Opinion
No. FST CV 10 6006033 S
December 2, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103.00
On July 8, 2010, the plaintiff, CUDA Associates, LLC, commenced a foreclosure action against the defendant, Eugene C. Gavin, alleging that the defendant has failed to pay pursuant to a June 2010 judgment that resulted in a judgment lien. On August 25, 2010, the self-represented defendant filed a motion to dismiss on the grounds that the plaintiff has made "willful and intentional untrue allegations that the defendant . . . has failed, neglected, and refused to pay the amount due the plaintiff" and that the defendant is making timely weekly payments pursuant to the June 2010 judgment. In response, on September 9, 2010, the plaintiff filed an objection to the motion to dismiss. After oral argument was heard on the matter, the plaintiff filed a memorandum in support of its objection on September 22, 2010.
"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." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "The grounds which may be asserted in this motion are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
In the present action, the defendant has not pled a valid ground for dismissal but rather has attacked the merits of the complaint. However, this court is not bound by how the parties title their moving papers. See, e.g., Cadle Co. v. D'Addario, 268 Conn. 441, 445 n. 5, 844 A.2d 836 (2004) (treating "cross motions for summary judgment as a motion to dismiss and an objection to the motion to dismiss"); Joo v. Capitol Switch, Inc., Superior Court, judicial district of Danbury, Docket No. 30 09 20 (June 6, 1996, Leheny, J.) ( 17 Conn. L. Rptr. 326, 329 n. 9) ("[t]he defendants argue that the court should `dismiss' count two, but since their argument does not address the court's jurisdiction over that count, it is treated as a motion for summary judgment as to count two"). Further, "[i]t is the established policy of the Connecticut courts to be solicitous of [self represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self represented] party." (Internal quotation marks omitted.) Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 861, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). For these reasons, the court will construe the motion to dismiss as a motion for summary judgment.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
In the present case, the plaintiff has admitted in its objection to the defendant's motion to dismiss that the defendant is making weekly court-ordered payments in a timely fashion. The plaintiff characterizes these payments as "nominal" and claims that if the defendant continues to pay this weekly amount, "this judgment would never be paid off and in fact would increase." The plaintiff has not cited to any relevant authority for its contention that a party may pursue foreclosure against a defendant in spite of the defendant's compliance with a court order for installment payments. In its memorandum, the plaintiff directs the court's attention to General Statutes § 52-356d(b), which provides in relevant part: "In the case of a consumer judgment, the court may provide that compliance with the installment payment order, other than with an order for nominal payments pursuant to subsection (c) of this section, shall stay any property execution or foreclosure pursuant to that judgment, provided such a stay is reasonable considering the nature of the debt and the financial circumstances of the judgment debtor." By its very text, Section 52-356d(b) is limited to cases that deal with a "consumer judgment," which is defined as "a money judgment of less than five thousand dollars against a natural person resulting from any consumer debt or obligation." General Statutes § 52-350a(3). Because the plaintiff has pled that the June 2010 judgment was in the amount of $19,748.43, Section 52-356d(b) is not applicable to the present action. The plaintiff also cites to a Connecticut foreclosure desk book, but without any reference to a specific section or page of the book or any applicable cases or statutes, it is impossible for the court to address this aspect of the plaintiff's legal argument.
In its memorandum in opposition of the motion to dismiss, the plaintiff claims that "the defendant is making nominal payments of $35.00 per week on a judgment of over $19,000.00. Given that post-judgment interest continues to accrue, the judgment would not be paid off for decades."
The present case is factually similar to Lienfactors, LLC v. Crandall, Superior Court, judicial district of New London, Docket No. CV 07 5002929 (October 2, 2008, Martin, J.). In Lienfactors, the plaintiff sought to foreclose a judgment lien. Id. The defendant asserted a special defense of payment. Id. The plaintiff moved for summary judgment, arguing "that it can foreclose despite the fact that the defendant, by making weekly payments, has complied with the court order . . . because the amount awarded the plaintiff in the underlying action should be considered nominal and because the court [that entered the order for weekly payments] did not enter any stay as to a foreclosure at the time judgment entered." (Internal quotation marks omitted.) Id. The defendant filed a cross-motion for summary judgment. Id.
In analyzing the motions for summary judgment, the court stated: "It is undisputed that the defendant has been complying with that order by making weekly payments. Therefore, the defendant is not in default on the judgment lien and the judgment cannot be considered unpaid. Moreover, if the plaintiff found the amount of weekly installment payments unreasonable, it should have filed a motion to modify the order pursuant to General Statutes § 52-356d(f) instead of collaterally attacking the court's order . . ." Id. The court proceeded to deny the plaintiff's motion for summary judgment and to grant the defendant's cross-motion for summary judgment. Id.
In another decision involving the same parties, the plaintiff moved to strike the defendant's special defenses. Lienfactors, LLC v. Crandall, Superior Court, judicial district of New London, Docket No. CV 07 5002929 (February 5, 2008, Martin, J.). In his special defenses, the defendant asserted that he "has fully complied with that order by making regular weekly payments" and "that the plaintiff's action is barred because the plaintiff never moved to open, modify or set aside the judgment and order of weekly payments issued in the matter." Id. The court denied the motion to strike some of the special defenses, ruling that "this court will not render a judgment of foreclosure of a judgment lien without a full hearing on the merits of whether the payments on the judgment are current." Id.
This court adopts the reasoning of the Lienfactors decisions discussed above. The plaintiff has admitted that the defendant has been making timely payments in compliance with the June 2010 judgment, and therefore a hearing is not necessary. "It is well settled that . . . [f]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case . . . An admission in pleading dispenses with proof, and is equivalent to proof." (Internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 454, 892 A.2d 938 (2006). Further, "[a] trial court has discretion, after a review of the equities, to withhold foreclosure . . . Certainly one of the equities in an action for foreclosure of a judgment lien is the fact that the debtor is not in default of the terms ordered as payment of the judgment." (Citation omitted.) First New Haven National Bank v. Rowan, 2 Conn.App. 114, 118, 476 A.2d 1079 (1984).
Accordingly, because the plaintiff has failed to prove that there is a genuine issue as to any material fact with regards to the defendant's timely compliance with court-ordered weekly payments, and General Statutes § 52-356d(b) is inapplicable to the present action, the court grants the defendant's motion for summary judgment.