August 14, 2018

by Jeffrey M. Knickerbocker
Bendett & McHugh, P.C. – USFN Member (Connecticut, Maine, Vermont)

In a recent decision, the Connecticut Appellate Court held that a borrower was not entitled to an evidentiary hearing on standing. Bank of America v. Kydes, 183 Conn. App. 479, 489 (July 17, 2018). To necessitate an evidentiary hearing, the borrower must first have presented support of a genuine issue of fact that called the bank’s standing into question. In addition, the appellate court found that standing could be established by the plaintiff’s pleadings, as well as the defendant’s admissions.

Procedural Timeline
The plaintiff commenced this action in 2012.

• On March 13, 2014 Defendant filed an answer and defenses. Several of the defenses alleged that Plaintiff had “made false and fictitious claims without any supporting admissible evidence,” and thus lacked standing.
• On March 13, 2015 Defendant filed a motion to dismiss, which the court denied because Defendant did not appear on the date the motion was scheduled for argument.
• On May 14, 2015 Plaintiff served Defendant with requests for admissions. The requests included admissions that Plaintiff was the holder of the note when the plaintiff commenced the action.
• On June 4, 2015, without answering, Defendant filed a motion for protective order.
• On July 17, 2015 the court sustained Plaintiff’s objection to the motion for protective order.
• On July 29, 2015 Plaintiff filed a “Notice of Intent to Rely on the Requests to Admit.”
• On July 31, 2015, six weeks after the deadline to respond, Defendant responded to the requests for admission by denying them all without limitation or qualification.
• On July 31, 2015 Plaintiff filed a motion for summary judgment, which relied on the requests for admissions because they were deemed admitted due to Defendant’s failure to timely answer them.

The court looked to case law precedent to find that, once the plaintiff presents the note to the court, the burden is on the defendant to present evidence to challenge standing. ‘“The defendant [must] set up and prove the facts [that] limit or change the plaintiff’s rights ....’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) 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 court also found that the admissions from the failure to timely respond to the requests were dispositive. Moreover, the failure to ask the court for permission to withdraw or amend the admissions, in accordance with the rules, meant that the defendant admitted all matters as to which admissions were requested.

Closing Words
This case shows the importance of having the original note in Connecticut. Once the original note is presented to the court, the burden to challenge standing is shifted to the defendant. Further, merely making accusations — without an evidentiary basis — is insufficient for a defendant to obtain an evidentiary hearing.

Editor’s Note: The author’s firm represented the appellee (substitute plaintiff) in the case summarized in this article.

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