Opinion
KNLCV176030401S
09-30-2019
STORE AVENUE, LLC v. O.M. GOODNESS, LLC
UNPUBLISHED OPINION
Carrasquilla, J.
FACTS
This action arises out of an alleged default of a mortgage. On June 8, 2017, the plaintiff, Store Avenue, LLC, filed the operative complaint alleging the following facts. At all relevant times, the defendant, O.M. Goodness, LLC, owned real property situated in New London. On April 16, 2016, the defendant and Kimberly Sheridan (the borrowers) executed and delivered a mortgage note in the original principal amount of $112, 500 to the plaintiff. On the same date, the defendant executed and delivered a mortgage on the property to the plaintiff. The mortgage was dated April 29, 2016, and recorded on May 4, 2016, in Volume 2165 at page 92 of the New London Land Records. The plaintiff is the holder of the note and mortgage on the property. The note is in default. The borrowers have failed and neglected to cure the default. The plaintiff has elected to accelerate the balance due on the note, to declare the note be due in full, and to foreclose the mortgage securing the note.
O.M. Goodness, LLC and Kimberly Sheridan were both named as defendants to this action. On March 7, 2019, the plaintiff filed a withdrawal of action against the defendant Sheridan, who was removed as a defendant. Hereinafter, O.M. Goodness, LLC will be referred to as the defendant, while Sheridan will be referred to individually. O.M. Goodness, LLC and Sheridan will be referred to collectively as "the borrowers."
On September 4, 2018, the court, Knox, J., entered a judgment of strict foreclosure with the law day set for November 20, 2018 (#134.00). A notice of bankruptcy was filed as to this defendant on November 19, 2018 (#135.00). The bankruptcy was closed and notice of same was filed on March 4, 2019 (#136.00). On April 5, 2019, this defendant filed a Motion to Dismiss the present action on the basis of lack of subject matter jurisdiction. On June 6, 2019, the plaintiff filed a Memorandum of law in support of its Objection to defendant’s Motion to Dismiss with accompanying exhibits. On June 10, 2019, defendant filed a Reply. On June 11, 2019, the court heard the parties’ oral arguments.
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 ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 221, 31 A.3d 429 (2011).
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Bagg v. Thompson, 114 Conn.App. 30, 37-38, 968 A.2d 468 (2009). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).
"When [deciding] a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, [a court] must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Norris v. Trumbull, 187 Conn.App. 201, 209, 201 A.3d 1137 (2019).
"In contrast, if the complaint is supplemented by undisputed facts established by [1] affidavits submitted in support of the motion to dismiss ... [2] other types of undisputed evidence ... and/or [3] public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." Norris v. Trumbull, supra, 187 Conn.App. 209-10.
"Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-53, 974 A.2d 669 (2009).
In its memorandum of law in support of the motion to dismiss, the defendant moves to dismiss the present action on the ground that the plaintiff failed to provide written notice to the defendant as required in the mortgage note and mortgage deed. In opposition, the plaintiff argues that it substantially complied with the notice requirements of the mortgage note and the mortgage deed. "Notice provisions in mortgage documents usually require default notices to contain specific information, which serves a very clear and specific purpose; it informs mortgagors of their rights so that they may act to protect them. Therefore, when the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure. Consequently, we must determine whether such a condition precedent was satisfied in the present case." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Fitzpatrick, 190 Conn.App. 231, 239-40, 210 A.3d 88, cert. denied, 332 Conn. 912, 209 A.3d 1232 (2019); see also Aurora Loan Services, LLC v. Condron, 181 Conn.App. 248, 272, 186 A.3d 708 (2018) ("The plain intent of the notification requirements ... of the mortgage deed is to provide notice of a default to a [mortgagor] prior to the commencement of a foreclosure proceeding. Those notification requirements are not mere formalities but, rather, constitute a condition precedent to the commencement of foreclosure actions like the present case").
The defendant attached the mortgage note and the mortgage deed of the subject property as exhibits to its motion to dismiss.
The doctrine of substantial compliance was addressed by our Appellate Court in Aurora Loan Services, LLC v. Condron, where the court held that "[t]he proper application of the doctrine of substantial performance requires a determination as to whether the contractual breach is material in nature ... [T]he doctrine of substantial performance applies only where performance of a nonessential condition is lacking, so that the benefits received by a party are far greater than the injury done to him by the breach of the other party." Aurora Loan Services, LLC v. Condron, supra, 181 Conn.App. 275.
Furthermore, in Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn.App. 367, 375, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008), our Appellate Court held "[i]n deciding whether proper notice was given, we therefore look primarily to the actual notice received rather than asking whether there has been a punctilious adherence to formality. Although generally contracts should be enforced as written, we will not require mechanistic compliance with the letter of notice provisions if the particular circumstances of a case show that the actual notice received resulted in no prejudice and fairly apprised the noticed party of its contractual rights." (Citation omitted; internal quotation marks omitted.)
In the present case, the relevant notice provisions in the mortgage documents are contained in the mortgage note and in paragraphs 12 and 17 of the mortgage deed. Paragraph 12 of the mortgage deed provides in relevant part: "Except for any notice required under applicable law to be given in another manner (a) any notice to Borrower provided for in this Mortgage shall be given by delivering it or by mailing such notice by first class mail addressed to Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as provided herein ..." Defendant’s Memorandum of Law in Support of Motion to Dismiss, Ex. B. Paragraph 17 of the mortgage deed provides in relevant part: "[U]pon Borrower’s breach of any covenant or agreement of Borrower in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, Lender prior to acceleration shall give notice to Borrower as provided in paragraph 12 hereof specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than thirty (30) days from the date the notice is mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage and foreclosure or sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in court the nonexistence of a default or any other defense of Borrower to acceleration and foreclosure or sale. If the breach is not cured on or before the date specified in the notice, Lender, at Lender’s option, may declare all of the sums secured by this Mortgage to be immediately due and payable without further demand and may invoke any of the remedies permitted by applicable law. Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph 17, including, but not limited to, reasonable attorneys fees." Defendant’s Memorandum of Law in Support of Motion to Dismiss, Ex. B. The mortgage note provides in relevant part: "If any payments due hereunder shall not have been paid within ... 15 days after the same is due, or if any other agreement of the Borrower under the mortgage securing this Note shall be in default and shall not have been fully performed within thirty ... days after the written notice of default has been mailed to any Borrower (addressed to the last known place of abode of any Borrower hereof) ... then the entire unpaid principal ... shall, at the option of the Lender, become due and payable forthwith." Defendant’s Memorandum of Law in Support of Motion to Dismiss, Ex. A.
In the present action, the plaintiff points to a series of electronic communications and to the proceedings of this present case as evidence that the plaintiff provided actual notice and substantially complied with the notice requirements. A review of the record indicates that the plaintiff failed to provide written notice to the defendant as required in the mortgage documents. Substantial compliance only applies if the written notice of default is actually sent and received. The evidence presented also establishes that the defendant was not adequately informed of its contractual rights. Paragraph 12 of the subject mortgage deed sets forth the requirement that "any notice to Borrower provided for in this Mortgage shall be given by delivering it or by mailing such notice by first class mail addressed to Borrower at the Property Address or at such other address as Borrower may designate ..." Defendant’s Memorandum of Law in Support of Motion to Dismiss, Ex. B. The record is absent any evidence that the defendant received written notice by first class mail. Furthermore, the notice provisions within the mortgage documents REQUIRE lender prior to acceleration to provide Borrower notice of "the breach, the action required to cure such breach, a date, not less than thirty (30) days from the date the notice is mailed to Borrower, by which such breach must be cured and that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage and foreclosure or sale of the property." Borrower’s right to reinstatement after acceleration and rights to assert defenses are also required to be provided in the written notice. Defendant’s Memorandum of Law in Support of Motion to Dismiss, Ex. B. The record does not contain any evidence to support the contention that the defendant was fairly apprised of said contractual rights. Indeed, and undisputedly, there was a harm to the defendant. Accordingly, the court finds that the plaintiff failed to provide proper notice as set forth in the notice provisions within the mortgage documents.
The issue of whether the plaintiff failed to provide written notice to the defendant in accordance with the Emergency Mortgage Assistance Program, General Statutes § 8-265cc et seq., is not addressed due to the Court’s dismissal of this action on the ground that the plaintiff failed to provide proper notice.
CONCLUSION
The defendant’s Motion to Dismiss for lack of proper notice to the defendant as required by the notice provisions within the mortgage documents is hereby GRANTED.
SO ORDERED.