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U.S. BANK, N.A., TRUSTEE v. DONNA L. FOOTE

(AC 35632)

DiPentima, C. J., and Beach and Keller, Js.

Argued March 11—officially released July 22, 2014

(Appeal from Superior Court, judicial district of

Middlesex, Aurigemma, J. [motion for summary

judgment, strict foreclosure judgment]; Domnarski, J.

[summary judgment].)

Christopher G. Brown, for the appellant (defendant).

Fletcher W. Moore, for the appellee (plaintiff).
Opinion

KELLER, J. The defendant, Donna L. Foote, appeals

from the judgment of strict foreclosure rendered by

the trial court following the granting of a motion for

summary judgment in favor of the plaintiff, U.S. Bank,

N. A., as trustee. On appeal, the defendant claims that

the trial court erred in granting the plaintiff’s motion

for summary judgment because (1) the action is barred

by the doctrines of res judicata and collateral estoppel;

(2) the plaintiff failed to establish a prima facie case

for foreclosure; and (3) a prior judgment of dismissal

against the plaintiff created a genuine issue of material

fact as to the plaintiff’s status as holder of the note

at the time the present action was commenced. The

defendant further claims that, because the plaintiff was

not entitled to summary judgment, the court improperly

rendered judgment of strict foreclosure in favor of the

plaintiff. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On October 20,

2006, the defendant executed an adjustable rate note

in the principal amount of $528,000, payable to the order

of AmTrust Funding Services (AmTrust). Appended to

the note was an allonge1 endorsed in blank. As security

for the note, the defendant conveyed by way of mortgage deed her interest in real property located at 474

Main Street in Old Saybrook to Mortgage Electronic

Registration Systems, Inc. (MERS), as nominee for

AmTrust and its ‘‘successors and assigns.’’2 On December 17, 2010, MERS assigned the mortgage to the plaintiff, as trustee for MASTR Adjustable Rate Mortgages

Trust 2007-1, Mortgage Pass-Through Certificates,

Series 2007-1. The assignment was recorded in the Old

Saybrook land records on December 28, 2010.

On May 29, 2012, the plaintiff commenced this foreclosure action seeking reformation of the mortgage and

a judgment of foreclosure.3

In its complaint, the plaintiff

alleged, inter alia, that it was the holder and owner of

the note and mortgage, and that the note was in default

because the plaintiff had failed to make payments.

Accordingly, the plaintiff sought to accelerate the balance due and foreclose on the mortgage.

The defendant filed a motion for summary judgment

on August 31, 2012, in which she referred to a previous

foreclosure action brought by the same plaintiff against

the same defendant, involving the same note and mortgage. See U.S. Bank, N.A. v. Foote, Superior Court,

judicial district of Middlesex, Docket No.CV-11-6004322

(January 5, 2012). In that case, the court, Abrams, J.,

granted the defendant’s motion to dismiss on the ground

that the plaintiff lacked standing. Specifically, the court

concluded that the plaintiff had failed to sustain its

evidentiary burden of establishing that it was the holder
of the note at the time the action was commenced

because the plaintiff’s witness could not unequivocally

state that the plaintiff or one of its agents was in possession of the note at the time the action was commenced.

Id. In the present case, the defendant argued in her

motion for summary judgment that because the note

at issue in the present action was the subject of a prior

foreclosure action brought by the same plaintiff against

same the defendant, the present foreclosure action

therefore was barred by the doctrines of res judicata

and collateral estoppel. The court, Aurigemma, J., disagreed and denied the defendant’s motion.

Thereafter, the defendant filed an answer in which

she conceded that she ‘‘did not make certain of the

payments contemplated by the Note . . . .’’ She also

pleaded five special defenses. The first and second special defenses invoked the doctrines of res judicata and

collateral estoppel.4

On January 23, 2013, the plaintiff filed a motion for

summary judgment as to liability, as well as a supporting

memorandum of law, on the grounds that there was an

‘‘absence of a legally sufficient defense, or material

issue of fact,’’ and because it had established a prima

facie case for foreclosure. In support of its motion,

the plaintiff submitted copies of the note, the allonge

endorsed in blank, the mortgage deed, the assignment

of mortgage, and the notice of default sent to the defendant. The plaintiff also submitted an affidavit from

Attorney Martha Croog, the managing member of the

plaintiff’s attorney and bailee, Martha Croog, LLC (law

firm), and an affidavit of debt from Gerhard Heckermann, an assistant secretary of the plaintiff’s attorneyin-fact and servicer, Homeward Residential, Inc.

(Homeward).

The defendant filed an objection to the plaintiff’s

motion for summary judgment in which she reasserted

her contention that the action was barred by the doctrines of res judicata and collateral estoppel. She also

claimed that the plaintiff failed to establish a prima

facie case for foreclosure. The defendant did not file

any affidavits or exhibits in support of her opposition,

and instead relied on ‘‘all papers and proceedings . . .

that were filed . . . in connection with the prior

action’’ between the parties. The court, Domnarski,

J., heard oral argument on the motion for summary

judgment as to liability on March 11, 2013. The court

subsequently granted the plaintiff’s motion on March 15,

2013. Thereafter, the court, Aurigemma, J., rendered

judgment of strict foreclosure in favor of the plaintiff

on April 15, 2013. This appeal followed. Additional facts

will be set forth as necessary.

I

The defendant first claims that the present foreclosure action is barred by the doctrines of res judicata
and collateral estoppel. The issue of whether the doctrines of res judicata and collateral estoppel apply to

the facts of this case presents a question of law. Our

review, therefore, is plenary. Bruno v. Geller, 136 Conn.

App. 707, 720, 46 A.3d 974, cert. denied, 306 Conn. 905,

52 A.3d 732 (2012).

‘‘Claim preclusion (res judicata) and issue preclusion

(collateral estoppel) have been described as related

ideas on a continuum. [C]laim preclusion prevents a

litigant from reasserting a claim that has already been

decided on the merits. . . . [I]ssue preclusion . . .

prevents a party from relitigating an issue that has been

determined in a prior suit. . . . The doctrines of res

judicata and collateral estoppel protect the finality of

judicial determinations, conserve the time of the court,

and prevent wasteful relitigation.’’ (Citation omitted;

internal quotation marks omitted.) Id., 720–21. In its

order granting the plaintiff’s motion for summary judgment, the court found that although the plaintiff did

not satisfy its burden of establishing that it was the

holder of the note at the time the prior action was

commenced, neitherres judicata nor collateral estoppel

precluded the plaintiff from commencing a new action

and demonstrating its holder status at the time that the

present action was commenced. We agree with the

court.

A

We first discuss the defendant’s res judicata claim.

The defendant argues that ‘‘there can be no credible

dispute that the dismissal of the prior action for lack of

subject matter jurisdiction was rendered on the merits’’

and therefore has a preclusive effect on the present

action. We disagree.

‘‘[T]he doctrine of res judicata, or claim preclusion,

[provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent

action on the same claim. . . . The doctrine of res judicata applies if the following elements are satisfied: the

identity of the parties to the actions are the same; the

same claim, demand or cause of action is at issue; the

judgment in the first action was rendered on the merits;

and the parties had an opportunity to litigate the issues

fully.’’ (Citation omitted; internal quotation marks omitted.) Farmington Valley Recreational Park, Inc. v.

Farmington Show Grounds, LLC, 146 Conn. App. 580,

588, 79 A.3d 95 (2013). ‘‘Judgments based on the following reasons are not rendered on the merits: want of

jurisdiction; pre-maturity; failure to prosecute; unavailable or inappropriate relief or remedy; lack of standing.’’ (Emphasis added; internal quotation marks

omitted.) Bruno v. Geller, supra, 136 Conn. App. 725.

Relying on this principle, this court has held that the

dismissal of an earlier action forlack of standing is not a

judgment on the merits and does not have a res judicata

effect. See, e.g., Cayer v. Komertz, 91 Conn. App. 202,
203–204, 881 A.2d 368 (2005); Cayer Enterprises, Inc.

v. DiMasi, 84 Conn. App. 190, 194, 852 A.2d 758 (2004).

In her main and reply briefs before this court, the

defendant acknowledges that the court’s judgment in

the prior action implicated the subject matter jurisdiction of the court and was a decision regarding the plaintiff’s standing. ‘‘ ‘[S]tanding to enforce [a] promissory

note is [established] by the provisions of the Uniform

Commercial Code . . . . [See] General Statutes § 42a1-101 et seq. Under [the Uniform Commercial Code],

only a ‘‘holder’’ of an instrument or 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 Statutes § 42a1-201 (b) (21) (A).5 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).’ ’’

6

(Footnote omitted.)

Equity One, Inc. v. Shivers, 310 Conn. 119, 126, 74 A.3d

1225 (2013).

As noted previously, the allonge was endorsed in

blank. In the prior action, the court noted that ‘‘the

plaintiff’s witness could not [un]equivocally state that

[the plaintiff] possessed the note at the time the foreclosure commenced.’’ U.S. Bank, N.A. v. Foote, supra,

Superior Court, Docket No. CV-11-6004322. It therefore

concluded that the ‘‘plaintiff did not prove by a preponderance of the evidence that it was the holder of the

note at the time the action was commenced,’’ and,

accordingly, granted the defendant’s motion to dismiss.

Id. That judgment, pertaining to whether the plaintiff

was in possession of the note and therefore was the

holder, was a dismissal forlack of standing. That plainly

is not a judgment on the merits7 and the doctrine of

res judicata, therefore, does not apply.

B

We now turn to the defendant’s claim that the doctrine of collateral estoppel prevents the plaintiff from

relitigating the issue of whether it is the holder of the

note that was the subject of the priorforeclosure action.

‘‘Collateral estoppel . . . is that aspect of res judicata which prohibits the relitigation of an issue when

that issue was actually litigated and necessarily determined in a prior action between the same parties upon a

different claim.’’ (Emphasis omitted; internal quotation

marks omitted.) Farmington Valley Recreational Park,

Inc. v. Farmington Show Grounds, LLC, supra, 146

Conn. App. 588. ‘‘Collateral estoppel means simply that

when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot

again be relitigated between the same parties in any

future lawsuit. . . . Issue preclusion arises when an

issue is actually litigated and determined by a valid and
final judgment, and that determination is essential to

the judgment. . . . Collateral estoppel may be invoked

against a party to a prior adverse proceeding or against

those in privity with that party.’’(Citation omitted; internal quotation marks omitted.) Byars v. Berg, 116 Conn.

App. 843, 846, 977 A.2d 734 (2009).

In rejecting the defendant’s claim that collateral

estoppel bars the present action, the court concluded:

‘‘[The finding] that the plaintiff had not established that

it was the owner of the note at the time the [prior]

action was commenced . . . is not binding upon this

court under . . . collateral estoppel because the dates

of commencement of the [prior] action, January 11,

2011, and this action, May 29, 2012, are not the same.’’

We agree with the court.

We must determine whether the issues raised by the

plaintiff in the present case were in substance already

litigated and determined in the earlier action. In its brief

to this court, the defendant asserts that the issue of

whether the plaintiff was the holder of the note was

actually litigated, essential to the judgment of dismissal,

and determined in a prior action. The defendant, however, does not provide any support or argument as to

whether the issues decided in the two actions were, in

fact, the same, such that the same issue was being

relitigated. The defendant appears to broadly frame the

issue simply as whether the plaintiff was the holder of

the note that was the subject of the original foreclosure

action. We, however, take a more narrow view that is

appropriately guided by the pleadings.

In deciding the defendant’s motion to dismiss, the

court confronted the issue of whether the ‘‘plaintiff

demonstrated by a preponderance of the evidence at

the [evidentiary] hearing that it was the holder of the

note at the time this action commenced.’’ (Emphasis

added.) U.S. Bank, N.A. v. Foote, supra, Superior Court,

Docket No. CV-11-6004322. That is, the court determined whether the evidence demonstrated that the

plaintiff was the holder of the note on January 11, 2011.

In the present case, however, the only issue before the

court was whether the plaintiff was the holder of the

note at the time the present action was commenced on

May 29, 2012. Consequently, collateral estoppel has no

application in the absence of an identical issue to be

decided by the court.

II

We next address the defendant’s claim that the plaintiff was not entitled to summary judgment as to liability

because it failed to establish a prima facie case for

foreclosure. The defendant contends that the plaintiff

did not demonstrate a prima facie case because it failed

to satisfy its burden of establishing the absence of a

genuine issue of material fact as to whether it was the

holder of the note at the time the present action was
commenced. We disagree.

As a preliminary matter, we set forth our standard

of review and other legal principles relevant to evaluating a court’s decision to grant a motion for summary

judgment. ‘‘On appeal, [w]e must decide whether the

trial court erred in determining that there was no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. . . .

Because the trial courtrendered judgmentforthe [plaintiff] as a matter of law, our review is plenary and we

must decide whether [the trial court’s] conclusions are

legally and logically correct and find support in the

facts that appear in the record. . . .

‘‘Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

. . . In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party. . . .

‘‘A material fact is a fact that will make a difference

in the outcome of the case. . . . Once the moving party

has presented evidence in support of the motion for

summary judgment, the opposing party must present

evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for

the opposing party merely to assert the existence of

such a disputed issue. Mere assertions of fact . . . are

insufficient to establish the existence of a material fact

and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . .

The movant has the burden of showing the nonexistence of such issues but the evidence thus presented,

if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. . . . To oppose

a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and

documents.’’ (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 704–705, 807

A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291

(2002).

In her objection to the plaintiff’s motion for summary

judgment, the defendant argued that the plaintiff failed

to establish a prima facie case for foreclosure. ‘‘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

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.’’8

(Citations

omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn. App.

165, 176, 73 A.3d 742 (2013).

‘‘A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing

that there is no genuine issue of material fact as to any

of the prima facie elements, including that it is the

owner of the debt. Appellate courts in this state have

held that that burden is satisfied when the mortgagee

includes in its submissions to the court a sworn affidavit

averring that the mortgagee is the holder of the promissory note in question at the time it commenced the

action. . . . The evidentiary burden of showing the

existence of a disputed material fact then shifts to the

defendant. It is for the maker of the note to rebut the

presumption that a holder of the note is also the owner

of it.’’(Citations omitted; internal quotation marks omitted.) Id., 177. ‘‘[T]he party moving for summary judgment . . . is required to support its motion with

supporting documentation, including affidavits.’’ (Internal quotation marks omitted.) Romprey v. Safeco Ins.

Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726

(2013). Likewise, ‘‘[t]he existence of the genuine issue

of material fact must be demonstrated by counteraffidavits and concrete evidence.’’ (Emphasis omitted; internal quotation marks omitted.) Little v. Yale University,

92 Conn. App. 232, 235, 884 A.2d 427 (2005), cert. denied,

276 Conn. 936, 891 A.2d 1 (2006).

Furthermore, ‘‘[t]he possession by the bearer of a

note indorsed in blank imports prima facie that [it]

acquired the note in good faith for value and in the

course of business, before maturity and without notice

of any circumstances impeaching its validity. The production of the note establishes [its] case prima facie

against the makers and [it] may rest there. . . . It [is]

for the defendant to set up and prove the facts which

limit or change the plaintiff’s rights.’’(Internal quotation

marks omitted.) RMS Residential Properties, LLC v.

Miller, 303 Conn. 224, 232, 32 A.3d 307 (2011). A mortgagee is not obligated to produce the original note in

order to meet the mortgagee’s burden at summary judgment; ‘‘that burden is satisfied when the mortgagee

includes in its submissions to the court a sworn affidavit

averring that the mortgagee is the holder of the promissory note in question at the time it commenced the

action.’’ GMAC Mortgage, LLC v. Ford, supra, 144 Conn.

App. 177.

We begin our analysis by noting that the defendant

does not challenge two of the three elements of the

plaintiff’s prima facie case. Specifically, the defendant

does not contest that she has defaulted on the note or

that conditions precedent to foreclosure, as established

by the note and mortgage, have been satisfied. The

defendant instead challenges only the first element of
the plaintiff’s prima facie case, that is, that it was the

holder of the note at the time the action was commenced.

In the present case, the plaintiff had submitted to

the trial court a memorandum of law accompanied by

copies of the adjustable rate note, allonge endorsed in

blank,9 and mortgage deed. As the note was endorsed

in blank, the plaintiff must demonstrate that it is the

holder—that is, in possession10—of the note in order

to import a prima facie case for foreclosure and satisfy

its burden at summary judgment. The defendant argues

thatthe documentation, including the affidavits, submitted by the plaintiff do not establish that the plaintiff

was in possession of the note at the time it commenced

the action. We disagree.

The plaintiff pleaded that it is the holder of the note

upon which the defendant defaulted as well as the

owner of the underlying debt. Further, the plaintiff

offered the sworn affidavit of Attorney Croog, who

averred that the law firm of which she is the managing

member is the bailee and attorney for the plaintiff. She

further attested that the law firm ‘‘receives originally

executed mortgage loan documents from mortgage loan

servicers and mortgage lenders,’’ and that upon receipt

of those documents, the law firm ‘‘acknowledges

receipts of those documents in a bailee letter that

accompanies the original documents so received by

[the law firm], as bailee.’’ The affiant stated that she

received the original note, allonge endorsed in blank,

and mortgage deed, and acknowledged receipt of those

documents in a bailee letter, which the affiant attached

to her affidavit as an exhibit. Finally, she averred that

the law firm, as bailee, continuously ‘‘has retained the

original note, executed by [the defendant], together

with the allonge endorsed in blank, and mortgage, executed by [the defendant], in its custody since . . . February 22, 2011.’’ (Emphasis added.)

In his affidavit of debt Heckermann averred that he

was an assistant secretary of the plaintiff’s servicer

and attorney-in-fact, Homeward. He further stated that

‘‘Homeward maintains records for the subject loan on

behalf of the [plaintiff]’’ and that the plaintiff ‘‘is entitled

to enforce the Note.’’ He also calculated the total due

to the plaintiff as a result of the defendant’s default.

The defendant argues that the affidavits do not demonstrate that the law firm ‘‘possessed the note for the

plaintiff.’’ We are not persuaded.AttorneyCroog specifically averred, as managing member of the law firm, that

it, in its capacity as the plaintiff’s bailee, received and

continuously retained the original note, allonge

endorsed in blank, and mortgage, that had been executed by the defendant. She averred that these documents had been in its possession since February 22,

2011, some three months prior to the date the present

action was commenced.As previously noted, a mortgag-
ee’s burden at summary judgment ‘‘is satisfied when

the mortgagee includes in its submissions to the court

a sworn affidavit averring that the mortgagee is the

holder of the promissory note in question at the time

it commenced the action.’’ GMAC Mortgage, LLC v.

Ford, supra, 144 Conn. App. 177. By way of the Croog

affidavit, which averred that the law firm, on behalf of

the plaintiff, retained the note, the plaintiff satisfied its

burden at summary judgment of establishing a prima

facie case for foreclosure. Accordingly, the plaintiff,

‘‘by way of its possession of an instrument payable to

[the] bearer, is a valid holder of the instrument and,

therefore, is entitled to enforce it.’’ Chase Home

Finance, LLC v. Fequiere, 119 Conn. App. 570, 577,

989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d

564 (2010).

The defendant offered no evidence to counter the

plaintiff’s sworn statement that it, through its bailee,

was in possession of the note at the time it served the

complaint. In sum, the plaintiff submitted numerous

documents that establish its status as holder of the note

and an absence of any genuine issue of material fact.

It was then incumbent on the defendant to rebut the

plaintiff’s presumption of ownership. Having failed to

submit any evidence in opposition to the plaintiff’s

motion for summary judgment, that presumption prevails. Accordingly, we conclude that the court properly

determined that there was no genuine issue of material

fact and that the plaintiff was entitled to judgment as

to liability.

III

The defendant next claims that the existence of the

prior judgment of dismissal, at the very least, created

a genuine issue of material fact as to whether the plaintiff was the holder of the note at the time the present

action was commenced. In light of this purported issue

of fact, the defendant argues that the court erred by

granting the plaintiff’s motion for summary judgment.

We disagree.

‘‘[T]o establish the existence of a material fact, it is

not enough for the party opposing summary judgment

to assert the existence of a disputed issue. . . . Such

assertions are insufficient regardless of whether they

are contained in a complaint or a brief.’’ (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn. App. 588, 594, 960 A.2d 1071 (2008).

The defendant has provided us with no authority, nor

are we aware of any, that supports his suggestion that

the prior action,resulting in dismissal, creates a genuine

issue of material fact.

The court in the prior action found that the plaintiff

failed to prove by a preponderance of the evidence that

it was the holder of the note at the time that action

commenced, because the plaintiff’s sole witness ‘‘could
not [un]equivocally state that [the plaintiff] possessed

the note at the time the foreclosure commenced.’’ U.S.

Bank, N.A. v. Foote, supra, Superior Court, Docket No.

CV-11-6004322. In the present case, the court determined, on the basis of the documentation and affidavits

before it, that the plaintiff was in possession of and the

holder of the note at the time the present action was

commenced. The defendant provided no authority for

the proposition that the mere existence of a prior judgment of dismissal rendered against a plaintiff creates

a genuine issue of fact, for the purposes of a motion

for summary judgment, as to an issue in subsequent

litigation. The court found, on the basis of the affidavits

and documents before it, no genuine issue of material

fact. The fact that a court in a prior action rendered a

judgment adverse to the plaintiff on a different issue,

on the basis of a witness’s testimony in that case, does

not inevitably or inherently create a genuine issue of

material fact in a future action.

In sum, on the basis of our plenary review of the

pleadings and documentary submissions, we conclude

that the court properly determined that there were no

genuine issues of material fact and that the plaintiff

was entitled to judgment as to liability on its foreclosure

complaint. Moreover, because we conclude that the

court properly granted the plaintiff’s motion for summary judgment as to liability, we further must reject

the defendant’s claim that the trial court improperly

rendered judgment of strict foreclosure in favor of

the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

1 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.’’ Black’s Law Dictionary (9th

Ed. 2009).

2

‘‘As one court has explained, MERS does not originate, lend, service, or

invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee

for the loans owned by its members. The MERS system is designed to allow

its members, which include originators, lenders, servicers, and investors,

to assign home mortgage loans without having to record each transfer in

the local land recording offices where the real estate securing the mortgage

is located. . . .

‘‘The benefit of naming MERS as the nominal mortgagee of record is that

when the member transfers an interest in a mortgage loan to another MERS

member, MERS privately tracks the assignment within its system butremains

the mortgagee of record. According to MERS, this system saves lenders

time and money, and reduces paperwork, by eliminating the need to prepare

and record assignments when trading loans. . . .

‘‘If, on the other hand, a MERS member transfers an interest in a mortgage

loan to a non-MERS member, MERS no longer acts as the mortgagee of

record and an assignment of the security instrument to the non-MERS

member is drafted, executed, and typically recorded in the local land

recording office.’’ (Internal quotation marks omitted.) Chase Home Finance,

LLC v. Fequiere, 119 Conn. App. 570, 572 n.2, 989 A.2d 606, cert. denied,

295 Conn. 922, 991 A.2d 564 (2010).

3 The plaintiff sought reformation to exclude certain specified real property from the mortgage in order to conform to the intentions of the parties.

4 The three additional special defenses pleaded by the plaintiff were: (1)

denial of the ‘‘authenticity of, and the authority to make, each signature on,

or any paper affixed to, the original Note’’; (2) the action was ‘‘precluded
by Connecticut statutes and the express terms of the Mortgage’’; and (3)

the action was barred by the doctrine of unclean hands. These special

defenses are not relevant to this appeal.

5

‘‘General Statutes § 42a-1-201 (b) provides in relevant part: ‘(21)

‘‘Holder’’ means:

‘(A) The person in possession of a negotiable instrument that is payable

either to bearer or to an identified person that is the person in possession

. . . .’ ’’ Equity One, Inc. v. Shivers, 310 Conn. 119, 126 n.4, 74 A.3d 1225

(2013).

6

‘‘General Statutes § 42a-3-205 provides in relevant part: ‘(b)If an endorsementis made by the holder of an instrument and is not a special endorsement,

it is a ‘blank endorsement’. When endorsed in blank, an instrument becomes

payable to bearer and may be negotiated by transfer of possession alone

until specially endorsed. . . .’ ’’ Equity One, Inc. v. Shivers, 310 Conn. 119,

126 n.5, 74 A.3d 1225 (2013).

7 We note that in support of her position that the action is barred by res

judicata, the defendant principally relies on this court’s decision in Rosenfield v. Cymbala, 43 Conn. App. 83, 681 A.2d 999 (1996). The defendant’s

reliance on that case, however, is misguided. In Rosenfield, this court

affirmed the trial court’s decision to render the summary judgment sought

by the defendant against the plaintiffs on the basis that the foreclosure

action was barred by res judicata. The prior judgment in that case, however,

dismissed the plaintiff’s action because the plaintiff had failed to make out

a prima facie case for foreclosure. Id., 84–85. It was not dismissed merely

because the plaintiff failed to satisfy its evidentiary burden that it was

in possession of the note at the time the action commenced, as in the

present case.

In Rosenfield, this court observed that in the prior action, ‘‘the trial court

found that the plaintiff failed to establish that consideration for the note

and mortgage deed was given by the plaintiff’s assignor . . . to the defendant. The trial court also determined that the plaintiff failed to produce any

evidence as to an appraisal of the mortgaged property or its current market

value. Furthermore, the plaintiff did not present evidence of any default of

payment . . . nor the amount of any alleged debt presently due and owing

from the plaintiff to anyone who had an interest in [the] underlying note. . . .

Moreover . . . the trial court characterized the extent of the proceedings as

a trial of the issues. The plaintiff had an opportunity to present his case as

though the trial would go to conclusion.’’(Internal quotation marks omitted.)

Id., 92. In the present action, the prior judgment was decided solely on the

ground of standing, and, specifically, the issue of whether the plaintiff had

established its possession of the note at the relevant time. Therefore, it was

not a final judgment on the merits.

8 We concluded in part I of this opinion that the special defenses asserted

by the plaintiff—the doctrines of res judicata and collateral estoppel—were

legally insufficient and did not bar the present action.

9 The allonge contains a special endorsement that states ‘‘PAY TO THE

ORDER OF: American Brokers Conduit WITHOUT RECOURSE,’’ and is

signed by a senior vice president of AmTrust. A second endorsement also

appears on the allonge in which American Brokers Conduit, through its

assistant secretary, endorsed the note in blank and without recourse.

10 ‘‘A holder is the entity, or person, in possession of the instrument if the

instrument is payable to the bearer.’’ RMS Residential Properties, LLC v.

Miller, supra, 303 Conn. 231.