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FINANCIAL FREEDOM ACQUISITION, LLC v. ANN

T. GRIFFIN, EXECUTRIX (ESTATE OF

ANGELA C. GRIFFIN), ET AL.

(AC 38960)

Sheldon, Mullins and Flynn, Js.

Syllabus

The plaintiff bank, F Co., sought to foreclose a mortgage on certain real

property of the decedent. After the foreclosure action was commenced,

but before trial had begun, O Co., of which F Co. was a subsidiary, was

substituted as the plaintiff. Thereafter, another bank merged into O Co.,

and although O Co. was the surviving entity of the merger, as part of

the merger it changed its name to C Co., which was never substituted

as the party plaintiff. Subsequently, the trial court granted O Co.’s motion

for a judgment of strict foreclosure and rendered judgment thereon,

from which the defendant A, individually and as the executrix of the

estate of the decedent, appealed to this court. A claimed, inter alia, that

the trial court improperly rejected her special defense and counterclaim

sounding in breach of the implied covenant of good faith and fair dealing.

In her special defense and counterclaim, A had alleged that, in light of

a provision in the note executed by the decedent that permitted the

decedent’s estate to avoid its obligation to repay the loan upon the

decedent’s death if it cooperated with F Co. in selling the subject property, F Co. breached the covenant of good faith and fair dealing when

it initiated the foreclosure action instead of communicating with the

executrix to facilitate such a sale. Held:

1. A could not prevail on her claim that the trial court improperly determined

that O Co. established a prima facie case of foreclosure, which was

based on her claim that because C Co., a nonparty entity, owned the

note as a result of the merger, O Co. failed to produce evidence sufficient

to establish that it was the holder and owner of the note; the trial court’s

conclusion that O Co. was the holder and owner of the note executed

by the decedent was legally and factually correct, as O Co. produced the

note, which was endorsed in blank, at trial, which created a rebuttable

presumption that O Co. was the note’s owner, and O Co.’s status as

holder and owner of the note and this foreclosure action were not

affected by the merger and the change of name that occurred during

the pendency of the foreclosure action, as O Co.’s corporate existence

and identity continued in the resulting bank, O Co.’s assets, including

the decedent’s note, vested in the resulting bank by operation of law and

without any deed or transfer, this action was not abated, discontinued,

or otherwise affected by the merger and change of name, O Co. could

have substituted the resulting bank in this action, but it was not required

to do so, and the change of name did not create a new corporate entity,

alter the resulting bank’s corporate identity, or end the resulting bank’s

corporate existence.

2. The trial court properly found that A failed to meet her burden of proof

with respect to her special defense and counterclaim sounding in breach

of the implied covenant of good faith and fair dealing; the relevant

provision in the note provided that the death of the decedent was a

maturity event that made the loan immediately due and payable, except

if the parties extended the repayment deadline by entering into a separate

written agreement within thirty days of the decedent’s death that

required the decedent’s estate to cooperate fully with F Co. in selling

the property, and the trial court properly concluded that, in the absence

of such a separate written agreement extending the deadline to allow

the executrix to sell the decedent’s home, the relevant provision of the

note did not provide for a contractual right to an extension of the

deadline to sell the property, and F Co., therefore, had no obligation to

undertake any action facilitating the sale of the property by the executrix,

and did not breach the terms of the note by never agreeing to such

an extension.

Argued April 11—officially released September 12, 2017
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 Litchfield, where the defendant John T. Griffin

et al. were defaulted for failure to appear; thereafter,

the named defendant et al. filed a counterclaim; subsequently, the court, Pickard, J., granted the plaintiff’s

motion to substitute OneWest Bank, N.A., as the plaintiff; thereafter, the matter was tried to the court, Shah,

J.; judgment for the substitute plaintiff on the complaint

and the counterclaim; subsequently, the court, Pickard,

J., granted the substitute plaintiff’s motion for a judgment of strict foreclosure and rendered judgment

thereon, from which the named defendant et al.

appealed to this court; thereafter, the court, Shah, J.,

issued an articulation of its decision. Affirmed.

Ronald P. Sherlock, for the appellants (named defendant et al.).

Michael T. Grant, for the appellee (substitute

plaintiff).
Opinion

MULLINS, J. In this action to foreclose a reverse

mortgage, the defendants, Ann T. Griffin, in her representative capacity as executrix of the estate of Angela

C. Griffin, and Ann T. Griffin, in her individual capacity,

appeal from the judgment of strict foreclosure rendered

in favor of the substitute plaintiff, OneWest Bank, N.A.1

On appeal, the defendants claim that the court erred

in (1) concluding that the substitute plaintiff established

a prima facie case of foreclosure and (2) rejecting their

special defense and counterclaim sounding in breach

of the implied covenant of good faith and fair dealing.

We affirm the judgment of the trial court.

In its December 10, 2015 memorandum of a decision,

the trial court set forth the following facts. ‘‘[Angela C.]

Griffin [(decedent)] was the owner of the real property

located at 312 Milton Road, Litchfield, Connecticut

(property). On or about July 23, 2008, [the decedent]

executed a note and reverse annuity mortgage (mortgage) on the [p]roperty in favor of Financial Freedom

Senior Funding Corporation, [a predecessor in interest

to the substitute plaintiff]. . . . [The note and mortgage] established an open-ended line of credit not to

exceed $692,180 ([decedent’s] loan). At that time, Financial Freedom [Senior Funding Corporation] advanced

$378,791 to [the decedent] to pay off a loan from

Deutsche Bank, which sought to foreclose on the mortgage it held on the property. Financial Freedom [Senior

Funding Corporation] obtained an appraisal at the time

that valued the property at $612,709.

‘‘[The decedent] . . . entered into the loan so that

[she] could remain in the home that she had lived in

for thirty years. The property is a private property that

includes a colonial residence located on eleven acres

of land with a pond. It has a stable and many acres of

well-maintained pasture. The home was a central part

of [Ann Griffin’s] and [the decedent’s] lives.

‘‘Since the mortgage is a reverse annuity mortgage,

no principal became due until a maturity event

occurred. On April 16, 2010, [the decedent] passed

away, which constituted a maturity event and rendered

the balance of the loan due and payable unless there

was an agreement in writing between the [named] plaintiff and certain legal representatives of [the decedent]

within thirty days to cooperate fully in selling the property. The [named] plaintiff and the [executrix] had no

agreement in writing to this effect, and the [executrix]

did not pay the balance due upon [the decedent’s] death.

Thus, the nonpayment constituted a default under the

mortgage. . . . The [named] plaintiff initiated the present foreclosure action in May of 2011.

‘‘On April 30, 2010, prior to the notice of intent to

foreclose, [Ann Griffin] contacted the [named plaintiff]

to inform it that she intended to sell the property. The
[named plaintiff’s] electronic system notes indicate that

[Ann Griffin] spoke with . . . a maturities administrator . . . . They discussed repayment of the [decedent’s] loan, and [Ann Griffin] indicated she planned

to sell the property and use the proceeds of the sale to

repay the debt. Subsequent to the conversation, [the

maturities administrator] sent a cash account reverse

mortgage repayment notice to [Ann Griffin]. The repayment notice informed [Ann Griffin] that the death of

[the decedent] constituted a maturity event, that upon

the occurrence of a maturity event the loan became

due, and that [Ann Griffin] needed to discuss plans with

[the named plaintiff] concerning repayment of the loan

by sending in the enclosed repayment questionnaire.

. . .

‘‘On May 6, 2010, the defendant[s’] counsel faxed a

correspondence, attaching the death certificate and will

of [the decedent], and informing [the maturities administrator] that he was representing the defendant[s]. [Ann

Griffin] was appointed executrix of [the decedent’s]

estate on May 17, 2010. [Ann Griffin] lacked legal authority to enter into contractual agreements on behalf of the

estate until such time as she was appointed executrix.

‘‘On or about June 17, 2010, the [executrix] entered

into a listing agreement with [a realty company] for the

sale of the property, with a listing price of $614,900

(listing agreement). On June 23, 2010, the defendant[s’]

counsel sent a second correspondence to [the maturities administrator], which included the probate decree

admitting the [decedent’s] will to probate; a certified

copy of the death certificate; a copy of the [decedent’s]

will; a certified probate certificate reflecting the

appointment of [Ann Griffin] as executrix; and a signed

copy of the listing agreement. The [named] plaintiff

admitted to having received both written communications and attachments. The [named] plaintiff still had

not received the repayment questionnaire . . . . There

was no agreement in writing or any other communication that demonstrated a mutual understanding to

extend the repayment date.’’

In addition to those facts expressly found by the

trial court, the following supplemental facts, which also

reasonably could have been found by the court, are

relevant. Through a series of assignments and corporate

restructurings, ownership of the decedent’s loan

changed several times. As previously explained, on July

23, 2008, the decedent executed a note and mortgage

in favor of Financial Freedom Senior Funding Corporation, making it the original mortgagee and holder of the

note. At the time the decedent executed the note in

July, 2008, Financial Freedom Senior Funding Corporation was a subsidiary of IndyMac Bank, F.S.B. (IndyMac). The Federal Deposit Insurance Corporation

(FDIC) had been appointed as receiver for IndyMac

prior to the decedent’s execution of the note and
mortgage.

In March, 2009, OneWest Bank, F.S.B, through its

parent company, IMB HoldCo, LLC, purchased from the

FDIC certain IndyMac assets, including the decedent’s

loan. As part of that transaction, Financial Freedom

Senior Funding Corporation executed an allonge to the

note, specially endorsing it to ‘‘OneWest Bank, F.S.B.’’

The named plaintiff in this action was formed during

this transaction as a subsidiary of OneWest Bank, F.S.B.

At some point after it was assigned the note, OneWest

Bank, F.S.B., executed an allonge to the note, endorsing

it in blank. OneWest Bank, F.S.B., then transferred the

note to the named plaintiff, which held it until transferring it back to OneWest Bank, F.S.B., around July, 2011.

Around February, 2014, OneWest Bank, F.S.B., converted from a federal savings bank into a national banking association and, thus, became OneWest Bank, N.A.,

the substitute plaintiff.

On August 3, 2015, which was slightly more than four

years after this action was commenced, but before trial

had begun, IMB HoldCo, LLC, the holding company

of OneWest Bank, N.A., merged with CIT Group, the

holding company of a bank called CIT Bank. As part

of their holding companies’ merger, OneWest Bank,

N.A., and CIT Bank also merged. Specifically, ‘‘CIT Bank

. . . merged into OneWest Bank, N.A.’’ (Emphasis

added.) Although OneWest Bank, N.A., was the surviving entity of the merger with CIT Bank, OneWest Bank,

N.A., as part of the merger, changed its name to ‘‘CIT

Bank, N.A.’’ ‘‘CIT Bank, N.A.,’’ was never substituted for

OneWest Bank, N.A., as the party plaintiff in this action.

Having outlined the relevant substantive facts, we

now review the pertinent procedural history. The

named plaintiff commenced this action in May, 2011.

As previously explained, the named plaintiff was a subsidiary of OneWest Bank, N.A., which was substituted

as the plaintiff in this action on September 22, 2014.

Prior to the substitution of OneWest Bank, N.A., for

the named plaintiff, the defendants pleaded several special defenses. Relevant to this appeal is the defendants’

special defense that the named plaintiff breached the

implied covenant of good faith and fair dealing. The

defendants also filed a counterclaim against the named

plaintiff sounding in breach of the implied covenant of

good faith and fair dealing. Although the named plaintiff

was removed from this action as a plaintiff by virtue

of a substitution, it still is a party to the action as a

counterclaim defendant.

The case was tried to the court over the course of

two days. At trial, the substitute plaintiff introduced

the original note into evidence. Accompanying the note

was an allonge specially endorsing the note to OneWest

Bank, F.S.B., and an allonge wherein OneWest Bank,

F.S.B., endorsed the note in blank. The substitute plain-
tiff also offered the testimony of Dion Kala, a vice president and foreclosure litigation manager employed by

CIT Bank, N.A. In addition to working for CIT Bank,

N.A., Kala also had been employed by OneWest Bank,

N.A., as well as its predecessors in interest, including

OneWest Bank, F.S.B., Financial Freedom Acquisition,

LLC, and Financial Freedom Senior Funding Corporation. Kala provided testimony concerning the several

assignments and corporate restructurings that eventually brought the note into the possession of CIT

Bank, N.A.

In its memorandum of decision, the court concluded

that the substitute plaintiff had established a prima facie

case of foreclosure and that the defendants had failed

to meet their burden of proof on their special defense

and counterclaim. The defendants filed a motion for

articulation, asking the trial court to identify which

plaintiff the court found owns the decedent’s loan. In

denying that motion, the court stated: ‘‘The defendant[s]

rais[e] a specious claim. The plaintiff is OneWest Bank,

now known as CIT Bank, N.A., because of a legal name

change.’’ The court rendered a judgment of strict foreclosure and set a law day. This appeal followed.

I

PRIMA FACIE CASE OF FORECLOSURE

The defendants’ first claim on appeal is that the trial

court improperly concluded that the substitute plaintiff

established a prima facie case of foreclosure. In particular, the defendants argue that the substitute plaintiff

did not produce evidence sufficient to establish that it

was the holder and owner of the note. According to

the defendants, the substitute plaintiff’s own evidence

established that a ‘‘separate and different legal entity’’

is the owner and holder of the note. That is, as a result

of a corporate merger in which the substitute plaintiff

was involved after this action commenced, ownership

of the note vested in a distinct entity that was never

made a party to this action. Thus, the defendants argue,

a nonparty entity, ‘‘CIT Bank, N.A.,’’ owns the note, and

the substitute plaintiff does not. We disagree with the

defendants and conclude that their argument is flawed

both in fact and in law.

We begin by setting forth our standard of review. ‘‘A

plaintiff establishes its prima facie case in a mortgage

foreclosure action by demonstrating by a preponderance of the evidence that it is the owner of the note,

that the defendant mortgagor has defaulted on the note,

and that conditions precedent to foreclosure have been

satisfied. . . .

‘‘In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced

to prove. . . . [W]hether the plaintiff has established

a prima facie case [in a foreclosure action] is a question
of law, over which our review is plenary.’’ (Citation

omitted; emphasis omitted; footnote omitted; internal

quotation marks omitted.) Deutsche Bank National

Trust Co. v. Bliss, 159 Conn. App. 483, 495–96, 124 A.3d

890, cert. denied, 320 Conn. 903, 127 A.3d 186 (2015),

cert. denied, U.S. , 136 S. Ct. 2466, 195 L. Ed.

2d 801 (2016).

The only element of the substitute plaintiff’s prima

facie case that the defendants challenge on appeal is

ownership of the note. Thus, we limit our review of the

relevant law to the principles governing the possession

and ownership of promissory notes. ‘‘Being the holder

of a note satisfies the plaintiff’s burden of demonstrating that it is the owner of the note because under our

law, the note holder is presumed to be the owner of

the debt, and unless the presumption is rebutted, may

foreclose the mortgage . . . . The possession by the

bearer of a note [e]ndorsed in blank imports prima facie

[evidence] that he 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 [endorsed in

blank] establishes [the possessor’s] case prima facie

against the makers 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.’’ (Internal quotation

marks omitted.) Id., 496.

We now provide a review of the law governing bank

mergers, which will guide our resolution of the defendants’ claim that a bank merger affects the merging

banks’ corporate identities and, concomitantly, their

ownership rights in promissory notes. Since the merger

in the present case involved one banking entity merging

into, and continuing as, a national banking association,

we begin with a brief exposition of the National Bank

Act, 12 U.S.C. § 21 et seq. (2012).

‘‘[N]ational bank[ing] [associations] . . . [are] corporate entities chartered not by any State, but by the

Comptroller of the Currency of the U.S. Treasury.’’

Wachovia Bank v. Schmidt, 546 U.S. 303, 306, 126 S.

Ct. 941, 163 L. Ed. 2d 797 (2006). Thus, ‘‘[t]he National

Bank Act . . . governs the operations of national banking associations.’’ Jackson v. First National Bank of

Valdosta, 349 F.2d 71, 72 (5th Cir. 1965).

Pursuant to the National Bank Act, a national banking

association is formed by ‘‘making and filing articles of

association and an organization certificate [with the

Comptroller of the Currency of the United States]

. . . .’’ 12 U.S.C. §§ 21 and 24 (2012). A duly formed

national banking association is ‘‘a body corporate,’’ and

the National Bank Act vests such an association with

several enumerated ‘‘corporate powers.’’ 12 U.S.C. § 24

(2012). These enumerated ‘‘corporate powers’’ include

the power ‘‘[t]o make contracts’’ and the power ‘‘[t]o

sue and be sued, complain and defend, in any court of
law and equity . . . .’’ 12 U.S.C. § 24 (2012).

The National Bank Act also governs mergers and

consolidations of banking entities in which the surviving entity is a national banking association. See 12

U.S.C. §§ 215, 215a, and 215a-1 (2012). Specifically, that

act permits, among other things, (1) the ‘‘merger’’ of

multiple national banking associations into a single

national banking association; 12 U.S.C. §§ 215a (a) and

215a-1 (a) (2012); and (2) the ‘‘consolidation’’ of a

national banking association and a state bank into a

national banking association. 12 U.S.C. §§ 215 (a) and

215a-1 (a) (2012). The type of entity that survives either

a ‘‘merger’’ between multiple national banking associations or a ‘‘consolidation’’ between a state bank and a

national banking association is the same—a national

banking association. 12 U.S.C. §§ 215 and 215a (2012).

Mergers and consolidations, although differentiated

by the National Bank Act in some respects, have identical legal ramifications for the participating entities’ (1)

corporate identities and (2) assets. With respect to the

participants’ corporate identity, ‘‘[t]he corporate existence of each of the consolidating [or merging] banks

or [national] banking associations participating in such

consolidation [or merger] shall be merged into and continued in the [resulting] national banking association

and such [resulting] national banking association shall

be deemed to be the same corporation as each bank or

[national] banking association participating in the

consolidation [or merger].’’ (Emphasis added.) 12

U.S.C. § 215 (e) (2012). That is, ‘‘[t]he resulting national

bank[ing] [association] . . . shall be deemed to be a

continuation of the entity of each participating institution, the rights and obligations of which shall succeed to such rights and obligations and the duties and

liabilities connected therewith.’’ (Emphasis added.) 12

C.F.R. § 5.33 (l) (1).

With respect to the participating entities’ assets, ‘‘[i]n

any consolidation or merger in which the resulting

[association] is a national bank[ing] [association] . . .

on the effective date of the merger or consolidation, all

assets and property (real, personal and mixed, tangible and intangible, choses in action, rights, and credits) then owned by each participating institution or

which would inure to any of them, shall, immediately

by operation of law . . . become the property of the

resulting national bank[ing] [association] . . . .’’

(Emphasis added.) Id., § 5.33 (l) (1). Thus, in a merger

or a consolidation, ‘‘[a]ll rights . . . in and to every

type of property . . . and choses in action shall be

transferred to and vested in the [resulting] national

banking association by virtue of such consolidation

[or merger] without any deed or other transfer. The

[resulting] national banking association, upon the consolidation [or merger] and without any order or other

action on the part of any court or otherwise, shall hold
and enjoy all rights of property . . . in the same manner and to the same extent as such rights . . . were

held or enjoyed by any one of the consolidating [or

merging] banks or [national] banking associations at

the time of consolidation [or merger] . . . .’’ (Emphasis added.) 12 U.S.C. § 215 (e) (2012).

In addition to prescribing the legal ramifications of a

bank merger resulting in a national banking association,

the National Bank Act outlines the process by which a

national banking association may change its name. See

12 U.S.C. §§ 30–32 (2012). Specifically, it provides that

‘‘[a]ny national banking association, upon written

notice to the Comptroller of the Currency, may change

its name, except that such new name shall include the

word ‘National.’ ’’ 12 U.S.C. § 30 (a) (2012). A change

of name does not affect the rights and liabilities of

a national banking association: ‘‘All debts, liabilities,

rights, provisions, and powers of the association under

its old name shall devolve upon and inure to the association under its new name.’’ 12 U.S.C. § 31 (2012). Furthermore, a change of name does not ‘‘release any national

banking association under its old name . . . from any

liability’’ or ‘‘affect any action or proceeding . . . in

which said association may be or become a party or

interested.’’ 12 U.S.C. § 32 (2012).

In In re Worcester County National Bank, 263 Mass.

394, 161 N.E. 797 (1928), the Supreme Judicial Court

of Massachusetts was asked to interpret the provisions

of the National Bank Act governing consolidations and

changes of name. In that case, a national banking association called Merchants National Bank of Worcester was

appointed as the administrator of a decedent’s estate

in 1924. Id., 397. Three years later, Merchants National

Bank of Worcester was consolidated with a state bank

into a surviving consolidated national banking association. Id. As part of the consolidation process, the name

of the surviving consolidated national banking association was changed to ‘‘Worcester County National Bank

of Worcester.’’ Id.

The question before the court was whether the

national banking association’s obligation to administer

the decedent’s estate pursuant to its appointment was

affected by either (1) the consolidation or (2) the change

of name. Id., 398–400. Answering that question in the

negative, the court first held that the ‘‘corporate identity

of the national bank[ing] [association] ha[d] continued

unaffected by anything in connection with the consolidation.’’ Id., 399. Despite the consolidation, the national

banking association had ‘‘maintained an unbroken and

unchanged identity of corporate existence . . . .’’ Id.,

400. Second, with respect to the change of name, the

court held that ‘‘[t]he simple change of name of the

national bank[ing] [association] did not disturb its corporate identity or continuity of existence, which ha[d]

remained uninterrupted.’’ Id., 399.
Having outlined the relevant provisions of federal

banking law, we now turn to Connecticut’s banking

law. Although Connecticut banking law applies only to

banks organized under Connecticut law; see General

Statutes §§ 36a-1 and 36a-2 (12); it provides guidance

for determining the impact of a merger of banking entities. As an initial matter, Connecticut banking law confirms the applicability of the National Bank Act to

national banking associations. See General Statutes

§ 36a-126 (b) (in merger of banks resulting in national

banking association, resulting national banking association ‘‘shall be considered the same business and corporate entity as the constituent Connecticut bank . . .

[and] as to rights, powers and duties [it] shall be a

federal bank’’). With respect to a banking merger

resulting in a Connecticut bank, Connecticut law provides that (1) ‘‘the corporate existence of the constituent banks shall be continued by and in the resulting

bank’’; (2) ‘‘the entire assets . . . of each of the constituent banks shall be vested in the resulting bank without

any deed or transfer’’; (3) ‘‘[n]o suit, action or other

proceeding pending at the time of the merger . . .

before any court or tribunal in which any of such constituent banks is a party shall be abated or discontinued

because of such merger . . . but may be continued and

prosecuted to final effect by or against the resulting

bank’’; and (4) ‘‘[t]he resulting bank shall have the right

to use the name of any of the constituent banks . . . .’’

General Statutes § 36a-125 (g).

With federal and state banking law in mind, we seek

additional guidance from the corporate law of this state

and other jurisdictions relating to mergers and changes

of name of nonbanking entities. In a merger of corporations governed by Connecticut law, ‘‘[a]ll property

owned by, and every contract right possessed by, each

corporation that merges into the survivor . . . vest[s]

in the survivor without reversion or impairment.’’ General Statutes § 33-820 (a) (4). Furthermore, the ‘‘name

of the survivor may, but need not be, substituted in any

pending proceeding for the name of any party to the

merger whose separate existence ceased in the

merger.’’ (Emphasis added.) General Statutes § 33-820

(a) (5). Regarding the effect of a Connecticut corporation’s change of name, our law provides: ‘‘An amendment to the certificate of incorporation does not affect

. . . a proceeding to which the corporation is a party

. . . . An amendment changing a corporation’s name

does not abate a proceeding brought by or against the

corporation in its former name.’’ (Emphasis added.)

General Statutes § 33-803.

Connecticut’s corporate law is substantially similar

to the provisions of the American Bar Association’s

Model Business Corporation Act; see, e.g., Trevek

Enterprises, Inc. v. Victory Contracting Corp., 107

Conn. App. 574, 583 n.4, 945 A.2d 1056 (2008) (‘‘[i]n
1994, the General Assembly enacted . . . a comprehensive revision . . . designed to bring our corporations statutes into conformity with the American Bar

Association’s revised Model Business Corporation

Act’’); which has been adopted in full or in substantial

part by at least thirty other states. Shawnee Telecom

Resources, Inc. v. Brown, 354 S.W.3d 542, 553 (Ky.

2011). Indeed, the provisions of the Model Business

Corporation Act relating to the effect of corporate mergers and changes of name are nearly identical to Connecticut law. See Model Business Corporation Act, § 11.07

(a), p. 11-89 (‘‘[A]ll property owned by, and every contract right possessed by, each corporation or eligible

entity that merges into the survivor is vested in the

survivor without reversion or impairment . . . . [Furthermore] the name of the survivor may, but need not

be, substituted in any pending proceeding for the name

of any party to the merger whose separate existence

ceased in the merger . . . .’’); Model Business Corporation Act, § 10.09, p. 10-70 (‘‘An amendment to the articles of incorporation does not affect . . . a proceeding

to which the corporation is a party . . . . An amendment changing a corporation’s name does not abate a

proceeding brought by or against the corporation in its

former name.’’).

Mergers of corporations and mergers of limited liability companies are treated similarly under Connecticut

law.2 When Connecticut limited liability companies

merge, ‘‘[a]ny property, real, personal and mixed, and

all debts due on whatever account . . . and all other

choses in action . . . belonging to or due to each party

to the merger . . . vest[s] in the survivor without further act or deed.’’ (Emphasis added.) General Statutes

§ 34-197 (4). Furthermore, any ‘‘proceeding pending by

or against any limited liability company that was a party

to the merger . . . may be prosecuted as if such

merger . . . had not taken place, or the survivor may

be substituted in the action.’’ (Emphasis added.) General Statutes § 34-197 (6).3 The Uniform Limited Liability

Company Act similarly provides that ‘‘all property of

each merging entity vests in the surviving entity’’ and

that ‘‘the name of the surviving entity may be substituted

for the name of any merging entity that is a party to

any pending action or proceeding . . . .’’ Unif. Limited

Liability Company Act § 1026 (a) (amended 2013), 6C

U.L.A. 189 (2016). The rationale behind not requiring the

substitution of the surviving entity’s name in a pending

proceeding is that ‘‘[s]uch a substitution has no substantive effect because, whether or not the survivor’s name

is substituted, the survivor succeeds to the claims of any

party to the merger whose separate existence ceased

as a result of the merger.’’ Unif. Limited Liability Company Act § 1026 (a) (7), comment, supra, 6C U.L.A. 191.

Regarding the change of a limited liability company’s

name, Connecticut law provides that ‘‘amend[ing] the

name set forth in [the] articles of organization . . .
[does not] dissolv[e] or otherwise chang[e] the legal

entity itself.’’ David Caron Chrysler Motors, LLC v.

Goodhall’s, Inc., 304 Conn. 738, 746 n.8, 43 A.3d 164

(2012).

With banking law and corporate law as our legal

backdrop, we turn to the present case to determine

whether the trial court properly concluded that the

substitute plaintiff was the holder and owner of the

promissory note executed by the decedent. Our review

of the record leads us to conclude that the court’s determination was legally and factually correct. At trial, the

substitute plaintiff, an entity called OneWest Bank, N.A.,

produced the decedent’s note, which had been

endorsed in blank. The note was admitted into evidence

during the testimony of Kala, who, at the time, was

working for an entity called CIT Bank, N.A., and who

previously had worked for the substitute plaintiff and

the named plaintiff. Kala testified that the decedent’s

note currently was in the possession of ‘‘CIT Bank,

N.A.’’ According to Kala, ‘‘CIT Bank, N.A.’’ was the name

of the entity surviving the merger in which (1) CIT Bank

merged into OneWest Bank, N.A., and (2) OneWest

Bank, N.A., changed its name to ‘‘CIT Bank, N.A.’’

Accordingly, the evidence presented at trial revealed

that the name of the entity holding the note, ‘‘CIT Bank,

N.A.,’’ did not match the substitute plaintiff’s name,

‘‘OneWest Bank, N.A.’’ As previously explained, this

discrepancy, which is the basis for the defendants’ challenge to the substitute plaintiff’s ownership of the note,

was the result of a corporate merger during the pendency of the present action to which the substitute

plaintiff was a party. Kala’s uncontroverted testimony

established that a bank called ‘‘CIT Bank’’ merged into

the substitute plaintiff, which had been a national

banking association prior to the merger. Thus, the type

of entity surviving the merger also was a national banking association. Despite the uncertainty surrounding

the substitute plaintiff’s name and corporate identity

caused by the merger, the trial court concluded that

the substitute plaintiff was the holder and owner of the

decedent’s note.

Our comprehensive review of federal and state banking law and state corporate law convinces us that the

merger and change of name involving the substitute

plaintiff did not affect its status as holder and owner

of the decedent’s note. Under the relevant federal and

state authority, the merger to which the substitute plaintiff was party had the following consequences.

First, the substitute plaintiff’s corporate existence

and identity continued in the resulting bank. See 12

U.S.C. § 215 (e) (2012); 12 C.F.R. § 5.33 (l) (1); General

Statutes § 36a-125 (g). Second, the substitute plaintiff’s

assets, including the decedent’s note, vested in the

resulting bank by operation of law and without any

deed or transfer. See 12 U.S.C. § 215 (e) (2012); 12 C.F.R.
§ 5.33 (l) (1); General Statutes §§ 34-197 (4) and 36a125 (g); Model Business Corporation Act, supra, § 11.07

(a), p. 11-89; Unif. Limited Liability Company Act § 1026

(a), supra, 6C U.L.A. 189. Third, the present action,

which was pending at the time of the merger’s consummation, was not abated, discontinued, or otherwise

affected. See 12 U.S.C. § 32 (2012); General Statutes

§§ 36a-125 (g), 33-820 (a) (5), and 34-197 (6); Model

Business Corporation Act, supra, § 11.07 (a), p. 11-89;

Unif. Limited Liability Company Act § 1026 (a) (7), comment, supra, 6C U.L.A. 191. Last, the substitute plaintiff

could have substituted the resulting bank in this action,

but it was not required to do so. See General Statutes

§§ 36a-125 (g), 33-820 (a) (5), and 34-197 (6); Model

Business Corporation Act, supra, § 11.07 (a), p. 11-89;

Unif. Limited Liability Company Act § 1026 (a), supra,

6C U.L.A. 189. Thus, the substitute plaintiff’s status as

holder and owner of the note and this proceeding were

not affected by the merger.

Similarly, the resulting bank’s change of name

affected neither this proceeding nor the substitute plaintiff’s status as holder and owner of the note. As a matter

of law, the change of name did not (1) create a new

corporate entity; (2) alter the resulting bank’s corporate

identity, which merely was a continuation of the substitute plaintiff’s corporate identity; (3) end the resulting

bank’s corporate existence, which merely was a continuation of the substitute plaintiff’s corporate existence;

or (4) divest the resulting bank of the substitute plaintiff’s assets, which had vested in the resulting bank as

a result of the merger. See 12 U.S.C. §§ 30, 32, and

215 (e) (2012); General Statutes § 36a-125 (g); In re

Worcester County National Bank, supra, 263 Mass.

399–400.

Furthermore, the change of name did not abate, discontinue, or otherwise affect this proceeding, and it did

not require the substitute plaintiff to substitute the

resulting bank’s new name in this proceeding. See 12

U.S.C. § 32 (2012); General Statutes §§ 33-803, 33-820

(a) (5), 34-197 (6), and 36a-125 (g); In re Worcester

County National Bank, supra, 263 Mass. 399; Model

Business Corporation Act, supra, § 10.09, p. 10-70.

In light of the foregoing, we conclude that the substitute plaintiff’s production of the decedent’s note

endorsed in blank, like in any other foreclosure action,

created a rebuttable presumption that the substitute

plaintiff was the note’s owner. See Deutsche Bank

National Trust Co. v. Bliss, supra, 159 Conn. App. 496.

It was incumbent on the defendants then to marshal

facts rebutting that presumption. See id. For the reasons

already identified, the merger and change of name of

which the defendants complain do not call into question

the substitute plaintiff’s ownership of the decedent’s

note.4 Thus, on the basis of the record before us, we

conclude that the substitute plaintiff established, and
the defendants did not rebut, that the substitute plaintiff

owned the note.

In exercising plenary review over the defendants’

claim, we conclude that the court’s determination that

the substitute plaintiff owns the decedent’s note was

factually and legally correct. Accordingly, we conclude

that the court properly concluded that the substitute

plaintiff established a prima facie case of foreclosure.

II

THE DEFENDANTS’ SPECIAL DEFENSE AND

COUNTERCLAIM

The defendants’ second claim is that the trial court

erroneously found that the defendants failed to meet

their burden of proof with respect to their special

defense and counterclaim sounding in breach of the

implied covenant of good faith and fair dealing. Specifically, the defendants argue that a provision in the note

executed by the decedent permitted the decedent’s

estate to avoid its obligation to repay the loan upon

the decedent’s death if it cooperated with the named

plaintiff in selling the decedent’s property. In light of

that provision, the defendants contend, the covenant

of good faith and fair dealing implied into the note

required the named plaintiff, upon the decedent’s death,

to communicate with the executrix for the purpose of

facilitating the sale of the decedent’s property. Thus,

according to the defendants, the named plaintiff

breached the covenant of good faith and fair dealing

when it initiated a foreclosure action and filed a lis

pendens instead of communicating with the executrix

to facilitate such a sale. We disagree.

The following additional facts and procedural history

are necessary to our resolution of the defendants’ second claim. In response to the named plaintiff’s foreclosure complaint, the defendants filed a special defense

and a counterclaim alleging that the named plaintiff

breached the covenant of good faith and fair dealing

implied into the note. In particular, the defendants predicated their theory of the breach of the covenant of

good faith and fair dealing on the provision in the note

establishing the date on which repayment of the loan

was due. That provision, § 6 of the note, provided in

relevant part: ‘‘All amounts owed under this Agreement

become due and payable . . . upon the first occurrence of a Maturity Event . . . unless [the decedent]

default[s] . . . . [The decedent] must repay the outstanding balance in one large or ‘balloon’ payment upon

the occurrence of a Maturity Event or, if sooner, [when

the decedent defaults].’’

Pursuant to that provision, the death of the decedent

generally constituted a ‘‘Maturity Event’’ requiring

immediate repayment of the loan. The provision also

permitted, however, the named plaintiff and the decedent’s estate to extend the repayment date upon the
decedent’s death: ‘‘If [the decedent’s] administrator,

devisees, estate, executors, heirs, legatees or personal

representative . . . agree[s] with [the named plaintiff]

in writing within thirty (30) days after the death of the

[decedent] . . . then repayment . . . will not be due

until six months after the death of the [decedent], or

such other date as may be provided in that written

agreement . . . .’’ In the event that the parties entered

such a written agreement, the decedent’s estate also

would have to promise in that agreement ‘‘to cooperate

fully with [the named plaintiff] in selling the Property,

including listing the Property for sale, caring for the

Property and making any necessary repairs to the Property prior to its sale . . . .’’

With the relevant contractual provisions in mind,

the thrust of the defendants’ allegations in their special

defense and counterclaim are as follows. Section 6 of

the note provided that, upon the decedent’s death, the

executrix had two options—immediately repay the loan

or cooperate with the named plaintiff in selling the

decedent’s property. If the executrix elected the second

option, repayment of the loan would not be due until

six months after the decedent’s death or on whatever

date to which the parties agreed. The executrix elected

to cooperate in selling the property. Specifically, she

maintained the property, made repairs to the property,

obtained appraisals of the property, and listed the property for sale with a real estate agency. Thus, since the

executrix chose to cooperate with the named plaintiff

in selling the property, the named plaintiff was not

entitled to immediate repayment of the loan and it had

to communicate with the executrix to facilitate the

property’s sale. Failing to communicate with the executrix for that purpose, and instead filing a foreclosure

action and a lis pendens, the named plaintiff failed to

act in good faith and deal fairly with the executrix.

At trial, the parties introduced evidence of various

correspondences that they had with each other following the decedent’s death on April 16, 2010. On April,

30, 2010, the named plaintiff sent the decedent’s estate

a letter informing it that the ‘‘loan is due and payable.’’

On that same day, a telephone conversation, the contents of which were disputed by the parties, occurred

between Ann Griffin and an employee of the named

plaintiff. The testimony of the named plaintiff’s

employee, which was corroborated by tracking notes

of the conversation maintained by the named plaintiff,

indicated that she informed Ann Griffin that the estate

had three months to repay the loan. Ann Griffin denied

that the named plaintiff’s employee informed her that

the loan had to be repaid within three months. On May 6,

2010, the defendants’ attorney sent the named plaintiff

a copy of the decedent’s death certificate and will. On

June 23, 2010, the defendants’ attorney sent the named

plaintiff a copy of the probate court’s decree, a probate

certificate reflecting Ann Griffin’s appointment as exec-
utrix of the decedent’s estate, and a copy of an

agreement between the decedent’s estate and a real

estate agent to list and sell the decedent’s property. On

July 7, 2010, the executrix informed the named plaintiff

that she had listed the decedent’s property for sale. On

July 21, 2010, the named plaintiff sent the executrix a

Notice of Intent to Foreclose, requiring that she repay

the loan within thirty days. On July 29, 2010, the defendants’ attorney sent a letter to the named plaintiff

responding to the named plaintiff’s Notice of Intent

to Foreclose. In that letter, the defendants’ attorney

warned that initiating foreclosure proceedings ‘‘would

constitute a patent breach of the contractual obligations’’ because the loan agreement provided that ‘‘repayment of the loan is not required until six months after

the death of [the decedent],’’ and the defendants ‘‘fully

cooperated . . . as required by the [loan agreement].’’

On August 6 and September 8, 2010, the executrix again

called the named plaintiff, informing it that the property

still was on the market.

The trial court concluded that the defendants failed

to meet their burden of proof with respect to their

special defense and counterclaim sounding in breach

of the implied covenant of good faith and fair dealing.

Specifically, it reasoned that the defendants’ ‘‘special

defense and counterclaim . . . [sought] to enforce

nonexistent obligations under the [note].’’ Moreover, it

found that there was no written agreement between

the named plaintiff and the defendants extending the

repayment due date and that there was no meeting of

the minds between the parties regarding a repayment

extension.

With these additional facts in mind, we begin our

analysis of the defendants’ second claim by setting forth

the relevant legal principles. ‘‘[W]ith any issue of contract interpretation, we begin with the language of the

contract.’’ Poole v. Waterbury, 266 Conn. 68, 90, 831

A.2d 211 (2003). ‘‘Although ordinarily the question of

contract interpretation, being a question of the parties’

intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the

parties intended by their contractual commitments is

a question of law. . . . When only one interpretation

of a contract is possible, the court need not look outside

the four corners of the contract.’’ (Citation omitted;

internal quotation marks omitted.) Id., 88–89.

‘‘[I]t is axiomatic that the . . . duty of good faith and

fair dealing is a covenant implied into a contract or a

contractual relationship. . . . In other words, every

contract carries an implied duty requiring that neither

party do anything that will injure the right of the other

to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the

terms and purpose of the contract are agreed upon

by the parties and that what is in dispute is a party’s
discretionary application or interpretation of a contract

term. . . .

‘‘To constitute a breach of [the implied covenant of

good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff’s right to receive

benefits that he or she reasonably expected to receive

under the contract must have been taken in bad faith.

. . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive

another, or a neglect or refusal to fulfill some duty or

some contractual obligation, not prompted by an honest

mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more

than mere negligence; it involves a dishonest purpose.’’

(Internal quotation marks omitted.) Capstone Building

Corp. v. American Motorists Ins. Co., 308 Conn. 760,

794–95, 67 A.3d 961 (2013).

Critically, our Supreme Court has stated that the covenant of good faith and fair dealing ‘‘is not implicated

by conduct that does not impair contractual rights.’’ Id.,

795. ‘‘In Renaissance Management Co. v. Connecticut

Housing Finance Authority, [281 Conn. 227, 240, 915

A.2d 290 (2007)], for example, [the Supreme Court] held

that the defendant housing authority’s refusal to accept

mortgage prepayments, in order to facilitate new loans

for owners of low income housing, did not violate the

covenant of good faith and fair dealing when the agency

was not contractually obligated to accept prepayments.

In so holding, we reasoned that [t]he covenant of good

faith and fair dealing presupposes the terms and purpose of the contract are agreed upon by the parties

and that what is in dispute is a party’s discretionary

application or interpretation of a contract term.’’

(Emphasis omitted; internal quotation marks omitted.)

Capstone Building Corp. v. American Motorists Ins.

Co., supra, 795.

Indeed, we previously have observed that ‘‘[m]ost

courts decline to find a breach of the covenant apart

from a breach of an express contract term. . . . Stated

otherwise, the claim [that the covenant has been

breached] must be tied to an alleged breach of a specific

contract term . . . .’’ (Citation omitted; emphasis

added; internal quotation marks omitted.) Landry v.

Spitz, 102 Conn. App. 34, 47, 925 A.2d 334 (2007); see

also Forte v. Citicorp Mortgage, Inc., 90 Conn. App.

727, 733–34, 881 A.2d 386 (2005) (mortgagee did not

violate covenant of good faith and fair dealing by failing

to allow mortgagor to refinance ‘‘because the note and

the mortgage [did] not guarantee or discuss any right

to refinance’’); Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 15, 17, 728 A.2d 1114 (covenant

of good faith and fair dealing not implicated by mortgagee’s refusal to sell note to mortgagor because ‘‘loan

documents [did] not contain a provision requiring a

holder of the notes and mortgages to negotiate with
or sell the notes to [mortgagor] prior to enforcing its

foreclosure rights’’), cert. denied, 249 Conn. 919, 733

A.2d 229 (1999).

In the present case, the defendants’ theory of breach

of the covenant of good faith and fair dealing is predicated on the provision in the note prescribing the date

on which repayment of the loan was due. In construing

that provision, the trial court concluded that it did not

obligate the named plaintiff to extend the repayment

due date. Our construction of that provision conforms

to the trial court’s construction.

Our plenary review of the relevant contractual language reveals the following. The provision first sets out

a general rule: The death of the decedent is a maturity

event that makes the loan immediately due and payable.

It subsequently provides, however, an exception to that

general rule: ‘‘If [the decedent’s estate] . . . agree[s]

with [the named plaintiff] in writing within thirty . . .

days after the [decedent’s] death . . . to cooperate

fully with [the named plaintiff] in selling the Property

. . . then repayment . . . will not be due until six

months after the [decedent’s] death . . . or such other

date as may be provided in that written agreement

. . . .’’ (Emphasis added.) Thus, the unambiguous language of the provision permits, but does not require,

the parties to extend the repayment deadline by entering into a separate written agreement.

The defendants’ interpretation of the repayment provision belies the plain, unambiguous meaning of the

provision’s language. The defendants mistakenly construe the provision as granting the executrix a right

to unilaterally extend the repayment deadline and as

imposing upon the named plaintiff an obligation to

honor the executrix’s unilateral decision to extend the

deadline. The provision guarantees no such right to the

executrix and imposes no such obligation on the named

plaintiff. The fact that the provision uses the terms

‘‘agree’’ and ‘‘agreement’’ with respect to an extension

indicates that such an extension can be created only by

the parties’ mutual assent. See Black’s Law Dictionary

(10th Ed. 2014) (defining ‘‘agreement’’ as ‘‘manifestation

of mutual assent by two or more persons’’ and ‘‘agree’’

as act of ‘‘exchang[ing] promises’’).

Thus, in the absence of a written agreement

extending the deadline to allow the executrix to sell

the decedent’s home, the named plaintiff had no obligation to undertake any action facilitating the executrix’s

sale of the property, e.g., communicating with the executrix regarding the sale. As previously explained, the

trial court found that there was no evidence that the

parties entered into such a written agreement. After

reviewing the record, we conclude that this finding is

not clearly erroneous. Indeed, a review of all of the

correspondences between the parties reveals that there

is no document that fairly can be characterized as a
written agreement wherein both parties agree to extend

the repayment deadline. The record discloses that the

executrix certainly represented to the named plaintiff

that she was maintaining the property and planning on

selling it, but it does not disclose that the named plaintiff

agreed in writing to extend the repayment deadline.

In light of the foregoing, we conclude that the defendants’ special defense and counterclaim sounding in

breach of the covenant of good faith and fair dealing

must fail. The special defense and counterclaim are not

predicated on a breach of an express term in the note;

Landry v. Spitz, supra, 102 Conn. App. 47; and the

named plaintiff’s conduct did not impair any contractual

right of the decedent or her estate. Capstone Building

Corp. v. American Motorists Ins. Co., supra, 308 Conn.

795. That is, the note guaranteed no contractual right

to an extension to sell the property, and, consequently,

the named plaintiff did not breach the terms of the note

by never agreeing to such an extension.

Moreover, since it properly never agreed to an extension, the named plaintiff was not obligated to take any

action facilitating the executrix’s sale of the property

pursuant to a nonexistent extension agreement. In

doing so, the named plaintiff retained its right under

the note to receive immediate repayment of the loan

upon the decedent’s death. Thus, by initiating foreclosure proceedings and filing a lis pendens, the named

plaintiff merely was enforcing its contractual rights,

not acting in bad faith to impair the rights of the decedent and her estate. Accordingly, we conclude that the

trial court properly rejected the defendants’ counterclaim and special defense based on a breach of the

covenant of good faith and fair dealing.

The judgment is affirmed.

In this opinion the other judges concurred.

1 A brief explanation of the numerous parties involved in this action is

necessary. Regarding the plaintiffs, this action was commenced by Financial

Freedom Acquisition, LLC. The successor in interest to Financial Freedom

Acquisition, LLC, OneWest Bank, N.A., subsequently was substituted for

Financial Freedom Acquisition, LLC. Although Financial Freedom Acquisition, LLC, was removed from this action as a plaintiff, it still is a party to

the action as a counterclaim defendant. Thus, throughout this opinion, we

refer to OneWest Bank, N.A., as the substitute plaintiff and Financial Freedom Acquisition, LLC, as the named plaintiff and counterclaim defendant.

Regarding the defendants, the named plaintiff brought this action against

seven defendants. Five of the defendants, John T. Griffin, Mary K. Griffin,

Thomas V. Griffin, Pauline Griffin Voghel, and the Connecticut Department

of Revenue Services, are nonappearing. The two appearing defendants are

Ann T. Griffin, in her individual capacity, and Ann T. Griffin, in her capacity

as executrix of the estate of Angela C. Griffin. In this opinion, we use ‘‘Ann

Griffin’’ to refer to Ann T. Griffin in her individual capacity, ‘‘the executrix’’

to refer to Ann T. Griffin in her capacity as executrix, and ‘‘the defendants’’

to refer to Ann T. Griffin in both her individual and representative capacities.

2 Mergers of partnerships also receive similar treatment under Connecticut

law. See General Statutes § 34-33f (in merger of limited partnerships, ‘‘all

property, real, personal and mixed . . . . and choses in action . . . shall

be vested in [surviving] limited partnership without further act or deed,’’

and any ‘‘action or proceeding . . . pending . . . against [one of the merging entities] may be prosecuted as if such merger or consolidation had not

taken place, or . . . [the] survivor may be substituted in its place’’); General
Statutes § 34-389 (a) (in merger of limited liability partnerships, ‘‘[a]ll property owned by each of the merged partnerships vests in the survivor,’’ and

‘‘[a]n action or proceeding pending against a partnership that is a party to

the merger may be continued as if the merger had not occurred, or the

survivor may be substituted as a party to the action or proceeding’’).

3 Number 16-97 of the 2016 Public Acts repealed the Connecticut Limited

Liability Company Act, § 34-100 et seq., effective July 1, 2017. On the effective

date, the Connecticut Uniform Limited Liability Company Act replaced the

Connecticut Limited Liability Company Act. With respect to the provisions

governing the effect of mergers, the repealed act and the Uniform Act do

not differ substantially. See Public Acts 2016, No. 16-97, § 91 (a) (‘‘[w]hen

a merger becomes effective . . . [a]ll property owned by each merging

limited liability company that ceases to exists vests in the surviving limited

liability company . . . [and] [a]n action or proceeding pending . . . against

any merging limited liability company that ceases to exist may be continued

as if the merger had not occurred’’).

4 The defendants also draw our attention to another aspect of the merger

at issue that supposedly calls into question the substitute plaintiff’s ownership of the note. Specifically, the defendants argue that the trial court erred

in failing to address how the substitute plaintiff’s ownership of the note

was affected by the fact that the merger also involved the acquisition of

the substitute plaintiff’s parent company by CIT Bank’s parent company.

We fail to see how this aspect of the merger undermines the substitute

plaintiff’s ownership of the note.

There is nothing in the record suggesting that the merger caused the

substitute plaintiff to relinquish its status as an entity legally separate from

its parent company, whoever that might have been after the merger. SFA

Folio Collections, Inc. v. Bannon, 217 Conn. 220, 232, 585 A.2d 666 (‘‘it is

a fundamental principle of corporate law that the parent corporation and

its subsidiary are treated as separate and distinct legal persons even though

the parent owns all the shares in the subsidiary’’), cert. denied, 501 U.S.

1223, 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991). Indeed, the record reveals

that the substitute plaintiff merged with another subsidiary, CIT Bank, not

the parent company of CIT Bank. Furthermore, as previously explained,

notwithstanding the change of name, the substitute plaintiff survived the

merger because CIT Bank merged into the substitute plaintiff. Regardless

of whose subsidiary the substitute plaintiff became as a result of the merger,

it remained ‘‘a separate legal entity possessing its own separate assets and

liabilities.’’ Capital Parks, Inc. v. Southeastern Advertising & Sales Systems,

Inc., 30 F.3d 627, 629 (5th Cir. 1994); see also Wright v. JPMorgan Chase

Bank, N.A., 169 So. 3d 251, 252 (Fla. App. 2015) (‘‘[a]s a separate legal

entity, a parent corporation . . . cannot exercise the rights of its subsidiary’’

[internal quotation marks omitted]). The rule that the assets of a parent

company and its subsidiary are separate has obvious implications in the

foreclosure context. That is, ‘‘ownership of the note by [a] subsidiary . . .

does not give [a] parent corporation . . . the right to enforce the note

. . . .’’ Wright v. JPMorgan Chase Bank, N.A., supra, 252. Accordingly, we

are convinced that the substitute plaintiff, not its parent’s company, owns

the note and is the proper plaintiff in this foreclosure action.