial authority
may permit withdrawal or amendment when the presentation of the merits
of the action will be subserved thereby and the party who obtained the
admission fails to satisfy the judicial authority that withdrawal or amend-
ment will prejudice such party in maintaining his or her action or defense
on the merits. Any admission made by a party under this section is for the
purpose of the pending action only and is not an admission by him or
her for any other purpose nor may it be used against him or her in any
other proceeding.’’
‘‘(b) The admission of any matter under this section shall not be deemed
to waive any objections to its competency or relevancy. An admission of
the existence and due execution of a document, unless otherwise expressed,
shall be deemed to include an admission of its delivery, and that it has not
since been altered.’’
5
On October 5, 2015, the defendant filed an objection to Bank of America’s
motion to substitute party plaintiff, wherein he reiterated his argument that
Bank of America was not the holder of the note and thus that it lacked
standing to assign it to ‘‘any other person.’’ The record does not indicate
that the defendant’s objection was considered by the court.