Lost-Note Foreclosures: Summary Judgment Requires Competent, Nonconclusory Secondary Evidence of Debt Ownership

1. Introduction

This case arose from a residential mortgage loan originated in 2007. The named defendant, Isandra L. Schulz, executed a promissory note payable to Countrywide Bank, FSB and a mortgage on her Ridgefield property. After default beginning in 2010, Bank of America, N.A. became the holder of the note and owner of the debt, and later received an assignment of the mortgage. While the note was in the custody of Bank of America’s servicer, Carrington Mortgage Services, LLC, the original note was lost.

Wilmington Savings Fund Society, FSB, as trustee, later received an assignment of the mortgage and brought this foreclosure. For summary judgment as to liability, it submitted copies of the instruments and three Carrington affidavits (Hadley, Bhavsar, and Gonzales). The trial court granted summary judgment and entered a strict foreclosure; the Appellate Court affirmed. On certification, the Supreme Court addressed a narrow but consequential issue: whether the plaintiff’s affidavit-based “secondary evidence” eliminated any genuine dispute that it owned the underlying debt—an element required for foreclosure.

2. Summary of the Opinion

The Supreme Court reversed. Although a lost note does not bar foreclosure and debt ownership may be shown by secondary evidence, the plaintiff’s evidence on summary judgment must be competent and sufficiently detailed. The Court held that:

• The Bhavsar affidavit was not competent summary-judgment evidence because it failed to establish personal knowledge and did not lay a business-records foundation.
• The Gonzales affidavit, though it recited familiarity with records, was conclusory on the critical point of debt ownership and lacked specific facts showing how and when Wilmington obtained the debt.
• Ambiguity in the Gonzales affidavit’s use of “the plaintiff” exacerbated the problem by suggesting (incorrectly) that Wilmington was the note holder at the time of loss.
• Other materials (Hadley affidavit, copies of the note/mortgage/assignment) did not cure the gap: they showed Bank of America’s ownership at earlier times and Wilmington’s mortgage assignment, but not a documented transfer of the debt to Wilmington.

Accordingly, the Court directed reversal of the strict foreclosure judgment and remanded for further proceedings.

3. Analysis

3.1 Precedents Cited

(a) Debt ownership as an element of foreclosure; lost-note context

• JPMorgan Chase Bank, National Assn. v. Virgulak, 341 Conn. 750 (2022): supplied the modern statement of a foreclosure plaintiff’s prima facie case—ownership of the debt and mortgage, default, and satisfaction of conditions precedent. The Court used this framework to isolate the dispositive deficiency: proof of debt ownership.
• New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745 (1996): anchored two key propositions: (i) a note and mortgage are separate instruments and remedies may proceed in equity on the mortgage; and (ii) when the note is “lost, impaired or destroyed bona fide,” debt ownership “may be supplied by secondary evidence.” The Court relied on this to confirm that Wilmington’s problem was not the absence of the original note per se, but the insufficiency of the secondary evidence it chose to offer on summary judgment.

(b) Summary judgment standards and the movant’s burden

• J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (2013): cited for plenary review of summary judgment rulings and as part of the Court’s articulation of the governing summary-judgment framework.
• Rutherford v. Slagle, 352 Conn. 27 (2025); Day v. Seblatnigg, 341 Conn. 815 (2022); Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93 (2019): cited to reiterate burden allocation (movant must negate genuine issues), define materiality, and require viewing evidence in the light most favorable to the nonmovant.
• Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512 (1978): critical to the Court’s strict approach to affidavits offered by a moving party. The Court drew from Evans both the requirement that corporate affidavits must “aver or affirmatively show personal knowledge” and the principle that movants’ affidavits are held to a “stringent standard” because all favorable inferences go to the nonmovant.

(c) Affidavit competence: personal knowledge, business records, and conclusory averments

• State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556 (2010): used to define “personal knowledge” and emphasize “close examination” of affidavit averments.
• RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011), overruled in part on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (2013): provided the model for an adequate affidavit on ownership—one that not only asserts status but recounts the transactions by which the plaintiff obtained it (based on business records).
• United Cleaning & Restoration, LLC v. Bank of America, N.A., 225 Conn. App. 702 (2024), and Jenzack Partners, LLC v. Stoneridge Associates, LLC, 334 Conn. 374 (2020): reinforced that where an affiant relies on records, the affidavit must lay sufficient foundation for the business-records exception under § 52-180.
• Stuart v. Freiberg, 316 Conn. 809 (2015): supplied the Court’s definition of “conclusory” averments—stating an inference (e.g., “we own the debt”) without the underlying facts.
• HSBC Bank USA, National Assn. v. Gilbert, 200 Conn. App. 335 (2020): cited as a contrast case demonstrating what a sufficient business-records/personal-knowledge foundation can look like in a servicer affidavit.
• Zbras v. St. Vincent's Medical Center, 91 Conn. App. 289 (2005): used as a “compare” example that describing title plus duties tied to the averments can support personal knowledge.
• Berkshire Bank v. Hartford Club, 158 Conn. App. 705 (2015): contrasted as a scenario where possession and a merger history supported ownership proof.

(d) Mortgage assignment versus debt assignment

• Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn. App. 699 (2012): cited for the proposition that assignment of the mortgage may indicate intent to transfer the debt, but it is not, standing alone, dispositive.
• Castle v. DiMugno, 199 Conn. App. 734 (2020): supplied the limiting rule the Court applied directly—an assignee of the mortgage lacks authority to foreclose “without ever having been assigned the debt.”

3.2 Legal Reasoning

(a) Framing the dispute as “debt ownership,” not mere “note enforcement”

A notable feature of the Opinion is the Court’s careful narrowing. Wilmington conceded that it “never was the holder of the note” and sought only “the equitable remedy of foreclosure on the mortgage,” not recovery on the note or a deficiency judgment. That stance mooted any need to decide whether Wilmington could enforce a lost note under General Statutes §§ 42a-3-301 and 42a-3-309. But it did not eliminate the core foreclosure requirement: proof that the foreclosing plaintiff owns the debt the mortgage secures. This distinction keeps New England Savings Bank v. Bedford Realty Corp. intact (lost note does not bar foreclosure), while preventing foreclosure from proceeding on a record that does not reliably show who owns the obligation.

(b) Why the Bhavsar affidavit failed: no demonstrated personal knowledge or records foundation

The Court treated Practice Book § 17-46 as a gatekeeper. Bhavsar’s affidavit asserted that the “[p]laintiff … is entitled to enforce” and that it “acquired the rights to enforce … on [May 1, 2018],” but:

• did not attest to personal knowledge;
• did not say she reviewed specific records;
• did not establish that any records met § 52-180.

Under Evans Products Co. v. Clinton Building Supply, Inc., a corporate title alone is not enough; the affidavit must “affirmatively show” personal knowledge. The Court therefore deemed Bhavsar’s key transfer assertion inadmissible/incompetent for summary judgment.

(c) Why the Gonzales affidavit failed: conclusory ownership assertions and harmful ambiguity

Gonzales did better on form—she described familiarity with “books and records,” said they were kept in the ordinary course, and said they were made at or about the time described. But the Court found the ownership conclusions to be exactly what Stuart v. Freiberg condemns: an “inference” (“the plaintiff is the owner of the debt”) without the “underlying facts.”

Crucially, the Gonzales affidavit did not describe any transaction or chain of transfers by which Wilmington obtained the debt after the note was lost—precisely the kind of detail the Court found adequate in RMS Residential Properties, LLC v. Miller. A summary-judgment court cannot fill that gap with assumptions.

The Court also identified a drafting problem with substantive consequences: Gonzales defined “the [p]laintiff” as Wilmington, yet stated that “the [p]laintiff was the holder of the [n]ote at the time of the loss of possession and remains the holder….” Wilmington admitted it never held the note. The plaintiff argued on appeal that Gonzales used “the plaintiff” to mean Bank of America in that paragraph, but the Court—applying the “stringent standard” for movant affidavits and drawing inferences for the nonmovant—treated the ambiguity as reinforcing, not curing, the genuine issue.

(d) Why the remaining exhibits did not cure the defect

The Hadley affidavit supported Bank of America’s ownership at earlier times, and the recorded assignment proved Wilmington became mortgagee of record. But the Court emphasized, consistent with Castle v. DiMugno, that a mortgage assignment does not substitute for proof that the debt itself was assigned. At summary judgment, Wilmington needed competent secondary evidence bridging the gap from Bank of America’s ownership to Wilmington’s ownership. The record did not do so.

3.3 Impact

• Higher evidentiary discipline in lost-note summary judgments: Plaintiffs can still foreclose with a lost note, but this Opinion signals that Connecticut courts must scrutinize whether the secondary evidence actually proves debt ownership with transaction-level specificity, not labels.
• Servicer affidavits must be drafted as “proof,” not “position statements”: The decision incentivizes affidavits that (i) clearly identify the relevant entity at each time, (ii) attach or accurately describe the business records evidencing transfers, and (iii) explain how the affiant knows what they claim (personal knowledge through records with § 52-180 foundation).
• Mortgage assignment alone is not enough—again, but with summary-judgment teeth: By coupling Castle v. DiMugno with affidavit-competence rules, the Court makes it harder to obtain strict foreclosure on an incomplete “paper chain” where the debt-transfer evidence is missing or conclusory.
• Procedural consequences: Expect more denials of summary judgment (and more evidentiary hearings/trials) where ownership is asserted through generic “lost note” affidavits. Plaintiffs may respond by producing custodial histories, pooling/transfer documents, and clearer recordkeeping attestations.

4. Complex Concepts Simplified

• “Debt,” “note,” and “mortgage”: The note is the borrower’s promise to pay. The mortgage is the lien on property securing that promise. The debt is the underlying obligation. A foreclosure plaintiff must show it owns the debt the mortgage secures.
• “Equitable foreclosure” versus “action on the note”: Foreclosure is an equitable remedy enforcing the mortgage lien; suing on the note is a legal remedy seeking money on the promise to pay. The plaintiff here abandoned the latter but still had to prove debt ownership for the former.
• “Secondary evidence” of a lost note: When the original note is missing, courts can accept other proof (like affidavits and copies). But secondary evidence must still be admissible and reliable.
• Practice Book § 17-46 (affidavit requirements): An affidavit must be based on personal knowledge, contain admissible facts, and show the affiant is competent to testify.
• General Statutes § 52-180 (business records): If an affiant’s knowledge comes from company records, the affidavit must show those records were made and kept in the regular course of business at or near the time of the events.
• “Conclusory” statements: Saying “we own the debt” is not enough; the affidavit must supply the facts that make that conclusion true (e.g., dates, transfers, assignments, mergers, or custodial transfers reflected in identified records).

5. Conclusion

Wilmington Savings Fund Society, FSB v. Schulz does not change the long-settled principle that a lost note does not bar mortgage foreclosure. Its contribution is procedural and evidentiary: it tightens what counts as adequate “secondary evidence” on summary judgment to prove the foreclosing plaintiff’s ownership of the debt. Affidavits must satisfy Practice Book § 17-46, lay a § 52-180 business-records foundation when relying on records, and avoid conclusory or ambiguous assertions—especially about who held the note at critical times and how debt ownership moved from one entity to another. The decision is likely to reshape foreclosure practice by requiring clearer transactional proof of debt ownership before strict foreclosure can be obtained without trial.