Equity One, Inc. v. Shivers
Under Practice Book §23-18, the trial court is required to review the note, mortgage and affidavit of debt before finding that the debt exceeded the value of the property and ordering strict foreclosure; and, here, absent any evidence or other indication to the contrary, it was presumed that the trial court acted in accordance with law and examined the note and mortgage prior to rendering judgment of strict foreclosure. Equity One, Inc. Servicer for Nomura Home Equity Loan, Inc., commenced this action against Thomas Shivers, seeking to foreclose on a mortgage executed and delivered to Mortgage Electronic Registration Systems, Inc., nominee for ResMAE Mortgage Corporation. After the defendant was defaulted for failure to plead, the court rendered judgment of foreclosure by sale. The defendant filed a bankruptcy petition. When the bankruptcy stay was lifted, the plaintiff filed a motion to reopen and re-enter the original judgment. The defendant objected, challenged the plaintiff's standing and moved to compel production of the original note. In Nov. 2008, the court heard argument, found that the plaintiff had standing and rendered judgment of strict foreclosure. The defendant appealed. The Appellate Court reversed the judgment, agreeing with the defendant's claim that the trial court improperly failed to conduct an evidentiary hearing on the plaintiff's standing to bring the action. The plaintiff appealed. The majority of the Supreme Court reversed the Appellate Court's judgment, finding the procedure followed was adequate under the circumstances. The record reflected that the trial court reviewed the pertinent documents at the Nov. 2008 hearing and prior hearings and that those documents fully supported the determination, predicated on the plaintiff's status as holder of the note, that the plaintiff had standing to commence the action. Although the record did not expressly reflect that the court reviewed the note, as distinguished from the mortgage and assignment, necessary to the court's finding of standing to enforce the note is the threshold finding that the plaintiff was, in fact, holder of that instrument as alleged in the complaint. Absent evidence or other indication to the contrary, the majority found it reasonable to presume that the trial court acted in accordance with law and examined the note and mortgage prior to rendering judgment of strict foreclosure. Justice McDonald dissented.