Summary
taking judicial notice of business address of limited liability company
Summary of this case from Kloiber v. JellenOpinion
CV176011564S
09-13-2018
NATIONSTAR MORTGAGE, LLC dba Champion Mortgage Co. v. Ralph SERVER, Jr. et al.
UNPUBLISHED OPINION
OPINION
Sizemore, Judge
The plaintiff, Nationstar Mortgage LLC of Dallas, Texas has commenced the present foreclosure action by summons and complaint dated November 14, 2017, concerning real property located at 1210 Durham Road, Wallingford, Connecticut. This is a second foreclosure matter involving these two same parties.
The first foreclosure matter was known as Nationstar Mortgage, LLC v. Server, Judicial District of New Haven at Meriden, Docket No. CV-15-6008087-S. In that Complaint dated February 15, 2015, the plaintiff alleged that the defendant had defaulted on his obligations under the note and mortgage. The previous matter was dismissed for dormancy on July 24, 2017, as the plaintiff had failed to comply with the foreclosure docket management program. The plaintiff filed a Motion to Open Judgment on August 9, 2017, which was denied by the court, (August 21, 2017, Cronan, J.). No pleadings were filed by either party after August 21, 2017, in the first foreclosure action. In this second foreclosure matter, the plaintiff brings suit concerning the same loan and mortgage, the same default and the same property by Summons and Complaint dated November 14, 2017.
The defendant, Server has filed a series of multiple pretrial motions in this second foreclosure matter since November 2017. Those include a Motion to Dismiss dated December 11, 2017 (# 104); Motion to Dismiss dated January 18, 2018 (# 109); Motion for Sanctions dated January 23, 2018 (# 112); Motion to Dismiss dated February 2, 2018 (# 115); Motion to Dismiss dated April 23, 2018 (# 118); Motion to Strike dated August 8, 2018 (# 127) and the current Motion to Dismiss dated August 17, 2018 (# 129).
In all prior pretrial motions, the court considered the arguments, briefs and evidentiary proof filed by the defendant and ruled against him thereby denying all pretrial motions on the merits by written court decisions.
In the current Motion to Dismiss (# 129) dated August 17, 2018 before the court, the defendant argues that the court lacks subject matter jurisdiction because the court lacks standing over the plaintiff Nationstar Mortgage, LLC for its alleged failure to register as a d/b/a with the Connecticut Secretary of State.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." Connecticut Practice Book Section 10-30 et seq.; St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
"It is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... 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.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
"It is well established Connecticut law that the Superior Court has jurisdiction to hear and to decide foreclosure actions ..." LoRicco Towers Condominium Assn. v. Pantani, 90 Conn.App. 43, 48, 876 A.2d 1211, cert. denied, 276 Conn. 925, 888 A.2d 93 (2005).
This court reviewed the plaintiff’s supporting brief and cited cases, and it can find no legal or evidentiary basis for the granting of this Motion to Dismiss.
First, the previous court by written decision dated July 12, 2018, had already considered this standing issue and had already ruled against the defendant and found the court had subject matter jurisdiction over this foreclosure. And second, even if the court considers the merits of the defendant’s current argument, there is no legal support for the claim of lack of standing.
Specifically, the defendant in the previous Motion to Dismiss dated February 2, 2018 (# 115) claimed that the court lacked subject matter jurisdiction because the plaintiff lacked legal capacity and standing to bring this foreclosure action. The plaintiff filed objections to that motion and opposing memorandum of law. The court, (Harmon, J.) heard oral argument on April 23, 2018 at which the defendant Server presented testimony and evidence in support of the Motion to Dismiss.
By Memorandum of Decision dated July 12, 2018, the court denied the Motion to Dismiss on several grounds including the standing issue. The court clearly stated as follows on page 4 of that Memorandum of Decision:
The defendant has failed to provide proof to rebut the plaintiff’s presumption of ownership of the debt and therefore plaintiff may rest its standing to foreclose on its status as valid holder of the note, endorsed in blank. Citing U.S. Bank, N.A. v. Schaeffer, 160 Conn.App. 138, 125 A.3d 262 (2015).
Furthermore, the court also held and ordered at page 6 of its decision as follows: "The court has subject matter jurisdiction to hear this foreclosure. Defendant is to file the appropriate answer and any applicable special defenses so the matter may proceed to trial ." Instead of following that court order, the defendant proceeded to file two more pretrial motions in the Motion to Strike dated August 8, 2018 and this subject Motion to Dismiss dated August 17, 2018.
In addition, even if the court were to consider the merits of this Motion to Dismiss, the defendant has not proven any evidentiary or legal support for the claim of lack of subject matter jurisdiction. The court takes judicial notice that the entity known as Nationstar Mortgage LLC is listed as an active legal entity registered with the Connecticut Secretary of State located with a business address of 8950 Cypress Waters Blvd., Dallas, Texas 75019.
And the case cited by the defendant, in Century 21 Access America v. McGregor-McLean, 39 Conn.L.Rptr. 639 (July 20, 2005, Doherty, J.) is not binding on this court as judicial precedent as an unpublished trial court decision; and more importantly, the decision is factually distinguishable from the current foreclosure. In the Century 21 matter, the plaintiff brought suit in a trade name only and not by any active legal entity name. In this instance, Nationstar Mortgage, LLC is clearly an active legal entity despite the additional reference to Champion Mortgage Company in its pleadings as a d/b/a.
There is no standing issue and the court has subject matter jurisdiction over this foreclosure.
ORDER
Therefore, based on the court’s review of the Motion to Dismiss and supporting Memorandum of Law and based on the oral argument presented by the defendant on September 11, 2018, the court DENIES this Motion to Dismiss (# 129).
Further, given the court order from Judge Hannon already issued to defendant by the Memorandum of Decision dated July 12, 2018, this court reaffirms that order, and again orders that the defendant must file the appropriate Answer and any applicable Special Defenses within 30 days of this court decision, otherwise the plaintiff may move to enter a Judgment of Default for failure to plead.
The defendant’s continued filing of pretrial motions is causing an unnecessary delay of this foreclosure proceeding.