Clarifying The Legal Landscape; The Connecticut Supreme Court Strikes A Blow To Foreclosure Standing Claims

In a time when public sentiment and judicial decisions have been less than positive for banks and financial institutions, the Connecticut Supreme Court's recent decision in RMS Residential Properties, LLC v. Anna M. Miller et al has to qualify as a big win. In a decision lacking any dissent, the Court concluded that as the holder of a promissory note, a Mortgagee is entitled to the presumption that it was the owner of the debt and unless the borrower rebuts this presumption, the Mortgagee is authorized by statute to commence the foreclosure action. The Court decided that RMS Residential Properties, LLC, with an assignment from Mortgage Electronic Registration Systems, Inc. (MERS), had standing to foreclose after the borrower defaulted, and that MERS was a valid mortgagee at the origination of the loan, as the nominee for the original lender. This decision confirms that possession of a note raises a rebuttable presumption that a holder of a note is the owner of the debt and that Connecticut General Statutes Section 49-17 confers standing to foreclose a mortgage on a holder of a note. While many practitioners never saw any tenable claim to the contrary, the decision appears to conclusively put to rest a significant –and previously unresolved-legal dispute in foreclosure circles.

In the initial matter before the New Haven Superior Court, the plaintiff mortgagee, RMS, sought to foreclose against the defendant mortgagor. When the trial court denied the mortgagor's motion to dismiss, granted the mortgagee's motion for summary judgment, and rendered judgment of foreclosure by sale, the the mortgagor appealed on the basis of standing because, as a mere holder of the promissory note the plaintiff did not own the underlying debt. The Supreme Court held that RMS had standing, under Conn. Gen. Stat. § 49-17, because under the Uniform Commercial Code, as adopted by the Connecticut legislature, (1) an instrument's holder could enforce it, (2) the original lender endorsed the note in blank, so, also under the Uniform Commercial Code, the mortgagee's possession of it allowed the mortgagee to enforce...