978-1285770178 Case Printout Case CPC-13-06

Conn.App.,2010.

gagor’s mortgage loan for which the operator of an electronic mortgage registry was the nominal mortgagee and for

[3] Pretrial Procedure 307A 554

307A Pretrial Procedure

307AIII Dismissal

307AIII(B) Involuntary Dismissal

307AIII(B)2 Grounds in General

307Ak554 k. Want of jurisdiction. Most Cited Cases

The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.

Practice Book 1998, §§ 10–30, 10–31.

[4] Action 13 13

[5] Courts 106 35

106 Courts

[6] Appeal and Error 30 842(1)

30 Appeal and Error

30XVI Review

[7] Action 13 13

13 Action

[8] Action 13 13

13 Action

13I Grounds and Conditions Precedent

13k13 k. Persons entitled to sue. Most Cited Cases

Standing is not a technical rule intended to keep aggrieved parties out of court, nor is it a test of substantive rights;

rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate

nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controver-

sy, with each view fairly and vigorously represented.

[9] Mortgages 266 431

mortgagee and for which trustee of structured asset investment loan trust (SAIL trust), which was not the nominator,

was purported assignee of the registry operator, even assuming that such assignment was invalid because the registry

operator could assign the mortgage only to the nominator, the trustee, as holder of negotiable instrument secured by

the mortgage, had statutory right to foreclose on the mortgage even without an assignment of the mortgage to trus–

266k234 Transfer of Debt or Obligation Secured

266k235 k. In general. Most Cited Cases

Mortgages 266 431

Statute permitting the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage

even when the mortgage has not yet been assigned to him codifies the common-law principle that the mortgage fol-

lows the note, pursuant to which principle only the rightful owner of the note has the right to enforce the mortgage.

C.G.S.A. § 49–17.

56k183 k. Formal requisites. Most Cited Cases

An “allonge” is a slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further

indorsements when the original paper is filled with indorsements.

ever.

On July 13, 2009, the court denied the defendant’s motion to dismiss without a written opinion.FN5 This appeal fol-

lowed.

FN5. In a subsequent memorandum of decision, filed December 10, 2009, the court explained its ruling. As

to the defendant’s first claim, the court ruled that the plaintiff was entitled to foreclose on the mortgage be-

cause it was the holder of the note. As to the second claim, the court ruled that it was “without merit” be-

cause the sole authority on which the defendant relied was not applicable.

[1][2] At the outset, we set forth the appropriate standard of review. “A motion to dismiss … properly attacks the

jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of ac–

tion that should be heard by the court…. [O]ur review of the trial court’s ultimate legal conclusion and resulting [de-

nial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468,

477-78, 964 A.2d 73 (2009).

[3][4][5][6] Our analysis of the defendant’s claim is also governed by our well established principles of standing.

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dis-

miss…. [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor … clearly to allege facts

demonstrating that he is a proper party to invoke judicial resolution of the dispute…. It is well established that, in

determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be in-

dulged…. Because a determination regarding the trial court‘s subject matter jurisdiction raises a question of law, our

review is plenary….

[7][8] “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 ac-

Nazareth, 75 Conn.App. 791, 793-94, 818 A.2d 69 (2003).

I

[9] The defendant first claims that the plaintiff lacked standing to bring its foreclosure action because it was not a

[10] Even if we were to assume arguendo that the assignment of the mortgage from MERS to the plaintiff was inva-

lid, the defendant’s claim fails. “General Statutes § 49-17 FN6 permits the holder of a negotiable instrument that is

secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him. Fleet

Conn.App. 390, 391-92, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006). Our legislature, by adopt-

ing § 49-17, has “provide[d] an avenue for the holder of the note to foreclose on the property when the mortgage has

not been assigned to him.” Fleet National Bank v. Nazareth, supra, at 795, 818 A.2d 69.

FN6. General Statutes § 49–17 provides: “When any mortgage is foreclosed by the person entitled to re–

[11] The defendant has failed to offer any evidence to counter the plaintiff’s claim that it is a bona fide holder of the

promissory note secured by the mortgage on the defendant‘s property. In contrast, the plaintiff offered a copy of the

promissory note that was endorsed in blank by BNC Mortgage, Inc., by way of an allonge.FN7 It is undisputed that

the plaintiff is also in possession of the note.

someone who has the rights of a holder is entitled to enforce the instrument. General Statutes § 42a-3-301. The

“holder” is the person or entity in possession of the instrument if the instrument is payable to bearer. General Stat-

utes § 42a-1-201(b)(21)(A). When an instrument is endorsed in blank, it “becomes payable to bearer and may be

negotiated by transfer of possession alone….” General Statutes § 42a-3-205(b).

business, before maturity and without notice of any circumstances impeaching its validity. The production of the

note establishes his case prima facie against the makers and he may rest there…. It [is] for the [makers] to set up and

prove the facts which limit or change the [bearer’s] rights.” (Internal quotation marks omitted.) SKW Real Estate Ltd.

Partnership v. Gallicchio, 49 Conn.App. 563, 571, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169

[13] We next address the defendant’s claim that the plaintiff lacked standing because the SAIL trust, the entity for

which the plaintiff is trustee, was not a valid and enforceable express trust. We disagree.

Section 52-106 provides that “[a]n executor, administrator, or trustee of an express trust may sue or be sued without