Opinion
FSTCV166029152S
09-10-2018
M & T BANK v. Robert M. WOLTERSTORFF aka Robert Wolterstorff, Jr. aka Robert Wolterstorff aka Robert M. Wolterstorff, Jr. et al.
UNPUBLISHED OPINION
GENUARIO, J.
I. BACKGROUND
The plaintiff brings this action to foreclose a mortgage by writ summons and complaint returnable on July 12, 2016 to the Superior Court for the judicial district of Stamford/Norwalk at Stamford. Eventually a judgment of foreclosure by sale entered and a sale by auction was conducted. The sale by auction was conducted on June 24, 2017. The sale has never been approved and in fact the court granted the successful bidder’s motion to withdraw as the winning bidder and the bidder’s request for return of his deposit. On July 17, 2017 the defendants filed a motion to dismiss this case on the grounds that the plaintiff had not complied with the provisions of C.G.S. § 8-265dd and § 8-265ee which requires a plaintiff to give notice to the defendants of their rights consistent with those statutes by registered certified mail at the address of the property which is secured by the mortgage.
The defendants filed a supplemental memorandum of law in support of their motion to dismiss on August 29, 2017 (# 158). The plaintiff has filed no memorandum in opposition to the motion to dismiss nor has the plaintiff filed any affidavits or exhibits contradicting those of the defendants, but the plaintiff was represented by counsel at the short calendar oral argument on September 4, 2018 and counsel opposed the motion to dismiss. No request was made for time to file any opposition affidavits, memorandum or exhibits.
II. MOTION TO DISMISS 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 ... A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction. Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134 (2007). (Internal quotation marks omitted.)
"[T]he plaintiff bears the burden of proving subject matter jurisdiction whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12 (2013) (internal quotation marks omitted.). "The burden rests with the party who seeks the exercise of jurisdiction in its favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Goodyear v. Discala, 269 Conn. 507, 511 (2004). (Internal quotation marks omitted.) "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Connor v. Statewide Grievance Committee, 260 Conn. 435, 443 (2002). (Internal quotation marks omitted.)
"Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. "[A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly ... [The question of subject matter jurisdiction] ... once raised, either by a party or rather by the court itself ... must be answered before the court may decide the case." Batte-Holmgren v. Commission Republic Health, 281 Conn. 277, 283 (2007). (Internal quotation marks omitted.)
In the case at bar though the defendants have raised the issue of subject matter jurisdiction late in the proceedings, and indeed after judgment has been entered, but the judicial process is not completed and the court must address the issue of its own subject matter jurisdiction prior to completing any further proceedings such as ordering a new sale or approving any sale. The plaintiff has the burden of proving subject matter jurisdiction, whenever and however raised and even though it is not raised in a timely manner. Fink v. Golenbock, 238 Conn. 183, 199 n.13 (1996). Accordingly, consistent with these principles the court will address the issue of subject matter jurisdiction raised by the defendants.
III. DISCUSSION
The heart of the defendants’ argument is that the plaintiff has not complied with the provisions of either C.G.S. § 8-265dd or 8-265ee. C.G.S. Section 8-265ee requires a mortgagee to give notice "by registered, or certified mail, postage prepaid at the address of the property which is secured by the mortgage. No such mortgagee may commence a foreclosure of a mortgage prior to mailing such notice." The notice must advise the mortgagor of certain rights and opportunities that the mortgagor might have including the right to obtain information and apply for emergency mortgage assistance payments.
The first issue is whether or not the failure of the plaintiff mortgagee to comply with the provisions of § § 8-265dd or 8-265ee deprives this court of subject matter jurisdiction. This court is persuaded by the clear language contained in § 8-265ee and the well reasoned decision of the court in the case of People’s United Bank v. Wright, Superior Court for the judicial district of Stamford/Norwalk at Stamford, Docket Number CV106004126-S (Mottolese, J.T.R., March 30, 2015) that a failure to comply with the provisions of § 8-265ee does deprive the court of subject matter jurisdiction. In this regard the court refers first to the precise language of § 8-265ee which states in pertinent part that "on or after July 1, 2008 a mortgagee who desires to foreclose upon a mortgage ... shall give notice to the mortgagor by registered or certified mail, postage prepaid at the address of the property which is secured by the mortgage. No such mortgagee may commence a foreclosure of a mortgage prior to mailing such notice. The statute continues to set forth the substance of the required notice. The court will not detail that substance since the defendants have not, in their motion to dismiss, raised an issue and the court does not find an issue with the contents of the letter that was purportedly mailed by the plaintiff. First, the language on its face is mandatory: the mortgagee "shall give notice to the mortgagor." Second the language is specific. The plaintiff must give notice by registered or certified mail, postage prepaid at the address of the property which is secured by the mortgage. Finally, the language is prohibitive: "No such mortgagee may commence a foreclosure of a mortgage prior to mailing such notice." That prohibitive language would appear to deprive the court of jurisdiction to hear a case where the plaintiff has failed to comply with the terms of the statute. The action cannot be commenced.
In People’s United Bank v. Wright, supra, the court noted similarities to language in comparable statutes which our Appellate Courts and courts in other states have considered and determined constitute conditions precedent to the jurisdiction of the court. See e.g., Lampasona v. Jacobs, 209 Conn. 724, 729-30 (1989). The People’s United Bank v. Wright court noted the following areas where certain notice is required as a condition precedent to the court’s jurisdiction. Declaratory judgment actions. Tucker v. Maher, 192 Conn. 460, 469 (1984) (Notice to those affected by a declaratory judgment action is jurisdictional); Link v. Shelton, 186 Conn. 623, 627 (1982) (Highway Defect Statute requires notice as a precondition of jurisdiction) and Aurora Loans Services, LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 (2010) (New York requires notice of certain rights prior to a foreclosure action).
This court concludes that the language of C.G.S. § 8-265ee is mandatory, clear and jurisdictional in nature. The failure of a mortgagee to comply with it prior to beginning a foreclosure action deprives the court of jurisdiction. The second question that the court must answer is whether or not the plaintiff has in fact failed to comply with the provisions of § 8-265ee. The plaintiff in its affidavit of compliance with the Emergency Mortgage Assistance Program stated that consistent with § 8-265ee it mailed to the defendants Robert M. Wolterstorff and Bonnie M. Dexter-Wolterstorff at 55 Old Stone Bridge Road a/k/a Old Stone Bridge Road North, Greenwich, Connecticut the required notices. However, the letters attached as evidence of its compliance are not addressed to Robert M. Wolterstorff and Bonnie M. Dexter-Wolterstorff; but one of them is addressed to Robert M. Wolterstorff and M. Dexter Wolterstorff. In her affidavit the defendant Bonnie M. Dexter-Wolterstorff asserts that she has never been known as M. Dexter Wolterstorff. The defendants argue that the failure to accurately state her name as the addressee fails to comply with the statute. The court does not believe and does not hold that every typographical mistake or minor error in the mailing of the notice is a substantive violation of the statute depriving the court of jurisdiction. The purpose of this statute is to provide the defendants with notice of certain remedial programs that might assist them in keeping their homes. There is no reason to believe that a letter otherwise properly addressed but omitting the defendant’s first name and a hyphen between the two words constituting her surname would result in the defendant not receiving the notice. In order for a defect in the notice to deprive the court of jurisdiction consistent with the statute, the defect must be such as to reasonably raise an issue as to whether or not the required notice actually was received by the defendant. The court does not believe that the omission of the first name of one of the defendants (or for that matter the omission of the hyphen) raises such question.
The second alleged defect is more significant. The letter is addressed to 55 Old Stone Bridge Road, Cos Cob, Connecticut as opposed to what is currently admitted to be the correct property address by the plaintiff of 54 North Old Stone Bridge Road (emphasis added). Once again it is not the use of Cos Cob as opposed to Greenwich that concerns the court. The court will take judicial notice of the fact that Cos Cob is a widely recognized section of Greenwich and the court does not believe that such address would likely result in the letter not being delivered. However, the omission of the word "North" to accurately set forth the street address is of concern to the court. An incorrect street address does raise in the court’s mind legitimate and serious questions as to whether the letter providing the required substantive notices of programs that might assist the defendants was in fact delivered. While our courts have long recognized the presumption that a letter properly addressed and mailed was received by the addressee, Disimone v. Vitello, Conn.App. 390, 393 (1986), that presumption only attaches when the letter is properly addressed.
It is not at all uncommon for there to be two streets in a municipality with similar names, one named North and one named South or one named Main Street and one named East Main Street or one named North Main Street and one named South Main Street. These designations represent different addresses and the issue of whether or not such a misaddressed envelope would be received by the defendants cannot be cured by presumption. Moreover, both defendants filed affidavits in support of their motion to dismiss indicating they did not receive the required notices. Finally, defendants’ counsel obtained from the United States Post Office a tracking memo evidencing the tracking data of the letter referenced in the plaintiff’s affidavit of compliance. That tracking memo indicates that the letter not only was not received by the defendants or delivered to any address in Greenwich but was actually returned to Buffalo, New York, the city from which it originated and in which the plaintiff’s offices are located.
The plaintiff was free to submit affidavits or other evidence or request an opportunity to present testimony that it complied with the statute but chose not to do so. It is the plaintiff who bears the burden of proof that it has complied with the statute and it is the plaintiff’s burden to prove that the court has subject matter jurisdiction. The plaintiff has simply failed to sustain its burden that it has complied with the statute and that the court has jurisdiction to adjudicate this case.
The plaintiff has recognized the significance of the difference in the two street addresses when it filed a motion to open and amend a judgment nunc pro tunc by changing the subject property address from 54 Old Stone Bridge Road, Greenwich, Connecticut 06807 to 54 North Old Stone Bridge Road, Greenwich, Connecticut 068507. Upon consideration of all of the facts before it the court concludes that the plaintiff has not sustained its burden that it has complied with the requirements of § 8-265ee and specifically that it has given notice to the mortgagor by registered or certified mail or postage prepaid at the address of the property which is secured by the mortgage. Since it has not complied with the mandatory terms of the statute the court does not have jurisdiction over this case.
IV. CONCLUSION
Because the court finds that the compliance with § 8-265ee is mandatory and a prerequisite to the court’s jurisdiction and because the court finds that the plaintiff has failed to materially comply with the provisions of the statute by sending the notice to an incorrect address the court concludes that it does not have jurisdiction over this case and grants the defendants’ motion to dismiss. C.G.S § 8-265dd(b) states in its entirety: (b) Notwithstanding any provision of the general statutes, or any rule of law to the contrary, on and after July 1, 2008, no judgment of strict foreclosure nor any judgment ordering a foreclosure sale shall be entered in any action instituted by the mortgagee to foreclose a mortgage commenced on or after said date, for the foreclosure of an eligible mortgage unless (1) notice to the mortgagor has been given by the mortgagee in accordance with section 8-256ee and the time for response has expired, and (2) a determination has been made on the mortgagor’s application for emergency mortgage assistance payments in accordance with section 8-265ff or the applicable time periods set forth in sections 8-265cc to 8-265kk, inclusive, have expired, whichever is earlier. For purposes of this section and sections 8-265-ee to 8-265kk, inclusive, an "eligible mortgage" is a mortgage which satisfies the standards contained in subdivision (1), (7) and (9) to (12), inclusive, of subsection (e) of section 8-265ff. C.G.S. § 8-265ee(a) states in its entirety: (a) On and after July 1, 2008, a mortgagee who desires to foreclose upon a mortgage which satisfies the standards contained in subdivisions (1), (9), (10) and (11) of subsection (e) of section 8-265ff, shall give notice to the mortgagor by registered, or certified mail, postage prepaid at the address of the property which is secured by the mortgage. No such mortgagee may commence a foreclosure of a mortgage prior to mailing such notice. Such notice shall advise the mortgagor of his delinquency or other default under the mortgage and shall state that the mortgagor has sixty days from the date of such notice in which to (1) have a face-to-face meeting, telephone or other conference acceptable to the authority with the mortgagee or a face-to-face meeting with a consumer credit counseling agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise, and (2) contact the authority, at an address and phone number contained in the notice, to obtain information and apply for emergency mortgage assistance payments if the mortgagor and mortgagee are unable to resolve the delinquency or default.