Opinion
NNHCV166060142S
02-02-2018
WELLS FARGO BANK, N.A. v. Charles J. SMITH et al.
UNPUBLISHED OPINION
OPINION
Walter M. Spader, Jr., J.
The Plaintiff, Wells Fargo Bank, N.A., filed this action to foreclose a mortgage it holds that is secured by the property known as 228 Judson Avenue in New Haven. The mortgage has executed on October 31, 1995 by Charles Smith in favor of Bates Financial Corp., and was in the original stated amount of $65,500.00. Following multiple assignments, the Plaintiff came into possession of the mortgage on or about January 5, 2007, and is the current holder of the note and mortgage.
Charles Smith passed away on December 25, 2014.
This action was commenced with a return date of February 9, 2016 and names as party-defendants:
D-01- Charles Smith (as holder of the equity of redemption);
D-02- Cavalry SPV I, LLC (holder of a judgment lien against the property); and
D-03- Cuda & Associates (holder of a judgment lien and lis pendens ).
Cavalry is a non-appearing defendant and Cuda & Associates appeared through counsel on February 4, 2016. Cuda’s counsel has not participated in the argument of this Motion and the defendant was defaulted for failing to disclose a defense on April 11, 2016.
On April 26, 2016, the Court entered a Judgment of Foreclosure by Sale (J. Avallone).
On or about June 23, 2016, the family of the Defendant moved through counsel to open the judgment alleging the Court did not have subject matter jurisdiction without further detail alleged in the motion. The pleading was amended on July 18, 2016 to state that a defendant was deceased at the time of filing. Judge Avallone subsequently granted the Defendant’s motion to open, vacated the judgment and reset the case to pleading status.
The Plaintiff then filed a Motion to Cite in the Heirs and Beneficiaries of Charles Smith and requested permission to publish notice to said heirs and beneficiaries. Following said publication, the Plaintiff again moved for judgment and the Court entered another Judgment of Foreclosure by Sale on January 23, 2017 (J. Avallone).
On February 21, 2017, counsel appeared for the Heirs and Beneficiaries and again moved to reopen judgment for " lack of jurisdiction." The Motion was not acted upon as the Plaintiff also subsequently moved to open its judgment in order to cite in the State of Connecticut Department of Revenue Service for any unpaid estate or succession taxes and the State of Connecticut Judicial Branch for any unpaid probate fees.
On September 18, 2017, the Court for a third time entered a Jugment of Foreclosure by Sale (J. Corradino), and set a sale date of December 2, 2017. On November 27, 2017, the Defendants reclaimed their February 21, 2017 motion to open and orally claimed it to the short calendar. The Court denied the motion, but asked that a Motion to Dismiss be filed to articulate any jurisdictional claims. The Court procedurally reset the sale to February 3, 2018 so the expected Motion to Dismiss could be heard prior to the new sale date.
Pursuant to the Court’s Order, the Defendant filed this Motion to Dismiss on January 26, 2018 and the Court granted counsel’s motion to claim the Motion to Dismiss to the January 29, 2018 short calendar so it could be addressed prior to the February 3, 2018 sale.
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.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010). " A motion to dismiss tests, inter aila, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 213 (2009). " The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person ..." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985).
At oral argument, counsel claimed that the death of the first named defendant deprived the Court of subject matter jurisdiction in the instant matter pursuant to Judge Crawford’s Decision granting a Motion to Dismiss in Yankee Gas Services Company v. Eileen Roy, 53 Conn.L.Rptr. 45 (UWY-CV-11-6011209-S, December 8, 2011). (The defendant’s name in that case appears to have actually been Eileen Joy, not Eileen Roy as appearing in the case caption). The Court allowed the Plaintiff to brief the matter and the Defendant to reply to the brief. The Plaintiff filed its Objection to the Motion to Dismiss on January 30, 2018 and the Defendant Replied on February 1, 2018. In short time frames, both counsel presented the Court with impressively well-written and detailed arguments. In its Reply, the Defendant directed the Court to additional cases beyond Yankee Gas where a Motion to Dismiss was denied because of the death of a defendant prior to effectuation of service in the matter. They cite O’Leary v Waterbury Title Company, 117 Conn. 39 (1933) for the main premise and specifically two cases they argue as analogous to the present situation- World Savings & Loan Assoc. v. Hammond, 32 Conn.L.Rptr. 107 (NNH-CV-01-0449086-S, May 6, 2002, Robinson, J.) and Santello v. Simmons-Moore, 35 Conn.L.Rptr. 639 (NNH-CV-01-0447023-S, October 15, 2003, Blue, J.). The Court disagrees with the Defendants’ conclusion, however, that this case must be dismissed under these precedents because of distinctions between the cases.
First and foremost, although the Defendants claim the jurisdictional issue as subject matter jurisdiction, they are really claiming lack of personal jurisdiction because of the death of Mr. Smith. Counsel appeared for the Heirs and Beneficiaries on April 21, 2017 and claimed the jurisdictional defect in their Motion to Open. The claim was not heard at all by the Court in the form it was presented as the Court acted on the Plaintiff’s Motion to Open at that time, instead.
While one of the grounds upon which the Plaintiff objects is that this Motion to Dismiss was not filed within 30 days of counsel’s appearance (and it argues the personal jurisdiction claim was therefore waived pursuant to Emlee Equip Leasing Corp. v. Waterbury Transmission, Inc., 41 Conn.Supp. 575 (1991) ), the Court agrees with the Defendant that they DID attempt to bring the personal jurisdictional claim before the Court in a timely basis, so the Court will consider the issue. " Once the question of lack of jurisdiction is raised, it must be disposed of no matter in what form it is presented." (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, 125 Conn.App. 201, 204; Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 47 (2013).
Disposing of the issue substantively, however, the Court finds that it has both personal and subject matter jurisdiction over all of the Defendants in this matter and the Motion to Dismiss is denied.
The Defendant is correct that the Plaintiff’s reliance on HSBC Bank, N.A. v. Lahr, 165 Conn.App. 144 (2016) is misplaced because, in that case, the defendant passed away after service was effectuated, so the Court will not consider that case in its reasoning.
In Yankee Gas, Eileen Joy was the sole defendant in the matter and, as she was deceased at the time of abode service, the court had no remaining parties over which it had jurisdiction. In World Savings & Loan Association, the only foreclosure action in the group, there was only a single named defendant in the summons and complaint. In Santello, the Court references defendants in its decision, but it appears that the case was initiated with a single statutorily necessary defendant as the liable party for the accident.
World Savings & Loan and Santello were initiated prior to the Connecticut Judicial Branch’s introduction of e-filing. The Court attempted to electronically review the docket without success. Since World Savings was a foreclosure action, the Court sua sponte reviewed the online City of New Haven Land Records and found a PDF of the Lis Pendens that was filed to provide notice of the case as recorded in Volume 5817 at Page 226 of said land records and it only listed Easter Hammond as the party-defendant.
Here, the deceased Charles Smith was but one of three defendants. At the time of initiation in the instant matter, the Court had continuing jurisdiction over Cavalry SPV 1, LLC (D-02) and Cuda & Associates (D-03), as necessary parties pursuant to Connecticut Practice Book Sec. 10-69 and Connecticut General Statute Sec. 49-1 et seq. So, even if this action was invalid solely as to the deceased Charles Smith, the Court maintained jurisdiction over the remaining Defendants and, accordingly, the action was not void ab initio . The Plaintiff followed subsequent Court Orders to add party defendants.
At oral argument, the Defendant further attempted to make a distinction over parties that are signers of the mortgage and note versus those who are merely joined in the action by virtue of being lien holders. Lien holders are proper- and necessary- party defendants. The jurisdiction of the Court is over the entire case and controversy. The Plaintiff could have proceeded against just the lien holders and moved the Court to enter judgment on its behalf foreclosing out the just those lien holders. The Plaintiff could then have brought a separate action under Connecticut General Statute Sec. 49-30 against the heirs and beneficiaries. Instead, the Plaintiff followed a similarly proper procedure of citing in the other necessary parties into its existing action in an effort to resolve the entire controversy in one action, as it was allowed to do by statute, by Practice Book and by the Orders of the Judges that granted the cite in and publication motions.
CONCLUSION
Accordingly, the Motion to Dismiss is denied and the foreclosure sale shall go forward on February 3, 2018. The Court instructs the Committee to not file any motion to approve the foreclosure sale until the expiration of the appeal period from the denial of the Defendant’s Motion herein pursuant to Connecticut Practice Book Sec. 61-11(h).