*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
BANK OF NEW YORK MELLON v. TOPE—DISSENT

DEVLIN J., dissenting. The leading Connecticut treatise on mortgage foreclosures observes that ‘‘[t]he foreclosure process differs substantially from the more typical form of civil action: Not only can the nature of the

judgment vary, [i.e.] strict foreclosure as opposed to a

sale, but various interlocutory rulings occur routinely.’’

2 D. Caron & G. Milne, Connecticut Foreclosures (9th

Ed. 2019) § 20-1, p. 32.1

In the present case, the majority

treats the jurisdictional attack on the judgment by the

self-represented defendant Achyut M. Tope2 as collateral, declines to consider it and affirms the judgment

of the trial court. I do not see the attack as collateral

but, rather, as direct. Moreover, the attack has merit

because there can be little doubt that, in the trial court,

the plaintiff, The Bank of New York Mellon, did not

prove its authority to enforce the note at issue in this

case. I would therefore remand the case to the trial

court so that an evidentiary hearing can take place to

determine the plaintiff’s standing. Accordingly, I

respectfully dissent.

‘‘A collateral attack is an attack upon a judgment,

decree or order offered in an action or proceeding other

than that in which it was obtained, in support of the

contentions of an adversary in the action or proceeding

. . . .’’ (Internal quotation marks omitted.) Warner v.

Brochendorff, 136 Conn. App. 24, 32 n.7, 43 A.3d 785,

cert. denied, 306 Conn. 902, 52 A.3d 728 (2012). This

definition of collateral attack has been applied in a

number of cases. See, e.g., Upjohn Co. v. Zoning Board

of Appeals, 224 Conn. 96, 97, 616 A.2d 793 (1992) (in

zoning enforcement action, company challenged validity of condition attached to permit issued three years

prior by planning and zoning commission); Rider v.

Rider, 200 Conn. App. 466, 477, 239 A.3d 357 (2020) (in

quiet title action, plaintiff challenged validity of prior

Probate Court order appointing plaintiff’s brother as

conservator for their father); Federal National Mortgage Assn. v. Farina, 182 Conn. App. 844, 846, 191

A.3d 206 (2018) (in summary process action, defendant

challenged validity of prior mortgage foreclosure judgment); Warner v. Brochendorff, supra, 27–28 (in action

to foreclose judgment lien, defendant attacked validity

of underlying judgment); Morris v. Irwin, 4 Conn. App.

431, 434, 494 A.2d 626 (1985) (in declaratory judgment

action, plaintiff sought to challenge two and one-half

year old marital dissolution judgment).

Connecticut cases have also used the term ‘‘collateral

attack’’ in situations in which the attack was made in

the same case but, due to the passage of time, the

judgment has become final and is beyond the jurisdiction of the court to open. See, e.g., Sousa v. Sousa, 322

Conn. 757, 763, 143 A.3d 578 (2016) (defendant sought to
open and vacate modified marital dissolution judgment

four years after modification); In re Shamika F., 256

Conn. 383, 398–99, 773 A.2d 347 (2001) (in appeal from

termination of parental rights proceeding, father sought

to challenge order of temporary custody entered three

years prior); Vogel v. Vogel, 178 Conn. 358, 358–60, 422

A.2d 271 (1979) (plaintiff sought to attack nineteen year

old marital dissolution judgment); Monroe v. Monroe,

177 Conn. 173, 174, 413 A.2d 819 (plaintiff sought to

attack marital dissolution judgment five years after

judgment was rendered), appeal dismissed, 444 U.S.

801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); CUDA &

Associates, LLC v. Smith, 144 Conn. App. 763, 764,

73 A.3d 848 (2013) (in debt collection case, defendant

sought to attack plaintiff’s standing twenty-eight

months after default judgment was rendered); Urban

Redevelopment Commission v. Katsetos, 86 Conn. App.

236, 237–38, 860 A.2d 1233 (2004) (defendant attacked

jurisdiction in condemnation proceeding three years

after judgment was rendered pursuant to stipulation),

cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005).

In each of the previously cited cases, even those

challenging the court’s subject matter jurisdiction, the

court rejected the collateral attack without considering

its merits. The rationale for this approach was first

articulated in Monroe v. Monroe, supra, 177 Conn. 178,

in which our Supreme Court stated that ‘‘[t]he modern

law of civil procedure suggests that even litigation about

subject matter jurisdiction should take into account the

importance of the principle of the finality of judgments,

particularly when the parties have had a full opportunity

originally to contest the jurisdiction of the adjudicatory

tribunal. James & Hazard, Civil Procedure (2d Ed. 1977)

§ 13.16, esp. 695–97; Restatement (Second), Judgments

§ 15 (Tent. Draft No. 5 1978).’’

In the present appeal, the majority adopts the plaintiff’s position that the defendant’s attack on its standing

should be considered collateral and rejected in favor

of the finality of the foreclosure judgment. The problem

with this approach is that the motion to open the judgment in the present case was not made in a separate

action, nor was it filed after the trial court lost jurisdiction to act. More specifically, unlike the parties in Warner, Upjohn Co., Rider, Farina, and Morris, the defendant in the present case has not challenged the

foreclosure judgment in a separate action such as an

action for a declaratory judgment or as a defense in a

summary process action. In addition, unlike in Sousa,

In re Shamika F., Vogel, Monroe, CUDA & Associates,

LLC, and Urban Redevelopment Commission, the trial

court in the present case never lost jurisdiction to consider the defendant’s claims. Although the case has been

pending for several years, it is largely due to various

actions by the trial court giving the parties the opportunity to mediate the dispute and the defendant the opportunity to sell the property, and not because the case
had reached a stage beyond which the trial court could

not act.

In the present case, the trial court rendered a judgment of foreclosure by sale. With respect to such a

judgment, the court’s jurisdiction to open and modify

the judgment generally ends with the approval of the

sale and expiration of the applicable appeal period. See,

e.g., Wells Fargo Bank of Minnesota, N.A. v. Morgan,

98 Conn. App. 72, 79, 909 A.2d 526 (2006); see also 1

D. Caron & G. Milne, supra, § 10-1:2, p. 616 (‘‘[T]he

court’s jurisdiction to modify a judgment generally ends

with the approval of the sale. . . . [This] approval . . .

operates to divest the owner of [the] equity of redemption and consequently places the property beyond the

power of the court.’’).3

The majority suggests that the defendant’s September

28, 2017 motion to open and vacate the judgment of

foreclosure by sale was an impermissible collateral

attack on the prior judgments entered on November

10, 2014, and November 21, 2016. These judgments,

however, were not operative at the time of the defendant’s September 28, 2017 motion. Following the entry

of the default judgment on November 10, 2014, that

judgment was opened, modified, and reentered twice;

once on January 26, 2015, by the court, Ecker, J., and

again on September 21, 2015, by the court, Avallone, J.

Additionally, Judge Avallone opened and vacated the

judgment on April 11, 2016. Thereafter, the plaintiff

moved for entry of judgment of strict foreclosure. Pursuant to this motion, on November 21, 2016, Judge Avallone rendered a judgment of foreclosure by sale, which

also was twice opened and reentered—first on April

17, 2017, and again on July 3, 2017. In each instance,

the order stated: ‘‘JUDGMENT OF FORECLOSURE BY

SALE ORDERED REOPENED, MODIFIED AS FOLLOWS, AND REENTERED . . . .’’4

On September 28, 2017, the defendant filed a motion

to open and vacate the judgment asserting that the

plaintiff lacked standing to bring the action. The operative judgment at the time the defendant filed this motion

was the judgment rendered by Judge Avallone on July

3, 2017, because the earlier judgments had all been

superseded by orders issued by the court opening and

reentering the judgment. See Coxe v. Coxe, 2 Conn.

App. 543, 547, 481 A.2d 86 (1984) (‘‘when a court opens

a judgment of sale to change the sale date . . . the

modified judgment . . . becomes the only valid judgment in the case’’). Because the defendant filed this

motion two months and twenty-five days from the July

3, 2017 entry of judgment, well within the four month

limit on the court’s authority to open judgments under

General Statutes § 52-212a,5

the trial court clearly had

authority to consider the motion and, in fact, did consider it; on October 17, 2017, the court, Hon. Thomas

J. Corradino, judge trial referee, denied the motion. In
support of its denial of the motion, the court ruled that,

as the holder of the note, the plaintiff had standing

to foreclose the mortgage. On appeal, the defendant

challenges that ruling. This situation is completely distinguishable from cases in which a judgment is attacked

in a separate proceeding or long after the rendering

court lost jurisdiction, because the defendant’s motion

to dismiss was a direct attack on the operative

judgment.

Considering the attack as direct and therefore within

the traditional rule—that subject matter jurisdiction can

be challenged at any time, even on appeal—is in accord

with other cases from this court that are procedurally

comparable to the present case. For example, in

Deutsche Bank National Trust Co. v. Thompson, 163

Conn. App. 827, 830, 136 A.3d 1277 (2016), the plaintiff,

on August 18, 2009, filed a motion for default for failure

to plead and a motion for judgment of strict foreclosure.

Due to, inter alia, an intervening foreclosure mediation

effort, the trial court did not render judgment until

September 16, 2013. Id. Thereafter, the defendant filed

a bankruptcy petition and, on August 22, 2014, after the

bankruptcy stay was lifted, the plaintiff filed a motion

to open the judgment and reset the law days. Id. This

motion was granted by the court on September 22, 2014,

after which the defendant appealed. Id. On appeal, for

the first time and one year after the original judgment,

the defendant challenged the plaintiff’s standing and

the court’s subject matter jurisdiction. Id., 830–31. This

court considered the claim on its merits, noting that

‘‘subject matter jurisdiction . . . can be raised by any

of the parties, or by the court sua sponte, at any time’’;

(internal quotation marks omitted) id., 831; and that,

‘‘because standing implicates the court’s subject matter

jurisdiction, the issue of standing is not subject to

waiver . . . .’’ (Internal quotation marks omitted.) Id.,

832. Finding that the plaintiff had not established its

standing, this court remanded the case for further proceedings. Id., 836.

Thus, despite the significant passage of time and various intervening events such as foreclosure mediation

and bankruptcy in Deutsche Bank National Trust Co.,

the defendant’s claim challenging the plaintiff’s standing was not dismissed as a collateral attack on a final

judgment. To the contrary, this court considered the

merits of the jurisdictional claim. In my view, the defendant’s claims in the present case should be considered

on the merits as well.

I now turn to the merits. The defendant asserts that

the court lacked subject matter jurisdiction because

the plaintiff lacked standing due to the fact that it was

not the holder of the note and not otherwise entitled

to enforce the note. ‘‘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] a party is found to lack standing,

the court is consequently without subject matter jurisdiction to determine the cause.’’ (Citation omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 125, 74 A.3d 1225 (2013).

Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is

commenced, be entitled to enforce the promissory note.

Deutsche Bank National Trust Co. v. Cornelius, 170

Conn. App. 104, 110–11, 154 A.3d 79, cert. denied, 325

Conn. 922, 159 A.3d 1171 (2017). The question, therefore, is whether the plaintiff has the right to enforce

the note signed by the defendant as maker and payable

to HSBC Mortgage Corporation (USA) (HSBC). ‘‘A

plaintiff’s right to enforce a promissory note may be

established under the [Uniform Commercial Code

(UCC)]. . . . 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 the holder . . . .’’

(Citations omitted; footnote omitted; internal quotation

marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 319, 71 A.3d 492 (2013).

The UCC defines the ‘‘[h]older’’ of a negotiable instrument as, inter alia, ‘‘[t]he person in possession of a

negotiable instrument that is payable either to bearer

or to an identified person that is the person in possession . . . .’’ General Statutes § 42a-1-201 (b) (21) (A).

As the majority aptly explains, the defendant executed

a promissory note in the amount of $134,000 payable

to HSBC. The note was later endorsed to ‘‘JPMorgan

Chase Bank, as Trustee.’’ The note was not further

endorsed. The note, therefore, is not a bearer note nor

is it payable to the person in possession, the plaintiff.

To be a holder, the plaintiff would have to be either

(1) in possession of a bearer note,6 or (2) in possession

of a note made payable to it. Because, in the present

case, the plaintiff possesses a note made payable to

JPMorgan Chase Bank, as Trustee, the plaintiff does

not meet the UCC definition of a holder.

The issue then becomes whether the plaintiff is a

nonholder with 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)]. . . . Under

§ 42a-3-203 (b), [t]ransfer of an instrument . . . vests

in the transferee any right of the transferor to enforce
the instrument . . . . An instrument is transferred

when it is delivered by a person other than its issuer

for the purpose of giving to the person receiving delivery

the right to enforce the instrument. General Statutes

§ 42a-3-203 (a). Thus, there are two requirements to

transfer an instrument under § 42a-3-203 (a): (1) the

transferor must intend to vest in the transferee the right

to enforce the instrument; and (2) the transferor must

deliver the instrument to the transferee so that the

transferee has either actual or constructive possession.’’ (Citation omitted; emphasis omitted; internal

quotation marks omitted.) J.E. Robert Co. v. Signature

Properties, LLC, supra, 309 Conn. 319–20.

In the present case, the defendant asserts that the

plaintiff has not demonstrated that it is a person entitled

to enforce the note. As discussed previously, although

the plaintiff has possession of the note, the note is not

payable to bearer and has been endorsed to JPMorgan

Chase Bank, as Trustee and not further endorsed to

the plaintiff. Accordingly, the plaintiff does not meet

the UCC definition of a holder set forth in § 42a-1-201

(b) (21) (A), and the trial court’s finding that the plaintiff

was a holder entitled to foreclose on the note was

incorrect.7 The plaintiff, however, can enforce the note

if it can demonstrate that it is a nonholder in possession

with the rights of a holder. See General Statutes § 42a3-301. That, in turn, requires proof that the transferor

delivered the note to the plaintiff intending to vest in it

the right to enforce the instrument. See General Statutes

§ 42a-3-301. The defendant claims that there is no proof

in the record to establish such a transfer.

In an apparent attempt to establish its right to enforce

the note, the plaintiff asks this court to take judicial

notice of a purported transfer of trusteeship from

JPMorgan Chase Bank to the plaintiff, as set forth in a

document contained in the plaintiff’s appendix. This

document was not submitted to the trial court, and no

findings were made regarding its relevance or authenticity. In addition, the document is outside the type of

fact judicially noticed by Connecticut courts. See Conn.

Code Evid. § 2-1 (c) (‘‘[a] judicially noticed fact must

be one not subject to reasonable dispute in that it is

either (1) within the knowledge of people generally

in the ordinary course of human experience, or (2)

generally accepted as true and capable of ready and

unquestionable demonstration’’). The purported transfer of trusteeship satisfies neither of these conditions.

Moreover, it does not appear that the defendant had

any opportunity to be heard regarding the admissibility

and use of this purported transfer of trusteeship as

required by § 2-2 (a) of the Connecticut Code of Evidence.8 Accordingly, judicial notice of this document

would be inappropriate.9

At oral argument before this court, the plaintiff

argued that J.E. Robert Co. v. Signature Properties,
LLC, supra, 309 Conn. 307, supports its claim of standing. J.E. Robert Co., however, concerned the question

of whether a mortgage servicing company had standing

to bring a foreclosure action. Id., 310–11. In answering

that question, our Supreme Court held that, because

the mortgage servicing pooling agreement explicitly

gave the servicer the right to enforce the note, the

plaintiff had standing. Id., 328–31.

In Ditech Financial, LLC v. Joseph, 192 Conn. App.

826, 831, 218 A.3d 690 (2019), this court addressed a

claim that the plaintiff bank was not the holder of the

note and, therefore, lacked standing. Upon concluding

that the record did not permit review of the defendant’s

jurisdictional claim, this court remanded the matter for

further proceedings. Id., 836.

In the present case, the trial court, on the record, did

examine the original note. At that time, the court stated

that the plaintiff was the successor trustee to JPMorgan

Chase Bank. There is nothing in the record, however,

as to the basis for that statement or what that successor

status entailed vis-a`-vis the defendant’s note. The court

made no findings as to the plaintiff’s right to enforce the

note, which, as discussed, bore only the endorsement

to JPMorgan Chase Bank, as Trustee. Nowhere in the

record of the trial court is there a finding, one way or

the other, that JPMorgan Chase Bank transferred its

right to enforce the note to the plaintiff. Where gaps

of this nature exist in the record—specifically, gaps

relating to documents proving standing or authority to

foreclose—this court has consistently held that a case

must be remanded for further proceedings. See id.;

Deutsche Bank National Trust Co. v. Thompson, supra,

163 Conn. App. 836; Deutsche Bank National Trust Co.

v. Bialobrzeski, 123 Conn. App. 791, 799–800, 3 A.3d

183 (2010). Because such a gap exists in the present

case, I would reverse the judgment and remand the

case for a determination of the jurisdictional issue and

for further proceedings according to law.

1 This is one of the reasons why the four month limitation on opening

judgments contained in General Statutes § 52-212a is inapplicable to judgments of strict foreclosure. See General Statues § 49-15.

2 References to the defendant in this dissent are to Tope.

3 Our Supreme Court has gone even further, concluding that, for purposes

of the four month limitation on opening judgments contained in General

Statutes § 52-212a, the court’s jurisdiction to open a judgment of foreclosure

by sale extends to the date the court renders its supplemental judgment

distributing the proceeds of the sale. Citibank, N.A. v. Lindland, 310 Conn.

147, 172, 75 A.3d 651 (2013).

4 The majority suggests that these actions by the court in opening and

modifying the judgment did not affect the operative status of the earlier

November 21, 2016 foreclosure judgment. In support of this position, the

majority cites to RAL Management, Inc. v. Valley View Associates, 278

Conn. 672, 899 A.2d 586 (2006). That case, however, dealt with the opening

and modification of a judgment that was on appeal and whether such action

rendered the appeal moot. Id., 674. The modifications in the present case

did not affect a judgment on appeal; but, more importantly, the opinion

acknowledges that the opening and modification of a judgment triggers a new

four month period under General Statutes § 52-212a. Id., 689. Accordingly,

at the time that the defendant in the present case made his standing challenge, the door was still open to modification and the challenge was not col-
lateral.

5 General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise

provided by law and except in such cases in which the court has continuing

jurisdiction, a civil judgment or decree rendered in the Superior Court may

not be opened or set aside unless a motion to open or set aside is filed within

four months following the date on which it was rendered or passed. . . .’’

6 A ‘‘[b]earer,’’ as is relevant here, means ‘‘a person in possession of an

instrument . . . payable to bearer or endorsed in blank.’’ General Statutes

§ 42a-1-201 (b) (5).

7 This finding, as well as the position of the servicer of the loan and the

plaintiff referenced in the trial court’s order, appear to conflate possession

of the original note with UCC holder status. Under the circumstances of

this case, more is required.

8 Section 2-2 (a) of the Connecticut Code of Evidence provides: ‘‘A party

requesting the court to take judicial notice of a fact shall give timely notice

of the request to all other parties. Before the court determines whether to

take the requested judicial notice, any party shall have an opportunity to

be heard.’’

9 Even if one took judicial notice of this purported transfer, without further

explanation, it is impossible to determine if the document transfers to the

plaintiff the right to enforce the defendant’s note.