Opinion
KNLCV146022727S
07-25-2017
Wilmington Trust Company v. Herbert H. Bachelder, Jr
UNPUBLISHED OPINION
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS, #157
Hon. John J. Nazzaro, J.
On November 25, 2014, the plaintiff, Wilmington Trust Company, commenced this foreclosure action against the defendant, Herbert Bachelder, Jr. In the complaint, the plaintiff alleges the following facts. The defendant executed a note on March 8, 2005, owed to Homebridge Mortgage Bankers Corporation for $103,000 and the note was later assigned to Wilmington Trust Company on May 9, 2014. The note and mortgage has an unpaid balance of $86,432.27, plus interest from August 1, 2009. The note and mortgage are now in default as a result of the defendant's nonpayment of the monthly installments due on September 1, 2009, and each and every month thereafter. The plaintiff is the holder of the note and mortgage, and as a result of the default, the plaintiff has exercised its option to declare the entire unpaid balance due. On February 8, 2017, the defendant filed a motion to dismiss (#157) the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over the claim based on an error in a letter from the loan servicer. The defendant filed a memorandum of law in support of the motion, an affidavit signed by the defendant, and a copy of a letter from Ocwen Loan Servicing, LLC, dated January 24, 2017. On March 22, 2017, the plaintiff filed an objection to the defendant's motion to dismiss (#158), accompanied by a copy of a letter dated March 8, 2017, from Ocwen to the defendant. On April 18, 2017, the defendant filed a reply to the plaintiff's objection (#162), which was accompanied by letters from Ocwen, including the letter dated March 8, 2017. The defendant's motion to dismiss was first argued before this court on May 25, 2017. The court continued the matter for further argument, which was heard on June 13, 2017.
The action was instituted against the defendant by the plaintiff, " Wilmington Trust Company Not in its Individual Capacity But Solely as a Successor Trustee to U.S. Bank, National Association, As Trustee, for MASTR Alternative Loan Trust 2005-5."
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). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" [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). " If . . . the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
The defendant argues that the plaintiff's claim should be dismissed because the plaintiff does not own the note and mortgage, and, thus, the plaintiff lacks standing to foreclose the subject property. Specifically, the defendant argues that a letter from Ocwen Loan Servicing, LLC (Ocwen), dated January 24, 2017, erroneously lists the owner of the note and mortgage as " Wilmington Trust Company Not in Its Individual Capacity But Solely As a Successor Trustee to U.S. Bank, National Association, As Trustee, For MASTR Alternative Loan Trust 2005-6" rather than " Wilmington Trust Company Not in Its Individual Capacity But Solely As a Successor Trustee to U.S. Bank, National Association, As Trustee, For MASTR Alternative Loan Trust 2005-5." The plaintiff contends that " 2005-6" is a mere scrivener's error that does not deprive the court of subject matter jurisdiction over its claim against the defendant.
Connecticut law is clear that a scrivener's error will not abrogate subject matter jurisdiction if the error is merely circumstantial. General Statutes § 52-123 provides: " No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." Applying this statute to an alleged defect in a notice to quit the premises, our Supreme Court stated that, " [§ ]52-123 is a remedial statute [that] . . . must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 389, 973 A.2d 1229 (2009). " In invoking § 52-123, this court has explained: [i]t is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects . . . Indeed § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties." (Internal quotation marks omitted.) Id., 390. " When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant." (Internal quotation marks omitted.) Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 398, 655 A.2d 759 (1995).
When determining if a defect is merely circumstantial rather than substantive, " courts have considered . . . whether the defendant had actual notice of the institution of an action and whether the defendant was in any way misled to its prejudice." Bayer v. Showmotion, Inc., supra, 292 Conn. 391. In Bayer, the court addressed whether a defect in the notice to quit deprived the court of subject matter jurisdiction where the notice to quit listed the date as March 25, 2006, and not March 25, 2005. There, the Supreme Court affirmed the trial court's denial of the motion to dismiss on the basis that the wrong date was a circumstantial defect based on a scrivener's error. Id., 392. The court noted that the defendant had actual notice of the action and the date on which he was requested to vacate, and, therefore, the trial court properly assumed jurisdiction over the plaintiff's complaint. Id.
Similarly, in the present case, that the January 24, 2017 letter from Ocwen to the defendant provides the investor as " Wilmington Trust Company Not in Its Individual Capacity But Solely As a Successor Trustee to U.S. Bank, National Association, As Trustee, For MASTR Alternative Loan Trust 2005-6, " rather than " 2005-5, " will not affect this court's subject matter jurisdiction over the plaintiff's claim as it is a minor circumstantial defect. The defendant had actual notice that the plaintiff was proceeding with the foreclosure action, given that the plaintiff's full name was provided in the complaint and identical to the name provided in the letter, with the exception of the number differing by one digit. See Bayer v. Showmotion, Inc., supra, 292 Conn. 392. Additionally, in the March 8, 2017 letter to the defendant, Ocwen explained the previous error and provided that the correct name of the investor for the defendant's account is " Wilmington Trust Company, as Trustee, for MASTR Alternative Loan Trust 2005-5." Furthermore, the plaintiff's name, accompanied by the number 2005-5, is located on the complaint, which was, according to the marshal's return of service, served on the defendant at his usual place of abode on November 24, 2014. That the number associated with the investor of the defendant's account was off by one digit due to an admitted scrivener's error in a letter from the servicer to the defendant, and subsequently corrected by the servicer with notice to the defendant, will not deprive this court of subject matter jurisdiction to adjudicate the plaintiff's claim.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied. By the same token, the objection to the motion is sustained.
It is so ordered.