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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

v. CHRISTOS SIMOULIDIS ET AL.

(AC 36681)

Lavine, Mullins and Borden, Js.

Argued March 16—officially released November 10, 2015

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. Kevin Tierney, judge trial

referee.)

Peter V. Lathouris, with whom, on the brief, was

Richard M. Breen, forthe appellant(named defendant).

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

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

LAVINE, J. ‘‘As the securitization of mortgage loans

has become increasingly favored by financial lenders,

and as arrangements for the administration of these

loans have become increasingly complex, the relationship between the debtors/mortgagors and the owners

of these debts has become more attenuated. Consequently, in foreclosure actions across the country on

loans subject to these arrangements, challenges to the

standing of parties other than the lender to bring such

actions have been on the rise.’’ J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 310, 71 A.3d 492

(2013).

The present case is one of a number of foreclosure

actions in which the loan originated with the now failed

Washington Mutual Bank, FA (bank).1 As in many foreclosure actions, the borrowers in the present case

sought to avoid foreclosure by filing a motion to dismiss, claiming that the court lacked subject matterjurisdiction. The trial court, Hon. Kevin Tierney, judge trial

referee, denied the motion to dismiss. Thereafter, the

court, Mintz, J., rendered a judgment of strict foreclosure in favor of the plaintiff, JPMorgan Chase Bank,

National Association. The defendant Christos Simoulidis2 appealed claiming that Judge Tierney improperly

denied the motion to dismiss because (1) the plaintiff

lacked standing and (2) the promissory note and mortgage deed are nullities under our contract law. We

affirm the judgment of strict foreclosure.

We begin by setting forth the standard of review

governing motions to dismiss. ‘‘Our standard of review

of a trial court’s findings of fact and conclusions of law

in connection with a motion to dismiss is well settled.

A finding of fact will not be disturbed unless it is clearly

erroneous. . . . [W]here the legal conclusions of the

court are challenged, we must determine whether they

are legally and logically correct and whether they find

support in the facts . . . . Thus, our review of the trial

court’s ultimate legal conclusion and resulting [denial]

of the motion to dismiss will be de novo. . . .

‘‘A motion to dismiss admits all facts well pleaded

and invokes any record that accompanies the motion,

including supporting affidavits that contain undisputed

facts.’’ (Internal quotation marks omitted.) Henriquez

v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

The following procedural history and factual findings,

as found by Judge Tierney, are relevant to ourresolution

of the claims on appeal. On February 22, 2007, the

defendant obtained a $415,000 loan from the bank and

signed a $415,000 promissory note (note) to the bank

secured by a first mortgage on real property at 50 Winfield Street, Norwalk. The defendant and Despina

Simoulidis executed the mortgage deed.

The plaintiff commenced the present foreclosure
action in February, 2010. Paragraph 5 of the complaint

alleges in part: ‘‘Said Note is in default and the Plaintiff

. . . as the holder of said Mortgage and Note has

elected to accelerate the balance due on said Note, to

declare said Note to be due in full and to foreclose the

Mortgage securing said note.’’ The defendant did not

file an answer, special defense, counterclaim or set off.

The parties engaged in a substantial period of mediation

but failed to resolve the matter.

On July 10, 2013, approximately three and one-half

years after the action had been commenced, the defendant filed a motion to dismiss, alleging that the court

lacked subject matter jurisdiction due to the plaintiff’s

lack of standing. The defendant stated three reasons

why he believed the plaintiff lacked standing: ‘‘It is not

the owner of the debt evidenced by the promissory note

set forth in the complaint . . . . The promissory note

relied upon by [p]laintiff is not a negotiable instrument

and therefore could not be negotiated to the [p]laintiff

nor could [p]laintiff attain the status of ‘holder’. . . .

The promissory note and mortgage deed relied upon

by [p]laintiff are nullities, in that they are made payable,

legally speaking, to a nonentity, which consequently

lacked legal capacity to enter into them or to enforce

them in our courts.’’

The plaintiff objected to the defendant’s claims,

arguing that it had standing in that the bank was the

original lender; the bank failed; the Federal Deposit

Insurance Corporation (FDIC) was appointed receiver;

on September 25, 2008, the plaintiff acquired the assets

of the bank from the FDIC pursuant to a purchase and

assumption agreement; a copy of the note bears a blank

endorsement executed by Cynthia Riley, bank vice president;3 and the plaintiff has possession of the note and

had possession of it prior to commencing the action in

February, 2010. The plaintiff alleged its status as a

holder, relying on RMS Residential Properties, LLC

v. Miller, 303 Conn. 224, 228–29, 32 A.3d 307 (2011),

overruled in part by J.E. RobertCo. v. Signature Properties, LLC, supra, 309 Conn. 325 n.18, and the presumption that the holder of a note is the owner of the debt.

The plaintiff also argued that the documents that the

defendant submitted in support of his motion to dismiss

were insufficient to rebut the presumption that it was

the owner of the debt.

After reviewing the complaint, the parties’ memoranda of law, and relevant documents,4

the court made

extensive and detailed findings concerning the bank’s

many changes in name, charter, mergers, corporate

relocations, and dealings with the Office of Thrift Supervision, the predecessorto the United States Comptroller

of the Currency.5

The court found that on September 25, 2008, the bank

was closed by the Office of Thrift Supervision and the

FDIC was appointed receiver of the bank. The FDIC
declared the bank a failed bank. On that same day, the

FDIC, as the receiver, and the plaintiff, as the assuming

bank, executed a purchase and assumption agreement,

which states in part that the FDIC conveyed to the

plaintiff all right, title and interest of the FDIC in the

assets of the bank. The court also found that on July

20, 2009, the FDIC, as receiver for the bank, filed a

petition in the Land Court of the state of Hawaii for an

orderto change the home office of the bank and appoint

the FDIC as receiver of the bank. The petition was

accepted by the Land Court, which issued an order

stating in part that documents executed by the FDIC

as receiver of the bank were accepted for filing in the

Land Court, including documents ‘‘filed or recorded in

the Office of the Assistant Registrar of the Land Court

under the name of Washington Mutual Bank or Washington Mutual Bank, F.A.’’ (Emphasis added.)

After making the foregoing factual findings, the trial

court considered the three reasons the defendant

claimed the plaintiff lacked standing to foreclose the

mortgage: (1) the plaintiff is not the owner of the debt,

(2) the subject note is not a negotiable instrument, and

(3) the note and mortgage are nullities. The defendant

grounded his claim that the plaintiff is not the owner

of the debt on the deposition testimony of Wilkin Rodriguez, a home lending research officer in the plaintiff’s

employ. Rodriguez testified that the plaintiff was the

holder of the note, servicer, and mortgagee, and that

Freddie Mac was the investor of the debt. The defendant

claimed that that testimony constituted an admission

on the part of the plaintiff that it did not own the debt.

In response to the motion to dismiss, the plaintiff

presented the court with the original note endorsed

in blank, mortgage, and the purchase and assumption

agreement dated September 25, 2008, by which the

FDIC, as receiver of the bank, conveyed loans to the

plaintiff.

In ruling on the motion to dismiss, the court stated

that ‘‘Connecticut law holds that the submission of the

original note and mortgage deed to this foreclosing trial

court with an undated blank endorsement by the lender

is sufficient to establish standing to the foreclosing

party. Countrywide Home Loans Servicing, LP v.

Creed, 145 Conn. App. 38, 42–43, 47, [75 A.3d 38, cert.

denied, 310 Conn. 936, 79 A.3d 889] (2013).’’ It found

that no court has found Rodriguez’ testimony credible

and binding on the court that the plaintiff is not the

holder of the note. Rodriguez did not define what an

investor is, he did not testify that the plaintiff is not

the owner of the debt; he testified that the plaintiff was

the holder of the note. The court concluded that, as

holder of the note, the plaintiff had standing to foreclose

the mortgage and, moreover, that it was in possession

of the note prior to commencing the action. The court

concluded that the defendant had failed to rebut the
holder presumption articulated in RMS Residential

Properties, LLC v. Miller, supra, 303 Conn. 234–35, that

the holder of the note is the owner of the debt.

With respect to its second reason why the motion to

dismiss should be granted, the defendant claimed that

the note was not a negotiable instrument pursuant to

General Statutes § 42a-1-201 (b) (27), which defines

person, and General Statutes § 42a-1-201 (b)(21), which

defines holder. The defendant argued that the lender,

Washington Mutual Bank, FA, on February 22, 2007,

was only a trade name and therefore was neither a

person nor a holder. After analyzing several sections of

the Uniform Commercial Code (UCC), General Statutes

§ 42a-1-101 et seq., and finding no case law holding that

a trade name is not a person or that the UCC has

declared that a trade name is not a person under § 42a1-201 (b) (27), the court concluded that the defendant

had failed to rebut the presumption that the note is a

negotiable instrument and that the plaintiff as holder

of the note has standing.

As to the third reason the defendant asserted to dismiss the action, he contended that the note and mortgage are nullities, legally speaking, as they were made

payable to a nonentity. The court found this reason to

be the heart of the defendant’s motion to dismiss. The

essence of the defendant’s claim is that the bank, Washington Mutual Bank, FA, as lender, did not exist because

on April 4, 2005, it was eliminated by corporate name

change to Washington Mutual Bank. More specifically,

the defendant argued that(1)there was no entity known

as Washington Mutual Bank, FA, on February 22, 2007,

(2) the use of a trade name in violation of General

Statutes § 35-1 voids the mortgage transaction, and (3)

a trade name is not a legal entity and cannot commence litigation.

The court found that pursuant to the bank’s April 4,

2005 bylaws, and with the approval of the Office of

Thrift Supervision, the bank had the right to do business

underthe name of Washington MutualBank or Washington Mutual Bank, FA. The court found that the bank’s

name was ‘‘Washington Mutual Bank also known as

Washington Mutual Bank, FA,’’ at all times after April

4, 2005, and that both names are existing legal entities.

The court also found that no trade name is in use in

the present litigation as the bank did not commence

the present litigation and is not a party to it. The present

foreclosure action was commenced by the plaintiff, and

the defendant failed to produce any evidence that

JPMorgan Chase Bank, National Association, is a trade

name. For the foregoing reasons, the court denied the

defendant’s motion to dismiss.

After Judge Mintz rendered a judgment of strict foreclosure on behalf of the plaintiff,6

the defendant

appealed. Additional facts will be set forth as needed.
I

The defendant claims that the trial court improperly

denied his motion to dismiss because the court’s finding

that he failed to rebut the presumption that the plaintiff,

as the holder of the note, is the owner of the debt is

clearly erroneous. We disagree.

‘‘The issue of standing implicates [the] court’s subject

matter jurisdiction. . . . Standing is the legal right to

set judicial machinery in motion. One cannot rightfully

invoke the jurisdiction of the court unless he [or she]

has, in an individual or representative capacity, some

real interest in the cause of action, or a legal or equitable

right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question

is whether the person whose standing is challenged is

a proper party to request an adjudication of the issue

. . . .’’ (Citations omitted; internal quotation marks

omitted.) AvalonBay Communities,Inc. v. Orange, 256

Conn. 557, 567–68, 775 A.2d 284 (2001). ‘‘Because standing implicates the court’s subject matter jurisdiction,

the plaintiff ultimately bears the burden of establishing

standing.’’ Seymour v. Region One Board of Education,

274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S.

1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).

‘‘Because a determination regarding the trial court’s

subject matter jurisdiction raises a question of law,

[the standard of] review is plenary.’’ (Internal quotation

marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn.

206, 214, 982 A.2d 1053 (2009). ‘‘Standing is established

by showing that the party claiming it is authorized by

statute to bring suit or is classically aggrieved.’’ (Internal quotation marks omitted.) St. Paul Travelers Cos. v.

Kuehl, 299 Conn. 800, 809, 12 A.3d 852 (2011). ‘‘Statutory

aggrievement exists by legislative fiat, not by judicial

analysis of the particular facts of the case. In other

words, in cases of statutory aggrievement, particular

legislation grants standing to those who claim injury

to an interest protected by that legislation.’’ (Internal

quotation marks omitted.) Andross v. West Hartford,

285 Conn. 309, 322, 939 A.2d 1146 (2008).

Very recently this court summarized the jurisprudence with respect to standing in foreclosure matters

in U.S. Bank, National Assn. v. Schaeffer, 160 Conn.

App. 138, A.3d (2015). In Connecticut, one may

enforce a note pursuant to the UCC. Id., 146. General

Statutes § 42a-3-301 provides in relevant part that a

‘‘[p]erson entitled to enforce an instrument means . . .

the holder of the instrument . . . .’’7

(Internal quotation

marks omitted.) When a note is endorsed in blank, the

note is payable to the ‘‘bearer’’ of the note. See General

Statutes § 42a-3-205 (b); see also RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 231. A person

in possession of a note endorsed in blank, is the valid

holder of the note. See General Statutes § 42a-1-201 (b)
(21) (A). Therefore, a party in possession of a note,

endorsed in blank and thereby made payable to its

bearer, is the valid holder of the note, and is entitled

to enforce the note. See RMS Residential Properties,

LLC v. Miller, supra, 231.

In RMS Residential Properties, LLC v. Miller, supra,

303 Conn. 231, our Supreme Court stated that to enforce

a note through foreclosure, a holder must demonstrate

that it is the owner of the underlying debt.8 The holder

of a note, however, is presumed to be the rightful owner

of the underlying debt, and unless the party defending

against the foreclosure action rebuts that presumption,

the holder has standing to foreclose the mortgage.9Id.,

231–32. A holder only has to produce the note to establish that presumption. ‘‘The production of the note

establishes his case prima facie against the [defendant]

and he may rest there. . . . It [is] for the defendant to

set up and prove the facts [that] limit or change the

plaintiff’s rights.’’ (Emphasis added; internal quotation

marks omitted.)Id., 232; see also American Home Mortgage Servicing, Inc. v. Reilly, 157 Conn. App. 127, 133,

A.3d (2015).

In J.E. Robert Co. v. Signature Properties, LLC,

supra, 309 Conn. 323–25, our Supreme Court articulated

its analysis of standing stated in RMS Residential Properties, LLC. First, the court clarified that when it stated

in RMS Residential Properties, LLC, that a holder is

the rightful owner of the debt, it intended to ‘‘address

the situation in which ownership of the note and ownership of the mortgage rest in different hands at the time

the foreclosure action commenced.’’ Id., 323. J.E.

Robert Co. emphasized that the purpose of RMS Residential Properties, LLC, was not to restrict those cases

in which ownership of the note and ownership of the

debt was in the same hands. Id., 324–25. Instead, our

Supreme Court put forth a means by which ‘‘a debtor

may be able to produce evidence demonstrating that

the [foreclosing party], who might otherwise appear to

be entitled to enforce the debt [by way of possessing

the note,] nevertheless lacks standing, perhaps because

ownership of the debt has passed to another party.’’

(Emphasis added.) Id., 325.

J.E. Robert Co. further clarified that, even if a defendant in a foreclosure action were able to demonstrate

that the debt was owned by a party other than the one

bringing the foreclosure action, or by other means was

able to rebut the presumption that the holder of the

note was the owner of the debt, the result was not an

automatic dismissal of the action due to lack of standing. Rather, the burden shifts back to the party bringing

the foreclosure action to demonstrate that the rightful

owner had in some way vested in it the right to collect

the debt on the owner’s behalf. Id., 325 n.18.10

U.S. Bank, National Assn. v. Schaeffer, supra, 160

Conn. App. 146–47, also summarized the law more suc-
cinctly: The holder of a note seeking to enforce the

note through foreclosure must produce the note. The

note must be endorsed so as to demonstrate that the

foreclosing party is a holder, either by a specific

endorsement to that party or by means of a blank

endorsement to bearer. Id., 150. If the foreclosing party

produces a note demonstrating that it is a valid holder

of the note, the court is to presume that the foreclosing

party is the rightful owner of the debt. Id. The defending

party may rebut the presumption that the holder is the

rightful owner of the debt, but bears the burden to

prove that the holder of the note is not the owner

of the debt. Id. This may be done, for example, by

demonstrating that ownership of the debt had passed

to another party. Id. The defending party does not carry

its burden by merely identifying some documentary

lacuna in the chain of title that might give rise to the

possibility that a party other than the foreclosing party

owns the debt. Id. To rebut the presumption that the

holder of a note endorsed specifically or to bearer is

the rightful owner of the debt, the defending party must

prove that another party is the owner of the note and

debt. Id. Without such proof, the foreclosing party may

rest its standing to foreclose the mortgage on its status

as the holder of the note.

In the present case, the plaintiff presented the court

with the original note and mortgage deed both dated

February 22, 2007. Page 5 of the note is an undated

endorsement in blank. See footnote 3 of this opinion.

In addition to the note that is endorsed in blank, the

plaintiff presented the court with the purchase and

assumption agreement. Section 3.1 of that agreement

states in relevant part: ‘‘the [plaintiff] hereby purchases

from the [FDIC] and the [FDIC] herby sells, assigns,

transfers conveys, and delivers to the [plaintiff,] all

right, title, and interest of the [FDIC] in and to all of

the assets (real, personal and mixed, wherever located

and however acquired) including all subsidiaries, joint

ventures, partnerships, and any and all other business

combinations or arrangements, whether active, inactive, dissolved or terminated, of the Failed Bank

whether or not reflected on the books of the Failed

Bank as of Bank Closing.’’ Also in evidence for the

court’s consideration were the listing of the subsidiaries

of Washington Mutual, Inc., and an inventory spreadsheet of Freddie Mac loans.

On appeal, the defendant claims that he successfully

rebutted the presumption that the plaintiff is the owner

of the subject debt on the basis of Rodriguez’ deposition

testimony.11 The court found, and we agree, that Rodriguez’ testimony did not rebut the presumption that the

plaintiff is the owner of the debt. The court further

found, and we agree, that the purchase and assumption

agreement dated September 25, 2008, conveyed from

the FDIC for the bank all loans to the plaintiff.
‘‘[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. . . .

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.) Countrywide Home Loans

Servicing, LP v. Creed, 145 Conn. App. 38, 48, 75 A.3d

38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). On

the basis of the evidence presented to it, the court

found, and we agree, that the defendant had failed to

rebut the presumption that the plaintiff, as the holder

of the note, was the owner and had standing to bring

the action.12

II

The defendant also raises several claims predicated

on his belief that Washington Mutual Bank, FA, is a

trade name. Specifically, the defendant claims that a

trade name (1) is not a person capable of negotiating

a negotiable instrument payable to bearer, (2) lacks the

legal capacity to enter into a contract consisting of the

note and mortgage deed, and (3) lacks standing to bring

a civil action to enforce the note. We disagree.

Our review of the record and the court’s memorandum of decision reveals that the court found on the

basis of the bank’s corporate filings and bylaws, that

Washington Mutual Bank, FA, is not a trade name. Significantly, the court found that on April 4, 2005, ‘‘the

bank’s Federal State Charter(No. 4539) as amended and

‘Washington Mutual Bank, FA,’ changed its corporate

name to ‘Washington Mutual Bank.’ ’’ Section 1 of the

bylaws states: ‘‘Corporate Title and Name. The full corporate title of the savings bank is Washington Mutual

Bank. The savings bank also may do business under

the name of Washington Mutual Bank, FA.’’ The court

also found that the Office of Thrift Supervisors

approved the change of the bank’s corporate name and

the bank’s right to do business under its new name,

Washington Mutual Bank, or its former name Washington Mutual Bank, FA.

We thoroughly have reviewed the court’s memorandum of decision and the undisputed evidence regarding

the bank’s history and corporate name changes. See

footnote 5 of this opinion. We agree with the court’s

conclusion that Washington Mutual Bank, FA, is not a

trade name. For that reason, we decline to address the

defendant’s several claims asserted on the mistaken

ground that Washington Mutual Bank, FA, is a trade

name.

The judgment is affirmed, and the case is remanded

for the purpose of setting new law days.

In this opinion the other judges concurred.

1 See, e.g., JPMorgan Chase Bank, N.A. v. Eldon, 144 Conn. App. 260,
263, 73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889 (2013); Washington

Mutual Bank, F.A. v. Walpuck, 134 Conn. App. 446, 43 A.3d 174, cert. denied,

305 Conn. 902, 43 A.3d 663 (2012).

2 Despina Simoulidis, Wachovia Bank, National Association, and State of

Connecticut, Department of Revenue Services are also defendants, but they

have not participated in this appeal. In this opinion, we refer to Christos

Simoulides as the defendant.

3 The blank endorsement is undated and states: ‘‘Pay to the order of

Without Recourse. WASHINGTON MUTUAL BANK, FA By

CYNTHIA RILEY, VICE PRESIDENT’’

4 The parties opted to have the court decide the motion to dismiss on the

basis of the allegations in the complaint and undisputed facts. Judge Tierney

noted: ‘‘[I]f the complaint is supplemented by undisputed facts established

by affidavits submitted in support of the motion to dismiss . . . other types

of undisputed evidence . . . and/or public records of which judicial notice

may be taken . . . the trial court, in determining the jurisdictional issue,

may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.’’ (Internal

quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education,

303 Conn. 402, 422–23 n.17, 35 A.3d 188 (2012).

The parties submitted the following documents to the court: a five page

promissory note from the defendant to the bank; a sixteen page open end

mortgage securing the note on 50 Winfield Street in Norwalk; a one page

Federal Home Loan Mortgage Corporation (Freddie Mac) regulation § 66.20;

a one page Freddie Mac regulation § 66.17; a September 25, 2008 purchase

and assumption agreement between the FDIC as receiver of the bank and

the plaintiff; a one page spreadsheet of inventory of Freddie Mac loans; a

one page document line report spreadsheet; a one page Securities and

Exchange Commission website printout listing the subsidiaries of the bank;

a forty-two page transcript of Wilkin Rodriguez’ deposition; seven pages of

correspondence from the Office of the Comptroller of the Currency to the

plaintiff’s attorney dated May 24, 2012; and twenty-five pages of certified

documents from the state of Hawaii, Office of Assistant Registrar, dated

August 20, 2009.

5 The court found that the bank was founded in 1889 as Washington Mutual

Savings Bank and was organized under the laws of the state of Washington

to transact business as a state savings bank. On November 30, 1994, the bank

was renamed Washington Mutual Bank. On December 20, 2004, Washington

Mutual Bank was converted from a state chartered savings bank in the state

of Washington to a federally chartered savings bank under the corporate

title of Washington Mutual Bank.

Moreover, ‘‘[o]n June 28, 2005, Washington Mutual Bank referring to itself

as the ‘Association’ by William L. Lynch, its secretary, notified the Office

of Thrift Supervision . . . by letter that the proposed amendment to Section

2 of the Association’s Federal Stock Charter (No. 4539) would state: ‘Section

2. Office. The home office shall be located in Henderson, Nevada.’ Article

1, Section 2 of the Association’s bylaws would also be amended to state:

‘Section 2. Home Office. The home of the savings bank shall be at Henderson,

the County of Clark, in the state of Nevada.’ Those amendments were noted

in that June 28, 2005 letter to become effective as of September 23, 2005.

These two amendments were approved by the Association (bank). The

amendment to the Federal Stock Charter (No. 4539) and the amendment

to the bylaws were date stamped as being received by the [Office of Thrift

Supervision] on July 22, 2005, confirming the same information.’’

6 On March 10, 2014, Judge Mintz found the debt to be $558,768.06, plus

attorney’s fees and costs.

7 General Statutes § 42a-3-301 provides: ‘‘ ‘Person entitled to enforce’ an

instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not

in possession of the instrument who is entitled to enforce the instrument

pursuant to section 42a-3-309 or 42a-3-418(d). A person may be a person

entitled to enforce the instrument even though the person is not the owner

of the instrument or is in wrongful possession of the instrument.’’

8

In U.S. Bank, National Assn. v. Schaeffer, supra, 160 Conn. App. 147

n.5, Justice Borden stated: ‘‘Although in many, if not most, cases, the party

seeking enforcement of the note will also be the owner of the debt, our

jurisprudence has not specifically defined what that distinction means. We

construe ownership of the underlying debt to refer to the person or entity

to whom money is ultimately payable. For example, a mere servicer of the

note may seek enforcement of it, although ultimately the money would be
payable to some other entity. See, e.g., J.E. Robert Co. v. Signature Properties, LLC, [supra, 309 Conn. 313] (J.E. Robert Company was servicer of

note, but debt was owned by JP Morgan Chase Bank, N.A., to whom money

was ultimately payable).’’

9 General Statutes § 49-17 ‘‘codifies the well established common-law principle that the mortgage follows the note, pursuant to which only the rightful

owner of the note has the right to enforce the mortgage. . . . Our legislature,

by adopting § 49-17, created a statutory right for the rightful owner of a

note to foreclose on real property regardless of whether the mortgage has

been assigned to him.’’ (Citations omitted.) RMS Residential Properties,

LLC v. Miller, supra, 303 Conn. 230.

10 In footnote 18 of J.E. Robert Co., our Supreme Court laid out an alternative test for cases where the party commencing a foreclosure action was

not the holder of the note. J.E. Robert Co. v. Signature Properties, LLC,

supra, 309 Conn. 325 n.18. In cases where a nonholder transferee seeks to

enforce a note in a foreclosure proceeding, the transferee must demonstrate

by means of proper supporting documents, its right to foreclose. Id. The

transferee must account for possession ofthe note by proving the transaction

through which it acquired the note from the holder. Id., 326 n.18.

11 Although the defendant does not say so specifically, he implies that

Rodriguez’ testimony constitutes a judicial admission on the part of the

plaintiff. The trial court properly determined that Rodriguez’ testimony was

not conclusive of the issue of whether the plaintiff is a holder entitled to

bring the present action. See O & G Industries,Inc. v. All Phase Enterprises,

Inc., 112 Conn. App. 511, 523 n.5, 963 A.2d 676 (2009)(distinguishing between

judicial and evidentiary admission).

12 The defendant does not claim that the plaintiff was not in possession

of the note at the time it commenced the present action.