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WELLS FARGO BANK, N.A., TRUSTEE v.

JOSEPH S. TARZIA ET AL.

(AC 35791)

Gruendel, Alvord and Norcott, Js.

Argued March 17—officially released June 3, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Mintz, J.)

Christopher G. Brown, for the appellant (named

defendant).

Laura Pascale Zaino, with whom, on the brief, was

Brian D. Rich, for the appellee (plaintiff).
Opinion

NORCOTT, J. The defendant, Joseph Tarzia, appeals

from the entry of a judgment of strict foreclosure for

the plaintiff, Wells Fargo Bank, N.A.1In this appeal, the

defendant claims that (1) the plaintiff has not stated a

claim for strict foreclosure of the mortgage because it

did not plead that it is the owner of the debt, and

(2) the judgment of strict foreclosure was procedurally

improper because the court’s earlier entry of summary

judgment as to liability on the note could only apply to

his personal liability, and could not be the basis for a

judgment of strict foreclosure. We disagree, and accordingly, we affirm the judgment of the trial court.2

The following facts and procedural history inform

our review. On or about June 22, 2007, the defendant

executed a note for a loan of $1,334,000. As security

for payment of the note, he concomitantly executed a

mortgage on his property at 138 North Lake Drive in

Stamford. On or about February 18, 2009, the plaintiff

initiated this foreclosure action, bearing a return date

of February 24, 2009. In its complaint, the plaintiff

alleged that it was the holder of the note and mortgage;

that the defendant defaulted on the note; that it had

elected to accelerate the balance due on the note and

declare it due immediately; and that it elected to foreclose on the mortgage securing the note.

The defendant filed an answer on March 11, 2009, in

which he denied that the plaintiff was the holder of the

note and mortgage. The defendant asserted six special

defenses and a counterclaim in his answer; only the

first special defense is relevant to this appeal.3

In the

defendant’s first special defense, he claimed that ‘‘[t]he

complaint fails to state a claim upon which relief may

be granted because plaintiff alleges in paragraph [four]

that it is merely a ‘holder’ of the Note and a mere

‘holder’ of the Note is without the right to foreclose the

Mortgage.’’ On March 19, 2012, the plaintiff moved for

summary judgment on its claim, the defendant’s special

defenses, and the defendant’s counterclaim. In support

of its motion, the plaintiff provided the court with a

memorandum of law and an affidavit that included and

incorporated by reference copies of the note, mortgage

and assignment of the mortgage. The defendant did not

oppose the plaintiff’s motion for summary judgment.

The court granted the plaintiff’s motion for summary

judgment ‘‘as to liability only.’’

Thereafter, on May 13, 2013, the plaintiff filed a

motion for judgment of strict foreclosure to which the

defendant objected. The defendant argued that there

is no predicate for entry of the foreclosure judgment

because ‘‘[t]here is no authority for a court to grant

summary judgment as to liability only where the relief

sought is foreclosure relief.’’ The defendant also argued

that the plaintiff failed to plead a proper foreclosure
claim by only alleging its ‘‘holder’’ status, rather than

pleading that it is the owner of the note and mortgage.

The trial court heard argument, rejected both claims

by the defendant, and rendered judgment of strict foreclosure. As to the defendant’s first claim, the court

ruled, ‘‘the [entry of summary judgment] as to liability

only says there’s no genuine issue of material fact disputed as to any defense on the note or mortgage and

that they can proceed to judgment of foreclosure, which

is a separate proceeding after liability has been determined on the note and mortgage.’’ As to the second

claim, the court adopted the decision in Bank of

America, N.A. v. DiLuca, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5011073-

S (April 30, 2013) (56 Conn. L. Rptr. 44),4 which applied

our Supreme Court’s decision in RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 32 A.3d 307 (2011).

This appeal followed.

I

The defendant first claims that the plaintiff has not

stated a proper claim for strict foreclosure of the mortgage because the plaintiff failed to plead that it is the

owner of the debt. Specifically, he argues that ‘‘plaintiff’s holder allegation was insufficient to state a foreclosure claim.’’ We disagree.

We review a judgment of strict foreclosure to determine ‘‘whether the trial court abused its discretion. . . .

In determining whether the trial court has abused its

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

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

vested in it is limited to the questions of whether the

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

quotation marks omitted.) People’s United Bank v. Bok,

143 Conn. App. 263, 267, 70 A.3d 1074 (2013).

Our Supreme Court’s decision in RMS Residential

Properties, LLC, is dispositive of the plaintiff’s claim

on appeal. There, it was held that ‘‘a holder of a note

is presumed to be the owner of the debt, and unless

the presumption is rebutted [the holder] may foreclose

the mortgage under [General Statutes] § 49-17. . . .

The production of the note establishes his 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.) RMS Residential Properties,

LLC v. Miller, supra, 303 Conn. 231–32; see also Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.

App. 38, 48, 75 A.3d 38 (same), cert. denied, 310 Conn.

936, 79 A.3d 899 (2013); Deutsche Bank National Trust

Co. v. Shivers, 136 Conn. App. 291, 297 n.4, 44 A.3d 879

(same), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).

In the present case, the plaintiff pleaded that it is the
holder of the note upon which the defendant defaulted

and the plaintiff foreclosed, and it submitted to the

court an affidavit that included and incorporated by

reference copies of the note, mortgage and assignment

of the mortgage. The plaintiff, therefore, established its

prima facie case. The defendant did not attempt to

rebut the plaintiff’s status as a holder of the note and

mortgage; indeed, he did not file any opposition to the

plaintiff’s motion for summary judgment. Accordingly,

the plaintiff was entitled to avail itself of the rebuttable

presumption established in RMS Residential Properties, LLC.

The defendant contends that the trial court’s decision

must be considered in light of our Supreme Court’s

more recent decision in J.E. Robert Co., Inc. v. Signature Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013).

Specifically, he relies on the following text in that decision: ‘‘Our statement in RMS Residential Properties,

LLC . . . that ‘a holder of a note is presumed to be

the owner of the debt, and unless the presumption is

rebutted, may foreclose the mortgage under § 49-17,’

was not intended to suggest that mere proof that someone other than the party seeking to foreclose is the

owner of the note will require dismissal for lack of

standing. Rather, under such circumstances, the burden

would shift back to the plaintiff to demonstrate that

the owner has vested it with the right to receive the

money secured by the note. To the extent that our

statement in RMS Residential Properties, LLC, can be

read otherwise, it is hereby overruled.’’ (Citation omitted.) Id., 325 n.18. To the extent that the defendant is

correct that this holding alters the decision in RMS

Residential Properties, LLC, it is inapplicable because

in the present case, the defendant never attempted to

rebut the presumption that the plaintiff owned the debt

and had the right to foreclose the mortgage. We therefore reject the defendant’s argument that the plaintiff

failed to state a claim for strict foreclosure by pleading

and proving its status as holder of the note and

mortgage.

II

The defendant next argues that the judgment of strict

foreclosure was improper because the court’s earlier

entry of summary judgment as to liability on the note

could only pertain to personal liability and could not

be the basis for a judgment of strict foreclosure. Specifically he argues that ‘‘there is no authority for a court

to grant summary judgment as to liability only where

the relief sought is foreclosure’’ and that ‘‘[Practice

Book] § 17-50 does not authorize summary judgments

as to liability only for foreclosure relief.’’ We disagree.

‘‘As a preliminary matter, we set forth the applicable

standard of review. The interpretive construction of the

rules of practice is to be governed by the same principles as those regulating statutory interpretation. . . .
The interpretation and application of a statute, and thus

a Practice Book provision, involves a question of law

over which our review is plenary.’’ (Citations omitted;

internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).

Resolution of this claim is controlled by our recent

decision in GMAC Mortgage, LLC v. Ford, 144 Conn.

App. 165, 73 A.3d 742 (2013). There, we said that, ‘‘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.’’ Id., 176. Even if we were inclined to

agree with the merits of the defendant’s argument,

which we are not, ‘‘[o]ur rules of practice and our own

policy do not permit a panel of this court to overturn

decisions of this court.’’ Towbin v. Board of Examiners

of Psychologists, 71 Conn. App. 153, 178, 801 A.2d 851,

cert. denied, 262 Conn. 908, 810 A.2d 277 (2002). We

therefore must reject the defendant’s second claim of

error that the court was without authority to grant summary judgment as a predicate for a judgment of strict

foreclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiff is the trustee for the certificateholders of Structured Asset

Mortgage Investments II, Inc., Structured Assets Mortgage Investments II

Trust 2007-AR4, Mortgage Pass-Through Certificates, Series 2007-AR-4.

Christine Tarzia also was named as a defendant in this case; she was

nonappearing before the trial court and is not a party to this appeal. The

other named defendant, National City Bank, is a juniorlienholder. On appeal,

it appears as an appellee, along with the plaintiff.

2 The plaintiff argues that the defendant did not properly preserve his

claims of error by appealing from a judgment of strict foreclosure when his

claims concern the propriety of the court’s earlier entry of summary judgment as to liability. We reject this argument because, as we have held

previously, the entry of summary judgment as to liability only is not a final

judgment for purposes of appeal. See Essex Savings Bank v. Frimberger,

26 Conn. App. 80, 81, 597 A.2d 1289 (1991).

3 The defendant later withdrew the sixth special defense and his counterclaim.

4 This case is presently pending on appeal before this court. Bank of

America, N.A. v. DiLuca, Appellate Court, Docket No. AC 36224.