Opinion
No. CV 07 5004304
June 17, 2008
MEMORANDUM RE THE PLAINTIFF'S MOTION TO REARGUE AND THE DEFENDANTS' MOTION TO DISMISS (#107)
On October 26, 2007, the plaintiff, Deutsche Bank National Trust, filed a foreclosure action against the defendants, Cathy and Robert Daggs. On January 23, 2008, the plaintiff filed a motion for summary judgment with a memorandum in support. The defendants did not oppose the motion and it was granted on February 11, 2008. The plaintiff then moved for a judgment of strict foreclosure on February 20, 2003. On March 6, 2008, the defendants filed a motion to dismiss, with a memorandum in support, arguing that the plaintiff was not in possession of the promissory note when it brought the foreclosure action and did not have standing as a result. The plaintiff filed a memorandum in opposition on March 10, 2008, arguing that it had standing because it had possession of the promissory note at the time it brought the foreclosure action. The court granted the defendant's motion to dismiss on March 10, 2008. On March 13, 2008, the plaintiff filed a motion to reargue with a memorandum in support on the grounds that the court improperly granted the motion to dismiss. The defendants objected to the motion to reargue on March 24, 2008, but did not file a memorandum in support.
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
The plaintiff argues that it had standing because it held the promissory note prior to bringing the foreclosure action. "General Statutes § 49-17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him . . . The statute codifies the common law principle of long standing that the mortgage follows the note pursuant to which only the rightful owner of the note has the right to enforce the mortgage." (Citation omitted; internal quotation marks omitted.) Bankers Trust Co. of Calfornia, N.A. v. Vaneck, 95 Conn.App. 390, 391, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006); see also Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003). In Bankers Trust, the plaintiff was not assigned the mortgage, and did not record it, until a year after commencing foreclosure. Bankers Trust Co. of California, N.A. v. Vaneck, supra, 95 Conn.App. 393. The court found that the plaintiff had standing to bring the case because it was in possession of the note, the negotiable instrument, prior to the commencement of the foreclosure. Id., 393-95.
General Statutes § 49-17 provides: "When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies."
In the fourth paragraph of its complaint, the plaintiff alleges that it was holder of the relevant note and mortgage when it brought the foreclosure action. To support these allegations, the defendant brought forth the note and mortgage at the March 10, 2008 hearing. Having established through its allegations and affirmative evidence that it was in possession of the note at the commencement of this foreclosure action, the plaintiff has met its burden in establishing that it had standing.
The defendants have not produced anything that contradicts the plaintiff's allegations or evidence. In its motion to dismiss, the defendants rely entirely on the exhibits to plaintiff's motion for summary judgment to argue that the plaintiff did not have possession of the note and mortgage at the time it brought suit. Specifically, the defendants argue that the exhibits show that assignment of the mortgage debt did not occur until December 7, 2007. (Plaintiff's Motion for Summary Judgment, Affidavit Exhibit 3.) The exhibit, however, only relates to the assignment of the mortgage, not the note or the "mortgage debt" as the defendants argue. Id. Under § 49-17, only possession of the note is necessary to have standing to bring a foreclosure action. With no evidence contradicting the plaintiff's allegations and evidence that it had possession of the note at the commencement of this action, the defendant's motion to dismiss should not have been granted.
This court denies the plaintiff's motion to reargue.
However, this court vacates, sua sponte, its previous ruling granting the defendant's motion to dismiss.
Lastly, this court denies the defendant's motion to dismiss.