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*********************************************** 
ANNMARIE CASTLE, TRUSTEE v.

KATHERINE DIMUGNO

(AC 41607)

DiPentima, C. J., Bright and Devlin, Js.*

Syllabus

The plaintiff trustee sought to collect on a promissory note executed by

the defendant and to foreclose a mortgage on certain real property

securing the defendant’s obligations under the note. In accordance with

a stipulation entered into by the defendant and her former husband, D,

which was incorporated into the judgment dissolving their marriage, D

transferred his interest in the property to the defendant and the defendant executed a promissory note in the amount of $160,000 in favor of

D. The note provided that it was payable by the defendant until the sale

of the property or her death and that, if the property were transferred, the

unpaid principal with accrued interest would become due and payable

at the option of the holder of the note. Thereafter, the plaintiff, as

trustee, brought an action against D for, inter alia, breach of fiduciary

duty for actions he had taken as the original trustee of the trust. The

trial court rendered judgment in favor of the plaintiff and, following its

granting of the plaintiff’s motion for postjudgment modification of a

prejudgment attachment that had been granted in her favor, ordered

that the plaintiff could ‘‘garnish’’ the note from the defendant and that

a copy of the original note was to be turned over to her. D never

turned over the original note to the plaintiff. The defendant subsequently

quitclaimed title to the property to her daughter for no consideration

and retained a life use of the property. The plaintiff then filed a judgment

lien on the property, claiming that the defendant’s transfer of the property to her daughter triggered her obligation to pay the note in full.

After the defendant did not respond to the plaintiff’s demand that she

make full payment on the note, the plaintiff commenced the present

two count action. The trial court rendered summary judgment in favor

of the defendant on both counts of the complaint, and the plaintiff

appealed to this court. Held that the plaintiff lacked standing to enforce

the note and to foreclose on the mortgage, and, therefore, the trial court

should have dismissed both counts of her complaint for lack of subject

matter jurisdiction: because the plaintiff never possessed the original

note, she lacked standing to enforce it, and her contention that she was

entitled to enforce the note as D’s successor pursuant to the order of

attachment and garnishment issued by the trial court in her action

against D was unavailing, as it was contrary to the plain language of

the statute (§ 42a-3-309) that governs the enforcement of lost, destroyed

or stolen instruments, which was directly applicable to the situation

underlying the present case; moreover, there was no merit to the plaintiff’s argument that her possession of a copy of the note was sufficient

to confer standing on her to enforce the note, as she could not meet

the requirements of § 42a-3-309 because the statute clearly and unambiguously provides that to enforce a lost note, the person seeking to enforce

it must have had possession of it when it was lost; furthermore, there

was no basis to conclude that the plaintiff had standing to foreclose on

the mortgage, as she failed to produce any necessary and proper secondary evidence to create a genuine issue of material fact that she was the

owner of the debt underlying the mortgage, and this court was not

persuaded by the plaintiff’s contention that she had standing pursuant

to the statute (§ 52-329) providing for the garnishment of a debt as a

prejudgment remedy or the trial court’s common-law powers of equity,

as she neither pursued the statutory (§ 52-381) procedure to execute

on the garnishment nor brought a scire facias action against the defendant, and she failed to explain what common-law powers of equity

would permit a court, on the facts of this case, to grant an ownership

interest in a debt without following the required statutory procedures.

Argued December 3, 2019—officially released September 1, 2020

Procedural History
Action to, inter alia, recover on a promissory note,

and for other relief, brought to the Superior Court in

the judicial district of Middlesex, where the defendant

filed a counterclaim; thereafter, the court, Aurigemma,

J., granted the defendant’s motion for summary judgment on the complaint and rendered judgment thereon,

from which the plaintiff appealed to this court.

Improper form of judgment; judgment directed.

Mario Cerame, with whom, on the brief, were Juri

E. Taalman and Timothy Brignole, for the appellant

(plaintiff).

Rowena A. Moffett, for the appellee (defendant).
Opinion

BRIGHT, J. This appeal arises out of the plaintiff’s

action to collect on a promissory note (note) executed

by the defendant, Katherine DiMugno, and to foreclose

on the mortgage securing the defendant’s obligations

under the note. The plaintiff, AnnMarie Castle, as

trustee for the Mary DiMugno Irrevocable Trust (trust),

appeals from the judgment of the trial court rendered

in favor of the defendant following its granting of the

defendant’s motion for summary judgment on the plaintiff’s complaint. The plaintiff claims that the court (1)

misinterpreted the defendant’s payment obligations

under the note, (2) improperly considered parol evidence regarding the meaning of certain language in the

note, and (3) incorrectly concluded that there are no

genuine issues of material fact regarding the defendant’s alleged default under the note. In response, in

addition to defending the analysis of the trial court, the

defendant reasserts her claim that the plaintiff lacks

standing to enforce the note and to foreclose on the

corresponding mortgage, and that the court, therefore,

should have dismissed the action. We agree with the

defendant that the plaintiff lacks standing, and, therefore, we reverse the judgment of the trial court and

remand the case to the trial court with direction to

render a judgment of dismissal.

The following undisputed facts and procedural history are relevant to our analysis. On July 28, 2005, the

court dissolved the defendant’s marriage to Donald

DiMugno (Donald). Incorporated into the judgment of

dissolution rendered by the court was a stipulation

entered into by the defendant and Donald. Relevant to

this dispute, the defendant and Donald stipulated: ‘‘The

husband shall transfer to the wife all of his right, title

and interest in the real estate located at 11 Billow Road,

Old Saybrook, Connecticut [(property)] . . . . In consideration for the transfer the wife shall execute a Promissory Note in the principal amount of $160,000 together

with simple interest at the rate of 2 [percent] per annum,

which Note shall be payable on the first of the following

events: the sale of said premises by the wife and/or

death of the wife.’’ On August 24, 2005, upon Donald’s

transfer of his interest in the property to her, the defendant executed the note in favor of Donald in the principal amount of $160,000. In conformity with the stipulation, the note provides for simple interest to accrue at

the rate of 2 percent per year. The note further provides

in its second paragraph: ‘‘The undersigned promises to

pay the said principal and interest as follows: 1. The

sale of the [property]; or 2. The death of the [m]aker

hereof.’’ Under the note, the defendant also is responsible to pay all taxes and mortgage obligations associated

with the property and is required to keep the property

insured and free of mechanic’s liens. The note further

provides, in its penultimate paragraph, that ‘‘[i]f any
payment due hereunder shall not have been paid within

[fifteen] days after the same is due . . . or if title to said

property is transferred, then the entire unpaid principal,

with accrued interest, shall, at the option of the holder

hereof, become due and payable forthwith.’’ The defendant’s obligations under the note are secured by a mortgage on the property, which she executed contemporaneously with the note.1

In 2012, the plaintiff, both as trustee of the trust

and conservator of Mary DiMugno, brought an action

against Donald for breach of fiduciary duty, civil theft

and fraud for actions that Donald had taken when he

acted as the original trustee of the trust and as a fiduciary of Mary DiMugno, his mother. Following a trial,

the court, on August 30, 2013, rendered judgment in

favor of the plaintiff and against Donald. Following

the entry of judgment, the plaintiff filed a motion for

postjudgment modification of the prejudgment attachment that previously had been granted in favor of the

plaintiff. At the hearing on the motion, the plaintiff’s

counsel expressed his concern that Donald had

secreted certain assets that could be used to satisfy

the plaintiff’s judgment against him. Consequently, he

asked the court to order that ‘‘someone in trust take

them and hold them until the end [of] this case.’’ In

granting the plaintiff’s motion, on September 27, 2013,

the court made clear that the plaintiff could ‘‘take [the

assets], you can hold them, but you can’t sell them.

. . . And the same thing with any bank accounts. You

can put a hold on them. You can put an attachment on

something, but you can’t execute on it unless and until

. . . a final judgment.’’ With respect to the note, the

plaintiff’s counsel argued that he ‘‘should be entitled

to receive the [original] promissory note. So when the

trigger of the contingency occurs, the money gets paid

and we hold on to it.’’ (Emphasis added.) When the

court ordered that a copy of the note be turned over

to the plaintiff, the plaintiff’s counsel interceded by

saying, ‘‘[a]gain, that would be the original of the promissory note. I can only execute against the original.’’

(Emphasis added.) The court agreed. When Donald’s

attorney stated that he had a copy of the note but

was unsure as to the location of the original, the court

replied: ‘‘See what you can do.’’ As part of its order,

issued following the hearing, the court ordered that

‘‘the plaintiff shall garnish the promissory note from

[the defendant], with a copy of the original promissory

note to be turned over to the plaintiff within seven

days on or before October 5, 2013.’’ (Emphasis added.)

Although the record is unclear as to whether Donald

delivered a copy of the note to the plaintiff, there is no

dispute that Donald never delivered the original note

to the plaintiff or that the plaintiff has never had possession of the original note.

On January 23, 2014, the defendant quitclaimed title

to the property to her daughter, Michele Rossignol, for
the consideration of love and affection, and retained a

life use of the property (life use deed). The defendant

executed the life use deed so that the property would

not have to go through probate if she died and to protect

it from seizure by the state if she went into a convalescent home. The life use deed did not purport to release

or extinguish Donald’s mortgage on the property.

After learning of the defendant’s transfer of title to

the property to Rossignol, the plaintiff, relying on the

language in the note that ‘‘if title to said property is

transferred, then the entire unpaid principal, with

accrued interest, shall, at the option of the holder

hereof, become due and payable forthwith,’’ on May 4,

2015, filed a judgment lien on the property, claiming

that the defendant’s transfer of title to the property to

Rossignol triggered her obligation to pay the note in

full. The judgment lien noted that the plaintiff, in her

action against Donald, had secured a one million dollar

attachment of all of Donald’s assets, including the note.

On May 5, 2015, the plaintiff’s counsel sent the defendant and Rossignol a letter notifying them of the judgment lien attaching the debt the defendant owed to

Donald, and stating his intention ‘‘to try and work with

you for the payment of said note . . . before we

attempt on foreclosing on the judgment lien.’’ On September 28, 2015, Rossignol, by way of a quitclaim deed,

transferred title to the property back to the defendant

for no consideration. The defendant did not otherwise

respond to the plaintiff’s demand that she make full

payment on the note.

By complaint dated October 23, 2015, the plaintiff

instituted the underlying action against the defendant.

In count one of the complaint, the plaintiff sought payment on the note. In that count, she alleged that the

court in her action against Donald ‘‘assigned the [note]

to the [plaintiff] for payment.’’ The plaintiff further

alleged that she ‘‘is now the HOLDER of the negotiable

instrument of the [note],’’ and described herself as the

‘‘court-ordered holder of the [note] . . . .’’ She sought,

as a remedy, ‘‘money damages for the repayment of

principal and interest under the terms of the [n]ote,

plus attorney’s fees, in accordance with the terms [of]

the [note].’’

In count two, the plaintiff incorporated her allegations from count one, including that the note was

assigned to her and that she is the holder of the note.

She sought to foreclose on the mortgage securing the

note but did not seek to foreclose on the judgment lien,

as suggested in her counsel’s earlier letter.

The defendant moved to dismiss the action on the

ground that the plaintiff lacks standing because she is

not the holder of the note. In opposition to the motion,

the plaintiff argued that she was entitled to enforce

the note pursuant to the court’s postjudgment order of

attachment issued in her action against Donald. She
further argued that she did not need to have possession

of the original note because it had been lost and its

whereabouts were unknown. The court denied the

motion to dismiss because ‘‘[t]here is an issue of fact

as to whether the note was lost.’’

Thereafter, the defendant filed a motion to strike

both counts of the complaint on the basis that the note

required payment only if one of two events occurred—

the defendant sold the property or she died. The defendant argued that because the complaint did not allege

either of the events, the plaintiff failed to state a claim

on which relief could be granted and both counts of the

complaint should be stricken. In response, the plaintiff

argued that the defendant’s transfer of title to Rossignol

triggered the defendant’s obligation to pay the note in

full and her failure to do so constituted an event of

default under the note that supported both her action

for payment on the note in count one of the complaint

and her action to foreclose on the corresponding mortgage in count two. The court denied the motion to strike

because, ‘‘[w]hen the express terms of the note are

construed in a light most favorable to the plaintiff, the

defendant’s ‘transfer’ to her daughter could be considered an event of default. The plaintiff’s complaint is

legally sufficient.’’

The defendant then answered the complaint. Thereafter, she filed a revised answer, denying the essential

allegations of the plaintiff’s complaint and pleading several special defenses.2

After the parties engaged in discovery, including taking the depositions of the defendant, Donald, and the

defendant’s attorney in the dissolution action, who was

involved in the drafting and execution of the note, the

defendant moved for summary judgment on both counts

of the plaintiff’s complaint. In support of her motion,

the defendant first argued that she had not defaulted

on the note because payment was not due until she

sold the property for value or died, neither of which

had occurred. With respect to the ‘‘transferred’’ language relied on by the plaintiff, the defendant argued

that ‘‘[t]he undisputed evidence makes clear that the

term ‘transferred’ as used in [the note] means a transfer

for value, and the life use deed [did] not constitute a

transfer which renders the note due and payable.’’ The

defendant submitted various extrinsic evidence in support of her argument. First, she argued that the note

should be read in light of the stipulation that she and

Donald signed that was incorporated into their dissolution judgment from which the note resulted. The stipulation provided that the note ‘‘shall be payable on the

first of the following events: the sale of [the property]

by the wife and/or death of the wife.’’ The stipulation

makes no mention of any other event, including a transfer for no consideration, as triggering the defendant’s

obligation to pay any amounts due under the note.
Second, the defendant relied on her and Donald’s

deposition testimony. The defendant testified that her

understanding of her repayment obligation under the

note and judgment was that the note had to be paid

when she sold the property or died, and that the transfer

of title to Rossignol for no consideration as part of

her estate planning, was not a sale. Similarly, Donald

testified that the defendant was obligated to pay him

under the note when she either sold the property or

died. He further described the defendant’s interest in

the house under the dissolution judgment as a ‘‘life use’’

of the house.

Finally, the defendant relied on the deposition testimony of Attorney Timothy Sheehan, who represented

the defendant in the dissolution proceeding, participated in the negotiation of the stipulation incorporated

into the judgment of dissolution, and drafted the note.

Sheehan testified that the reference in the note to the

title of the property being transferred meant ‘‘[t]ransferred for value.’’

The defendant argued that it was appropriate for the

court to consider extrinsic evidence because the note

‘‘is not integrated’’ or, alternatively, because the word

‘‘ ‘transferred’ ’’ in the note is ambiguous. The defendant

reasoned that because all of the participants to the

negotiation and drafting of the note3 had the same

understanding as to its meaning and that meaning was

confirmed by the judgment of dissolution, there was

no factual basis to conclude that the defendant’s action

in quitclaiming title to the property to Rossignol, for no

consideration, while retaining life use of the property,

triggered her payment obligation under the note.

Alternatively, the defendant argued that the plaintiff

did not have standing to enforce the note or to foreclose

on the mortgage. As to enforcement of the note, the

defendant argued that the plaintiff admitted that the

note is not payable to the plaintiff and that the plaintiff

has never been in possession of the note. Consequently,

according to the defendant, the plaintiff is neither a

holder of the note nor a nonholder in possession of the

note, as defined in General Statutes § 42a-3-301, and

she is not entitled to enforce it. The defendant further

argued that the plaintiff could not rely on General Statutes § 42a-3-309, which provides for the enforcement

of lost, destroyed or stolen instruments, because she

was not in possession of the note at the time it was

lost, destroyed or stolen.4 As to the plaintiff’s efforts to

foreclose on Donald’s mortgage on the property, the

defendant argued that the mortgage was never assigned

to the plaintiff, and, therefore, she lacked standing to

foreclose on it.

In opposition to the defendant’s motion for summary

judgment, the plaintiff argued that the language in the

note is clear and unambiguous in requiring full payment
of the amounts due thereunder if ‘‘ ‘title to [the] property

is transferred.’ ’’ She further argued that the life use

deed constituted a transfer of title to the property from

the defendant to Rossignol, triggering the defendant’s

payment obligation under the note. The plaintiff also

argued that the court should not consider Sheehan’s

deposition testimony regarding the parties’ intent in

using the ‘‘transferred’’ language because the language

is not ambiguous and reliance on Sheehan’s testimony

would violate the parol evidence rule, as acceptance

of Sheehan’s interpretation would vary or contradict

the terms of the note.

As to the defendant’s standing arguments, the plaintiff argued that, although she did not possess the original note, she has a copy of it and has standing, as the

successor to Donald’s rights in the note, to enforce it.

The plaintiff did not address the defendant’s argument

that the she lacks standing to foreclose on the mortgage

because it had never been assigned to her.

In ruling on the defendant’s motion for summary judgment, the trial court did not address the standing arguments made by the defendant. Instead, the court

resolved the motion on the basis of its interpretation

of the ‘‘transferred’’ language in the note.5 The court

held that the plaintiff’s reliance on a single provision

in the note was misplaced because ‘‘[t]he entire note

must be read in light of the judgment pursuant to which

the note was executed.’’ The court also considered the

defendant’s and Donald’s deposition testimony and concluded: ‘‘It is clear, based on the plain language of the

judgment, that Donald and [the defendant] intended for

payment to become due only in the event of either the

sale of the property or the death of [the defendant].

. . . Moreover, both parties to the note have confirmed

their intent and understanding that the note would

become due during the defendant’s lifetime only in the

event of a transfer for value. . . . The extrinsic evidence makes it clear that neither the maker of the note

nor the payee understood that the word ‘transfer’ used

in the note meant anything other than a transfer for

value, since without value, the defendant would have

no money to pay the payee.’’ Consequently, the court

rendered summary judgment in favor of the defendant

on both counts of the plaintiff’s complaint. Additional

facts will be set forth as necessary.

In this appeal, the plaintiff claims that the court erred

in its analysis of the note. In particular, she claims, as

she did before the trial court, that the language of the

note is clear and unambiguous in linking the defendant’s

payment obligation to any transfer by her of the title

to the property and that the court erred in relying on

extrinsic evidence to reach an interpretation of the language that varied or contradicted that clear and unambiguous meaning. Furthermore, even though the trial

court did not mention Sheehan’s testimony in its memo-
randum of decision rendering summary judgment, the

plaintiff claims that such testimony should have been

stricken and not considered by the court. Finally,

although the trial court did not address standing or the

plaintiff’s right to enforce the note or to foreclose on the

mortgage, the plaintiff argues that she has such rights.

In response, the defendant argues that the trial court

properly construed the note in light of the undisputed

evidence of the intent of the defendant and Donald

when they entered into the stipulation that resulted in

the defendant executing the note and mortgage. Alternatively, the defendant argues that the plaintiff lacks

standing to enforce the note and to foreclose on the

mortgage. We agree with the defendant’s alternative

standing arguments and, therefore, do not reach the

question of how the note should be construed.

Although the trial court did not address the defendant’s arguments that the plaintiff lacks standing to

pursue her claims, because the question of standing

implicates the trial court’s subject matter jurisdiction,

we address those arguments first.6

‘‘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. . . . Where a

party is found to lack standing, the court is consequently

without subject matter jurisdiction to determine the

cause. . . . Our review of this question of law is plenary.’’ (Citations omitted; internal quotation marks

omitted.) J.E. Robert Co. v. Signature Properties, LLC,

309 Conn. 307, 318, 71 A.3d 492 (2013).

In J.E. Robert Co., our Supreme Court analyzed the

plaintiff’s right to enforce a promissory note and to

foreclose on a mortgage securing the note as a question

of standing. Id., 319. In doing so, the court noted: ‘‘A

plaintiff’s right to enforce a promissory note may be

established under the [Uniform Commercial Code

(UCC) as adopted in General Statutes § 42a-1-101 et

seq.].’’ Id. ‘‘Under the UCC, a [p]erson entitled to enforce

an instrument means [inter alia] (i) the holder of the

instrument, [or] (ii) a nonholder in possession of the

instrument who has the rights of a holder . . . . A person may be a person entitled to enforce the instrument

even though the person is not the owner of the instrument . . . . General Statutes § 42a-3-301. The UCC’s

official comment underscores that a person entitled to

enforce an instrument . . . is not limited to holders.

. . . A nonholder in possession of an instrument

includes a person that acquired rights of a holder . . .

under [General Statutes § 42a-3-203 (a)].’’ (Emphasis

in original; footnote omitted; internal quotation marks

omitted.) J.E. Robert Co. v. Signature Properties, LLC,

supra, 309 Conn. 319–20.
In addition, pursuant to § 42a-3-301 (iii), ‘‘ ‘[p]erson

entitled to enforce’ an instrument’’ includes ‘‘a person

not in possession of the instrument who is entitled to

enforce the instrument pursuant to section 42a-3-309

. . . .’’ Section 42a-3-309 (a) provides: ‘‘A person not

in possession of an instrument is entitled to enforce

the instrument if (i) the person was in possession of

the instrument and entitled to enforce it when loss of

possession occurred, (ii) the loss of possession was not

the result of a transfer by the person or a lawful seizure,

and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was

destroyed, its whereabouts cannot be determined, or

it is in the wrongful possession of an unknown person

or a person that cannot be found or is not amenable to

service of process.’’ (Emphasis added.) Finally, General

Statutes § 42a-1-201 (b) (21) defines a ‘‘ ‘[h]older’ ’’ of

a promissory note as: ‘‘(A) The person in possession

of a negotiable instrument that is payable either to

bearer or to an identified person that is the person in

possession; (B) The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in

possession; or (C) The person in control of a negotiable

electronic document of title.’’ Consequently, someone

who is not in possession of the original note can be

neither a holder nor a nonholder in possession. See

Seven Oaks Enterprises, L.P. v. DeVito, 185 Conn. App.

534, 547, 198 A.3d 88, cert. denied, 330 Conn. 953, 197

A.3d 893 (2018).

The plaintiff concedes that she has never had possession of the original note. For this reason, the defendant

argues, the plaintiff has no right to enforce the note as

a holder or nonholder in possession pursuant to § 42a3-301 (i) or (ii). The plaintiff argues that, even though

she never possessed the note, she acquired the holder’s

rights and became the person entitled to enforce the

note when the court in her action against Donald issued

a postjudgment order of attachment and garnishment

of the note in her favor. In support of her argument,

the plaintiff relies on the official commentary to § 42a3-301, which states, inter alia, that a ‘‘ ‘[p]erson entitled

to enforce’ an instrument . . . also includes any other

person who under applicable law is a successor to the

holder or otherwise acquires the holder’s rights.’’ Conn.

Gen. Stat. Ann. (West 2009) § 42a-3-301, comment, p.

522. We are not persuaded.

The UCC and the official commentary both clearly

describe how someone not in physical possession of

a note can enforce it. Section 42a-3-309 (a) explicitly

provides the circumstances under which ‘‘[a] person

not in possession of an instrument is entitled to enforce

the instrument . . . .’’ It is not sufficient for a person

to claim merely that she is the successor to the rights

of the holder. In fact, § 42a-3-309 (a) (i) specifically
provides that the person seeking to enforce the instrument must show that she ‘‘was in possession of the

instrument and entitled to enforce it when loss of possession occurred . . . .’’ In addition, the official commentary to § 42a-3-301, on which the plaintiff’s argument is built, specifically references the right to enforce

a lost or stolen instrument pursuant to § 42a-3-309. The

plaintiff’s argument that the reference in the official

commentary to one who is ‘‘a successor to the holder

or otherwise acquires the holder’s rights’’; Conn. Gen.

Stat. Ann. (West 2009) § 42a-3-301, comment, p. 522;

includes a person who never had possession of the

instrument is illogical and contrary to the plain language

of § 42a-3-309.

In fact, this court recently rejected a nearly identical

argument in Seven Oaks Enterprises, L.P. v. DeVito,

supra, 185 Conn. App. 552–54. In that case, Seven Oaks

Enterprises, L.P. (SOE) sold a limited liability company

to the defendant, who, as part of the purchase, executed

a note in favor of SOE for $1.325 million. Id., 538. After

the sale, SOE transferred and assigned the note to a

related company, Seven Oaks Management Company

(SOM). Id., 539, 543. At the time of the transfer to SOM,

SOE no longer had possession of the original note from

the defendant, and SOM never was in possession of the

note. Id., 554. SOE and SOM later brought an action

against the defendant. Id., 539. In that action, SOM

claimed that the defendant had breached the promissory note by failing to pay the amounts due thereunder.

Id. The defendant argued that SOM had no right to

enforce the note because it never possessed the note,

as the note was lost while in SOE’s possession and

before any assignment to SOM. Id., 537. The case was

tried to a jury, which returned a verdict in favor of SOM

on its claim under the promissory note. Id., 539. ‘‘The

jury indicated in its answers to interrogatories that it

had found that SOE and the defendant originally had

been the parties to the note, that SOE possessed the

note when it was lost, that the note nonetheless had

effectively been assigned to SOM, and that the defendant failed to make payments on the note.’’ Id., 541–42.

The defendant filed motions to set aside the verdict

and for judgment notwithstanding the verdict, both of

which the trial court denied. Id., 539–40.

On appeal, this court held that the trial court erred

in denying the motions to set aside the verdict and for

judgment notwithstanding the verdict. Id., 554. After

thoroughly reviewing the applicable sections of the

UCC and case law both in Connecticut and in other

states applying those sections to similar circumstances,

we concluded: ‘‘[T]he application of § 42a-3-301, in the

circumstances of the present case, leads to the conclusion that SOM is entitled to enforce the note only if it

satisfies the standards stated in § 42a-3-309. Subsection

(a) of § 42a-3-309, in turn, provides that [a] person not

in possession of an instrument is entitled to enforce
the instrument if (i) the person was in possession of

the instrument and entitled to enforce it when loss of

possession occurred . . . . The only logical construction of the statutory language compels the conclusion

that the only person who can enforce the note is the

person in possession of the note when it was lost.’’

(Emphasis in original; internal quotation marks omitted.) Id., 551–52. We explicitly rejected SOM’s argument

that it could enforce the note as an assignee even though

it was not in possession of the note, because the clear

language of the statute precluded such a result. Id., 552.

We similarly rejected SOM’s argument that the common

law of assignments supplements the UCC and creates

an alternative basis for an assignee not in possession

of a note to enforce it, concluding that ‘‘[b]ecause § 42a3-309 is directly applicable to the situation underlying

the present case, the common law of assignments does

not displace its clear provisions.’’ Id., 552–53.

The plaintiff’s argument in the present case, that she

is entitled to enforce the note as Donald’s successor

pursuant to the order of attachment and garnishment

issued by the court in her action against Donald, is not

materially different from SOM’s argument in Seven Oaks

Enterprises, L.P. For the same reason that we rejected

the argument in that case, we reject it here.7 Thus, the

plaintiff has standing to enforce the note only if she

meets the requirements of § 42a-3-309.

The defendant argues that the plaintiff indisputably

cannot meet the requirements of § 42a-3-309 because

the whereabouts of the note appear to be unknown and

the plaintiff was not in possession of the note when it

was lost. In response, the plaintiff details the efforts

she made to secure the original note and then argues

that, although she never possessed the original note,

she has a copy of the note and the copy is sufficient

to confer standing on her. The plaintiff’s argument is

without merit.

The wording of § 42a-3-309 is clear and unambiguous.

In order to enforce a lost note, the person seeking to

enforce it must have had possession of it when it was

lost. Furthermore, that was this court’s holding in Seven

Oaks Enterprises, L.P. See Seven Oaks Enterprises,

L.P. v. DeVito, supra, 185 Conn. App. 551–52. The plaintiff’s efforts to secure possession of the original note

or her possession of a copy of the note are simply

irrelevant to whether she has complied with the statutory requirements. The plaintiff, in fact, recognized this

during the postjudgment proceeding in her action

against Donald. When the court stated that Donald was

to turn over a copy of the note, the plaintiff’s counsel

responded: ‘‘Again, that would be the original of the

. . . note. I can only execute against the original.’’

(Emphasis added.)

Having been unable to secure the original note, the

plaintiff cites a number of cases that purportedly sup-
port her new contention that she never needed possession of the original note to enforce it. Those cases

provide her with little support. In Guaranty Bank &

Trust Co. v. Dowling, 4 Conn. App. 376, 381–82, 494

A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58

(1985), this court affirmed the judgment in favor of the

plaintiff on a promissory note that had been lost and

was not in the plaintiff’s possession when it was lost.

However, the court did so under General Statutes (Rev.

to 1985) § 42a-3-804, which, in 1991, was repealed and

replaced by § 42a-3-309. General Statutes (Rev. to 1985)

§ 42a-3-804 provides in relevant part: ‘‘The owner of an

instrument which is lost, whether by destruction, theft

or otherwise, may maintain an action in his own name

and recover from any party liable thereon upon due

proof of his ownership, the facts which prevent his

production of the instrument and its terms. . . .’’ See

Guaranty Bank & Trust Co. v. Dowling, supra, 381.

Unlike § 42a-3-309, General Statutes (Rev. to 1985)

§ 42a-3-804 did not require that the person seeking to

enforce a lost note have possession of it when it was

lost. Id., 381–82. Thus, Guaranty Bank & Trust Co. is

inapposite to the present case.

The other cases relied on by the plaintiff involved

foreclosures and not actions to enforce the note. As

this court explained in Seven Oaks Enterprises, L.P.,

a foreclosure action is different from an action to

enforce a note. See Seven Oaks Enterprises, L.P. v.

DeVito, supra, 185 Conn. App. 547–48. ‘‘[O]ur Supreme

Court considered the language of § 42a-3-309 (a) in New

England Savings Bank v. Bedford Realty Corp., 238

Conn. 745, 759–60, 680 A.2d 301 (1996). In that case,

the defendant contended that the plaintiff could not

obtain a judgment of strict foreclosure under §§ 42a-3-

301 and 42a-3-309. . . . Specifically, the defendant

claimed that because the plaintiff never proved it possessed the original note, it could not satisfy the requirement of § 42a-3-309 to show possession to enforce a

lost note. . . . Our Supreme Court rejected this claim,

noting that [i]t is well established . . . that the [mortgagee] is entitled to pursue its remedy at law on the

notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. . . . The defendant did not

dispute that it executed the note and mortgage and that

the debt existed. . . . The plaintiff chose its equitable

remedy, foreclosure of the mortgage. . . .

‘‘In deciding the case, however, our Supreme Court

observed that because the plaintiff had chosen to pursue the equitable action of foreclosure of the mortgage,

rather than a legal action on the note, the fact that

[the plaintiff] never possessed the lost promissory note

[was] not fatal to its foreclosure of the mortgage. . . .

[W]hatever restrictions §§ 42a-3-301 and 42a-3-309

might put upon the enforcement of personal liability

based solely upon a lost note, they [did] not prohibit

[the plaintiff] from pursuing an action of foreclosure to
enforce the terms of the mortgage.’’ (Citations omitted;

internal quotation marks omitted.) Seven Oaks Enterprises, L.P. v. DeVito, supra, 185 Conn. App. 547–48.

Consequently, the fact that a party, who is not in

possession of the note evidencing the debt underlying

a mortgage, may be able to foreclose on that mortgage,

does not lead to the conclusion that the party has standing to enforce the note. In fact, we specifically have

rejected such a conclusion. See id., 547–48, 554. In the

present case, the plaintiff, never having possessed the

original note, lacks standing to enforce it. For this reason, the trial court should have dismissed count one

of the plaintiff’s complaint because it lacked subject

matter jurisdiction to consider the plaintiff’s cause of

action.

As noted, however, this conclusion as to count one

does not necessarily mean that the plaintiff lacks standing to assert the foreclosure claim in count two of her

complaint. Possession of the original note underlying

the mortgage is not a necessary prerequisite for that

claim because ‘‘[t]he mortgage secures the indebtedness itself, not the written evidence of it.’’ (Internal

quotation marks omitted.) New England Savings Bank

v. Bedford Realty Corp., supra, 238 Conn. 759. For this

reason, ‘‘[t]he loss of the note . . . does not preclude

proof of the debt by other evidence. A . . . note is not

a debt; it is only primary evidence of a debt; and where

this is lost, impaired or destroyed bona fide, it may be

supplied by secondary evidence. . . . The loss of a

. . . note alters not the rights of the owner, but merely

renders secondary evidence necessary and proper.’’

(Citation omitted; internal quotation marks omitted.)

Id., 760. In New England Savings Bank, although the

plaintiff did not possess the original promissory note,

it was able to prove its ownership of the debt underlying

the mortgage through secondary evidence, in particular,

the assignments of the note and the mortgage that

secured the debt. Id.

In the present case, as the defendant correctly notes,

there was no assignment of the mortgage to the plaintiff.

Nor does the plaintiff base her foreclosure claim on

anything other than the note. Specifically, in her complaint, the plaintiff based her right to foreclose on the

mortgage on her status as the assignee and holder of

the note. Furthermore, the note, and its purported

assignment to her, is the only evidence she offered the

court in support of her claim that she owned the debt

secured by the mortgage.

Yet, she never possessed the note and the note, in

fact, never was assigned to her. See footnote 7 of this

opinion. Furthermore, under General Statutes § 49-17,

a party has no standing to foreclose on a mortgage

without ever having been assigned the debt underlying

the mortgage; § 49-17 allows the holder of the debt to

foreclosure on property without having been assigned
the mortgage, but it does not allow the converse, indicating that the legislature did not intend to permit the

holder of the mortgage, without having been assigned

the debt, to foreclose on the mortgage. See Fleet

National Bank v. Nazareth, 75 Conn. App. 791, 794–95,

818 A.2d 69 (2003). In the present case, at the time

she brought this action, the plaintiff, at most, had an

attachment of the note and the debt underlying the

mortgage.8 A postjudgment attachment though is not

self-executing. The plaintiff recognized as much when

her counsel stated during the postjudgment hearing

in her case against Donald that the plaintiff needed

possession of the original note ‘‘[s]o when the trigger

of the contingency occurs, the money gets paid and

we hold on to it.’’ (Emphasis added.) Counsel’s statement was consistent with the court’s statement just

moments earlier in the hearing that counsel could hold

or attach Donald’s assets but could not execute on

them until the plaintiff had secured a final judgment

against Donald.

General Statutes § 52-356a sets forth in great detail

the steps a judgment creditor must take to execute on

the assets of a judgment debtor, including levying any

debt owed to the judgment debtor by a third party.9

The plaintiff does not claim that she took any of the

necessary steps to levy on the debt she claims the defendant owed. Under these circumstances, the plaintiff,

unlike the plaintiff in New England Savings Bank, has

failed to produce any necessary and proper secondary

evidence to create a genuine issue of fact that she is

the owner of the debt underlying the mortgage. In the

absence of such evidence, there is no basis to conclude

that the plaintiff has standing to foreclose on the

mortgage.10

In her reply brief, without providing any analysis

whatsoever, the plaintiff dismisses the significance of

the statutes relied on by the defendant and discussed

previously in this opinion by contending that she has

standing pursuant to General Statutes § 52-329 or the

‘‘court’s common-law powers of equity.’’ We are not persuaded.

Section 52-329 provides for a garnishment of a debt

as a type of prejudgment remedy.11 General Statutes

§ 52-381 sets forth the statutory procedure for executing

on such a garnishment, including requiring the plaintiff

to ‘‘direct the officer serving the [execution] to make

demand of such garnishee for the effects of the defendant in his hands, and for the payment of the debt due

the defendant, and such garnishee shall pay such debt

or produce such effects, to be taken and applied on

such execution. . . .’’ Pursuant to § 52-381, the plaintiff

may also institute a scire facias12 action to recover the

property that is the subject of the garnishment. It is

undisputed that the plaintiff neither pursued the statutory procedure to execute on the garnishment nor
brought a scire facias action against the defendant.

Furthermore, the plaintiff fails to explain what common-law powers of equity would permit a court, on the

facts of this case, to grant an ownership interest in a

debt without following the required statutory procedures. Connecticut has had statutes regulating the garnishment of property and the execution of such property postjudgment since 1726. See Hayes v. Weisman,

97 Conn. 387, 394–98, 116 A. 878 (1922). Consequently,

our Supreme Court stated long ago that ‘‘[t]he proceeding in favor of a creditor to attach and appropriate the

debt of a third person due the debtor, is given by statute.’’ Day v. Welles, 31 Conn. 344, 349 (1863). Although

our Supreme Court has recognized that in certain limited circumstances a judgment creditor may bring a

creditor’s bill in equity ‘‘to enforce the payment of a

debt out of property of a debtor under circumstances

which impede or render impossible the collection of

the debt by the ordinary process of execution . . .

[t]he . . . requirement for the maintenance of such a

bill is that the plaintiff must not have an adequate remedy at law.’’ (Citations omitted.) Burchett v. Roncari,

181 Conn. 125, 128, 434 A.2d 941 (1980). There is little

question that the plaintiff has an adequate remedy at

law through our garnishment and execution statutes.

Finally, as noted previously in this opinion, the ‘‘garnishment remedy’’ issued by the court was no more than

an attachment of the note. It did not assign the debt

to the plaintiff. The attachment of the note, assuming

the validity of the attachment, without more, does not

give the plaintiff any right to pursue a judgment on the

note or to foreclose on the mortgage.

For these reasons, the trial court lacked subject matter jurisdiction to consider count two of the plaintiff’s

complaint, and that count, as well, must be dismissed.

The form of the judgment is improper; the judgment

is reversed and the case is remanded with direction

to render a judgment of dismissal for lack of subject

matter jurisdiction.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 On December 1, 2010, Donald and the defendant executed a document

titled ‘‘Divorce Decree Amendment’’ (amendment) by which Donald released

the 2 percent interest due under the note and which provided that no further

interest would accrue on the note. Otherwise, the amendment confirmed

the defendant’s obligation to pay the note according to its terms. On January

3, 2014, the parties filed a joint motion to open and modify their dissolution

judgment to incorporate the amendment, which the court granted on the

same day.

2 The defendant also pleaded a four count counterclaim in which she

seeks compensatory, statutory, and punitive damages and attorney’s fees.

The counterclaim is still pending in the trial court and not at issue in this

appeal, which was taken from a final judgment. See Practice Book § 61-2

(‘‘judgment . . . rendered on an entire complaint . . . shall constitute a

final judgment’’); Nationwide Mutual Ins. Co. v. Pasiak, 327 Conn. 225,

233–34 n.6, 173 A.3d 888 (2017) (‘‘[a]lthough the defendant’s counterclaim

remains pending before the trial court, the decision on the declaratory

judgment action was an appealable final judgment because the court’s deci-
sion disposed of all counts of the plaintiff’s complaint’’).

3 Donald’s attorney during the dissolution proceedings, Charles G. Karanian, also participated in the negotiations that resulted in the judgment of

dissolution and note. He died on March 1, 2016. Neither party submitted to the

court any evidence regarding Karanian’s understanding of the ‘‘transferred’’

language at issue.

4 The location of the original note appears to be unknown.

5 Because standing implicates the court’s subject matter jurisdiction, the

court should have addressed the defendant’s standing arguments before

turning to the question of whether there was a genuine issue of material

fact as to the defendant’s alleged breach of her payment obligation under

the note. See 418 Meadow Street Associates, LLC v. One Solution Services,

LLC, 127 Conn. App. 711, 716, 15 A.3d 1140 (2011) (‘‘Once the question of

lack of jurisdiction of a court is raised, it must be disposed of no matter in

what form it is presented. . . . Additionally, a party must have standing to

assert a claim in order for the court to have subject matter jurisdiction over

the claim.’’ [Citation omitted; internal quotation marks omitted.]).

6 The plaintiff notes in her reply brief: ‘‘Successor counsel is not sure why

the enforceability issue was raised on appeal at all. It did not form the basis

of the judgment of the trial court, nor was it identified as an alternative

ground to affirm.’’ Counsel’s apparent confusion is puzzling given that the

plaintiff’s original appellate counsel extensively briefed the issue in the

plaintiff’s principal appellate brief, the defendant clearly raised the issue of

the plaintiff’s standing to enforce the note and to foreclose on the corresponding mortgage in her motion for summary judgment, and issues impacting

subject matter jurisdiction, such as standing, can be raised at any time.

7 The plaintiff’s argument in this case suffers from another infirmity that

did not confront SOM in Seven Oaks Enterprises, L.P. In that case, there

was no dispute that SOE had assigned the promissory note to SOM and

that if SOM had had possession of the note, it could have enforced it. In

the present case, the plaintiff’s right to enforce the note, even if she had

possession of it, at best, is questionable. The note was never assigned to

her. She was granted, at most, only a postjudgment remedy of attachment

of the note in her action against Donald. Although the court’s order stated

that the plaintiff could ‘‘garnish’’ the note, the transcript of the hearing

makes clear that the court intended only that the plaintiff would hold the

note and Donald’s other assets as security for the judgment. The court made

clear that the plaintiff could not convert those assets to her own use, but

would have to execute on them if final judgment was rendered in her favor.

Even the plaintiff’s counsel acknowledged that he would have ‘‘to execute’’

on the original note. There is no evidence that the plaintiff ever sought an

execution on the note.

8

In Winslow v. Fletcher, 53 Conn. 390, 4 A. 250 (1886), our Supreme Court

explained that stock certificates are evidence ‘‘that the person therein named

possesses those rights and is subject to those duties, but it is not in law

the equivalent of those rights and duties. They are muniments of title, but

not the title itself; much less the real property. While these certificates are

in themselves valuable for some purposes, and to some extent may properly

be regarded as property . . . yet they are distinct from the holder’s interest

in the capital stock of the corporation, and are not goods and effects within

the meaning of the statute relating to foreign attachment. They are no more

subject to an attachment or a trustee process than a promissory note. The

debt is subject to attachment, but the note itself, which is simply evidence

of the debt, is not. So with stock. That may be attached, but the certificate

cannot be.’’ (Citation omitted; emphasis added.) Id., 395–96; see B. Matson,

Creditor Process Against Negotiable Notes: The Case for a New UCC § 3-

420, 24 Wm. & Mary L. Rev. 503, 530 (1983) (‘‘the historical treatment of

promissory notes parallels that of investment securities, [and] the [UCC]

and a majority of jurisdictions still do not provide for the seizure of negotiable

notes’’); see also Grosvenor v. Farmers & Mechanics Bank, 13 Conn. 104,

108 (1839) (promissory note cannot be attached as goods and effects under

foreign attachment statute because they are choses in action, which cannot

be sold on execution). But see General Statutes § 52-341 (‘‘[w]hen a debt

evidenced by a negotiable promissory note has been attached by process

of foreign attachment and the defendant has had actual notice thereof, he

shall not negotiate or transfer such note during the continuance of the

attachment lien’’).

‘‘Despite the early English characterization of a note as tangible property,

most states enacted execution and enforcement of money judgment provisions that codified [common-law] conceptions of notes as intangible prop-
erty not subject to seizure. Moreover, statutes that conflict with this [common-law] notion have been construed narrowly. The [common-law]

approach to the levying on and seizure of negotiable promissory notes still

prevails when the execution statutes are silent on the nature of these notes.

A majority of jurisdictions follow the common law through express statutory

enactments, judicial precedent, or an absence of any contrary law.’’ (Footnotes omitted.) B. Matson, supra, 24 Wm. & Mary L. Rev. 509–10, citing,

inter alia, Grosvenor v. Farmers & Mechanics Bank, supra, 13 Conn. 104.

In the present case, the issue of whether the plaintiff legally could have an

attachment or garnishment on the note itself is left for another day.

9 General Statutes § 52-356a provides in relevant part: ‘‘(a) Procedure.

Levying officer’s responsibilities. (1) On application of a judgment creditor

or a judgment creditor’s attorney, stating that a judgment remains unsatisfied

and the amount due thereon, and subject to the expiration of any stay of

enforcement and expiration of any right of appeal, the clerk of the court

in which the money judgment was rendered shall issue an execution pursuant

to this section against the nonexempt personal property of the judgment

debtor other than debts due from a banking institution or earnings. . . .

‘‘(2) The property execution shall require a proper levying officer to

enforce the money judgment and shall state the names and last-known

addresses of the judgment creditor and judgment debtor, the court in which

and the date on which the money judgment was rendered, the original

amount of the money judgment and the amount due thereon, and any information which the judgment creditor considers necessary or appropriate to

identify the judgment debtor. The property execution shall notify any person

served therewith that the judgment debtor’s nonexempt personal property

is subject to levy, seizure and sale by the levying officer pursuant to the

execution and, if the judgment debtor is a natural person, shall be accompanied by a notice of judgment debtor rights as prescribed by section 52-361b

and a notice to any third person of the manner, as prescribed by subdivision

(4) of this subsection, for complying with the execution.

‘‘(3) A property execution shall be returned to court within four months

after issuance. The untimely return of a property execution more than four

months after issuance shall not of itself invalidate any otherwise valid levy

made during the four-month period.

‘‘(4) The levying officer shall personally serve a copy of the execution on

the judgment debtor and make demand for payment by the judgment debtor

of all sums due under the money judgment. On failure of the judgment

debtor to make immediate payment, the levying officer shall levy on nonexempt personal property of the judgment debtor, other than debts due from

a banking institution or earnings, sufficient to satisfy the judgment, as follows . . .

‘‘(C) With respect to a judgment debtor who is a natural person, if such

personal property, including any debt owed, is in the possession of a third

person, the levying officer shall serve that person with two copies of the

execution, required notices and claim forms. On receipt of such papers, the

third person shall forthwith mail a copy thereof postage prepaid to the

judgment debtor at the last-known address of record with the third person

and shall withhold delivery of the property or payment of the debt due to

the levying officer or any other person for twenty days. On expiration of

the twenty days, the third person shall forthwith deliver the property or

pay the debt to the levying officer provided (i) if an exemption claim has

been filed in accordance with subsection (d) of section 52-361b, the property

shall continue to be withheld subject to determination of the claim, and (ii)

if a debt is not yet payable, payment shall be made when the debt matures

if within four months after issuance of the execution.

‘‘(5) Levy under this section on property held by, or a debt due from, a

third person shall bar an action for such property against the third person

provided the third person acted in compliance with the execution.

‘‘(6) If the levying officer cannot remove any property on which he seeks

to levy without the danger of injury thereto, he may levy on and take

possession of the property by posting on or adjacent to the property a

conspicuous notice of the levy.

‘‘(7) Subject to the provisions of section 52-328, if the property to be

executed against is already subject to an attachment, garnishment or judgment lien of the judgment creditor as security for that judgment, the priority

of the execution shall hold from the date of perfecting of the attachment,

garnishment or other lien. A sale pursuant to the execution forecloses any

interest acquired as a result of the attachment, garnishment or judgment

lien. . . .’’
10 Because the plaintiff sought to foreclose on only the mortgage and not

its judgment lien, we do not consider the validity or enforceability of the

judgment lien.

11 We note that there is nothing in the record to show that the plaintiff

complied with the service requirements of § 52-329, further calling into

question the validity of her garnishment.

12 ‘‘The writ of scire facias is generally used to collect other debts owed

to the judgment debtor. This writ may not be used, however, unless the

debt has first been garnisheed. . . . It is rather obvious that these ancient

writs of execution have become so encrusted with procedural barnacles

that frequently they are not suited to the needs of modern society.’’ (Citations

omitted.) Burchett v. Roncari, 181 Conn. 125, 127, 434 A.2d 941 (1980). ‘‘The

plaintiff can summon the garnishee before the court to show cause why he

should not pay the garnishment only by obtaining judgment and then seeking

to collect the debt for which the judgment has been rendered through a

writ of scire facias. . . . The whole purpose of scire facias is to give the

garnishee an opportunity to defend. Under the statute, in an action of scire

facias in consummation of an action begun by process of foreign attachment,

there really can be no issue reaching the merits of the action other than

the one whether or not the defendant in scire facias was indebted to the

defendant in the original action at the time of service.’’ (Citations omitted;

internal quotation marks omitted.) Vidal Realtors of Westport, Inc. v. Harry

Bennett & Associates, Inc., 1 Conn. App. 291, 295, 471 A.2d 658, cert. denied,

192 Conn. 804, 472 A.2d 1284 (1984).