Opinion
No. CV 08 5004759
June 17, 2008
MEMORANDUM RE THE PLAINTIFF'S MOTION TO REARGUE (#108)
On December 28, 2007, the plaintiff, Deutsche Bank Trust Company Americas, filed a foreclosure action against the defendant, John Collins. The plaintiff moved for a judgment of strict foreclosure on January 25, 2008. The defendant answered on January 31, 2008, but failed to disclose a defense. When asked to disclose a defense, the defendant admitted he had no defense on February 11, 2008. On February 15, 2008, the plaintiff moved for a default judgment, and had it granted on March 3, 2008. On March 10, 2008, however, the court dismissed the case sua sponte for lack of standing. On March 13, 2008, the plaintiff filed a motion to reargue with a memorandum in support on the grounds that the court improperly dismissed the case. The defendant objected to the motion to reargue on March 20, 2008, and filed a memorandum in support.
"[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 the promissory note was in its possession 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 California, 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 produced 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 defendant has not produced any evidence that contradicts the plaintiff's allegations and evidence. In its memorandum in opposition, the defendant relies entirely on allegations made in the plaintiff's complaint that the mortgage assignment was not recorded in order to argue that the plaintiff did not have possession of the "mortgage debt" at the time the foreclosure action was brought. The fact that the mortgage assignment was not recorded before the foreclosure action commenced does not imply that the plaintiff did not hold the promissory note. On the contrary, § 49-17 was created to allow parties to begin foreclosure proceedings when they had been assigned the note, but not the mortgage. See Fleet National Bank v. Nazareth, supra, 75 Conn.App. 795 ("General Statutes § 49-17 . . . provides an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him"). The plaintiff specifically alleges that it held the note when it brought foreclosure. 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 cannot challenge the reversal of dismissal.
Therefore this court, sua sponte, vacates the dismissal of action entered on March 3, 2008.
Further, this court denies the plaintiff's motion for articulation and overrules the defendant's objection to motion to reargue in view of the foregoing memorandum of decision.