Opinion
FSTCV096002508S
02-18-2016
Lend America et al. v. Dina MacDougall et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS DATED SEPTEMBER 28, 2015 (#198.00)
Hon. Kevin Tierney, Judge Trial Referee.
Can Lend America, a trade name, commence and maintain this residential foreclosure lawsuit? The court held an evidentiary hearing on the defendants' Motion to Dismiss on December 2, 2015. At that hearing the defendants abandoned the second reason in their Motion to Dismiss, addressing the bad acts of Ideal Mortgage Bankers, Ltd., a non-party in this litigation.
The original one-count complaint is dated November 10, 2009. It alleges that Lending Key loaned the defendant, Dina MacDougall, $520,705 on February 13, 2009 secured by a mortgage on real property at 51 Palmers Hill Road, Stamford, Connecticut. Paragraph 4 of the original complaint alleged: " Said mortgage was assigned to Lend America by an Assignment of Mortgage to be recorded on the Stamford Land Records." The summons described the plaintiff as " LEND AMERICA, C/O CENLAR LOANS ADMINISTRATION, P.O. BOX 77409, EWING, N.J. 08628." The plaintiff at all times during this litigation has been represented by the law firm of Bendett & McHugh, P.C. of 160 Farmington Avenue, Farmington, CT 06032. The defendants first appeared by counsel of record; Darryl S. MacDougall on March 19, 2010 and Dina MacDougall on March 22, 2010. On October 18, 2010 the defendants filed an Answer, Set-Off, Special Defenses, and Counterclaim (#111.00). This pleading was fifty-one pages. The Set-Off requested a Set-Off against any debt found by reason of damages due in the Counterclaim. There were three Special Defenses: unclean hands, fraud and equitable estoppel. The one-count Counterclaim sounded in CUTPA and either 233 or 238 paragraphs were alleged in the one-count Counterclaim requesting compensatory damages, double or treble punitive damages and attorney fees.
The court granted the plaintiff, Lend America's, February 11, 2011 Motion to Substitute Party Plaintiff, Loancare, a Division of FNF Servicing, Inc., as the plaintiff on March 1, 2011 (#113.86). The plaintiff was ordered to file a substitute complaint showing the substituted plaintiff's interest in the case on or before March 31, 2011. The substituted plaintiff, Loancare, a Division of FNF Servicing, Inc., filed its one-count Substitute Complaint on March 31, 2011 (#114.00). Pleadings were addressed to the defendant's Set-Off, Special Defenses and Counterclaim. Thereafter the defendants' Amended Set-Off, Special Defenses and Counterclaim were stricken on July 27, 2015 (#191.01). This July 27, 2015 order removed the Set-Off, all of the Special Defenses and the one-count Counterclaim as viable pleadings. The defendants did not plead over. This court granted judgment in favor of the plaintiff on the defendants' Counterclaim by an order dated December 2, 2015 (#200.02).
In the interim the court granted the December 30, 2014 Motion to Substitute Party Plaintiff on January 12, 2015 (#157.01). The substituted plaintiff is Selene Finance LP. Selene Finance LP is the current plaintiff. Selene Finance LP appeared by counsel of record, Bendett & McHugh, P.C., on January 14, 2015. The defendant's September 28, 2015 Motion to Dismiss (#198.00) now before the court does not mention either of the later substituted plaintiffs, Loancare, a Division of FNF Servicing, Inc. or Selene Finance LP. No substituted complaint was ordered by the court on January 12, 2015 (#157.01). The operative complaint, the Substitute Complaint dated March 31, 2011, does not mention the current plaintiff, Selene Finance LP (#114.00). The Defendants' Motion to Dismiss, now before this court, claims one reason: " This case was filed in the name of 'Lend America, ' a non-entity 'd/b/a.'"
The issue of whether Lend America has the authority to sue in Connecticut has not been determined in any litigation. The name, Lend America, has not been cited in any case reported by the Appellate Court and/or the Supreme Court of Connecticut. According to the Edison civil docket program, Lend America, is or has been a party to four other lawsuits in addition to the instant lawsuit.
On August 10, 2009 a tax foreclosure complaint was filed in the Superior Court, judicial district of Fairfield at Bridgeport in which Lend America was mentioned as a later encumbrancer as the holder of two mortgages. Lend America did not appear or plead in that tax foreclosure litigation.
On September 14, 2009 a mortgage foreclosure action was commenced by Lend America in the Superior Court, judicial district of Middlesex at Middletown in which Lend America was represented by Bendett & McHugh, P.C. The foreclosure action was dismissed under P.B. § 14-3 on April 6, 2011 and later withdrawn by counsel on February 14, 2012.
On April 6, 2009 a mortgage foreclosure action was commenced in the Superior Court, judicial district of Hartford at Hartford in which Lending Key is mentioned as mortgagee. Lend America was the plaintiff and was represented by Bendett & McHugh, P.C. Loancare, a Division of FNF Servicing, Inc. and later Selene Finance LP were substituted as the plaintiffs in successive orders. A judgment of Strict Foreclosure entered in favor of Selene Finance LP on January 4, 2016. The question of Lend America as a trade name was not raised or discussed in this residential mortgage foreclosure lawsuit that has gone to judgment.
On November 4, 2010 a tax foreclosure complaint was filed in the Superior Court, judicial district of Hartford at Hartford. Lending Key was mentioned as the mortgagee. Lend America was named as a party defendant and served. Lend America did not appear or plead.
No issue concerning the status of Lend America as a trade name was raised in any of the above four lawsuits.
The parties stipulated in open court that Lend America has not filed a Certificate of Trade name with the City Clerk of the City of Stamford.
" It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985). Isaac held that an estate is not a legal entity that can sue. Id. 600. " An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent." Id. 600; State Bar Association of Connecticut v. The Connecticut Bank and Trust Company, 20 Conn.Supp. 248, 262, 131 A.2d 646 (1957). " Not having a legal existence, it can neither sue nor be sued." Isaac v. Mount Sinai Hospital, supra, 3 Conn.App. 600.
While there is no authority on the permissibility of naming dead people as defendants, an analogy can be drawn to a deceased's estate. Like an estate, a dead person is not a legal entity . . . Not having a legal existence, it can neither sue nor be sued. Isaac v. Mount Sinai, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985), citing Estate of Schoeller v. Becker, 33 Conn.Supp. 79, 80, 360 A.2d 905 (1995).Bridgeport Wilmot Apartments v. Thomas A. Gerety, Administrator, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96-0332356 S, (July 29, 1997, West, J.).
The parties have not stipulated that Lend America is a trade name. The stated name of the original plaintiff does not contain any reference to Corporation, Corp, Inc., LLC, Incorporated, Limited Liability Company, or the like. Therefore a strong inference is created thereby that Lend America is a trade name. Although there is no stipulation as to those facts and the evidence as to the status of Lend America as an entity was sparse, the court will deem Lend America to be a trade name. Registration compliance with Gen. Stat. § 35-1(a) is required for trade names doing business in Connecticut.
No person, except as provided in this subsection, shall conduct or transact business in this state, under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the person or persons conducting or transacting such business, unless there has been filed, in the office of the town clerk in the town in which such business is or is to be conducted or transacted, a certificate stating the name under which such business is or is to be conducted or transacted and the full name and post-office address of each person conducting or transacting such business or, in the case of a corporation or limited liability company using such an assumed name, its full name and principal post-office address.Gen. Stat. § 35-1(a).
The leading case on whether or not registered trade names may commence and maintain a lawsuit in Connecticut states:
Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name . . . Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court. (Citation omitted.)America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477, 866 A.2d 698 (2005).
A number of trial courts have held that a registered trade name is not a legal entity and a plaintiff suing as a trade name has no standing to institute suit. Those lawsuits have been dismissed for lack of subject matter jurisdiction. Suit must be brought in the name of the owner, " doing business as" the trade name, not the trade name as a separate entity. GMA Yacht Sales v. Skagit Marine Distributing, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99-0364 155 (September 7, 2000, Skolnick, J.) ; American Rental Centers v. ITT Hartford Insurance Group, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 92-0453271 S (March 17, 1993, Berger, J.) (" No action may be brought by, nor may any suit be maintained against, a trade name as an entity . . . Any such proceeding is a nullity"). The failure to name an entity that is subject to suit deprives the court of subject matter jurisdiction. Jones v. Lawler, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 99-0174667 S (February 14, 2002, Adams, J.) .
The statute, Gen. Stat. § 35-1(a), only permits registered trade names to do business in Connecticut. The statute does not permit a registered trade name to commence or maintain a lawsuit in Connecticut. The above cited cases stand for the proposition that a trade name, whether registered under Gen. Stat. § 35-1(a) or not so registered, is not an entity that can commence or maintain a lawsuit.
This rule is not just limited to estates, dead people or trade names. The following entities have been found by this court not to be capable of commencing or maintaining a lawsuit. A conservator cannot be sued for breach of contract entered into for the benefit of his ward; Partnerships have legal status to sue or be sued only by reason of direct statutory authority; Once a Chapter 7 Bankruptcy petition is filed, the Trustee becomes the proper party to maintain a cause of action on behalf of the debtor; Individual members of a limited liability company are not proper parties to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company; In a suit by or against an employee welfare fund, the Trustees are the proper party, not the fund; An unincorporated division of a corporation cannot sue; A statutory trust has the right to sue and be sued in its own name only because of the provisions of Gen. Stat. § 34-502b; A voluntary association can sue or be sued by such name because of the provision of Gen. Stat. § 52-76. The Randolph Foundation et al. v. Appeal From Probate Court of Westport, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number X05-CV98-0167903 S, (April 3, 2001, Tierney, J.) (The trial court held that The Randolph Foundation is a charitable trust established by a will with assets over $50,000,000 yet it has no right to sue. The court dismissed the Randolph Foundation lawsuit for lack of subject matter jurisdiction).
In Pagano, the plaintiff tried to save the lawsuit by invoking the circumstantial defect statute, Gen. Stat. § 52-123. The original plaintiff was America's Wholesale Lender, which was a trade name of Countrywide Home Loans, Inc. The Bank of New York as Trustee was later substituted as the plaintiff by court order after the Pagano foreclosure lawsuit was commenced. The trial court dismissed based on its finding of lack of subject matter jurisdiction, and held that a trade name is not a legal entity that can sue in Connecticut. The court found that this subject matter jurisdiction defect could not be corrected by Gen. Stat. § 52-123.
The plaintiff may or may not be claiming the use of name of Lend America as the plaintiff was a misdescription of a party. If it was a matter of the misdescription, then Gen. Stat. § 52-123 would apply and this circumstantial misdescription defect can be corrected. Andover Limited Partnership, I v. Board of Tax Review, 232 Conn. 392, 400, 655 A.2d 759 (1995); Pack v. Burns, 212 Conn. 381, 384-85, 562 A.2d 24 (1989).
It has been held that the misdescription of a party raises an issue as to whether that party is a legal entity that can be sued. " The effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed." World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 643-44, 136 A. 681 (1927). " The Alliance Sandblasting Company, a corporation of New York, having an office and carrying on business in the city of Hartford, " was sued in that name. The trial court authorized an amendment to the writ striking the name of the defendant as it originally appeared and substituting the name of " Julius Goodman doing business under the tradename of the Alliance Sandblasting Company." The amendment was attacked by the defendant claiming that this constituted a substitution of a party. Upholding the amendment, the Supreme Court held that: " The plaintiff's mistake was not as to the entity itself--not as to the party sued, in describing what kind of an entity the defendant was. It sued the proper party, but in so doing misdescribed that party, not in respect to name, but solely as to status, as being an artificial instead of a personal entity . . . The change made by the amendment did not affect the identity of the party sought to be described, but merely made correct the description of the real party sued. It did not substitute or bring in a new party." Id. 643.
Following in that line of cases is Motiejaitis v. Johnson, 117 Conn. 631, 636, 169 A. 606 (1933). The plaintiff sued the defendant, " J. Johnson & Sons, Incorporated, " a Connecticut corporation. After the verdict had been rendered but before judgment was entered, the plaintiff was allowed to amend the writ substituting " Joseph C. Johnson, New Haven, Connecticut and Joseph C. Johnson as executor of the estate of Albert J. Johnson" as the defendant on the basis that Albert J. and Joseph C. had been partners in trade doing business as J. Johnson & Sons. The Supreme Court held that the trial court committed no error in permitting an amendment naming the real parties. Id. 638. Pack v. Burns, 212 Conn. 381, 562 A.2d 24, followed in 1989. The defendant sued the " State of Connecticut Transportation Commission." There was no such entity. The defendant, State of Connecticut, Department of Transportation, moved to strike on the basis that the proper defendant was the " Commissioner of Transportation" and the named defendant did not exist. The plaintiff filed a motion to cite in the " Commissioner of Transportation, J. William Burns, " as the proper party defendant, which was granted. The Commissioner was served with an amended complaint. The Commissioner moved for summary judgment maintaining that the statute of limitations had run from the date of the incident to the date that J. William Burns was named as a party. The Supreme Court held that the plaintiff intended to sue the Commissioner of Transportation and that the Commissioner knew that he was the intended defendant. The Commissioner was not misled to his prejudice. The office of the Commissioner was served with the initial lawsuit. The amendment related back to the commencement of the lawsuit. It was conceded by all parties and the courts that the " Connecticut Transportation Commission" was a non-existent entity.
The Supreme Court adopted three factors concerning the misdescription of a defendant as a party: (1) the proper party defendant has actual notice of the institution of the action; (2) the proper party knew that it was the proper defendant in the action; and (3) the proper party was not in any way misled to its prejudice. Id. 385, Pack v. Burns does not discuss any standards concerning the misdescription of a plaintiff in instituting suit.
The liberality under Gen. Stat. § 52-123 is not applicable to civil actions commenced by trade names. In a recent case the plaintiff commenced the foreclosure of a mechanics lien under the name " Greco Construction." In fact the plaintiff's true identity was " Brian Greco d/b/a Greco Construction." The plaintiff did not sue in his correct individual name. Both the trial court and the Appellate Court found that Greco Construction was a trade name and as a trade name had no standing to commence or maintain a lawsuit in Connecticut. The defendant's Motion to Dismiss for lack of subject matter jurisdiction was granted and upheld by the Appellate Court. Greco Construction v. Edelman, 137 Conn.App. 514, 518-19, 49 A.3d 256 (2012). The court compared Gen. Stat. § 52-123 with Gen. Stat. § 52-45a, which requires the use of real names, not fictious ones, when commencing the action. Id. 518. Gen. Stat. § 52-123 cannot be invoked to save a lawsuit when a named party is not a legal entity. O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933). This is not a case in which a subsidiary corporation of the parent company filed suit. In a recent case the court permitted the plaintiff to amend its complaint to name the parent corporation as the party plaintiff, when the lawsuit was commenced by a wholly owned corporate subsidiary of the parent corporation. RWA 21, Ltd. v. Town of Seymour, Superior Court, judicial district of New Britain at New Britain, Docket Number HHB CV11-6027305 S (October 9, 2015, Aronson, J.T.R.) .
Two other issues must be addressed. They were subject to a fair amount of briefing and dialogue at oral argument: (1) The registration of Lend America as a Connecticut licensed mortgage broker permits Lend America to be a proper plaintiff, and (2) The substitution of later party plaintiffs established subject matter jurisdiction of this court due to the relation back doctrine. Both issues will now be discussed.
The plaintiff offered evidence to establish that Lend America is a licensed mortgage lender in Connecticut as demonstrated by the records of the Connecticut Department of Banking. The plaintiff argues that even if there was no Lend America trade name certificate filed with the City of Stamford under Gen. Stat. § 35-1(a), this mortgage licensing registration is sufficient to permit Lend America to commence Connecticut litigation. The plaintiff claims that the mortgage lender license is the equivalent of the trade name Certificate under Gen. Stat. § 35-1(a).
The plaintiff furnished no legal authority for this claim. This court has found that Connecticut case law does not distinguish between trade names that have registered property under Gen. Stat. § 35-1(a) and those that have not registered at all. Both are considered the same under Connecticut law as to whether they lack subject matter jurisdiction to commence suit. Both are trade names. Either type of trade name, registered under Gen. Stat. § 35-1(a) or not, are not authorized to commence or maintain a lawsuit in Connecticut. Either trade name that acts as a plaintiff deprives the court of subject matter jurisdiction. Greco Construction v. Edelman, supra, 137 Conn.App. 518-19; America's Whole Sale Lender v. Pagano, supra, 87 Conn.App. 477; American Rental Centers v. ITT Hartford Insurance Corp., Superior Court, judicial district of New Britain at New Britain, Docket Number CV 92-0453271 (March 17, 1993, Berger, J.) .
The plaintiff offered inconclusive evidence of the Connecticut mortgage lender licensing of " Lend America." Since June 17, 2015 the Commissioner of Banking has used the NMLS system. The Connecticut Department of Banking website permits electronic access to verify a list of licenses. On that list is " Mortgage Lenders." When that " Mortgage Lenders" hypertext link is accessed, the next screen on the Connecticut Department of Banking website states: " To verify that a mortgage broker, lender, correspondent lender, mortgage servicer or individual is licensed to do business in Connecticut, please use the NMLS Consumer Access link below. NMLS Consumer Access is a fully searchable website that allows the public to view information concerning state-licensed mortgage companies, brokers and individuals. www.ct.gov/dob/cwp/view.asp . Ideal Mortgage Bankers, Ltd appears in NMLS ID 1296 with the following " Other Trade Names": Ideal Mortgage, Ltd; Lend America; Lending Key; and www.lendamerica.com . Ideal Mortgage Bankers, Ltd is also subject to a February 2, 2010 order issued by the Connecticut Department of Banking (#202.00, screen 4) which is found on the NMLS website. This new NMLS registration system required this court to access the internet site and log onto Nationwide Multistate Licensing System and Registry a/k/a Nationwide Mortgage Licensing System a/k/a National Mortgage Licensing System (NMLS). http:/mortgagenationwidelicensing system.org. " All new applications must be submitted to the Department via the National Mortgage Licensing System." The court was required to log onto the NMLS system in order to determine if Ideal Mortgage Bankers, Ltd is a mortgage lender licensed under the NMLS system. The plaintiff provided copies of computer screen shots from its search of the NMLS System (#202.00). www.ct.gov/dob/cwp " Mortgage Broker Licensing." The court accessed the NMLS website and verified the accuracy of these four computer screen shots (#202.00). The Connecticut Department of Banking issued an October 21, 2009 cease and desist order against Ideal Mortgage Bankers, Ltd d/b/a Lending Key. Ex. 2. This October 21, 2009 order is also found on the NMLS website. This October 21, 2009 order notes that: " Respondent currently holds a mortgage lender license in Connecticut (No. 13843) under Part I of Chapter 668 of the Connecticut General Statutes." The name, Lend America, does not appear in this October 21, 2009 cease and desist order. The later Connecticut's Department of Banking cease and desist order directed to Ideal Mortgage Bankers, Ltd., dated February 2, 2010 also does not contain the name of Lend America. www.ct.gov/dob/cwp .
The original named plaintiff, Lend America, has been substituted as a party plaintiff in this lawsuit; first by Lendcare, a Division of FNF Servicing, Inc. (#113.86 on March 1, 2011) and later by the current plaintiff, Selene Finance LP (#157.01 on January 12, 2015). " General Statutes § 52-109 and Practice Book § 10-1 allow the substituted plaintiff to enter a case when any action has been commenced in the name of the wrong person as plaintiff . . . Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest." FDIC v. Retirement Management Group, Inc., 31 Conn.App. 80, 84, 623 A.2d 517 (1993); Sharp v. Mitchell, 209 Conn. 59, 70-75, 546 A.2d 846 (1988); P.B. § 9-16. The substitution rule is to be interpreted liberally. " These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law." The Investors Mortgage Company, Trustee v. Rodia, 31 Conn.App. 476, 484, 625 A.2d 833 (1993).
The plaintiff correctly states the law in Connecticut that the substitution of a party plaintiff relates back to the commencement of the lawsuit. DiLieto v. County Obstetrics and Gynecology Group, P.C., 297 Conn. 105, 144, 998 A.2d 730 (2010); Wilson v. Zemba, 49 Conn.Supp. 542, 552, 896 A.2d 862 (2004).
This relation back rule has its limitations. When the original plaintiff is not an entity that can commence litigation, the later substitution of a proper plaintiff will not cure the lack of subject matter jurisdiction. America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 477. In Pagano the defendant's Motion to Dismiss the foreclosure action on the basis that the lawsuit was commenced by a trade name, was met by a Motion to Substitute a new corporate entity as the party plaintiff. The trial court granted the Motion to Substitute and then denied the Motion to Dismiss. The Appellate Court reversed and remanded with direction to grant the Motion to Dismiss since lack of subject matter jurisdiction cannot be corrected by a later Motion to Substitute. The Appellate Court found that the lack of subject matter jurisdiction caused by a trade name commencing a foreclosure action cannot be cured by the substitution of a party plaintiff. " We decline, however, to extend the use of § 52-123 in this manner to a plaintiff that has used a fictitious name for itself when commencing an action." Id. 478.
The plaintiff has briefed Pagano (#206.00, pages 5-6). The plaintiff attempts to distinguish Pagano by noting that Pagano did not discuss Gen. Stat. § 52-108, Gen. Stat. § 52-109 nor FDIC v. Retirement Management Corporation, Inc., 31 Conn.App. 80, 84-85, 623 A.2d 517 (1993). The plaintiff concludes: " It appears that America's Wholesale Lender v. Pagano might not be good case law." (#206.00, page 5).
An action shall not be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the action, as the court deems the interests of justice require.Gen. Stat. § 52-108.
When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.Gen. Stat. § 52-109.
Neither statute, by its terms, permits a court to grant substitution of a party or the addition of a party, when the court lacks subject matter jurisdiction caused by the fact that the initial plaintiff was not an entity that is permitted to sue in Connecticut. Case law does not permit the use of these two statutes when the original plaintiff was an entity that is not permitted to commence a lawsuit in Connecticut.
For example, a number of Superior Court cases involve situations where a person wishing to bring suit on behalf of a decedent's estate names the estate itself as the plaintiff instead of naming the administrator or executor. See, e.g., Palmieri v. Relende, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 341312 (June 27, 1997) (Maiocco, J.) (19 Conn. L. Rptr. 682); Estate of Boulais v. Boulais, Superior Court, Judicial District of New Haven at New Haven, Docket No. 368009 (February 3, 1995) (Hodgson, J.) (13 Conn. L. Rptr. 462); Estate of Glass v. Glass, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 861599 (September 30, 1991) (Berger, J.) (5 Conn. L. Rptr. 58). Under Connecticut law, an estate is not a legal entity with the capacity to sue. Estate of Boulais v. Boulais, supra, 13 Conn. L. Rptr. 463. Therefore, this line of cases holds that the court is deprived of subject matter jurisdiction by the plaintiff's error because the initial suit is a legal nullity and § 52-109 is inapplicable. Id. Further examples of cases exist where courts have held the suit a legal nullity and § 52-109 inapplicable. See, e.g., GMA Yacht Sales v. Skagit Marine Distributing, Inc., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 364155 (September 7, 2000) (Skolnik, J.) (28 Conn. L. Rptr. 227) (plaintiff named itself GMA Yacht Sales when real party in interest was A.A. Constantine d/b/a GMA Yacht Sales); American Rental Centers v. ITT Hartford Ins. Group, supra, 8 Conn. L. Rptr. 515, 8 C.S.C.R. 412, (plaintiff named itself American Rental Centers when real party in interest was Rental Centers of Connecticut, d/b/a American Rental Centers); Murtha Trucking Co. v. Wes Cadillac-Oldsmobile, Inc., Superior Court, Judicial District of Waterbury, Docket No. 93108 (November 9, 1992) (Blue, J.) (7 Conn. L. Rptr. 839, 7 C.S.C.R. 1311) (plaintiff named itself Murtha Trucking Company when real party in interest was Murtha Waste Control Corporation).BKM Floorcovering Inc. v. Annulli & Sons, Inc., Superior Court, Docket Number CV 98-0576713 (May 2, 2001, Berger, J.) 2001 WL 665228 .
The original plaintiff in FDIC v. Retirement Management Corporation, Inc. was an entity that could commence and maintain a lawsuit in Connecticut. The original plaintiff was Connecticut Bank and Trust Company, N.A. (CBT), whose predecessor was the second oldest national bank in the United States. CBT had branches in every city and large town in Connecticut. There was never an issue that the foreclosing court lacked subject matter jurisdiction because CBT was an entity not permitted to sue. The Federal Deposit Insurance Corporation (FDIC) was appointed a receiver of CBT on January 6, 1991 and all assets of CBT were transferred to the New Connecticut Bank and Trust Company, NA (New CBT). On January 28, 1991 CBT moved to substitute the FDIC as the plaintiff. The court rendered a judgment of strict foreclosure in favor of FDIC and set the first law day as of February 20, 1991. On February 19, 1991 FDIC moved to substitute the New CBT as the plaintiff. That motion to substitute had not been heard as of February 27, 1991, the FDIC law day. On March 14, 1991 a motion for deficiency judgment was filed by the New CBT in whose favor the motion to substitute had not yet been granted. The court granted the motion to substitute the New CBT as the plaintiff on June 26, 1991. Further pleadings were filed and on September 12, 1991 a deficiency judgment of $1,276,752.06 entered.
On appeal the trial court's orders along with the deficiency judgment was affirmed. At no time was any issue raised that the original plaintiff, CBT, or the substitute plaintiffs, FDIC and the New CBT, were not entities that could commence and maintain a lawsuit in Connecticut. That was the issue in Pagano . This court concludes that Pagano is good law in Connecticut and FDIC v. Retirement Management Corporation, Inc. does not carve out any exception to the Pagano rule.
" It is axiomatic that a trial court is bound by Supreme Court precedent." Jolly, Inc. v. Zoning Board of Appeals of the City of Bridgeport, 237 Conn. 184, 195, 676 A.2d 831 (1996). " This principle is inherent in a hierarchical judicial system." Id. 195; State v. Hernaiz, 140 Conn.App. 848, 855, 60 A.3d 331 (2013). A trial court is bound by appellate court precedent. McInnis v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV 03-0480767 (August 15, 2008, Skolnick, J.T.R.) .
Flat out, the original plaintiff selected to commence this litigation was a trade name. No substitution of a corporate entity, either Loancare, a Division of FNF Servicing, Inc. or Selene Finance LP, can correct the lack of subject matter jurisdiction, when a non-entity, a trade name, commenced this litigation. The underlying corporation should have commenced this foreclosure lawsuit. JP Morgan Chase Bank, National Association v. Simoulidis, 161 Conn.App. 133, 141, 126 A.3d 1098 (2015).
The Defendants' Motion to Dismiss dated September 28, 2015 (#198.00) is granted.