Opinion
CV146021726
11-20-2017
West Coast Servicing, Inc. v. Genine Feaster
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#135)
Timothy D. Bates, J.
FACTS
This action arises out of an alleged default of a mortgage. In the complaint filed on July 25, 2014, the plaintiff alleges the following facts. On December 3, 2001, Genine Feaster promised to pay GMAC Mortgage Corporation the principal sum of $30,000 together with interest. On the same day, Genine Feaster and the defendant, Arnold Feaster, secured the note by a mortgage deed to GMAC Mortgage Corporation and its successors and assigns for the property located at 39 Barry Drive. On October 18, 2005, GMAC Mortgage Corporation assigned the note and mortgage to the plaintiff, West Coast Realty Services, Inc. and Glenn Ohno, which was recorded February 7, 2006.
The plaintiff initially filed suit against Genine Feaster and Arnold Feaster. Genine Feaster was excused because Arnold Feaster signed a forbearance agreement that excused her from all liability when she quit claimed her deed over to Arnold Feaster. The only defendant discussed herein is Arnold Feaster.
On November 3, 2008, Genine Feaster conveyed her interest in the property to the defendant, Arnold Feaster, by a quit-claim deed, which was recorded on October 3, 2012. On December 17, 2013, Glenn Ohno assigned his interest in the note and mortgage to West Coast Servicing, Inc., and the assignment was recorded on January 14, 2014.
Genine Feaster and the defendant have failed to pay the installments of principal and interest which became due on August 6, 2007. On the sixth day of each month thereafter, notice of said defaults were given by the plaintiff. On May 14, 2013, notice was sent to the defendant informing him of his breach, the necessary actions he had to take to cure breach, and making him aware of the possible acceleration of the note if he failed to do so. The defendant has failed to cure the defaults within the time specified in the notices. The plaintiff, as a result, is exercising the acceleration clause contained in the note and mortgage and seeks payment of the mortgage debt in full.
On July 11, 2016, the defendants filed a motion to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction due to insufficient notice. The defendant filed a memorandum of law in support of the motion. On August 10, 2016, the plaintiff filed an objection to the motion. On August 15, 2016, the defendants filed a reply. On August 25, 2016, the plaintiff filed a reply.
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). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" Whenever the absence of jurisdiction is brought to the notice of the court . . . cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc. 239 Conn. 93, 99, 680 A.2d 1321 (1996). " [A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction is a question of law . . . once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
A bank's failure to comply with the Emergency Mortgage Assistance Program (EMAP) notice requirements pursuant to 8-265ee implicates the court's subject matter jurisdiction. See People's United Bank v. Wright, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6004126-S (March 30, 2015, Mottolese, J.T.R.) (60 Conn. L. Rptr. 69, ) (EMAP notice requirement is necessary to secure subject matter jurisdiction and strict compliance is required; therefore, in that case, the motion to dismiss was granted because plaintiff failed to send notice); See also Citibank, N.A. v. Stein, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-6001636-S, (January 7, 2016, Heller, J.) (Motion to dismiss denied because plaintiff satisfied the notice requirements in § 8-265ee); Wilmington Savings Fund Society v. FSB, Superior Court, judicial district of Danbury, Docket No. CV-16-6018809-S, (January 6, 2017, Russo, J.) (Motion to dismiss denied because plaintiff satisfied the notice requirements in § 8-265ee).
The defendant argues that the plaintiff has failed to comply with the notice mandates of General Statutes § 8-265ee(a) and, therefore, the foreclosure action must be dismissed. The plaintiff disagrees arguing that Genine Feaster's transfer of her interest without the prior written consent of the mortgagee is an event of default that is not a monetary delinquency referred to in General Statutes § 8-265ff(e)(2), and, therefore, the plaintiff was not required to send notice pursuant to General Statutes § 8-265ee(a).
General Statutes § 8-265ee(a) provides in relevant part: " 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 . . ." General Statutes § 8-265ff(e)(11) provides: " The mortgagor is not in default under the mortgage except for the monetary delinquency referred to in subdivision (2) of this subsection." General Statutes § 8-265ff(e)(2) provides in relevant part: " Payments . . . owed by the mortgagor under any mortgage on such real property have been delinquent and the mortgagee, taxing authority, or unit owners association has indicated to the mortgagor its intention to foreclose."
Section 16 of the mortgage agreement provides that a borrower's transfer of his or her property interest without the lender's prior written consent permits, but does not require, the lender to accelerate the sum secured by the mortgage. Furthermore, § 16 states " this option shall not be exercised by Lender if exercise is prohibited by Federal law as of the date of this Mortgage."
Section 1701j-3 of title 12 of the United States Code provides exemptions for acceleration clauses. These exemptions include specified transfers, such as " a transfer where the spouse or children of the borrower become an owner of the property" or " a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property." 12 U.S.C. § 1701j-3(d)(6) and (7).
In the present case, in a judgment of dissolution of marriage in 2005, Genine Feaster was ordered to " quit claim her right, title and interest in and to the marital property located at 39 Barry Drive . . . to Defendant . . ." Thus, under federal law, the acceleration clause under the mortgage agreement is inapplicable in regards to Genine Feaster's transfer of her interest resulting from a decree of a dissolution of marriage and the mortgage satisfies the standards under General Statutes § 8-265ee(a).
" Compliance with the notice requirements of General Statutes § 8-265ee is a condition precedent to commencing a foreclosure action and implicates subject matter jurisdiction." Aurora Loan Services, LLC v. Condron, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-6002588-S (February 8, 2016, Heller, J.) (61 Conn. L. Rptr. 875, ). Section § 8-265ee(a) provides in relevant part: " [A] mortgagee who desires to foreclose . . . 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 . . . 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 . . . have a . . . meeting . . . and . . . obtain information and apply for emergency mortgage assistance payments . . ."
In the present case, the plaintiff provided an affidavit stating it did not need to comply with EMAP because of the event of default under § 16 of the mortgage, making it a non-monetary delinquency default. As discussed above, this section does not apply due to Genine Feaster's transfer resulting from dissolution of marriage. Additionally, the plaintiff presents two default letters, one sent to the defendant's post office box, and the other sent to the defendant at the property. Only one default letter, dated May 14, 2013, indicates that it was sent via first-class mail and certified mail. It also states the mortgagor has fourteen days of the date of the letter to request a meeting. The other default letter, dated December 6, 2010, had also only given the mortgagor fourteen days of the date of the letter to request a meeting. Additionally, neither default letter provides any information regarding EMAP or information to apply for emergency mortgage assistance payments. Therefore, neither notice complies with General Statutes § 8-265ee(a).
CONCLUSION
Accordingly, the court grants the defendant's motion to dismiss the plaintiff's complaint due to lack of subject matter jurisdiction because the plaintiff did not satisfy the notice requirements of General Statutes § 8-265ee(a).