Opinion
CV176011564S
02-06-2018
NATIONSTAR MORTGAGE, LLC dba Champion Mortgage Co. v. Ralph SERVER, Jr. et al.
UNPUBLISHED OPINION
OPINION
Gerald Harmon, Judge
The plaintiff commenced the first foreclosure action by summons and complaint dated February 23, 2015, regarding real property located at 1210 Durham Road, Wallingford, Connecticut. The complaint alleged that the defendant had defaulted on his obligations under the note and mortgage. This action was dismissed for dormancy on July 24, 2017, as the plaintiff had failed to comply with the foreclosure docket management program. The plaintiff filed a motion to open the judgment on August 9, 2017, which was denied by the court, Cronan, J., on August 21, 2017. No pleadings were filed by either party after August 21, 2017, in the first foreclosure action.
Nationstar Mortgage, LLC v. Server, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-15-6008087-S. See Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003); see also Drabik v. East Lyme, 234 Conn. 390, 398-400, 662 A.2d 118 (1995) (trial court has discretion to take judicial notice of portions of file in another case).
The present foreclosure action was commenced by the plaintiff by a summons and complaint dated November 14, 2017, concerning the same loan documents, the same default, and the same property. On December 11, 2017, the defendant filed a motion to dismiss (# 104) the foreclosure action, on the ground that the dismissal of the prior foreclosure action prohibits the plaintiff from bringing the present foreclosure action. The plaintiff filed an objection to the motion to dismiss (# 105) on January 4, 2018. The defendant filed a reply memorandum to the plaintiff’s objection (# 106) on January 8, 2018, and then subsequently filed what he entitles an " Addendum" to his motion to dismiss (# 108) on January 9, 2018, and an " Affirmation" of his motion to dismiss (# 109) on January 18, 2018. The motion to dismiss and related objection were heard by the court on January 8, 2018.
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). Res judicata and statutes of limitation do not implicate the court’s subject matter jurisdiction. Thus, the defendant’s arguments are not properly before the court because a motion to dismiss is the improper method to raise statute of limitations or res judicata. See Practice Book § 10-50. Ordinarily, a statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972). " Res judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994); see also Tuchman v. State, 89 Conn.App. 745, 763 n.7, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005) (" [o]ur courts have long recognized that the doctrine of res judicata must be raised as a special defense and may not be raised by motion to dismiss" [internal quotation marks omitted] ).
Collateral estoppel, which is an aspect of the doctrine of res judicata, " does not implicate a court’s subject matter jurisdiction." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 763 n.7, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
The running of a statute of limitations generally does not deprive the court of subject matter jurisdiction. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266-71, 777 A.2d 645 (2000). In limited circumstances, a statute of limitations can raise a jurisdictional issue. See State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012) (" [When] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." [Internal quotation marks omitted.] ) This does not apply in the present case.
Practice Book § 10-50 provides in relevant part: " No facts may be proven under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, ... statute of limitations and res judicata must be specially pleaded ..."
STATUTES OF LIMITATION
The defendant does not specifically identify the statutes he is referring to when arguing that the plaintiff’s action is time barred, as required by Practice Book § 10-3(a). Moreover, it is unclear from the defendant’s arguments which statute he is referring to, as all he refers to is a six-year statute of limitation for breach of written contract or action on a promissory note. It appears that the defendant may be referring to either General Statutes § 42a-3-118(a), General Statutes § 52-576(a), or both, as each contains a six-year limitation. Regardless, even if the defendant had specifically identified which statute he bases his argument upon, his argument would fail because the statute would not bar the mortgage foreclosure action.
Practice Book § 10-3(a) provides: " 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."
General Statutes § 42a-3-118(a) provides in relevant part: " Except as provided for 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."
General Statutes § 52-576(a) provides in relevant part: " 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 ..."
" A foreclosure action is an equitable proceeding" ; Citicorp Mortgage, Inc. v. Conant, 54 Conn.App. 529, 532, 736 A.2d 928 (1999); and, therefore, statutes of limitation do not bar or prevent mortgage foreclosure actions. Federal Deposit Ins. Corp. v. Owen, 88 Conn.App. 806, 814-15, 873 A.2d 1003 (2005); Markham v. Smith, 119 Conn. 355, 358, 176 A. 880 (1935). See also Bank of America v. Terranova, Superior Court, judicial district of Windham, Docket No. CV-15-6009890-S (October 5, 2017, Calmar, J.); Deutsche Bank National Trust Co. v. Juchniewich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-16-6028759-S (February 27, 2017, Tierney, J.T.R.). In Federal Deposit Ins. Corp., the court specifically held that the foreclosure action was not barred by § 42a-3-118 or § 52-576(a). Federal Deposit Ins. Corp. v. Owen, supra, 814-15.
RES JUDICATA
The defendant’s argument as to res judicata fails because the prior foreclosure action was not dismissed by a judgment on the merits and, therefore, res judicata is inapplicable. " [T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ... The doctrine of res judicata applies if the following elements are satisfied: the identity of the parties to the actions are the same; the same claim, demand or cause of action is at issue; the judgment in the first action was rendered on the merits ; and the parties had an opportunity to litigate the issues fully ." (Emphasis added; internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 626, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " Judgments based on the following reasons are not rendered on the merits: want of jurisdiction; pre-maturity; failure to prosecute; unavailable or inappropriate relief or remedy; lack of standing ... Relying on this principle, [our Appellate Court] has held that the dismissal of an earlier action for lack of standing is not a judgment on the merits and does not have a res judicata effect." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id.
The prior action was dismissed under the court’s docket management program pursuant to Practice Book § 14-3 and, thus, was not adjudicated on the merits. Accordingly, the doctrine of res judicata does not apply and the plaintiff is not barred from bringing the present foreclosure action. See Bank of America v. Terranova, supra, Superior Court, Docket No. CV-15-6009890-S (" A dismissal under § 14-3 is a dismissal for failure to prosecute. The first action was not adjudicated on the merits. Therefore, the plaintiff is not barred from bringing the present action" ); see also Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990) (" dismissal entered pursuant to § 251 [now § 14-3] is not an adjudication on the merits that can be treated as res judicata" [internal quotation marks omitted] ).
Further, it does not appear to be uncommon for a plaintiff to bring another foreclosure action where the prior foreclosure action was dismissed for dormancy and a motion to open that judgment was denied. See e.g., Wells Fargo Bank, N.A. v. Fitzpatrick, Superior Court, judicial district of Fairfield, Docket No. CV- 14-6045996-S (November 15, 2017, Jennings, J.T.R.) , Deutsche Trust Co. v. Juchniewich, supra, Superior Court, Docket No. CV-16-6028759-S. In Wells Fargo, the foreclosure case was tried to the court, which ultimately granted a judgment of foreclosure by sale. Wells Fargo Bank, N.A. v. Fitzpatrick, supra . The defendants in Wells Fargo did not assert a claim of res judicata but, rather, asserted a special defense of laches. Id. The court found the defendant failed to prove this special defense, writing: " The first foreclosure case was dismissed for dormancy on May 8, 2014. [Plaintiff’s] Motion to Reopen the judgment of dismissal was denied on June 3, 2014. [Plaintiff’s counsel] mailed another notice of default on June 19, 2014 with a cure period until July 19, 2014. This action was served slightly more than two months later on September 26, 2014, which the court does not consider to be an unreasonable delay." Id.
CONCLUSION
Based on the foregoing discussion, the defendant’s motion to dismiss is denied because it improperly raises issues which should be pleaded as special defenses. Furthermore, the motion to dismiss is denied as to the merits as well because even if the defendant did plead res judicata and statute of limitations as special defenses, they would fail. Res judicata is inapplicable to the present case as there was not a judgment on the merits and statutes of limitation do not bar mortgage foreclosure actions.