Opinion
HHDCV095027964S
08-29-2016
Deutsche Bank National Trust Co. v. Rodney Thompson et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Antonio C. Robaina, J.
FACTS
The original plaintiff, Deutsche Bank National Trust Company as Trustee for Morgan Y ABS Capital I, Inc., Trust 2007-NC4, commenced the present strict foreclosure action on March 9, 2009, by service of process against the defendants, Rodney Thompson and Mortgage Electronic Registration Systems, Inc., as Nominee for the New Century Mortgage Corporation (Mortgage Electronic). The original plaintiff made the following relevant allegations in its complaint. On January 25, 2007, Thompson executed and delivered to New Century Mortgage Corporation a note in the original principal amount of $213, 600. In order to secure the note, Thompson executed and delivered to Mortgage Electronic a mortgage on the property located at 418 South Main Street, West Hartford, Connecticut. The mortgage was dated January 25, 2007, and was recorded in the West Hartford Land Records on January 31, 2007. The mortgage was subsequently assigned to the original plaintiff. The original plaintiff is the holder of the note and mortgage.
" Strict foreclosure is the normal method of foreclosure only in Connecticut and Vermont . . . When a strict foreclosure rather than a sale is ordered, it entails a foreclosure judgment in favor of the mortgagee that results from a proceeding against the debtor and leaves the mortgagor with a right to redeem within a specified time frame, ending with the law day." (Citation omitted; footnote omitted; internal quotation marks omitted.) Provident Bank v. Lewitt, 84 Conn.App. 204, 208, 852 A.2d 852, cert. denied, 271 Conn. 924 859 A.2d 580 (2004).
Thompson is a self-represented defendant.
Mortgage Electronic is a nonappearing defendant.
The original plaintiff further alleges that the note is in default, and the defendants have failed to make timely payments, and have failed to cure the default, despite written notice. The original plaintiff has accelerated the balance due on the note, to declare the note to be due in full and to foreclose the mortgage securing the note.
PROCEDURAL HISTORY
On November 28, 2011, defendant Thompson filed his first motion to dismiss (docket no. 134) on the ground that the court lacked jurisdiction. On December 13, 2011, the plaintiff filed an objection to the motion to dismiss (docket no. 135). On January 10, 2012, the court (Robaina, J.) denied the defendant's motion to dismiss (docket no. 134.86).
Hereinafter, Thompson will be referred to as " the defendant."
On January 30, 2012, the defendant filed his second motion to dismiss (docket no. 137). The defendant moved to dismiss on the ground that the original plaintiff lacks standing to commence the present foreclosure action. The original plaintiff filed an objection on February 8, 2012 (docket no. 138). The court (Robaina, J.) sustained the objection on March 1, 2012 (docket no. 138.86).
On September 10, 2013, the court (Vacchelli, J.) granted the original plaintiff's motion to substitute party, and ruled that Deutsche Bank National Trust Company as Trustee for the Registered Holders of Morgan Stanley ABS Capital I, Inc., Trust 2007-NC4 Mortgage Pass-Through Certificates, Series 2007-NC4, shall be the substitute plaintiff (docket no. 131.86).
On September 16, 2013, a judgment hearing was held before the court (Vacchelli, J.), and a judgment of strict foreclosure was entered (docket no. 112.86), with law days commencing on November 12, 2013. After the defendant filed a petition in bankruptcy under chapter 7 of the United States Code in the United States Bankruptcy Court for the District of Connecticut, on April 16, 2014, the bankruptcy court (Dabrowski, J.) issued a discharge of debtor order, pursuant to 11 U.S.C. § 727. On September 22, 2014, the court (Vacchelli, J.) granted the substitute plaintiff's subsequent motion to open judgment and reset the law days.
On November 10, 2014, the defendant appealed from the judgment of strict foreclosure, arguing, in part, that the plaintiff lacked standing to bring this action because it was not in possession of the note at the time the action was commenced. On March 22, 2016, in Deutsche Bank National Trust Co. v. Thompson, 163 Conn.App. 827, 136 A.3d 1277 (2016), the Appellate Court reversed the judgment and remanded the case to the Superior Court for a determination of the jurisdictional issue and further proceedings according to law. More specifically, the Appellate Court held that the evidence was not sufficient to establish if, and when, the mortgagee acquired the note because the record did not include evidence of if, or when, the plaintiff came to own the note, and the court did not make a factual finding as to when the mortgagee acquired the note.
The Appellate Court generally did not distinguish between the original plaintiff and the substitute plaintiff, and even referred to the substitute plaintiff as " the plaintiff" in the opinion.
On May 2, 2016, this court (Robaina, J.) heard oral argument on the substitute plaintiff's motion to reset law days. During argument, the issue of standing was discussed by both parties. The court ordered the parties to file additional briefs and documentation regarding the standing issue.
On April 28, 2016, the defendant filed his present motion to dismiss (docket no. 193) in part on the ground that the substitute plaintiff lacks standing. On June 6, 2016, the substitute plaintiff objected to the motion to dismiss (docket no. 196). The substitute plaintiff included copies of the fixed-rate balloon note (with endorsement in blank), the mortgage deed, two assignments, the September 16, 2013 transcript of the hearing before Judge Vacchelli, and the discharge of debtor order from the United States Bankruptcy Court. The assignment of the mortgage from Mortgage Electronic to the original plaintiff is dated June 24, 2009, and the assignment of the mortgage from the original plaintiff to the substitute plaintiff is dated October 26, 2011. This motion to dismiss, which is presently before the court, was scheduled for short calendar on July 5, 2015. The defendant, however, failed to appear.
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " [B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id., 651.
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.
" Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). Nevertheless, it is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
In his motion to dismiss, the defendant argues, in part, that the plaintiff lacked standing at the commencement of the present action, and therefore the plaintiff lacks standing to proceed with the present action. The plaintiff counters that it has standing in the present action because it has shown that it is in present possession of the note and mortgage. More specifically, the plaintiff argues that it is not required to prove that it had physical possession of the note on the day the present foreclosure action was commenced.
Hereinafter, the original plaintiff and the substitute plaintiff will be referred to as " the plaintiff." The distinction between the original and substitute plaintiff is largely irrelevant to the standing analysis under the present circumstances. To the extent that the court finds that the original plaintiff lacked standing to bring this foreclosure action because it has not proven that it was in possession of the note at the time the action was commenced, the substitute plaintiff would also lack standing to proceed with the present action.
The defendant further argues that the court should grant his motion to dismiss on the ground that the automatic stay, pursuant to 11 U.S.C. § 362, is applicable to the present foreclosure action, and that the plaintiff's lien is invalid and not perfected. The defendant also argues that, pursuant to 11 U.S.C. § 522(c) and (f), the plaintiff's allegedly invalid lien does not survive the bankruptcy proceedings. The standing issue implicates subject matter jurisdiction, and will be addressed first.
Standing
" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009). " Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn.App. 791, 793-94, 818 A.2d 69 (2003).
" [I]n order to have standing to bring a foreclosure action the plaintiff must, at the time the action is commenced, be entitled to enforce the promissory note that is secured by the property . . . Whether a party is entitled to enforce a promissory note is determined by the provisions of the Uniform Commercial Code, as codified in General Statutes § 42a-1-101 et seq. . . . Under [the Uniform Commercial Code], only a holder of an instrument or someone who has the rights of a holder is entitled to enforce the instrument . . . When a note is endorsed in blank, any person in possession of the note is a holder and is entitled to enforce the instrument. General Statutes § § 42a-1-201(b)(21)(A), 42a-3-205(b) and 42a-3-301. If an endorsement makes a note payable to an identifiable person, it is a special endorsement, and only the identified person in possession of the instrument is entitled to enforce the instrument. General Statutes § § 42a-1-201(b)(21)(A), 42a-3-205(a) and 42a-3-301.
" The plaintiff's possession of a note endorsed in blank is prima facie evidence that it is a holder and is entitled to enforce the note, thereby conferring standing to commence a foreclosure action . . . After the plaintiff has presented this prima facie evidence, the burden is on the defendant to impeach the validity of [the] evidence that [the plaintiff] possessed the note at the time that it commenced the . . . action or to rebut the presumption that [the plaintiff] owns the underlying debt . . . The defendant [must] set up and prove the facts which limit or change the plaintiff's rights." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) U.S. Bank, N.A. v. Ugrin, 150 Conn.App. 393, 401-02, 91 A.3d 924 (2014).
" The defending party does not carry its burden by merely identifying some documentary lacuna in the chain of title that might give rise to the possibility that a party other than the foreclosing party owns the debt . . . To rebut the presumption that the holder of a note endorsed specifically or to bearer is the rightful owner of the debt, the defending party must prove that another party is the owner of the note and debt . . . Without such proof, the foreclosing party may rest its standing to foreclose the mortgage on its status as the holder of the note." (Emphasis omitted; internal quotation marks omitted.) AS Peleus, LLC v. Success, Inc., 162 Conn.App. 750, 754, 133 A.3d 503 (2016).
In the present case, the plaintiff argues in its objection that it has met its burden of proving standing by " establishing that it has present possession of the note and mortgage . . . (Emphasis added.) The plaintiff further argues that it does not have to show that it had physical possession of the note on the day the foreclosure action is commenced. The plaintiff contends that it has met its burden to prove standing by presenting the court with the original note, endorsed in blank.
The plaintiff, however, misinterpreted and misstated the current state of the law on the issue of standing in a foreclosure action. As previously discussed, in order to prove standing, a plaintiff must show that it was entitled to enforce the promissory note at the time the action is commenced . In order to meet this burden, a plaintiff must present " evidence of the date that physical possession of the note was transferred to the foreclosing lender." 1 D. Caron & G. Milne, Connecticut Foreclosures (6th Ed. 2016) § 1-1:1.1 b, p. 11. Two recent Appellate Court cases, Deutsche Bank National Trust Co. v. Thompson, supra, 163 Conn.App. 827, and Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn.App. 791, 3 A.3d 183 (2010), have confirmed that, in order to prove standing, a plaintiff must show that it was in possession of the note at the time the action was commenced. The Appellate Courts implied that this burden is not satisfied by alleging in the complaint that the plaintiff is the holder of the note and mortgage, and that the plaintiff must instead present evidence that it was in possession of the note at the time the action was commenced.
More specifically, in Thompson, the Appellate Court reviewed the same complaint presently before the court, and noted that the plaintiff " alleged that the defendant executed and delivered a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), that MERS assigned said mortgage to the plaintiff, and that the plaintiff is the holder of said mortgage and the note securing the mortgage." Deutsche Bank National Trust Co. v. Thompson, supra, 163 Conn.App. 829-30. Nevertheless, after reviewing the available record, the Appellate Court held that it cannot resolve the standing issue because, for two reasons, it cannot answer the " key question" of " when the note came into the plaintiff's possession." (Emphasis added.) Id., 832. Firstly, the court stated that the record " contains no documents demonstrating when the plaintiff came to hold or own the note. The only note in the record before us is the fixed-rate balloon note. This note is payable to the original lender, New Century Mortgage Company, and contains no endorsement. Although the record contains documents memorializing the assignment of the mortgage from MERS to the plaintiff, there are no assignment documents with respect to the note. Thus, the record provides no clues as to when, if ever, the plaintiff acquired the note." Id., 832-33. Secondly, the court found that " the trial court made no factual finding as to when the plaintiff acquired the note. No memorandum of decision accompanies the court's judgment of strict foreclosure or order on the plaintiff's motion to open judgment and reset the law days. Additionally, no transcript of any hearing in which the court might have made such a finding has been provided for our review. At oral argument before this court, the plaintiff's counsel asserted that in order to be entitled to a judgment of strict foreclosure, the note would have had to have been presented to the trial court and, therefore, the note must have been presented in the present case. We have no evidence before us that this occurred." (Footnote omitted.) Id., 833. The Appellate Court reversed and remanded the case to the Superior Court after concluding that it cannot review whether the plaintiff lacked standing to commence this action " [b]ecause the record lacks a crucial jurisdictional finding by the trial court, and further contains no evidence of when the plaintiff acquired the note . . ." Id.
In Bialobrzeski, the plaintiff similarly brought an action in the Superior Court against a self-represented defendant to foreclose a mortgage on real property. The defendant appealed the trial court's order denying its motion to dismiss, and the defendant argued that the plaintiff was not in possession of the note at the time the action was commenced. Much like in Thompson, " the plaintiff alleged, in part, [that] The Plaintiff, Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-3, is the holder of said Note and Mortgage." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski, supra, 123 Conn.App. 795-96. Also much like in Thompson, the note in question was without a date or endorsement. Id. The Appellate Court stated that " [t]he key to resolving the defendant's claim is a determination of when the note came into the plaintiff's possession." (Emphasis added.) Id., 797. The court reviewed the record, and noted that " [t]he defendant's motion to dismiss was inspired by the exhibits attached to the plaintiff's motion for summary judgment." Id., 799. The court further stated that " [t]he affidavit of Peter Read, an assistant vice president of Washington Mutual Bank, attests to the plaintiff being the holder of the note, but it does not resolve the factual issue as to when the plaintiff acquired the note." (Emphasis. added; footnote omitted.) Id. In an important footnote, the court noted that " the plaintiff has argued, supported by citations to authority, that the holder of a note rightly may foreclose the mortgage. That argument, however, is beside the point. The relevant question is when the plaintiff became the holder." (Emphasis added.) Id. n.11. The Appellate Court in Bialobrzeski held that " [b]ecause the record is devoid of a factual finding as to when the plaintiff came into possession of the note, [it is] unable to review the claim as to the court's subject matter jurisdiction." Id., 792. The court concluded that " [w]hen the question regarding the plaintiff's standing was raised, the [trial] court should have held a hearing to determine whether the plaintiff was the owner or holder of the note at the time the action was commenced." Id., 799-800.
Although Thompson and Bialobrzeski confirmed that the plaintiff must present evidence that it was in possession of the note at the time the action was commenced in order to show standing, recent decisions by our appellate courts that have found that the plaintiff had standing to commence the foreclosure action have also generally required evidence to show when the plaintiff had possession of the note, even if the plaintiff has presented an endorsed note . See Equity One, Inc. v. Shivers, 310 Conn. 119, 132-33, 74 A.3d 1225 (2013) (" [I]t was proper for the court, at the November 24, 2008 hearing, to rely on the representation of the plaintiff's counsel that the note he produced at that hearing was the note that the plaintiff held at the time of the commencement of the action. In the absence of any fact based challenge to counsel's representation, such reliance was proper not only because the plaintiff's counsel is an officer of the court . . . but also because the assignment of the note and mortgage from MERS to the plaintiff, which the court examined at the November 24, 2008 hearing, concededly was executed twenty days prior to the commencement of the foreclosure action." [Citation omitted.]); RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 234, 32 A.3d 307 (2011) (plaintiff presented evidence that it possessed the note at the time that it commenced the action by submitting a sworn affidavit stating that it was the holder of the promissory note at the time it commenced this foreclosure action), overruled in part on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n.18, 71 A.3d 492 (2013); Property Asset Management, Inc. v. Lazarte, 163 Conn.App. 737, 747, 138 A.3d 290 (2016) (" although the court did not state the basis for its finding that the original plaintiff was in possession of the note when it initiated the foreclosure action, that finding is supported by the record, namely, the affidavit submitted with the motion for summary judgment indicating that the note was delivered to the original plaintiff on or before October 6, 2008"); U.S. Bank, N.A. v. Ugrin, supra, 150 Conn.App. 403-04 (" The defendant's own evidence demonstrated that the plaintiff possessed the note, endorsed in blank, prior to the commencement of the present action. Tomasky testified that she received a copy of the note endorsed in blank from Hunt [Leibert Jacobson, P.C.] before the action was commenced. The letter accompanying the note indicated that it was sent on behalf of the plaintiff"); HSBC Bank, N.A. v. Navin, 129 Conn.App. 707, 711-12, 22 A.3d 647 (" plaintiff submitted a sworn affidavit in support of its motion for summary judgment in which it alleged that [t]he [n]ote was endorsed in blank and was delivered to the [p]laintiff prior to the commencement of this foreclosure action" [internal quotation marks omitted]), cert. denied, 302 Conn. 948, 31 A.3d 384 (2011).
The remaining cases from the appellate courts cited by the plaintiff in support of the argument that the plaintiff does not need to prove physical possession of the note on the day that the foreclosure action is commenced, such as Deutsche Bank National Trust Co. v. Torres, 149 Conn.App. 25, 88 A.3d 570 (2014), are distinguishable from the present case in that the court and the parties did not raise or address the issue of whether the plaintiff had possession of the note at the time of the commencement. Furthermore, although the plaintiff correctly points out that our Supreme Court has held that a plaintiff does not need to establish a chain of custody in order to properly authenticate business records; New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 604-05, 717 A.2d 713 (1998); this rule is not applicable to the present case. Firstly, the present case does not involve an authentication issue. Secondly, the plaintiff needs to establish standing by presenting evidence which shows that it had possession of the note at the time the action was commenced, but this does not require establishing a chain of custody.
Here, on May 2, 2016, the parties appeared before this court and the plaintiff's counsel provided the original note and mortgage to the court, along with a copy of the two assignments of the mortgage to the plaintiff. The original note is endorsed in blank, but the endorsement is undated. Moreover, the commencement of the present action predates both assignments.
The earlier assignment of the mortgage, from Mortgage Electronic to the plaintiff, is dated June 24, 2009.
Although the plaintiff has established that it is presently the holder of the note by providing the court with the original endorsed note, the critical issue before the court is whether the plaintiff had standing to bring a foreclosure action at the time the action is commenced. In other words, the plaintiff must present evidence to show that it had possession of the note at the time the action was commenced .
The plaintiff has failed to meet its burden. Neither the undated endorsement in blank nor the assignments of the mortgage that are dated after the commencement of the action are evidence that the plaintiff had possession of the note at the time of the commencement of the action. The plaintiff has failed to submit any other admissible evidence, such as an affidavit, that would show when it had acquired the note. Although the plaintiff contends that it is presently the holder of the note and rightly may foreclose the mortgage, " [t]hat argument . . . is beside the point. The relevant question is when the plaintiff became the holder." (Emphasis added.) Deutsche Bank National Trust Co. v. Bialobrzeski, supra, 123 Conn.App. 799 n.11.
In Bialobrzeski, the Appellate Court noted that even if the note was endorsed, " the endorsement is not proof of the date on which the plaintiff acquired the note." Deutsche Bank National Trust Co. v. Bialobrzeski, supra, 123 Conn.App. 797 n.9.
The defendant also argued during the May 2, 2016 hearing that the plaintiff lacked standing at the commencement of the action because the plaintiff does not have standing to bring the action until the assignment, and the assignments of the mortgage are dated after the commencement of the action. The defendant's argument regarding the timing of the assignment is misguided, as our Appellate Court has held that a " defendant . . . cannot rely on the date the mortgage was assigned to the plaintiff as proof that the plaintiff did not own the note on the date the action was commenced." Deutsche Bank National Trust Co. v. Bialobrzeski, supra, 123 Conn.App. 797. This is because " [o]ur legislature, by adopting [General Statutes] § 49-17, has provide[d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him." (Internal quotation marks omitted.) Id.
The plaintiff submitted an unauthenticated copy of the transcript of the September 16, 2013 hearing before Judge Vacchelli. (Plaintiff's Exhibit B.) The focus of the hearing before Judge Vacchelli was on whether the note contained a forged signature, rather than the actual signature of the defendant. The court heard the sworn testimony of the defendant, and ruled that the defendant's testimony is not credible, and that the note does not contain a forged signature. Although Judge Vacchelli did also find that the plaintiff had standing because it is in possession of the note, endorsed in blank, Judge Vacchelli did not make any factual findings as to when the plaintiff was first in possession of the note.
Thus, the plaintiff has failed to show that it has standing because it has failed to satisfy its burden to present evidence that it had possession of the note at the time the action was commenced.
The defendant's remaining grounds for dismissal, regarding the affect of the bankruptcy proceedings on the present action, do not need to be addressed because the present action should be dismissed on the ground that the plaintiff lacks standing.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted.