Opinion
FSTCV166028759S
02-27-2017
Deutsche Bank National Trust Company as Trustee et al. v. Paul Juchniewich et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S JUNE 16, 2016 MOTION TO DISMISS (#106.00)
HON. KEVIN TIERNEY, JUDGE TRIAL REFEREE.
This motion gives the court the opportunity to discuss the defendant's standard of proof in prosecuting a Motion to Dismiss in this residential foreclosure action. To date the appellate courts of Connecticut have stated what the plaintiff's standard of proof is when a defendant's Motion to Dismiss claims that the court lacks subject matter jurisdiction: " Standing requires no more than a colorable claim of injury: a party ordinarily establishes . . . standing by allegations of injury." Electrical Contractors, Inc. v. Department of Education, 303 Conn. 402, 411, 35 A.3d 188 (2012). The appellate courts have not set forth the defendant's standard of proof. This court concludes that it is a heightened standard of proof. Konover Development Corporation v. Zeller, 228 Conn. 206, 228-29, 635 A.2d 798 (1994).
The court makes the following finds of facts and legal conclusions:
The plaintiff, Deutsche Bank National Trust Company, as Trustee for WAMU Mortgage Pass-Through Certificates Series 2005-AR2, commenced this residential foreclosure action by a one-count complaint dated May 18, 2016, the operative complaint, as against Paul Juchniewich and Allison Juchniewich for real property at 26 Neptune Avenue, Norwalk, Connecticut. Both individual defendants appeared self-represented. Neither availed themselves of mediation. Other than the routine filing of the Return of Service, Affidavit Federal Loss Mitigation Programs, Affidavit Foreclosure by Market Sale Notice, and the plaintiffs' and court's mediation notices, the first substantive pleading in the file was this twelve-page June 16, 2016 Motion to Dismiss filed by the defendant, Paul Juchniewich, alone. The self-represented defendant, Allison Juchniewich, did not sign nor claim to be a party to the Motion to Dismiss. Five exhibits were attached to the Motion to Dismiss: a November 28, 2012 Assignment of Mortgage, the history of Washington Mutual Bank published by the National Information Center, a Motion to Substitute Party Plaintiff dated March 15, 2013 filed in the previous mortgage foreclosure action that addressed the same note, mortgage and real property, a copy of one page from the plaintiff's Memorandum of Law in the previous foreclosure action on this mortgage with the following language underlined: " The original Plaintiff, JP Morgan Chase, Bank, N.A., was and the present Plaintiff is currently, the holder of the Note and Mortgage and can provide the originals to the Court at the time of Judgment, " and an EMAP letter dated September 8, 2010 from Chase Home Finance, LLC addressed to Paul Juchniewich for 26 Neptune Avenue, Norwalk, Connecticut pursuant to Gen. Stat. § 8-265cc et seq.
The prior mortgage foreclosure action was commenced on February 16, 2012 by the then plaintiff, JP Morgan Chase Bank, National Association, as against the individual defendants, Paul Juchniewich and Allison Juchniewich. The prior action was pending in the judicial district of Stamford/Norwalk, Docket Number FST CV 12-6013000 S. The defendant, Paul Juchniewich, representing himself, filed an Answer on May 3, 2012 (#107.00). The plaintiff filed a Motion to Substitute Party Plaintiff on March 15, 2013 (#111.00), the very motion attached to the current Motion to Dismiss. That Motion sought to substitute in this current foreclosure action, plaintiff, Deutsche Bank National Trust Company as Trustee for WAMU Mortgage Pass-Through Certificate Series 2005-AR2. That motion was never acted on by the court. For some unknown reason the plaintiff in that prior foreclosure action withdrew motion #111.00 on January 24, 2014 (#114.00). Thereafter the court on its own motion dismissed the prior foreclosure action pursuant to its dormancy program on September 11, 2014. Practice Book § 14.3, (#115.55). The plaintiff filed various motions thereafter to no avail. The court denied the plaintiff's December 3, 2014 Motion to Open Judgment and Set Aside Judgment of Dismissal on February 9, 2015 (#116.01). No pleadings were filed by either party after February 9, 2015 in the prior foreclosure action. This prior foreclosure action was not pending when this current foreclosure action was commenced. Bayer v. Showmotion, Inc., 292 Conn. 381, 397, 973 A.2d 1229 (2009).
This Motion to Dismiss was assigned to the undersigned on September 6, 2016, who assigned a hearing for January 5, 2017 (#106.01). This court held a one-day evidentiary hearing on January 5, 2017 on this Motion to Dismiss (#106.00). The plaintiff offered four exhibits marked Exhibits 1, 2, 3 and 4: a photocopy of the blue ink Adjustable Rate Note dated November 12, 2004 for $282,750 from Paul Juchniewich, as Borrower, and Washington Mutual Bank, FA, as lender, a certified copy of the Open-End Mortgage Deed from Paul Juchniewich and Allison Juchniewich to Washington Mutual Bank, F.A. for $282,750 recorded in the Norwalk Land Records, a certified copy of the Assignment of Mortgage from JP Morgan Chase Bank, National Association successor in interest by purchase from the FDIC as Receiver of Washington Mutual Bank f/k/a Washington Mutual Bank, F.A. to the named plaintiff dated November 28, 2012, duly recorded in the Norwalk Land Records, and a photocopy of the first page of the Adjustable Rate Note with a circular imprint on the top and a yellow sticker dated November 19, 2010 on the back of the first page. The plaintiff presented the blue ink Adjustable Rate Note to the court and defendant along with the photocopy thereof for an in court inspection. It was endorsed in blank. After the inspection concluded, the court marked the photocopy of the Adjustable Rate Note as Exhibit 1 and returned the blue ink Adjustable Rate Note to plaintiff's counsel. No witnesses were offered by the plaintiff. The plaintiff then rested.
The defendant, Paul Juchniewich, testified. He offered two exhibits marked Exhibit 5 and 6: the history of Washington Mutual Bank, which was filed in plaintiff's pleading #121.00 as Exhibit C in the prior foreclosure action and is the same as the National Information Center history attached to defendant's Motion to Dismiss, and the March 15, 2013 Motion to Substitute Party Plaintiff in the prior foreclosure action (#111.00), a copy of which was also attached to his Motion to Dismiss. The defendant, Allison Juchniewich, did not appear at the January 5, 2017 hearing.
The defendant supported his Motion to Dismiss with essentially two claims: the statute of limitations has expired and the plaintiff had no standing to commence and has no standing to maintain this foreclosure action. As to standing, the twelve-page Motion to Dismiss seem to claim what this court can discern are nineteen separate claims of lack of standing.
As to the statute of limitations issue, the defendant has not filed an Answer or any Special Defense. In the main a statute of limitations defense should be filed as a Special Defense. P.B. § 10-50, Avon Meadow Condominium Association, Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 694, 719 A.2d 66 (1998).
" When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." P.B. § 10-3(a). The defendant claims that " the Connecticut Six-year Statute of Limitations on Contracts has expired." (#106.00, 7th page, Chapter II.) That statute was not cited. In lieu thereof, the defendant cites Halsbury's Laws of England, 4th edition. The defendant failed to cite the volume and page of Halsbury's Laws of England. Singh v. Singh, 213 Conn. 637, 647, 569 A.2d 1112 (1990). The defendant is not relying on Gen. Stat. § 52-576(a): " No action for an account or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section." The court will not further discuss Gen. Stat. § 52-576(a) since the defendant is not proceeding under the statutory provisions of Gen. Stat. § 52-576.
The defendant cites Gen. Stat. § 42a-3-118(a) as the applicable statute of limitations: " Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date." Subsection (e) relates only to a certificate of deposit, and this subsection (e) is not relevant to the issues before this court. The defendant argues that the last monthly payment made as alleged in the plaintiff's complaint, May 2010, was more than six years ago and thus this foreclosure action is barred by Gen. Stat. § 42a-3-118(a). The complaint does not contain the date of non-payment. There was no evidence before this court that the nature of the default was for non-payment of a periodic payment nor was there any evidence of any date of non-payment. There was no evidence of acceleration or the mention of any date of acceleration of the note. The defendant has not offered sufficient evidence thereof, even if this was a simple lawsuit on a note and not an equitable mortgage foreclosure action.
Common law provides that a note that contains a maturity date is due only on its maturity date or earlier accelerated date. Curtis v. Smith, 75 Conn. 429, 431, 53 A. 902 (1903).
The Adjustable Rate Note in this file has a maturity date of December 1, 2034. Ex. 1, paragraph 3(A). That date has not yet passed. There was insufficient information introduced at the hearing on the Motion to Dismiss for the court to determine if an earlier acceleration of the note occurred, the date of that earlier acceleration, and its relationship to the date of the commencement of this foreclosure action. The Return of Service in the court file demonstrates that this foreclosure lawsuit was commenced on May 23, 2016. Paragraph 5 of the complaint alleges that the note is in default and the plaintiff has elected to accelerate the debt. The nature of the default is not alleged. The date of the last payment on the note is not alleged. The date of acceleration is not alleged. The date of the acceleration notice is not alleged. None of these dates are before this court.
Whether or not a lawsuit on a note can be brought more than six years after the defendant's failure to make a periodic payment due on the note, has already been determined by our courts. Fleet National Bank v. Lahm, 86 Conn.App. 403, 407, 861 A.2d 545 (2004). In Lahm the defendant signed a $25,000 note on July 28, 1993 that required periodic payments. The note's due date was August 1, 2000. The defendant failed to make the December 1, 1995 periodic payment. The plaintiff filed suit on April 25, 2002, more than six years beyond the December 1, 1995 non-payment. The defendant invoked Gen. Stat. § 42a-3-118(a). The court rejected that claim and found that the plaintiff could have elected to accelerate after December 1, 1995 but did not. Thus the April 25, 2002 action on the note was brought within six years from the note's maturity date of August 1, 2000. Id., 409. Lahm was not a foreclosure action, but a lawsuit on a note that was not secured by a mortgage.
The running of the statute of limitations does not deprive the court of subject matter jurisdiction. Williams v. Commission Human Rights and Opportunities, 257 Conn. 258, 271, 777 A.2d 645 (2001). Gen. Stat. § 42a-3-118(a) does not contain strong mandatory language sufficient to deprive the court of subject matter jurisdiction. Id., 271-72.
A foreclosure action is an equitable proceeding. Citicorp Mortgage, Inc. v. Conant, 54 Conn.App. 529, 532, 736 A.2d 928 (1999). Statutes of limitation do not bar foreclosure actions. Federal Deposit Insurance Corporation v. Owen, 88 Conn.App. 806, 814-15, 873 A.2d 1003 (2005); Markham v. Smith, 119 Conn. 355, 358, 176 A. 880 (1935); Belknap v. Gleason, 11 Conn. 160, 161 (1836).
For the above reasons this mortgage foreclosure is not barred by the statute of limitations regarding negotiable notes, the cited Gen. Stat. § 42a-3-118(a). The defendant's Motion to Dismiss (#106.00) addressed to Gen. Stat. § 42a-3-118(a) is denied.
The court now turns to the standing issues.
The plaintiff proffered the blue ink Adjustable Rate Note in court for examination by the defendant and the court at the January 5, 2017 evidentiary hearing. The blue ink Adjustable Rate Note was returned to plaintiff's counsel after examination. Exhibit 1, a photocopy of the blue ink Adjustable Rate Note, was allowed in evidence. See also Exhibit 4. The note was endorsed in blank. Ex. 1, at page 6 of 6. This procedure satisfy the court's inspection obligation. Equity One, Inc. v. Shivers, 310 Conn. 119, 124-25, 74 A.3d 1225 (2013); Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 43-44, 75 A.3d 38 (2013), cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).
" The plaintiff ultimately bears the burden of establishing standing." Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 398, 89 A.3d 392 (2014); Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742 (2005).
The issue of standing implicates [the] court's subject matter jurisdiction . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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 . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 567-68, 775 A.2d 284 (2001). Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing. Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, [the standard of] review is plenary. (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009). Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. (Internal quotation marks omitted.) St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 809 12 A.3d 852 (2011). Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008).
Very recently this court summarized the jurisprudence with respect to standing in foreclosure matters in U.S. Bank, National Ass'n v. Schaeffer, 160 Conn.App. 138, 125 A.3d 262 (2015). In Connecticut, one may enforce a note pursuant to the UCC. Id., at 146, 125 A.3d 262. General Statutes § 42a-3-301 provides in relevant part that a " [p]erson entitled to enforce an instrument means . . . the holder of the instrument . . ." (Internal quotation marks omitted.) When a note is endorsed in blank, the note is payable to the " bearer" of the note. See General Statutes § 42a-3-205(b); see also RMS Residential Properties, LLC v. Miller, supra, 303 Conn. at 231, 32 A.3d 307. A person in possession of a note endorsed in blank is the valid holder of the note. See General Statutes § 42a-1-201(b)(21)(A). Therefore, a party in possession of a note, endorsed in blank and thereby made payable to its bearer, is the valid holder of the note, and is entitled to enforce the note. See RMS Residential Properties, LLC v. Miller, supra, at 231, 32 A.3d 307.
In RMS Residential Properties, LLC v. Miller, supra, 303 Conn. at 231, 32 A.3d 307 our Supreme Court stated that to enforce a note through foreclosure, a holder must demonstrate that it is the owner of the underlying debt. The holder of a note, however, 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. Id., at 231-32, 32 A.3d 307. A holder only has to produce the note to establish that presumption. " The production of the note establishes his case prima facie against the [defendant] and he may rest there . . . It [is] for the defendant to set up and prove the facts [that] limit or change the plaintiff's rights." (Emphasis added; internal quotation marks omitted.) Id., at 232, 32 A.3d 307; see also American Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.App. 127, 133, 117 A.3d 500 (2015).
In J.E. Robert Co. v. Signature Properties, LLC, supra, 309 Conn. at 323-25, 71 A.3d 492 our Supreme Court articulated its analysis of standing stated in RMS Residential Properties, LLC. First, the court clarified that when it stated in RMS Residential Properties, LLC. First, the court clarified that when it stated in RMS Residential Properties, LLC, that a holder is the rightful owner of the debt, it intended to " address the situation in which ownership of the note and ownership of the mortgage rest in different hands at the time the foreclosure action commenced." Id., at 323, 71 A.3d 492. J.E. Robert Co. emphasized that the purpose of RMS Residential Properties, LLC, was not to restrict those cases in which ownership of the note and ownership of the debt was in the same hands. Id., at 324-25, 71 A.3d 492. Instead, our Supreme Court put forth a means by which " a debtor may be able to produce evidence demonstrating that the [foreclosing party], who might otherwise appear to be entitled to enforce the debt [by way of possessing the note, ] nevertheless lacks standing, perhaps because ownership of the debt has passed to another party ." (Emphasis added.) Id., at 325, 71 A.3d 492.
J.E. Robert Co. further clarified that, even if a defendant in a foreclosure action were able to demonstrate that the debt was owned by a party other than the one bringing the foreclosure action, or by other means was able to rebut the presumption that the holder of the note was the owner of the debt, the result was not an automatic dismissal of the action due to lack of standing. Rather, the burden shifts back to the party bringing the foreclosure action to demonstrate that the rightful owner had in some way vested in it the right to collect the debt on the owner's behalf. Id., at 325 n.18, 71 A.3d 492.
U.S. Bank, National Ass'n v. Schaeffer, supra, 160 Conn.App. at 146-47, 125 A.3d 262 also summarized the law more succinctly: The holder of a note seeking to enforce the note through foreclosure must produce the note. The note must be endorsed so as to demonstrate that the foreclosing party is a holder, either by a specific endorsement to that party or by means of a blank endorsement to bearer. Id., at 150, 125 A.3d 262. If the foreclosing party produces a note demonstrating that it is a valid holder of the note, the court is to presume that the foreclosing party is the rightful owner of the debt. Id. The defending party may rebut the presumption that the holder is the rightful owner of the debt, but bears the burden to prove that the holder of the note is not the owner of the debt. Id. This may be done, for example, by demonstrating that ownership of the debt had passed to another party. Id. The defending party does not carry its burden by merely identifying some documentary lacuna in the chain of title that might give rise to the possibility that a party other than the foreclosing party owns the debt. Id. To rebut the presumption that the holder of a note endorsed specifically or to bearer is the rightful owner of the debt, the defending party must prove that another party is the owner of the note and debt. Id. Without such proof, the foreclosing party may rest its standing to foreclose the mortgage on its status as the holder of the note.JP Morgan Chase Bank National Association v. Simoulidis, 161 Conn.App. 133, 142-46, 126 A.3d 1098 (2015) cert. denied, 320 Conn. 913, 130 A.3d 266 (2016).
The court finds that the plaintiff provided the blue ink Adjustable Rate Note dated November 12, 2004 in the face amount of $282,750 to this court at this hearing on the Motion to Dismiss. This court determined that the Adjustable Rate Note was endorsed in blank. These facts are sufficient for this court to find that the plaintiff, as the foreclosing party, is presumed to be the owner of the Adjustable Rate Note. The court is thus entitled to presume that the plaintiff, as the foreclosing party, is the rightful owner of the debt. By these facts the plaintiff has proven a colorable claim to the Adjustable Rate Note and thus has standing to foreclose. U.S. Bank, National Association v. Schaeffer, supra, 160 Conn.App. 146-47.
The defendant may rebut the presumption that the plaintiff is the rightful owner of the debt, but the defendant bears the burden to prove that the holder of the note is not the owner of the debt. Id., 150. In addition, the defendant has the burden to prove the other allegations of his Motion to Dismiss that claim that this court does not have subject matter jurisdiction over this foreclosure action. As stated, the case law is silent as to a defendant's standard of proof to rebut that presumption and to establish the allegations of his Motion to Dismiss. The recent appellate cases all set forth defendant's burden of proof but do not announce the defendant's standard of proof.
The court finds one case enlightening on this subject of the standard of proof to rebut a presumption. In a fiduciary relationship case the standard of proof is as follows: The proponent making a claim against a claimed fiduciary has the burden of proof by a preponderance of the evidence to demonstrate a fiduciary relationship. Once that fact is established the burden of proof shifts to the fiduciary.
Proof of a fiduciary relationship imposes a twofold burden on the fiduciary. First, the burden of proof shifts to the fiduciary; and second, the standard of proof is clear and convincing evidence. " Once a fiduciary relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence." (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, supra, 204 Conn. at 322-23, 528 A.2d 1123; Oakhill Associates v. D'Amato, 30 Conn.App. 356, 358, 620 A.2d 1294, cert. granted, 225 Conn. 926, 625 A.2d 826 (1993).Konover Development Corporation v. Zeller, 228 Conn. 206, 229, 635 A.2d 798 (1994).
Thus in the above fiduciary relationship, the next highest civil standard of proof is placed on the party that must disprove a presumption; in Konover from a fair preponderance of the evidence to clear and convincing evidence. Id., 229: Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998).
In the case at bar, the initial burden of proof is placed on the plaintiff, the non-moving party, to demonstrate that the plaintiff has standing and thus the court has subject matter jurisdiction. That standard of proof is " a colorable claim of injury, " a standard less than the fair preponderance of the evidence. Thus the next heightened standard of proof the defendant must have to rebut the presumption and affirmatively prove its allegations in his Motion to Dismiss, must be the civil standard of proof, one grade higher, by a fair preponderance of the evidence.
A similar heightened standard is applied for those defending a prejudgment remedy application (PJR). The statutory standard of proof for a party claiming a PJR is " probable cause that a judgment in the amount of the prejudgment remedy sought . . . will be rendered in the matter in favor of the plaintiff." Gen. Stat. § 52-278d(a)(1). The PJR statute is silent on the defendant's standard of proof to defend a PJR application. This court has opined on that issue.
This court therefore must make a determination as to what standard of proof a defendant must demonstrate to establish a " defense, counterclaim or set-off" to a plaintiff's PJR claim. Absolute proof, proof beyond reasonable doubt, clear and convincing evidence, preponderance of the evidence, probable cause in Gen. Stat. § 52-278d(a)(1), probable cause in criminal cases and prima facie as required by P.B. § 15-8 are all available choices for the PJR defendant's standard of proof.
The court finds that the statute is silent as to the standard of proof for a defense of a PJR application. From the cases previously cited, the court finds that the standard of proof for a defendant in proving " defenses, counterclaims or set-offs" under Gen. Stat. § 52-278d(a)(1) is the preponderance of the evidence standard, the ordinary civil standard of proof. State v. Davis, supra, 229 Conn. at 295-96, 641 A.2d 370; Access International Advisors Limited v. Argent Management Co., LLC, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 09-5012939 S, (June 1, 2010, Tierney, J.T.R.); Falvey v. Zurolo, 130 Conn.App. 243, 255, 22 A.3d 682 (2001); Donegan v. Gardner, Superior Court, judicial district of Litchfield at Litchfield, Docket Number CV 01-0085057 S, (October 4, 2001, Walsh, J.) (Citing Babiarz v. Hartford Special, Inc., supra, 2 Conn.App. at 393, 480 A.2d 561).Fusaro v. Malik, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 08-5008479 S (September 16, 2011, Tierney, J.T.R.) [52 Conn.L.Rptr. 632, ].
The court finds that a defendant's standard of proof in a foreclosure action to rebut the plaintiff's presumption as the owner and holder of the note is the fair preponderance of the evidence; the ordinary civil standard of proof.
The essence of claim of the defendant, Paul Juchniewich, in his testimony at the Motion to Dismiss hearing was that the plaintiff in the prior foreclosure action was JP Morgan Chase Bank, National Association and the plaintiff in the current foreclosure action is Deutsche Bank National Trust Company, as Trustee for WAMU Mortgage Pass-Through Certificates Series 2005-AR2. He admits the existence of the November 28, 2012 Assignment of Mortgage but argues that there is no documentation to verify that fact before this court including but not limited to securitization documents or a Pooling and Servicing Agreement.
The court finds that the plaintiff does not have to provide all of its evidence at a hearing on a Motion to Dismiss. The production of the blue ink Adjustable Rate Note endorsed in blank is sufficient to prove the plaintiff's right to collect this debt by a colorable claim standard of proof. This fact furnishes this court with subject matter jurisdiction over this residential foreclosure action. The court rejects the above claim made by the defendant.
Most of the defendant's testimony related to the reason for his obtaining the mortgage in the first place and a review of the pleadings in the first foreclosure action. The remainder of his testimony consisted of uncorroborated declarative statements of facts of which the defendant had no personal knowledge submitted in no particular order and not supported by any direct evidence or documents. Among these claims was an accusation of robo-signing, an invalid Ohio notarization and the cited sum of " One Dollar" as not being valid consideration. The court is not able to glean from this testimony any factual or legal claims of lack of subject matter jurisdiction.
The twelve-page Motion to Dismiss attempts to list paragraphs by number and letter but each such paragraph contains not one but many legal and factual claims. This court has attempted to count the legal and factual claims made in the Motion to Dismiss and after rereading the Motion to Dismiss a number of times, this court counts nineteen separate claims. The multitude of claims cannot assist this court in making the important determinations at issue. In addition neither the Motion to Dismiss nor its supporting Memorandum of Law cites legal authority and/or supportingfacts for most of the nineteen separate claims.
There is an oft cited rule that " multiplicity hints at a lack of confidence in any one issue." Synakorn v. Commissioner of Correction, 124 Conn.App. 768, 768, 775, 6 A.3d 819 (2012). " Multiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." Comacho v. Commissioner of Correction, 148 Conn.App. 488, 496, 84 A.3d 1246 (2014). " A brief that raises every colarable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions." Mozell v. Commissioner of Correction, 87 Conn.App. 560, 563, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).
The court will now discuss each of the nineteen reasons set forth in the defendant's June 16, 2016 Motion to Dismiss (#106.00).
1. " A Fraudulent transfer of a property or Note, is no transfer at all."
2. " Due to the clear fraudulent activity in violation of 8 U.S. Code 1324."
3. " It was in large part a scam, ceding ownership of the NOTE to the Mortgage Servicer."
4. " JP MORGAN Chase would later settle a 500 MILLION DOLLAR Class Action Lawsuit in its Fraudulent handling of these applications."
5. JP MORGAN was fined an additional 48 MILLION Dollars in addition to the 2 BILLION Dollar fine it paid in a 2013 settlement.
6. " Its practice of falsifying documents and its fraudulent practices in servicing mortgages."
7. " This same bank has a long history of criminal fraud and most notably was a willing participant in the Bernie Madoff Ponzi scheme."
8. " Defendant has maintained and lived in the home since 1994 and paid faithfully up until the time of dispute."
9. " ROBO-SIGNING SCHEME /SCANDEL."
10. " Allegedly sold THE NOTE [EXHIBIT A] to the New Plaintiff, the soon to be bankrupt DEUTCHE BANK for the huge sum of ONE DOLLAR."
11. " Based on a cheesy computer printout [EXHIBIT B]."
12. " They fraudulently represented they were the holder of THE NOTE."
13. " [DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR WAMU MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-AR2] that was created in 2005?"
14. " JP MORGAN BANK and its Counsel Mario R Arena then filed Motion to Change Party Plaintiff [Exhibit C] knowingly presenting this fraud before this Court."
15. " Plaintiff tried to defraud defendant and this Court by filing a Motion for Summery Judgment without ever addressing the issues at law."
16. " In the Motion of Summery Judgment plaintiff made some stunning admissions . . . JP MORGAN CHASE BANK, N.A., was and the present Plaintiff is currently, the holder of the Note and Mortgage and can provide the originals to the Court at the time of Judgment."
17. " Because any other document other than the original 'Wet Note' with defendant's signature in ink cannot be trusted because of all of the previous fraudulent behavior."
18. " Connecticut General statutes' Sec. 42a-3-118."
19. " Because of Plaintiff's Failure to 'pursue its [case] with reasonable diligence.'"
None of those stated reasons even touch on the issue of standing. None were supported by documents or testimony at the hearing on the Motion to Dismiss. None are supported by any legal authority other than the citation of Gen. Stat. § 42a-3-118, already discussed and disposed of earlier in this Memorandum of Decision.
The supporting Memorandum of Law is also ten pages and in the main restates in declarative form the claims made in the Motion to Dismiss. The Memorandum of Law cites no Connecticut legal authority, fails to state why 8 U.S. Code § 1324 is applicable, cites New York Trust law that has been rejected in Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 397, 89 A.3d 392 (2014), and cites California, Texas and New York cases on issues that have been rejected by Connecticut appellate courts.
The court denies the defendant, Paul Juchniewich's, June 16, 2016 Motion to Dismiss.