Opinion
No. CV07 600 14 26
June 10, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#165)
The defendant, Kenneth Coley, has moved to dismiss this foreclosure complaint based on lack of subject matter jurisdiction.
On July 23, 2007, the plaintiff, U.S. Bank, initiated this foreclosure action against the defendant, Kenneth Coley, and alleged the following facts. The defendant and Jeanette Coley owned real property situated at 40 Ermine Street in Fairfield, Connecticut. On or about December 29, 2004, they executed and delivered a note for a loan in the original principal amount of 000 to Finance America, LLC. To secure this note, they executed and delivered a mortgage to "Mortgage Electronic Registration Systems, Inc. as Nominee for Finance America, LLC." The mortgage was recorded on January 4, 2005 in the Fairfield land records. By virtue of an assignment of mortgage to be recorded in the Fairfield land records, the plaintiff was assigned the mortgage as a "Successor-In-Interest to Wachovia Bank, NA as Indenture Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-A6." The plaintiff alleges that it is a holder of the note and mortgage. The defendant defaulted on this note and mortgage. The plaintiff has elected to accelerate the balance due on the note, declare the note to be due in full and to foreclose the mortgage securing the note.
The plaintiff's full name is "U.S. Bank National Association, Successor-In-Interest to Wachovia Bank, National Association as Indenture Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2005-A6."
There are two nonappearing defendants involved in this matter: Jeanette Coley and Wells Fargo Bank, N.A. For purposes of this decision, "the defendant" refers only to Kenneth Coley.
A judgment of strict foreclosure was entered against the defendant on March 30, 2009. This judgment has subsequently been opened, modified and reentered several times, most recently on May 17, 2011. On December 8, 2008, the court (Doherty, J.) granted the plaintiff's motion for summary judgment, in which the plaintiff relied on the affidavit of Jeffrey Stephan, an agent of the plaintiff. On December 2, 2010, the plaintiff filed a motion to ratify summary judgment. In support of its motion to ratify, the plaintiff proffered the affidavit of William Kropp, a "Bank Reconciliation Staff Accountant of GMAC Mortgage LLC," the loan servicing agent of the plaintiff. The court granted the motion to ratify on January 14, 2011 (Hartmere, J.).
On March 3, 2011, the defendant filed the present motion to dismiss on the ground that the plaintiff lacks standing to pursue this foreclosure action. A day later, he filed a memorandum of law in support thereof. On March 10, 2011, the plaintiff filed an objection to the motion. The court heard oral argument and held an evidentiary hearing on April 15, 2011.
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.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "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). "[I]t 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." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009). "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).
"Additionally, a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery 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 action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, 125 Conn.App. 201, 205, 9 A.3d 379 (2010), cert. granted in part, 300 Conn. 936 A.3d (2011). When the issue of standing is raised by a mortgagee against a foreclosing mortgagor, "due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Id. A party that does not own the note secured by the mortgage lacks standing to foreclose on the mortgage. Fleet National Bank v. Nazareth, 75 Conn.App. 791, 794-95, 818 A.2d 69 (2003).
The defendant argues that the plaintiff lacks standing to bring this foreclosure action. He argues that the assignment submitted by the plaintiff was defective because it was signed by Jeffrey Stephan, who admitted in another case "that [he] routinely signed foreclosure affidavits without personal knowledge of the information stated in the affidavit, and without personally appearing before the attesting notary . . ." (Memorandum of Law in Support of Motion to Dismiss, p. 6.) The defendant continues to state that the plaintiff's only evidence is "documentary evidence of a defective assignment of Stephan and testimonial evidence of the false affidavit of Stephan . . ." (Memorandum of Law in Support of Motion to Dismiss, p. 9.) Thus, the defendant argues that the plaintiff has not submitted any "competent evidence" establishing that the note and mortgage were assigned to it. The defendant argues that the plaintiff offers no proof that the defendant's loan is among the loans listed in the pooling and service agreement submitted by the plaintiff. Last, the defendant argues that the plaintiff was not the owner and holder of the note at the time it commenced this action.
The plaintiff argues that the assignment was properly executed. Even if the assignment was defective, the plaintiff argues that it need only have possession of the note to be able to foreclose; the plaintiff produced the original note for the court when judgment of foreclosure was entered. The plaintiff further argues that it had possession of the note and mortgage before it commenced the present action. Thus, the plaintiff contends that the note was specifically endorsed under General Statutes § 42a-3-104 and is enforceable since the plaintiff is a holder.
"In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party] ha[s] to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that [the mortgagee] had defaulted on the note." (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003). In the present matter, the defendant does not dispute that he defaulted on the note. The court must therefore determine whether the plaintiff was the owner of the note and mortgage at the time it commenced this action.
The plaintiff produced a copy of the note and mortgage on May 23, 2008, attached to its motion for summary judgment. This demonstrates that the plaintiff had possession of the note and mortgage as of that date, but does not indicate that the plaintiff had such possession before it commenced this action. Next, the plaintiff attached a copy of the "Assignment of Mortgage" to its motion to ratify summary judgment. The assignment specifically references that the property subject to assignment is: "40 Ermine Street, Fairfield, CT 06824, Coley, Kenneth." The assignment clearly provides that the plaintiff would be entitled to enforce the note and mortgage. The assignment, however, is signed and dated December 7, 2007. The plaintiff commenced this action on July 23, 2007, approximately four months before this assignment was signed. The assignment does not establish that the plaintiff had possession of the note and mortgage prior to commencement of this action.
The plaintiff argues that it gained physical possession of the note and mortgage via a pooling and servicing agreement dated September 16, 2005. The plaintiff was not a party to the pooling and servicing agreement; rather, Wachovia Bank became the trustee under this agreement. The plaintiff does not explain how, under an agreement to which it was not a party, it could have acquired physical possession of the subject note and mortgage. Put simply, the plaintiff has failed to proffer evidence demonstrating that it had possession of the note and mortgage before it commenced this foreclosure action.
The plaintiff proffered a full copy of the pooling and servicing agreement at the evidentiary hearing held on April 15, 2011, which the court accepted as a full exhibit. This agreement is entitled, "POOLING AND SERVICING AGREEMENT MERRILL LYNCH MORTGAGE INVESTORS, INC./Depositor/WACHOVIA BANK, NATIONAL ASSOCIATION/Trustee/and/WELLS FARGO BANK, N.A./Master Servicer and Securities Administrator/POOLING AND SERVICING AGREEMENT/DATED AS OF AUGUST 1, 2005/MERRILL LYNCH MORTGAGE INVESTORS TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005-A6."
The Court concludes that the plaintiff has not submitted sufficient evidence to demonstrate that it had physical possession of the note and mortgage at the time it commenced the present action. The plaintiff bears the burden of proving its standing. See, e.g., Park National Bank v. 3333 Main, LLC, 127 Conn App. 774, 779, 15 A.3d 1150 (2011).
Based on the foregoing, the defendant's Motion to Dismiss is granted.