Bank of New York Mellon v. Tope

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THE BANK OF NEW YORK MELLON v.
ACHYUT M. TOPE ET AL.
(AC 40959)
Elgo, Cradle and Devlin, Js.

Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant T. The action was commenced in July, 2014,
and the trial court first entered a judgment of foreclosure by sale in
November, 2014. Subsequently, T filed multiple motions to open and
extend the sale date. The court again entered a judgment of foreclosure
by sale in November, 2016. T then filed several motions to dismiss,
alleging that the court did not have subject matter jurisdiction on the
ground that the plaintiff did not have standing to commence this action.
In September, 2017, T filed a motion to open and stay the judgment, again
challenging the plaintiff’s standing and the subject matter jurisdiction
of the court. The court denied T’s motion, and T appealed to this court.
Held that T could not prevail on his claim that the trial court erred in
denying his motion to open and vacate the foreclosure judgment on the
ground that the plaintiff lacked standing and the court lacked subject
matter jurisdiction: this court was presented with a collateral attack by
T on the foreclosure judgment because, although T appeared in this
case approximately thirty days prior to the entry of the first foreclosure
judgment, he never directly challenged that judgment or the second
judgment of foreclosure by sale, did not challenge the plaintiff’s standing
or the court’s jurisdiction until more than two years after he filed his
appearance, and failed to demonstrate or even argue that the court’s
lack of subject matter jurisdiction was entirely obvious, failing to rebut
the presumption of the validity of the foreclosure judgment; moreover,
the facts and circumstances did not constitute the exceptional case in
which the lack of jurisdiction was so manifest as to warrant review, as
the record revealed that three different trial court judges examined the
record and considered T’s arguments and reviewed the documents he
submitted, and one judge examined the original note upon which both
foreclosure judgments were based, specifically finding that the plaintiff
had standing to commence the action; furthermore, because T was
afforded multiple opportunities to present his arguments in full to the
trial court, it could not reasonably be argued that he was deprived of
a fair opportunity to litigate the issue of standing, and he similarly failed
to furnish any strong policy reason to allow the otherwise disfavored
collateral attack on the foreclosure judgment.
(One judge dissenting)
Argued September 10, 2020—officially released February 9, 2021

Procedural History

Action to foreclose a mortgage on certain of the
defendants’ real property, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the defendants were defaulted for failure
to appear; thereafter, the named defendant was
defaulted for failure to plead; subsequently, the matter
was tried to the court, Hon. Thomas J. Corradino, judge
trial referee; judgment of foreclosure by sale; thereafter,
the court denied the named defendant’s motion to open
and vacate the judgment, and the named defendant
appealed to this court. Affirmed.
Thomas P. Willcutts, for the appellant, with whom,
on the brief, was Achyut M. Tope, self-represented, the
appellant (named defendant).
William R. Dziedzic, for the appellee (plaintiff).
Opinion

CRADLE, J. The defendant Achyut M. Tope1 appeals
from the denial of his motion to open and vacate the
judgment of foreclosure by sale rendered by the trial
court in favor of the plaintiff, The Bank of New York
Mellon, formerly known as The Bank of New York, as
Successor to JPMorgan Chase Bank, N.A., as Trustee
for Structured Asset Mortgage Investments II, Inc., Bear
Stearns Alt-A Trust, Mortgage Pass-Through Certifi-
cates, Series 2004-3. The defendant claims that the trial
court erred in denying his motion to open and vacate
because the plaintiff lacked standing to commence this
action and, consequently, the trial court lacked subject
matter jurisdiction over it. The plaintiff contends that
it had standing to commence this action and that this
appeal constitutes an impermissible collateral attack
on the court’s foreclosure judgment, which initially was
entered in 2014 and from which the defendant did not
appeal. We agree with the plaintiff that the defendant’s
appeal from the motion to open and vacate constitutes
an impermissible collateral attack on the foreclosure
judgment, and, accordingly, affirm the trial court’s
denial of the defendant’s motion to open and vacate.
The record reveals the following relevant factual and
procedural history. On October 31, 2003, the defendant
executed a promissory note in the amount of $134,000,
payable to HSBC Mortgage Corporation (USA) (HSBC).
To secure that note, the defendant mortgaged property
located at 387 Sherman Avenue in New Haven (prop-
erty) to HSBC. The note was later endorsed to ‘‘JPMor-
gan Chase Bank, as Trustee.’’ On January 15, 2014,
HSBC assigned the mortgage to the plaintiff.2
On July 17, 2014, the plaintiff filed the present action
seeking to foreclose on the mortgage. The defendant
filed his appearance on October 9, 2014, and, on October
28, 2014, he was defaulted for failing to plead. On
November 10, 2014, the court, Hon. Thomas J. Corra-
dino, judge trial referee, entered a judgment of foreclo-
sure by sale, with a sale date set for February 7, 2015.
On January 20, 2015, the defendant filed his first
motion to open and extend the sale date. The court
granted the motion and set a new sale date for June 20,
2015. The defendant subsequently filed three additional
motions to open the foreclosure judgment—on March
9, 2015, August 31, 2015, and January 6, 2016—resulting
in further extensions of the sale date.3 On March 8,
2016, the defendant filed a fifth motion to open, claiming
that there was more than $100,000 of equity in the prop-
erty and he had applied for a loan modification. On
April 11, 2016, the court granted the defendant’s motion
and vacated the foreclosure judgment.
On June 17, 2016, the plaintiff filed a motion for a
judgment of strict foreclosure. On November 21, 2016,
the court, Avallone, J., entered a judgment of foreclo-
sure by sale and set a sale date for February 11, 2017.4
On January 3, 2017, the defendant filed a motion to
open and stay the judgment on the ground that he had
obtained a financial audit that ‘‘provides strong support-
ing documentation that the plaintiff does not have
standing to pursue a foreclosure action with respect to
the property in this action.’’5 The defendant sought to
stay this action ‘‘to preserve his rights’’ because he filed
a new action involving additional properties that he
owns, which, he claimed, was being removed to fed-
eral court.
On January 4, 2017, the defendant filed a motion for
summary judgment alleging, inter alia, that the plaintiff
lacked standing to bring this action because the plaintiff
failed to show ‘‘the proper chain of ownership, assign-
ment and control of the note and mortgage and property
with affidavits from persons with knowledge . . . .’’6
At the February 6, 2017 hearing on the defendant’s
motion to open, the defendant represented to the court,
Avallone, J., that the arguments in his motion to open
and motion for summary judgment were ‘‘generally’’
the same. Accordingly, the court allowed the defendant,
at his request, to argue his motion for summary judg-
ment at that hearing. Following extensive argument by
the defendant, the court denied both of his motions.
The court expressly rejected the defendant’s challenge
to the plaintiff’s standing, stating: ‘‘I’ve given you suffi-
cient opportunity to make your arguments. I don’t
believe that they hold water.’’ On March 1, 2017, the
defendant filed a motion to reargue both motions, which
the court summarily denied.
On February 10, 2017, the defendant filed a motion
to dismiss, again alleging lack of subject matter jurisdic-
tion on the ground that the plaintiff did not have stand-
ing to commence this action.7 On February 27, 2017,
the defendant filed another motion to dismiss the action
for lack of subject matter jurisdiction, citing to the
arguments that he previously raised in his motion for
summary judgment. On March 24, 2017, the defendant
filed a third motion to dismiss, ‘‘in addition to and [in]
further [support of]’’ his prior two motions to dismiss
and his motion for summary judgment, for lack of sub-
ject matter jurisdiction.
On April 17, 2017, the court, Avallone, J., held a hear-
ing on the defendant’s motion to dismiss dated February
27, 2017. At the hearing, the defendant argued that he
had two copies of the note which were irreconcilably
different, thereby proving that the plaintiff was not the
holder of the note and therefore did not have standing.
The defendant presented those two copies to the court.
The defendant argued: ‘‘[T]he original note that I signed
. . . which I have asked over and over and over in . . .
court, docketed in many times, many motions, many
pleadings, has not been shared. And I don’t know
whether . . . the first time when the court approved
. . . the foreclosure sale and the second time when it
did, the court must have looked at the two original
documents.’’ In response, the plaintiff presented the
original note to the defendant. The defendant acknowl-
edged that his signature was on the original note.
The court then asked the defendant how the two
copies of the note that he had presented were relevant
since the foreclosure judgment was entered on the basis
of the original note. The defendant ‘‘object[ed] [to]
whether Judge Corradino had possession of the original
note’’ when he entered the foreclosure judgment in
2014. The court explained to the defendant that it had
already heard the defendant’s arguments a ‘‘multitude’’
of times, but agreed to review the proceedings that
occurred before Judge Corradino in 2014. The court
recessed briefly to do so.
Upon resuming the hearing, the court stated that it
had listened to the recording of the proceeding before
Judge Corradino in 2014 and explained that ‘‘[t]here is
nothing out of order . . . in Judge Corradino’s actions
in the court that day that would lead me to believe that
there is any evidence, that there is anything improper
as to the documents that were . . . filed.’’ The court
explained to the defendant: ‘‘I’ve listened to your argu-
ments consistently. You’ve made an argument about
the notes. I don’t accept your argument that there is
anything inappropriate by there being copies, multiple
copies of a note.’’ The defendant pressed his argument
regarding his claimed improprieties with the assign-
ments, and the court responded: ‘‘I have looked at the
original note. That’s what . . . I’m concerned with.
And I’m satisfied that there is nothing inappropriate
. . . by this court’s action or by the actions of Judge
Corradino. And you’ve presented nothing to me that
. . . would . . . make me think otherwise. And so I’ve
denied your motion to dismiss.’’ The court set a new
sale date of August 19, 2017. On April 24, 2017, the
court, Avallone, J., marked off the defendant’s motion
to dismiss that was filed on February 10, 2017. On May
1, 2017, the defendant filed another motion to dismiss
challenging the plaintiff’s standing to pursue this action.
On May 30, 2017, the court, Pittman, J., held a hearing
on the defendant’s February 10, 2017 motion to dismiss.
At that hearing, the defendant again was afforded the
opportunity to present his arguments challenging the
plaintiff’s standing, the same arguments that he made
in his previous motion to dismiss dated February 27,
2017, and his motion for summary judgment. The defen-
dant summarized his argument by again asserting that
the plaintiff was not the holder of the note. The court
told the parties that it would consider all of the prior
filings regarding standing and indicated that it would
issue a written decision. On June 6, 2017, the court,
Pittman, J., issued a written order denying the Febru-
ary 10, 2017 motion to dismiss. The court explained:
‘‘This motion, #162, was previously considered by Judge
Avallone in open court on April 24, 2017. At that time,
Judge Avallone marked this motion off, having deter-
mined that it raised the same issues as #164, which was
denied by Judge Avallone on April 17, 2017, #164. The
court will not continue to revisit issues that have been
previously decided and that constitute the law of the
case. Moreover, a judgment has entered in this matter
and a motion to dismiss is not properly before the court
in the absence of an order granting a motion to open
the judgment.’’
On June 28, 2017, the defendant filed a motion to
open and to extend the sale date on the ground that
he was making progress in his efforts to sell the subject
property. The court extended the sale date to October
21, 2017.
On September 28, 2017, the defendant filed a motion
to open and to vacate the judgment of foreclosure by
sale, wherein he again argued that the plaintiff lacked
standing to commence this action and, consequently,
the court lacked subject matter jurisdiction over it, and
asked that the action be dismissed ‘‘in its entirety with
prejudice.’’ On October 16, 2017, the court, Hon.
Thomas J. Corradino, judge trial referee, held a hearing
on the defendant’s motion, at which the defendant again
presented his argument to the court. On October 17,
2017, the court, Hon. Thomas J. Corradino, judge trial
referee, issued an order denying the defendant’s motion
to open and vacate the foreclosure judgment.8 It is from
this denial of the defendant’s September 28, 2017
motion to open and vacate the foreclosure judgment,
which first entered on November 10, 2014, and was
entered again on November 21, 2016, that the defendant
now appeals.
The defendant claims that the trial court erred in
denying his motion to open and vacate the foreclosure
judgment because the plaintiff lacked standing to pur-
sue foreclosure against him and thus the trial court
lacked subject matter jurisdiction over this action. The
plaintiff has steadfastly maintained throughout the liti-
gation of the defendant’s myriad of postjudgment
motions that it is the holder of the note and thus has
standing to pursue this action. The plaintiff argues that
this appeal constitutes an impermissible collateral
attack on the foreclosure judgment. We agree with
the plaintiff.
We begin by noting that ‘‘[i]t is well established that,
in determining whether a court has subject matter juris-
diction, every presumption favoring jurisdiction should
be indulged.’’ (Internal quotation marks omitted.)
Financial Consulting, LLC v. Commissioner of Ins.,
315 Conn. 196, 226, 105 A.3d 210 (2014). ‘‘To be sure,
it is often stated that [a] claim that a court lacks subject
matter jurisdiction may be raised at any time during
the proceedings . . . including on appeal . . . .’’
(Internal quotation marks omitted.) Rider v. Rider, 200
Conn. App. 466, 478, 239 A.3d 357 (2020).
‘‘Our jurisprudence, however, has recognized limits
to raising a collateral attack setting forth a claim of
lack of subject matter jurisdiction. . . . Although chal-
lenges to subject matter jurisdiction may be raised at
any time, it is well settled that [f]inal judgments are
. . . presumptively valid . . . and collateral attacks on
their validity are disfavored. . . .
‘‘The reason for the rule against collateral attack is
well stated in these words: The law aims to invest judi-
cial transactions with the utmost permanency consis-
tent with justice. . . . Public policy requires that a term
be put to litigation and that judgments, as solemn
records upon which valuable rights rest, should not
lightly be disturbed or overthrown. . . . [T]he law has
established appropriate proceedings to which a judg-
ment party may always resort when he deems himself
wronged by the court’s decision. . . . If he omits or
neglects to test the soundness of the judgment by these
or other direct methods available for that purpose, he
is in no position to urge its defective or erroneous
character when it is pleaded or produced in evidence
against him in subsequent proceedings. Unless it is
entirely invalid and that fact is disclosed by an inspec-
tion of the record itself the judgment is invulnerable to
indirect assaults upon it. . . .
‘‘[I]t is now well settled that, [u]nless a litigant can
show an absence of subject matter jurisdiction that
makes the prior judgment of a tribunal entirely invalid,
he or she must resort to direct proceedings to correct
perceived wrongs . . . . A collateral attack on a judg-
ment is a procedurally impermissible substitute for an
appeal. . . . [A]t least where the lack of jurisdiction
is not entirely obvious, the critical considerations are
whether the complaining party had the opportunity to
litigate the question of jurisdiction in the original action,
and, if he did have such an opportunity, whether there
are strong policy reasons for giving him a second oppor-
tunity to do so. . . . Our Supreme Court further
explained that such a collateral attack is permissible
only in rare instances when the lack of jurisdiction
is entirely obvious so as to amount to a fundamental
mistake that is so plainly beyond the court’s jurisdiction
that its entertaining the action was a manifest abuse of
authority . . . [or] the exceptional case in which the
court that rendered judgment lacked even an arguable
basis for jurisdiction.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 479–80.
Here, although the defendant appeared in this case
approximately thirty days prior to the entry of the first
foreclosure judgment, he never directly challenged that
judgment or the November 21, 2016 judgment of foreclo-
sure by sale.9 See Saunders v. KDFBS, LLC, 335 Conn.
586, 592–94, 239 A.3d 1162 (2020) (judgment of foreclo-
sure by sale is final appealable judgment). We therefore
are presented with a collateral attack by the defendant
on the foreclosure judgment rendered on November 21,
2016, by way of his September 28, 2017 motion to open,
on the basis of a claim that the trial court lacked subject
matter jurisdiction over this case.10 The defendant has
failed, however, to demonstrate, or even argue, that the
trial court’s lack of subject matter jurisdiction is entirely
obvious. The defendant did not challenge the plaintiff’s
standing or the court’s jurisdiction until more than two
years after he filed his appearance. Following the entry
of the second foreclosure judgment, the defendant chal-
lenged the plaintiff’s standing multiple times, as set
forth in detail herein. In response to the defendant’s
multiple postjudgment motions challenging the plain-
tiff’s standing, three different trial court judges exam-
ined the record, considered the defendant’s arguments
and reviewed the documents that he submitted, and
rejected the defendant’s challenge to the court’s subject
matter jurisdiction.11 The record reflects that Judge
Avallone examined the original note upon which both
foreclosure judgments were based and specifically
found that the plaintiff had standing to commence this
action.12 The record does not reveal a clear lack of
standing. Because the defendant has not proven that it
was entirely obvious that the trial court lacked jurisdic-
tion in this matter, he has failed to rebut the presump-
tion of the validity of the foreclosure judgment.
Moreover, because the defendant was afforded multi-
ple opportunities to present his arguments in full to
the trial court, it cannot reasonably be argued that the
defendant was deprived of a fair opportunity to litigate
the issue of standing. The defendant has similarly failed
to furnish, nor are we aware of, any strong policy reason
to allow this otherwise disfavored collateral attack on
the foreclosure judgment. Accordingly, we are not per-
suaded that the facts and circumstances of this matter
constitute the exceptional case in which the lack of
jurisdiction was so manifest as to warrant review at
this point in the proceedings.13 We therefore decline to
consider this collateral attack to the subject matter
jurisdiction of the court.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
In this opinion, ELGO, J., concurred.
1
Geeta A. Joshi-Tope also was named as a defendant in the underlying
foreclosure action, but she is not a party to this appeal. We therefore refer
in this opinion to Achyut M. Tope as the defendant.
2
HSBC assigned to the plaintiff: ‘‘[T]he said Mortgage having an original
principal sum of $134,000.00 with interest, secure thereby, with all moneys
now owing or that may hereafter become due or owing in respect thereof,
and the full benefit of all the powers and of all the covenants and provisos
therein contained, and the said Assignor hereby grants and conveys unto
the said Assignee, the Assignor’s interest under the Mortgage.’’
3
The sale date was extended to September 26, 2015, February 27, 2016,
and April 30, 2016, respectively. We note that the court held hearings on
each of these motions and the defendant appeared and was afforded the
opportunity to be heard at those hearings.
4
At the November 21, 2016 hearing, at which the defendant was present,
the court expressly indicated that it was ‘‘reviewing the note of October 31,
2003. I find it to be in order, initialed as an original on each page, signed
by the borrowers as an original.
‘‘Open ended mortgage of even date likewise signed and appropriate.
‘‘There’s an assignment of that mortgage dated January 15, 2014. . . .
‘‘[The] plaintiff is entitled to bring the action.’’
5
The plaintiff refers to ‘‘attached exhibit A,’’ but there were no exhibits
attached to his motion.
6
In his motion for summary judgment, the defendant also alleged ‘‘fraud in
the concealment’’; ‘‘fraud in inducement’’; ‘‘intentional infliction of emotional
distress’’; ‘‘slander of title’’; ‘‘quiet title’’; ‘‘violation of . . . 15 U.S.C. § 1601
et seq.’’; and ‘‘violation of . . . [12] U.S.C. § 2601 et seq.’’
7
We note that the foreclosure auction proceeded as scheduled on February
11, 2017. The court, however, denied the committee’s motion to approve
the sale because the high bid was too low, and ordered the deposit to be
returned to the high bidder.
8
Judge Corradino issued the following written order on October 17, 2017:
‘‘This complaint was filed in July of 2014. The defendant did not raise
arguments as to the plaintiff’s standing for over two years. The affidavit
filed by the servicer of the loan which was taken out in 2003, and on which
no payments have been made since 2013, clearly states that the plaintiff is
the holder of the note and the mortgage—this affidavit was filed under oath
in September of 2014. It was filed under oath by a party who would have no
apparent interest in falsifying its report. For the reasons set forth concisely
at pages 5 through 10 of the plaintiff’s memorandum in opposition to a prior
motion to dismiss (#186) as holder of the note the plaintiff has standing.
Fleet National Bank v. Nazareth, 75 Conn. App. 791, 818 A.2d 69 (2003), is
not applicable to the facts of this case. This court’s conclusion on the
lack of standing issue is consistent with the prior rulings raising this issue
previously on this case.’’
9
The defendant also never challenged the default that had been entered
against him.
10
We disagree with the dissent’s contention that the November 21, 2016
foreclosure judgment was no longer operative after the court opened it to
extend the sale date. In RAL Management, Inc. v. Valley View Associates,
278 Conn. 672, 899 A.2d 586 (2006), our Supreme Court emphasized the
‘‘substantive distinction between opening a judgment to modify or to alter
incidental terms of the judgment, leaving the essence of the original judgment
intact, and opening a judgment to set it aside.’’ Id., 690. The court concluded
that ‘‘when the only change to the original judgment involved the extension
of a sale date—an incidental term—the substantive terms of the original
judgment remained intact, and the opening of the judgment did not render
the original judgment void.’’ Nelson v. Dettmer, 305 Conn. 654, 678 n.19, 46
A.3d 916 (2012), citing RAL Management, Inc. v. Valley View Associates,
supra, 691. Thus, because the motions to open that followed the November
21, 2016 judgment only extended the sale date of the property, an incidental
term ordered to effectuate that judgment, the November 21, 2016 judgment
remained intact. And, because the defendant failed to appeal from the
November 21, 2016 foreclosure judgment, and the motion to open from
which he now appeals was not filed within four months of that judgment,
as prescribed by General Statutes § 52-212a, this appeal, in our view, is a
collateral attack on the November 21, 2016 foreclosure judgment.
11
We note that the fact that three different trial court judges heard the
defendant’s standing arguments and examined the documentary evidence
that he submitted, in itself, belies any argument that the lack of subject
matter jurisdiction is entirely obvious.
12
Although the record of the 2014 foreclosure hearing does not expressly
reflect that Judge Corradino reviewed the note, our Supreme Court has held
that the lack of such an explicit finding is not indicative of error. To the
contrary, the court reasoned that in entering the foreclosure judgment,
‘‘necessary to the court’s finding that the plaintiff had standing to enforce
the note is the subsidiary or threshold finding that the plaintiff was, in fact,
the holder of that instrument, as the plaintiff alleged in its complaint. See
General Statutes § 42a-3-301. Indeed . . . under Practice Book § 23-18, the
court was required to review the note, mortgage and affidavit of debt before
finding . . . the [amount of the] debt [and] . . . the value of the property
and . . . [entering the judgment of] foreclosure [by sale]. It is well estab-
lished that, ‘under the law of evidence, it is presumed, unless the contrary
appears, that judicial acts and duties have been duly and regularly performed,
the presumption of regularity attending the acts of public officers being
applicable to judges and courts and their officers . . . . The general rule
that a judgment, rendered by a court with jurisdiction, is presumed to be
valid and not clearly erroneous until so demonstrated raises a presumption
that the rendering court acted only after due consideration, in conformity
with the law and in accordance with its duty. . . . The correctness of a
judgment of a court of general jurisdiction is presumed in the absence of
evidence to the contrary. We do not presume error. The burden is on the
appellant to prove harmful error.’ . . . Brookfield v. Candlewood Shores
Estates, Inc., 201 Conn. 1, 6–7, 513 A.2d 1218 (1986); see also Rosenblit v.
Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988) (‘we are entitled to assume,
unless it appears to the contrary, that the trial court . . . acted properly’).
Consequently, in the absence of any evidence or other indication to the
contrary, it is reasonable to presume that the trial court acted in accordance
with law and examined the note and mortgage prior to rendering judgment
of . . . foreclosure.’’ (Citation omitted.) Equity One, Inc. v. Shivers, 310
Conn. 119, 131–32, 74 A.3d 1225 (2013).
13
At oral argument before this court, the plaintiff suggested that this court
take judicial notice of documents that it submitted showing succession of
the trustee. Because those documents were not presented to the trial court,
and are immaterial to our resolution of this appeal, we decline to take
judicial notice of them.