GMAC Mortgage, LLC v. Ford
It is well settled that the holder of a note secured by a mortgage has standing to commence a foreclosure action, regardless of whether it also holds the mortgage. Eric Ford appealed from the judgment of strict foreclosure rendered against him for the plaintiff, GMAC Mortgage, LLC, raising various claims, including that the trial court improperly denied his motion to dismiss the foreclosure complaint. The Appellate Court affirmed the judgment. The defendant first contended that the trial court failed to address fully issues of standing and should have conducted an evidentiary hearing on standing. The plaintiff's complaint alleged that it "is the holder of [the] note." The Appellate Court's review of the record confirmed the trial court's finding that the defendant failed to submit any affidavit or other evidence to support his motion to dismiss that called into question the plaintiff's status as the holder of the note. It was entirely proper for the trial court to have relied on the uncontested factual assertion in the complaint to deny the motion to dismiss to the extent that it challenged standing. The trial court also properly granted the plaintiff's motion for summary judgment as to liability. The defendant failed to provide any evidentiary proof sufficient to raise a genuine issue of material fact as to whether the plaintiff was the owner of the debt. He presented no documentary evidence or other proof to support his allegations that the note and mortgage properly were rescinded in accordance with the Truth in Lending Act, 15 U.S.C. §1601. Further, the court was under no obligation to treat the summary judgment motion as a motion to strike, insofar as it addressed the defendant's special defense. The right afforded by Practice Book §10-44 to replead is limited to correcting claims in the original pleading. Even with repleading, the defendant would be unable to remedy the legal insufficiency of his original special defense, alleging that he quitclaimed his interest to another before the action commenced. This did not implicate the making, validity or enforcement of the note or mortgage nor establish an equitable defense. The defendant remained liable for the note's repayment despite his quitclaim deed to a third party, who took title subject to the mortgage and any potential foreclosure.