Opinion
FSTCV085006978S
01-06-2017
The Bank of New York, as Trustee for the Benefit of CWALT, Inc., Alternative Loan Trust 2007-19 Mortgage Pass-Through Certificates, Series 2007-19 v. Andrew Consiglio et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION DATED MARCH 13, 2016 (#188.00)
Hon. Kevin Tierney, Judge Trial Referee.
This motion is the sixth pleading filed by the defendant, Andrew Consiglio, that claims that this court lacks subject matter jurisdiction over this one-count residential foreclosure lawsuit.
The operative complaint is the original March 10, 2008 one-count complaint that alleges that the defendant, Andrew Consiglio, owed Magnus Financial Corporation $500,000 as evidenced by a May 7, 2007 promissory note, which was secured by a first mortgage to Mortgage Electronic Registration Systems, Inc. solely nominee Lender for Magnus Financial Corporation on real property located at 81 High Clear Drive, Stamford, Connecticut and recorded in the Stamford land records on May 8, 2007. Ex. 9. The matter first went to judgment before the undersigned on June 2, 2008 (#103.00 and #108.00). The defendant, Andrew Consiglio, thereafter filed two separate bankruptcy applications, none of which have a stay in effect as to this foreclosure action (#110.00, #121.00). On August 6, 2013 the plaintiff filed a Motion to Open Judgment, To Make New Findings, To Reenter Judgment After Termination of Bankruptcy Stay and To Award Additional Attorney Fees, which sought to assign new law days on the prior judgment of strict foreclosure (#121.00). This Motion to Open Judgment (#121.00) has been assigned thirteen times to short calendar hearings but no court order has entered on motion #121.00 because of the defendant's claim that the court lacks subject matter jurisdiction.
The defendant has filed a myriad of defenses and multiple claims of lack of subject matter jurisdiction. On January 30, 2014 the defendants filed a pleading requesting an extension of time to object to the plaintiffs' Motion to Substitute (#128.00). In that pleading the defendant noted that he became aware of new facts that the original plaintiff had no standing and thus the court lacked subject matter jurisdiction. The underlying January 16, 2014 Motion to Substitute (#127.00) was granted by Judge Mintz on May 27, 2014 in the face of the defendant's raising the issue of standing (#127.89).
On April 6, 2014 he attempted to file an Answer and Special Defenses Answer even though he had been defaulted, the default had not been set aside and the judgments of June 2, 2008 (#108.00) and May 13, 2009 (#110.00) had not been vacated. This April 6, 2014 pleading contained one Specific Denial, ten Special Defenses and three Counterclaims (#138.00). Several of these Special Defenses allege that the plaintiff had no standing.
On June 16, 2014 the defendant filed the Defendant's Motion to Open and Vacate (#155.00). This seven-page motion stated various reasons why the plaintiff had no standing to file and prosecute this foreclosure lawsuit therefore the court lacked subject matter jurisdiction. This Motion to Open and Vacate was heard by Judge Mintz who on July 21, 2014 denied the motion (#155.87).
On August 4, 2014 the defendant filed The Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (#177.00). This motion stated, by this court's count, ten reasons why the court lacked subject matter jurisdiction in its twenty-one paragraphs. This Motion to Dismiss was heard and denied by Judge Mintz on August 4, 2014. Judge Mintz's order of denial stated: " The motion to dismiss is denied. The court finds the plaintiff has standing" (#177.86).
The defendant next filed on August 4, 2014 The Defendant's Motions for Extension to Reargue His Motion to Open and Vacate and For the Hearing on the Plaintiff's Motion to Open Judgment and Extend the Law Day (#178.00). This motion claimed that the plaintiff had no standing to file and prosecute this foreclosure lawsuit and thus the court lacked subject matter jurisdiction. Judge Mintz denied this motion (#178.86).
The most recent and the sixth defendant's motion addressing the defendant's claims that the plaintiff has no standing to commence and to maintain this foreclosure lawsuit and therefore the court lacks subject matter jurisdiction, is the March 13, 2016 the Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (#188.00) that is now before this court. It is a thirty-three paragraph Motion to Dismiss. Part of that same pleading is a thirty-four paragraph The Defendant's Memorandum of Law For the Defendant's Motion to Dismiss also dated March 13, 2016 coded in as the same computer number (#188.00). This court has read both the Motion to Dismiss and the defendant's Memorandum of Law in support of this Motion to Dismiss (#188.00). Although not set forth in numerical order, there are twenty-eight separate reasons claimed by the defendant why this court lacks subject matter jurisdiction in pleading #188.00. This court conducted a four-day evidentiary hearing on August 9, 10, 11 and 12, 2016 on this Motion to Dismiss. The parties furnished oral argument and waived the filing of post-hearing briefs.
" We are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009); Giannoni v. Commissioner of Transportation, 322 Conn. 344, 350, 141 A.3d 784 (2016).
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . and a judgment rendered without subject matter jurisdiction is void . . ." Deutsche Bank National Trust Company v. Bialobrzeski, 123 Conn.App. 791, 798, 3 A.3d 183 (2010). Although the defendant filed his motion to dismiss alleging lack of subject matter jurisdiction, the burden of demonstrating that a party has standing to bring an action and that the court has subject matter jurisdiction is on the plaintiff. Id., 798; Seymour v. Region One Board of Education et al., 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
In this case the defendant is alleging that the plaintiff lacks standing therefore the court is deprived of subject matter jurisdiction. Although motions to dismiss alleging personal jurisdiction deficiencies must be raised within a certain time limit from the filing of an appearance by that party, no such time limit exists for a motion to dismiss alleging lack of subject matter jurisdiction. " Because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013).
" Standing is the legal right to set the judicial process in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of the action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticeable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity . . . Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." The Investors Mortgage Company, Trustee v. Rodia, 31 Conn.App. 476, 479, 625 A.2d 833 (1993). " Standing does not hinge on whether the plaintiff will ultimately be entitled to relief on the merits of an action, but on whether he is entitled to seek the relief." Cottman Transmission Systems, Inc. v. Hocap Corporation, 71 Conn.App. 632, 638, 803 A.2d 402 (2002).
It is well established that the holder of a note has standing to bring an action for strict foreclosure. New England Savings Bank v. Bedford Realty Corporation, 238 Conn. 745, 759, 680 A.2d 301 (1996) " A holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17. The possession by the bearer of a note endorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there . . . It is for the defendant to set up and prove the facts which limit or change the plaintiff's rights." Equity One, Inc. v. Shivers, supra, 310 Conn. 135. In addition to establishing standing, there must be evidence of when the note came into the plaintiff's possession. GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 174, 73 A.3d 742 (2013); Deutsche Bank National Trust Company v. Thompson, 163 Conn.App. 827, 832, 136 A.3d 1277 (2016). As already stated, it is the plaintiff's burden to prove the above elements to satisfy that this court has subject matter jurisdiction over this residential foreclosure action. Id., 836. The plaintiff's burden of proof in a motion to dismiss alleging lack of subject matter jurisdiction is a " colorable claim." The Investors Mortgage Company, Trustee v. Rodia, supra, 31 Conn.App. 479. The defendant's proof must be substantially higher to overcome the minimal burden of proof of a colorable claim.
On the first day of the evidentiary hearing, August 9, 2016, the plaintiff produced a blue ink version of the Note, a photocopy of that blue ink Note, a copy of the mortgage deed, a copy of the assignment of the mortgage, and a portion of an affidavit. The above last four documents were marked as Exhibits 2, 3, 4 and 6. The March 20, 2008 Assignment assigns both the Note and the mortgage. Ex. 4. The court, the defendant, and his attorney conducted an examination of each of these five documents. The blue ink Note was thereafter returned to plaintiff's counsel for safekeeping and the photocopy of the blue ink Note was marked as Exhibit 2. The court, the defendant, and the defendant's attorney had ample opportunity to examine and to compare in detail the blue ink Note along with its photocopy. Ex. 2. This procedure satisfied the court's inspection obligations. Equity One, Inc. v. Shivers, supra, 310 Conn. 123-24, 129, 131; Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 43-44, 75 A.3d 38 (2013).
The court noted from its examination that the blue ink Note was endorsed in blank. The photocopy marked in evidence contains that blank endorsement. Ex. 2. The lender on the Note is First Magnus Financial Corporation.
The court finds that the plaintiff is in possession of the blue ink Note at issue in this foreclosure, which Note has been endorsed in blank, the plaintiff's lawyer was in possession of the blue ink Note from 2008, and thus the plaintiff has proven it was in possession of the Note as of the commencement of this lawsuit on March 25, 2008. Exhibit 6 verifies that fact. See Return of Service in court file. The holder of a note is presumed to be the rightful owner of the underlying debt and unless the party defending against the foreclosure action rebuts that presumption, the holder has standing to foreclose the mortgage; the holder only has to produce the note to establish that presumption. RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011). Based upon this evidence, the court finds that the plaintiff has sustained its burden of proof to show that it has standing.
Connecticut courts are confronted with foreclosure defenses that the plaintiff lacks standing and therefore the court is deprived of subject matter jurisdiction. Caselaw has been consistent in citing the general proposition that " because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." Equity One, Inc. v. Shivers, supra, 310 Conn. 125-26. Caselaw further states; " Indeed, once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." Deutsche Bank National Trust Company v. Bialobrzeski, supra, 123 Conn.App. 798. " It is the plaintiff who bears the burden of proving subject matter jurisdiction, whenever and however raised." Deutsche Bank National Trust Company v. Thompson, supra, 163 Conn.App. 836. " The objection of want of jurisdiction may be made at any time . . . and the court or tribunal may act on its own motion, and should do so when lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430-31, 829 A.2d 801 (2003).
Bumping up against the above rules is the legal principle of finality of judgments. " Although we have held that a challenge to a court's subject matter jurisdiction 'can be raised at any time . . . and the lack thereof cannot be waived'; LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976), quoting Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974), Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appealed dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979), we have also recognized that 'the modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal." Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984).
Connecticut adopted the provisions of Section 12 of Restatement (Second) of Judgments. " Under the restatement view, a collateral attack on a judgment in a contested case, such as this one, may raise only limited claims of lack of subject matter jurisdiction. A subsequent challenge to subject matter jurisdiction, when that issue was not actually litigated in the prior action, is authorized only if the litigant can show that 'the tribunal's excess of authority was plain or has seriously disturbed the distribution of governmental powers or has infringed a fundamental constitutional protection.' " Id., 114-15; Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979). " Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so." Id., 362-63.
On August 30, 2016 the Connecticut Supreme Court revisited the finality of judgment limitation on the trial court's power to consider postjudgment claims of lack of subject matter jurisdiction. Sousa v. Sousa, 322 Conn. 757, 143 A.3d 578 (2016). The Supreme Court reaffirmed the finality of judgment principles of Section 12 of the Restatement (Second) of Judgments, Vogel v. Vogel, supra, 178 Conn. 362-63 and adopted Justice Peters' dissent in Broaca v. Broaca, 181 Conn. 463, 469, 435 A.2d 1016 (1980). The first step is for the trial court to determine if the lack of jurisdiction was " entirely obvious." That first step was also described as a determination as to whether " the tribunal's excess of authority was plain." Vogel v. Vogel, supra, 178 Conn. 362-63. That same first step was described as " the subject matter of the action was so plainly beyond the court's jurisdiction." Restatement (Second) of Judgment, Section 12.
The public policy behind the finality of judgment rule is as follows:
Although challenges to subject matter jurisdiction may be raised at any time, it is well settled that " [f]inal judgments are . . . presumptively valid . . . and collateral attacks on their validity are disfavored" (Citations omitted.) Hirtle v. Hirtle, 217 Conn. 394, 401, 586 A.2d 578 (1991). " The reason for the rule against collateral attack is well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . . [T]he law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court's decision . . . If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character when it is pleaded or produced in evidence against him in subsequent proceedings. Unless it is entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to indirect assaults upon it." (Emphasis added; internal quotation marks omitted.) In re Shamika F., supra, 256 Conn. at 406-07, 773 A.2d 347.Sousa v. Sousa, supra, 322 Conn. 771.
Under Sousa v. Sousa to be " entirely obvious" the " jurisdictional deficiency must amount to a 'fundamental mistake' that is 'so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority.' " Sousa v. Sousa, supra, 322 Conn. 773. The Supreme Court noted that collateral attacks on a judgment should be permitted only in " rare instances" and " only for the exceptional case in which the court that rendered judgment lacked even an 'arguable basis' for jurisdiction." Id., 773. " The importance of finality in litigation means that the exception to the claim preclusion rule applies in only the most limited circumstances." Id., 773. " Our cases demonstrates that it is extraordinarily rare for a tribunal's jurisdiction to be so plainly lacking that it is 'entirely obvious.' " Id., 773. Sousa adopts Justice Peter's dissent; " I would emphasize the truly exceptional nature of the 'plainly beyond' cases." Broaca v. Broaca, supra, 181 Conn. 473.
If the lack of jurisdiction is entirely obvious, the court may consider the attack on the court's subject matter jurisdiction. If the court concludes that the claim is not " entirely obvious, " the court must consider the following: " the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong public policy reasons for giving him a second opportunity to do so." Vogel v. Vogel, supra, 178 Conn. 362-63; Sousa v. Sousa, supra, 322 Conn. 772.
The considerations for this public policy analysis and whether public policy reasons support giving the litigant a second bite of the apple are: " whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments." Id., 784; Morris v. Irwin, 4 Conn.App. 431, 434, 494 A.2d 626 (1985).
The court therefore must examine the defendant's allegations that the plaintiff lacks standing and thus the court is deprived of subject matter jurisdiction both in the evidence offered in the four-day evidentiary hearing as well as that contained in the twenty-eight reasons set forth in the Motion to Dismiss (#188.00). Although case law is not replete with examples of " entirely obvious" lack of subject matter jurisdiction decisions, this court offers the following as " entirely obvious" examples: a decedent's estate is not a proper or legal entity to commence a lawsuit as it has no standing and thus the court lacks subject matter jurisdiction. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985); a deceased person cannot sue. Lockwood v. Lockwood, 56 Conn. 106, 109, 14 A. 293 (1887); failure to comply with statutory notice requirements. Treat v. Town Plan and Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958); only the real property owner has standing to commence an action to discharge a mechanics lien under Gen. Stat. § 49-35a. Rechovos Corporation v. SAB Construction Management, LLC, Superior Court, judicial district of Hartford, Docket Number HHD CV 16-6068052 S (July 7, 2016, Wahla, J.) [62 Conn.L.Rptr. 559, ]; and a trade name, whether registered or not, is not a legal entity and has no standing to sue. GMA Yacht Sales v. Skagit Marine Distributing, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 99-0364155 S (September 7, 2000, Skolnick, J.) [28 Conn.L.Rptr. 227, ].
Merely as an example of this defendant's failure to prove the above finality of judgment requirements as well as an illustration of the repetitive claims being made by the defendant as to the court's lack of subject matter jurisdiction, the court notes the allegations of paragraph 9 of the August 4, 2014 Motion to Dismiss (#177.00). The defendant attaches to that Motion to Dismiss a copy of an Assignment of Mortgage dated March 10, 2008 and notes that this assignment was offered not only by the defendant to the trial judge when judgment entered June 2, 2008 but was accepted and reviewed by the prior trial court at the hearing on the earlier Motion to Dismiss. That very same March 10, 2008 Assignment of Mortgage was marked as Exhibit 4 in the evidentiary hearing before this court. Substantial trial time ensued concerning various issues as to the viability of the March 10, 2008 assignment. In his Motion to Dismiss (#177.00) in paragraph 18 the defendant claimed that the March 10, 2008 assignment " was a nullity." The Motion to Dismiss (#177.00) was denied by Judge Mintz on August 5, 2014 (#177.86). This court entered the initial judgment of foreclosure on June 2, 2008. This is virtually the same claim being made in the Motion to Dismiss (#188.00) now before this court, albeit for slightly different reasons, but for the same purpose.
This court cannot enumerate each of the claims that the defendant has placed before this court claiming that these deficiencies deprive this court of subject matter jurisdiction. There are dozens and dozens of claims; so many claims that it is an insurmountable effort for this court to discuss each and every reason in order to consider the finality of judgment principle for each of the myriad of legal and factual issues claimed.
This court finds that this lawsuit has been in judgment since June 2, 2008 (#103.00, #108.00). The law days were stayed on that first judgment and new law days were imposed on May 13, 2009 after the termination of the defendant's first bankruptcy filing (#110.00). Thereafter the defendant filed a second bankruptcy petition that stayed the law days in the May 13, 2009 judgment of strict foreclosure. On September 28, 2009 that second bankruptcy petition was dismissed. The plaintiff then filed its motion to establish new law days (#121.00). As already stated, motion #121.00 is still pending due to the defendant's repeated claims of lack of subject matter jurisdiction. The defendant's bankruptcy filings were under Title 11 of the United States Code thus invoking Gen. Stat. § 49-15(b). Only the law days are set aside when a postjudgment bankruptcy under Title 11 is filed according to Gen. Stat. § 49-15(b): " . . . provided, the provisions of such judgment, other than the establishment of the law days, shall not be set aside under this subsection." The defendant filed another bankruptcy petition on September 14, 2016, just over a month after the evidentiary hearing on this Motion to Dismiss (#219.00) concluded. The Bankruptcy Court terminated the automatic stay effective January 3, 2017, thus permitting this court to issue this Memorandum of Decision. The court finds that this litigation has been in judgment status since June 2, 2008.
The return date of this residential foreclosure is April 15, 2008. There are currently 3, 336 civil cases on the active civil docket in the Stamford/Norwalk judicial district. There are only 11 cases with return dates prior to April 15, 2008 in those 3, 336. This case is therefore older than over 99.5% of the Stamford civil cases.
This residential foreclosure matter went to judgment on June 2, 2008 (#103.00 and #108.00) and last went to judgment on May 13, 2009 (#110.00). No appeal has been filed from either of these judgments. The court finds that the instant Motion to Dismiss (#188.00) is a collateral attack on the judgment, now over six years old. Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 853-54, 74 A.3d 1192 (2013).
The court will discuss three of the myriad of subject matter jurisdiction claims made by the defendant: (1) The March 10, 2008 assignment is nullity; (2) The March 10, 2008 assignment refers to Magnus Financial Corporation when the original lender was First Magnus Financial Corporation, and (3) The plaintiff did not possess the Note on March 25, 2008 when this foreclosure litigation commenced. The court will discuss each of these three under the lens of our finality of judgment rules.
(1) The March 10, 2008 Assignment is a Nullity
The Assignment of Mortgage is dated March 10, 2008 and is from Mortgage Electronic Registration Systems, Inc. to the original plaintiff, The Bank of New York, as Trustee for the Benefit of CWALT, Inc. Alternative Loan Trust 2007-19 Mortgage Pass-Through Certificates, Series 2007-19. Ex. 4. The original mortgagee was Mortgage Electronic Registration Systems, Inc. See March 10, 2008 Complaint paragraph 2, Ex. 3. The correct name of the original plaintiff is set forth in the March 10, 2008 Assignment of Mortgage. Ex. 4. The borrower on the Note and sole mortgagor is Andrew Consiglio. Ex. 2, Ex. 3. The mortgage was dated May 7, 2007 and recorded in Volume 8982 of Page 3 of the Stamford Land Records. Ex. 3, March 10, 2008 Complaint paragraph 3. This is exactly what the Assignment of Mortgage states. Ex. 4. The only inaccuracy in the March 10, 2008 Assignment of Mortgage noted to this court was the name of the original lender. The lender was First Magnus Financial Corporation. Ex. 2, Ex. 3. The Assignment of Mortgage states the lender as: " Magnus Financial Corporation."
The court finds that the failure to use " First" in the description of the lender is a scrivener's error and this scrivener's error is insufficient to deprive the court of subject matter jurisdiction. The mortgage being assigned can be readily understood to be the mortgage now being foreclosed. Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 401, 655 A.2d 759 (1995); Gen. Stat. § 52-123.
Another Assignment of Mortgage dated September 20, 2011 was recorded on the Stamford Land Records from Mortgage Electronic Registration System, Inc. (MERS) to the substituted plaintiff. In this 2011 Assignment Mortgage the lender is correctly listed as " First Magnus Financial Corporation." The same book and page of the recording in the Stamford Land Records of the original Andrew Consiglio May 7, 2007 mortgage is set forth in the 2011 Assignment of Mortgage. Ex. 20.
Both the Note and the mortgage were the subject of the March 10, 2008 and September 20, 2011 assignments. Even if both assignments are not legally effective, the plaintiff can still foreclose. Fleet National Bank v. Nazareth, 75 Conn.App. 791, 794-95, 818 A.2d 69 (2003); Gen. Stat. § 49-17.
The court finds under the above circumstances, the claimed defective assignment is not " entirely obvious." Sousa v. Sousa, supra, 322 Conn. 773.
The court finds that the defendant, Andrew Consiglio, had the opportunity to litigate the question of jurisdiction in the original action which commenced on March 2008. This Motion to Dismiss is the sixth time that the defendant has challenged the plaintiff's standing.
The defendant has failed to identify a strong public policy for his continuation of the claim of lack of subject matter jurisdiction. The court cannot find such a strong public policy based on the evidence presented and the status of this litigation file. The court finds as follows:
This Motion to Dismiss is a collateral attack on the May 13, 2009 judgment of strict foreclosure. Weyher v. Weyher, III, 164 Conn.App. 734, 745-46, 138 A.3d 969 (2016).
The defendant did not contest the original jurisdiction of the court for the first six years and in that period filed two bankruptcy petitions acknowledging the mortgage debt. Ex. 7, Ex. 17, Ex. 21. The court finds that this is tantamount to the defendant's consenting to the court's jurisdiction. This foreclosure litigation is very old, older than 99.5% of the civil cases on the Stamford Court docket. The Return date is over eight years ago.
This is the sixth time the defendant has filed pleadings addressing lack of subject in the jurisdiction. A number of these motions have been duly heard and denied. One court specifically found that the plaintiff has standing (#177.86).
The defendant has not demonstrated any miscarriage of justice in the court's continuing jurisdiction. No other entity is claiming ownership of this Note or the right to foreclose this mortgage.
This claim of lack of standing in the main is technical and does not demonstrate any abuse of authority by this court to retain jurisdiction.
Finality of judgments in foreclosure cases is a preferred result. Foreclosure determines issues of title to real estate in a timely fashion. " Our Supreme Court has stated that 'as best we can determine, the legislature's purpose in enacting § 49-15 was . . . to set an orderly framework for a mortgagee's exercise of the equity of redemption . . . and " to ensure equitable foreclosure proceedings." First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 613, 785 A.2d 1148 (2001) " In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing." Suffield Bank v. Berman, 25 Conn.App. 369, 373, 594 A.2d 493 (1991).
The above are all of the critical considerations in determining finality of judgments. The court finds that the claimed defective March 10, 2008 Assignment of Mortgage does not deprive the court of subject matter jurisdiction
(2) The March 10, 2008 Assignment Refers to Magnus Financial Corporation When the Original Lender was First Magnus Financial Corporation
The March 10, 2008 complaint alleges that the lender was Magnus Financial Corporation three times in the first two paragraphs. Ex. 9. This court is not aware of any legal authority that states that it is deprived of subject matter jurisdiction due to a scrivener's error. The defendant has cited no such legal authority. A later mortgage assignment dated September 20, 2011 contains the original lender's correct name, First Magnus Financial Corporation. The court maintains jurisdiction even if there is a scrivener's error. Bayer v. Showmotion, Inc., 292 Conn. 381, 390-91, 973 A.2d 1229 (2009); (Reciting a 2005 quit date in a 2006 Notice to Quit, held scrivener's error); Gen. Stat. § 52-123 prevents lack of jurisdiction due to " circumstantial errors, mistakes or defects." " Courts have the equitable authority to reform contracts in some cases to reflect the true intentions of the parties to correct a scrivener's error . . . RAL Management, Inc. v. Valley View Associates, 102 Conn.App. 678, 682-83, 926 A.2d 704 (2007). " Each case above clearly involved misnomers where the person and the cause could still be rightly understood and intended by the court." First Franklin Financial Corporation v. Davis, Superior Court, judicial district of New Britain, Docket Number HHB CV05-4007055 S (March 24, 2006, Shaban, J.) [41 Conn.L.Rptr. 111, ].
The court finds under the above circumstances, the claimed defective assignment is not " entirely obvious." Sousa v. Sousa, supra, 322 Conn. 773.
The court finds that the defendant, Andrew Consiglio, had the opportunity to litigate the question of jurisdiction in the original action which commenced on March 2008. This Motion to Dismiss is the sixth time that the defendant has challenged the plaintiff's standing.
The defendant has failed to identify a strong public policy for his continuation of the claim of lack of subject matter jurisdiction. The court cannot find such a strong public policy based on the evidence presented and the status of this litigation file. The court finds as follows:
This Motion to Dismiss is a collateral attack on the May 13, 2009 judgment of strict foreclosure. Weyher v. Weyher, III, 164 Conn.App. 734, 745-46, 138 A.3d 969 (2016).
The defendant did not contest the original jurisdiction of the court for the first six years and in that period filed two bankruptcy petitions acknowledging the mortgage debt. Ex. 7, Ex. 17, Ex. 21. The court finds that this is tantamount to the defendant's consenting to the court's jurisdiction.
This foreclosure litigation is very old, older than 99.5% of the civil cases on the Stamford Court docket. The Return date is over eight years ago.
This is the sixth time the defendant has filed pleadings addressing lack of subject in the jurisdiction. A number of these motions have been duly heard and denied. One court specifically found that the plaintiff has standing (#177.86).
The defendant has not demonstrated any miscarriage of justice in the court's continuing jurisdiction. No other entity is claiming ownership of this Note or the right to foreclose this mortgage.
This claim of lack of standing in the main is technical and does not demonstrate any abuse of authority by this court to retain jurisdiction.
Finality of judgments in foreclosure cases is a preferred result. Foreclosure determines issues of title to real estate in a timely fashion. " Our Supreme Court has stated that 'as best we can determine, the legislature's purpose in enacting § 49-15 was . . . to set an orderly framework for a mortgagee's exercise of the equity of redemption . . . and " to ensure equitable foreclosure proceedings." First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 613, 785 A.2d 1148 (2001) " In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing." Suffield Bank v. Berman, 25 Conn.App. 369, 373, 594 A.2d 493 (1991).
The above are all of the critical considerations in determining finality of judgments. The court finds that the claimed defective March 10, 2008 Assignment of Mortgage does not deprive the court of subject matter jurisdiction
(3) The Plaintiff Did Not Possess the Note on March 25, 2008 When This Foreclosure Litigation Commenced
The operative complaint is dated March 10, 2008. The Return Date is April 15, 2008. The Return of Service in the court file is dated March 26, 2008. The Return of Service states that service on the defendant, Andrew Consiglio, was made on March 25, 2008. The court finds that this residential foreclosure action commenced on March 25, 2008. Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 729, 732 A.2d 200 (1999); Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996).
No statute or case law requires the documentary proof of the note possession. Thus any claimed violation of Note possession as of the commencement of foreclosure is not entirely obvious. Here the action was commenced over seven years ago. Twice this court entered judgment; Judge Tierney in 2008 and Judge Mintz in 2009. On both occasions, these judges, experienced in deciding foreclosure cases, no doubt viewed the original blue ink Note. This court viewed the blue ink Note on August 9, 2016, the first day of testimony in the hearing on this Motion to Dismiss. This court returned the blue ink Note to plaintiff's counsel from whence it came. Possession by plaintiff's counsel, the attorney of record for the plaintiff, is possession by the plaintiff. Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 507, 4 A.3d 288 (2010). The March 10, 2008 assignment, even if not fully correct, demonstrates an intent by the original lender to convey the lender's interest in the loan to the plaintiff. It is dated fifteen days prior to the commencement of this litigation. The March 10, 2008 Assignment assigns both the Note and the mortgage. Ex. 4. The Return of Service is dated March 25, 2008. Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004). The affidavit verifies possession of the Note in 2007 by the plaintiff. Ex. 6. " It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt." U.S. Bank National Association v. Schaeffer, 160 Conn.App. 138, 150, 125 A.3d 262 (2015). The defendant has not demonstrated that there is in fact an entity known as Magnus Financial Corporation. Ex. 13. The plaintiff has demonstrated the scrivener's error nature of the failure to place the word " First" before the lender's name. The defendant had the opportunity to litigate this issue years ago. There is no strong public policy shown to this court that it must consider this argument in light of the myriad of issues raised by the defendant.
The court finds under the above circumstances, the claimed defective assignment is not " entirely obvious." Sousa v. Sousa, supra, 322 Conn. 773.
The court finds that the defendant, Andrew Consiglio, had the opportunity to litigate the question of jurisdiction in the original action which commenced on March 2008. This Motion to Dismiss is the sixth time that the defendant has challenged the plaintiff's standing.
The defendant has failed to identify a strong public policy for his continuation of the claim of lack of subject matter jurisdiction. The court cannot find such a strong public policy based on the evidence presented and the status of this litigation file. The court finds as follows:
This Motion to Dismiss is a collateral attack on the May 13, 2009 judgment of strict foreclosure. Weyher v. Weyher, III, 164 Conn.App. 734, 745-46, 138 A.3d 969 (2016) The defendant did not contest the original jurisdiction of the court for the first six years and in that period filed two bankruptcy petitions acknowledging the mortgage debt. Ex. 7, Ex. 17, Ex. 21. The court finds that this is tantamount to the defendant's consenting to the court's jurisdiction. This foreclosure litigation is very old, older than 99.5% of the civil cases on the Stamford Court docket. The Return date is over eight years ago.
This is the sixth time the defendant has filed pleadings addressing lack of subject in the jurisdiction. A number of these motions have been duly heard and denied. One court specifically found that the plaintiff has standing (#177.86).
The defendant has not demonstrated any miscarriage of justice in the court's continuing jurisdiction. No other entity is claiming ownership of this Note or the right to foreclose this mortgage.
This claim of lack of standing in the main is technical and does not demonstrate any abuse of authority by this court to retain jurisdiction.
Finality of judgments in foreclosure cases is a preferred result. Foreclosure determines issues of title to real estate in a timely fashion. " Our Supreme Court has stated that 'as best we can determine, the legislature's purpose in enacting § 49-15 was . . . to set an orderly framework for a mortgagee's exercise of the equity of redemption . . . and " to ensure equitable foreclosure proceedings." First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 613, 785 A.2d 1148 (2001) " In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing." Suffield Bank v. Berman, 25 Conn.App. 369, 373, 594 A.2d 493 (1991).
The above are all of the critical considerations in determining finality of judgments. The court finds that the claim that the plaintiff did not possess the Note on March 25, 2008 does not deprive the court of subject matter jurisdiction.
The court finds that the denial of this Motion to Dismiss (#188.00) is a textbook example of the proper application of the principle of finality of judgments. 418 Meadow Street Association, LLC v. Levine, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 07-5012777 S (October 4, 2010, Dooley, J.) [50 Conn.L.Rptr. 736, ].
The court denies the Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction dated March 13, 2016 (#188.00).