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*********************************************** 
WACHOVIA MORTGAGE, FSB v. PAWEL

TOCZEK ET AL.

(AC 41851)

Elgo, Devlin and Harper, Js.

Syllabus

The plaintiff M Co. sought to foreclose a mortgage on certain real property

owned by the defendants A and T following their default on a promissory

note secured by the mortgage. Thereafter, W Co., which had been substituted as the plaintiff in the action following its acquisition of M Co.,

filed a motion for summary judgment as to liability. In support of its

motion, W Co. attached an affidavit from H, the vice president of loan

documentation for M Co., who attested concerning the debt owed under

the note and that W Co. was the current holder of the note. H included

with his affidavit a copy of both the note and the mortgage, which he

referenced therein. No objection to the motion was filed. The trial court

granted W Co.’s motion for summary judgment as to liability, which it

treated as unopposed, concluding that H’s affidavit in conjunction with

the note and mortgage constituted a prima facie case for a judgment

of strict foreclosure and that W Co. had met its burden of showing that

it was entitled to judgment as a matter of law. Thereafter, the trial court

granted W Co.’s motion for a judgment of strict foreclosure and rendered

judgment thereon. The trial court subsequently denied A’s motion to

reargue, and A appealed to this court. Held:

1. A could not prevail on her claim that the trial court lacked subject matter

jurisdiction because W Co. did not have standing because it was not

the holder of the subject note, which was premised on her claim that

the note was a nonnegotiable instrument pursuant to the relevant statute

(§ 42a-3-104 (a)) because it was not for a fixed amount of money and

was governed by federal law; because A’s claim challenged the validity

of the note, as opposed to W Co.’s actual possession of the note or

ownership of the mortgage, it implicated the merits of the foreclosure

action and, therefore, was not jurisdictional.

2. Contrary to A’s claim, the trial court properly granted W Co.’s motion for

summary judgment as to liability, as W Co. established its prima facie

case for foreclosure by pleading that it was the holder of the note on

which A had defaulted and submitting H’s affidavit, which included and

incorporated by reference copies of the note and mortgage, the record

did not reflect any issues with regard to conditions precedent to foreclosure, and A did not attempt to rebut W Co.’s status as the holder of

the note and, in fact, failed to file any opposition to the motion for

summary judgment.

3. The trial court did not abuse its discretion by granting W Co.’s motion

for a judgment of strict foreclosure; contrary to A’s claim that W Co.

failed to follow the procedures set forth in the rule of practice (§ 23-

18) pertaining to proof of debt in foreclosure actions because it did not

provide a preliminary statement of debt or affidavit of debt no less than

five days before the hearing on the motion for a judgment of strict

foreclosure, W Co. complied with § 23-18, as the plain language of that

rule of practice only requires that the preliminary statement of the

plaintiff’s monetary claim be filed no less than five days prior to the

hearing, and W Co. filed its preliminary statement of its monetary claim

almost nine years prior to the hearing and, thereafter, filed several

additional affidavits of debt, informing A as to how much she owed

under the note.

4. The trial court did not abuse its discretion when it denied A’s motion to

reargue the judgment of strict foreclosure: A’s claim that that court

overlooked the fact that the requirement in the applicable rule of practice

(§ 23-18) that the plaintiff’s preliminary statement of debt be filed no

less than five days before a hearing on a motion for a judgment of strict

foreclosure was mandatory was unavailing, as the court had before it

several affidavits containing a preliminary statement of W Co.’s monetary

claim that were filed far in advance of five days before the June, 2018

hearing, including the preliminary statement of monetary claim filed in
September, 2009; moreover, A failed to proffer any additional or new

evidence separate from that which the trial court heard in the prior

proceeding, nor did she demonstrate a misapprehension of facts or

claims of law that the court failed to address.

Argued October 17, 2019—officially released February 25, 2020

Procedural History

Action to foreclose a mortgage on certain real property owned by the named defendant et al., and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the named defendant

et al. filed a counterclaim; thereafter, Wells Fargo Bank,

N.A., was substituted as the plaintiff; subsequently, the

court, Hon. Alfred J. Jennings, Jr., judge trial referee,

granted the substitute plaintiff’s motion for summary

judgment as to liability on the complaint and as to

the counterclaim; thereafter, the court, Genuario, J.,

granted the substitute plaintiff’s motion for a judgment

of strict foreclosure and rendered judgment thereon;

subsequently, the court, Genuario, J., denied the

motion to reargue filed by the defendant Aleksandra

Toczek, and the defendant Aleksandra Toczek appealed

to this court; thereafter, the defendant Aleksandra Toczek filed an amended appeal. Affirmed.

Aleksandra Toczek, self-represented, the appellant

(defendant).

David M. Bizar, with whom was J. Patrick Kennedy,

for the appellee (substitute plaintiff).
Opinion

HARPER, J. The defendant Aleksandra Toczek1

appeals from the judgment of strict foreclosure rendered in favor of the substitute plaintiff, Wells Fargo

Bank, N.A.2 On appeal, the defendant claims that the

trial court (1) lacked subject matter jurisdiction

because the plaintiff did not have standing, (2) improperly granted the plaintiff’s motion for summary judgment as to liability, (3) improperly granted the plaintiff’s

motion for a judgment of strict foreclosure in violation

of Practice Book § 23-18, and (4) abused its discretion

when it denied the defendant’s motion to reargue the

judgment of strict foreclosure. We disagree with the

defendant and, accordingly, affirm the judgment of the

trial court.

The record reveals the following facts and procedural

history. On May 10, 2007, Pawel Toczek signed a promissory note (note) payable to World Savings Bank, FSB,

for a principal amount of $880,000. Shortly thereafter,

he and the defendant executed a mortgage in favor of

World Savings Bank, FSB, on real property located at

113 Soundview Court, Stamford. The note required

biweekly principal and interest payments beginning on

June 11, 2007, lasting until maturation on May 28, 2037.

Since July 7, 2008, neither Pawel Toczek nor the defendant has made any payments as required by the note

secured by the mortgage.

On February 12, 2009, the original plaintiff, Wachovia

Mortgage, FSB (Wachovia), notified both the defendant

and Pawel Toczek that they were in default and that

failure to cure would result in acceleration of the debt.

Neither Pawel Toczek nor the defendant took steps to

cure the default; thus, Wachovia elected to accelerate

the sums due. Wachovia then commenced the present

action and, in July, 2009, moved for a judgment of strict

foreclosure and a finding of entitlement of possession.

Then, on November 2, 2010, the plaintiff moved for

summary judgment as to liability on the allegations of

the complaint and the defendant’s special defenses, as

well as to the defendant’s counterclaim.

In support of the motion for summary judgment, the

plaintiff attached an affidavit attested to by Thomas S.

Hermann (Hermann affidavit), the vice president of loan

documentation for Wachovia, confirming the debt owed

by the defendant and the plaintiff’s possession of the

note at issue. Referenced in and included with the affidavit was a copy of both the note and the mortgage. Only

the plaintiff filed affidavits and exhibits with regard to

the motion for summary judgment. Therefore, the trial

court treated the motion for summary judgment as

unopposed. Prior to the motion for summary judgment,

the defendant had filed an answer, a setoff, special

defenses, and a counterclaim. The court, however, concluded that no facts were alleged, but, rather, the defen-
dant’s responses were merely conclusory and failed to

state any claims. On June 21, 2011, the trial court, Hon.

Alfred J. Jennings, Jr., judge trial referee, granted the

plaintiff’s motion for summary judgment as to liability

on its complaint and summary judgment in the plaintiff’s

favor on the defendant’s setoff and counterclaim. The

court concluded that the contents of the Hermann affidavit in conjunction with the note and mortgage constituted a prima facie case for a judgment of strict foreclosure and that, because the defendant failed to plead

facts to support any special defenses, the plaintiff met

its burden of showing that it was entitled to judgment

as a matter of law.

Despite having been filed in July, 2009, the motion

for a judgment of strict foreclosure was heard by the

court and granted on June 21, 2018. Several months

later, the court issued a memorandum of decision and

recognized that ‘‘there had been numerous procedural

and substantive causes for delay including multiple

bankruptcy filings, multiple motions to dismiss, [and]

significant discovery disputes among others.’’ Additionally, the court found the following facts: summary judgment as to liability had entered against the defendant,

the plaintiff was the current holder of the note, the

defendant’s debt totaled $1,480,218.51, and the debt

exceeded the property value by more than $800,000.

On July 11, 2018, the defendant filed a motion to

reargue the court’s June 21, 2018 judgment of strict

foreclosure. The defendant argued that (1) because the

note, by its own terms, was governed by federal law,

such designation precludes the application of this

state’s adoption of the Uniform Commercial Code

(UCC) and, thus, eliminates the plaintiff’s standing, and

(2) the court erred in proceeding when the most recent

affidavit of debt was filed less than five days before the

June 21, 2018 hearing. The court, Genuario, J., denied

the defendant’s motion, having concluded that ‘‘there

is nothing inconsistent with a determination that a note

is governed by federal law and the application of the

principles embodied in the UCC as many federal courts

have applied those principles as a body of federal common law,’’ the plaintiff is the holder of the note, and

the plaintiff complied with the timeliness requirement

for filing an affidavit of debt pursuant to Practice Book

§ 23-18. This appeal followed.3

I

The defendant first contends that the court lacked

subject matter jurisdiction because the plaintiff does

not have standing. In particular, she argues that the

plaintiff lacks standing because it is not the holder of

the note, a claim premised solely on her assertion that

the note is a nonnegotiable instrument pursuant to General Statutes § 42a-3-104 (a).4 According to the defendant, the note is nonnegotiable because it is not for a

fixed amount of money pursuant to § 42a-3-104 (a) and
it contains conspicuous language recognizing federal

law, as opposed to the UCC, as the governing law.

The defendant’s assumption that the negotiability of

the note implicates standing is without support under

Connecticut law. Instead, such claims go to the merits of

the case and are not jurisdictional. We find this court’s

holding in Wells Fargo Bank, N.A. v. Strong, 149 Conn.

App. 384, 89 A.3d 392, cert. denied, 312 Conn. 923, 94

A.3d 1202 (2014), instructive.

In Wells Fargo Bank, N.A., this court stated: ‘‘The

defendants make much of the maxim that standing

implicates the subject matter jurisdiction of the court

and may be raised at any time. The defendants, however, fail to understand that there is a difference

between challenging a party’s standing to maintain a

cause of action and challenging the merits of the cause

of action itself. The question of standing does not

involve an inquiry into the merits of the case. It merely

requires the party to make allegations of a colorable

claim of injury to an interest which is arguably protected

or regulated by the statute . . . in question. . . .

‘‘When the defendants argued . . . that the plaintiff

was not a proper holder of the note, their argument

went to the merits of the case, that is, to whether the

plaintiff should prevail. Although they called their claim

a lack of subject matter jurisdiction, we do not view it

as such. We view it, instead, as a claim that goes to the

heart of the issues that would have had to be resolved

. . . [at] trial. . . .

‘‘To prevail in an action to enforce a negotiable instrument, the plaintiff must be a holder of the instrument

or nonholder with the rights of a holder. . . . This status is an element of an action on a note. . . . The failure

to plead this fact properly is challenged by a motion to

strike. . . . The failure to prove such element will

result in a judgment for the defendants. . . . In neither

event is jurisdiction implicated. . . . [W]e conclude

that [a] defendant’s challenge to the validity of the

plaintiff’s status as owner of the note and mortgage, as

opposed to the plaintiff’s actual possession of the note

and ownership of the mortgage, implicates the merits

of the . . . foreclosure action, not the plaintiff’s standing to bring the action.’’ (Citation omitted; emphasis in

original; internal quotation marks omitted.) Id.,

399–400.

In the present case, the defendant does not dispute

the plaintiff’s actual possession of the note or the ownership of the mortgage. In her claim that the note is

not for a fixed sum and governed by federal law, the

defendant challenges the validity of the note itself

which, as Wells Fargo Bank, N.A, provides, is a claim

that goes to the merits of the foreclosure action and is

not jurisdictional. Therefore, the defendant’s subject

matter jurisdiction claim fails.
II

Next, the defendant claims that the court erred when

it granted the plaintiff’s motion for summary judgment

as to liability. More specifically, she argues that the

plaintiff was unable to meet its burden to make a prima

facie case for foreclosure because the note was nonnegotiable. The defendant, again, contends that the note

is nonnegotiable because it contained conspicuous language that it was governed by federal law and that it

was not for a fixed amount. Further, the defendant

argues that the court failed to consider that the term

‘‘holder’’ means ‘‘ [a] person in possession of a negotiable [note] that is payable either to bearer or to an identified person that is the person in possession . . . .’’ We

disagree with the defendant.

We begin our analysis by setting forth the standard

of review. ‘‘Our review of the trial court’s decision to

grant [a] motion for summary judgment is plenary. . . .

[I]n seeking summary judgment, it is the movant who

has the burden of showing . . . the absence of any

genuine issue as to all the material facts [that], under

applicable principles of substantive law, entitle him to

a judgment as a matter of law. . . .

‘‘In order to establish a prima facie case in a mortgage

foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the

note and mortgage, that the defendant mortgagor has

defaulted on the note and that any conditions precedent

to foreclosure, as established by the note and mortgage,

have been satisfied. . . . Thus, a court may properly

grant [a motion for] summary judgment as to liability

in a foreclosure action if the complaint and supporting

affidavits establish an undisputed prima facie case and

the defendant fails to assert any legally sufficient special

defense.’’ (Internal quotation marks omitted.) U.S.

Bank, National Assn. v. Fitzpatrick, 190 Conn. App.

773, 788–89, 212 A.3d 732, cert. denied, 333 Conn. 916,

217 A.3d 1 (2019).

‘‘When a party files a motion for summary judgment

and there [are] no contradictory affidavits, the court

properly [decides] the motion by looking only to the

sufficiency of the [movant’s] affidavits and other proof.’’

(Internal quotation marks omitted.) Lefebvre v. Zarka,

106 Conn. App. 30, 38–39, 940 A.2d 911 (2008). ‘‘[I]f the

affidavits and the other supporting documents [of the

nonmoving party] are inadequate, then the court is justified in granting the [motion for] summary judgment,

assuming that the movant has met his burden . . . .’’

(Emphasis in original; internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn. App.

618, 631, 57 A.3d 391 (2012).

In the present case, the plaintiff pleaded that it was

the holder of the note on which the defendant had

defaulted and the plaintiff foreclosed. The plaintiff also
submitted to the court an affidavit that included and

incorporated by reference copies of the note and mortgage that it has possessed since it acquired Wachovia.

See footnote 2 of this opinion. Additionally, the record

does not reflect any issues with regard to conditions

precedent to foreclosure. The plaintiff, therefore, established its prima facie case. The defendant did not

attempt to rebut the plaintiff’s status as a holder of the

note—in fact, the defendant did not file any opposition

to the plaintiff’s motion for summary judgment.

Because the plaintiff established a prima facie case

that it is the holder of the note in dispute, and the

defendant did not contest that showing, we reject the

defendant’s claim that the court erred when it granted

the plaintiff’s motion for summary judgment as to liability.

III

The defendant’s third claim is that the court improperly granted the plaintiff’s motion for a judgment of

strict foreclosure in violation of Practice Book § 23-18.

Specifically, she argues that the plaintiff failed to follow

the procedures outlined in § 23-18, in that it did not

provide a preliminary statement of debt or affidavit of

debt no less than five days before the hearing. We

disagree.

We first set forth our standard of review. ‘‘The standard of review of a judgment of . . . strict foreclosure

is whether the trial court abused its discretion. . . .

In determining whether the trial court has abused its

discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our

review of a trial court’s exercise of the legal discretion

vested in it is limited to the questions of whether the

trial court correctly applied the law and could reasonably have reached the conclusion that it did.’’ (Internal

quotation marks omitted.) Bank of America, N.A. v.

Gonzalez, 187 Conn. App. 511, 514, 202 A.3d 1092 (2019).

As discussed previously in this opinion, ‘‘[i]n order

to establish a prima facie case in a mortgage foreclosure

action, the plaintiff must prove by a preponderance of

the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on

the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have

been satisfied.’’ (Internal quotation marks omitted.)

U.S. Bank, National Assn. v. Fitzpatrick, supra, 190

Conn. App. 788–89. Additionally, Practice Book § 23-18

(b) provides: ‘‘No less than five days before the hearing

on the motion for judgment of foreclosure, the plaintiff

shall file with the clerk of the court and serve on each

appearing party, in accordance with Sections 10-12

through 10-17, a preliminary statement of the plaintiff’s

monetary claim.’’

On appeal, the defendant argues that the plaintiff’s
June 18, 2018 affidavit of debt was untimely because it

was filed less than five days prior to the June 21, 2018

hearing on the motion for a judgment of strict foreclosure. We disagree.

The plain language of Practice Book § 23-18 (b) only

requires that the preliminary statement of the plaintiff’s

monetary claim be filed no less than five days prior to

a hearing on a motion for a judgment of strict foreclosure. In the present case, the plaintiff filed its preliminary statement of its monetary claim on September 9,

2009—almost nine years prior to the hearing on the

motion for a judgment of strict foreclosure. Thereafter,

the plaintiff filed additional affidavits of debt, informing

the defendant how much she owed, including on April

8, 2010, December 31, 2013, February 17, 2017, and June

18, 2018. Therefore, the plaintiff properly complied with

Practice Book § 23-18 (b), and the court did not abuse

its discretion by granting the motion for a judgment of

strict foreclosure.5

IV

Lastly, the defendant claims that the court abused

its discretion when it denied the defendant’s motion

reargue the judgment of strict foreclosure. She asserts

that the trial court ‘‘overlooked the fact that the requirement that the preliminary statement of debt be filed no

less than five days [before a hearing on a motion for a

judgment of strict foreclosure] in Practice Book [§] 23-

18 was mandatory and that the defendant should be

informed of the amount of the debt including interest

to the date of the hearing.’’ (Emphasis omitted.) We

disagree.

‘‘[I]n reviewing a court’s ruling on a motion to open,

reargue, vacate or reconsider, we ask only whether

the court acted unreasonably or in clear abuse of its

discretion. . . . When reviewing a decision for an

abuse of discretion, every reasonable presumption

should be given in favor of its correctness. . . . As

with any discretionary action of the trial court . . . the

ultimate [question for appellate review] is whether the

trial court could have reasonably concluded as it did.

. . . [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some

principle of law which would have a controlling effect,

and which has been overlooked, or that there has been

a misapprehension of facts. . . . It also may be used

to address . . . claims of law that the [movant] claimed

were not addressed by the court. . . . [A] motion to

reargue [however] is not to be used as an opportunity

to have a second bite of the apple . . . .’’ (Citation

omitted; internal quotation marks omitted.) Gianetti v.

Gerardi, 122 Conn. App. 126, 129, 998 A.2d 807 (2010).

Again, because the court had before it several affidavits containing a preliminary statement of the plaintiff’s

monetary claim that were filed far in advance of five
days before the hearing on the motion for a judgment of

strict foreclosure, including the preliminary statement

filed on September 9, 2009, the court did not overlook

the five day requirement of Practice Book § 23-18. See

part III of this opinion. In addition, the defendant failed

to proffer any additional or new evidence separate from

that which the court heard in the prior proceeding,

nor did she demonstrate a misapprehension of facts or

claims of law that the court failed to address. Accordingly, the court did not abuse its discretion when it

denied the defendant’s motion to reargue the judgment

of strict foreclosure.

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 Pawel Toczek and Metro Roofing Supplies, Inc., were also named as

defendants but are not involved in this appeal. We therefore refer in this

opinion to Aleksandra Toczek as the defendant.

2 The original plaintiff, Wachovia Mortgage, FSB, formerly known as World

Savings Bank, FSB, was acquired on November 1, 2009, by Wells Fargo

Bank, N.A., which was substituted as the plaintiff in this case on April 12,

2010. We therefore refer in this opinion to Wells Fargo Bank, N.A., as

the plaintiff.

3 The defendant filed an amended appeal on July 30, 2018. Her appeal

form indicates that she is appealing from the following: (1) motion for a

judgment of strict foreclosure, (2) motion to dismiss, (3) motion to open

summary judgment, (4) motion for summary judgment, (5) discovery

motions, (6) motion to reargue the judgment of strict foreclosure, and (7)

motion for a protective order. In her appellate brief and in her oral argument

before this court, the defendant did not address claims two, three, five, or

seven; therefore, we will only address claims one, four, and six, as well as

her subject matter jurisdiction claim. See Nowacki v. Nowacki, 129 Conn.

App. 157, 163, 20 A.3d 702 (2011) (‘‘[i]t is well settled that [w]e are not

required to review claims that are inadequately briefed’’ [internal quotation

marks omitted]).

4 General Statutes § 42a-3-104 (a) provides in relevant part: ‘‘Except as

provided in subsections (c) and (d), ‘negotiable instrument’ means an unconditional promise or order to pay a fixed amount of money, with or without

interest or other charges described in the promise or order . . . .’’

5

In Bank of New York Mellon v. Horsey, 182 Conn. App. 417, 433–34, 190

A.3d 105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018), the parties

presented similar arguments concerning the five day notice provision of

Practice Book § 23-18 (b). Similar to the present appeal, the plaintiff in Bank

of New York Mellon filed multiple affidavits of debt. Id. The first affidavit

was filed many years before the trial court conducted its hearing on a motion

for a judgment of strict foreclosure, while the most recent affidavit was

filed four days prior to the hearing. Id. The issue of timeliness, however,

was not raised properly before the trial court, and, thus, this court did not

address ‘‘whether Practice Book § 23-18 was satisfied by the filing of the

initial affidavit of debt . . . .’’ Id., 434.