Opinion
No. HHB CV054007055 S
March 24, 2006
MEMORANDUM OF DECISION RE MOTION TO SUBSTITUTE PARTY PLAINTIFF
In this foreclosure action plaintiff, First Franklin Financial Corp., has brought a Motion to Substitute Party Plaintiff (# 102) pursuant to Practice Book § 9-16. The defendant has already been defaulted for failure to appear. In its motion, the plaintiff represents that since the commencement of the action it had assigned the mortgage deed and note, and the cause of action, to another financial entity, Wells Fargo Bank National Association as Trustee for First Franklin Mortgage Loan Trust 2003-FF5 by: Saxon Mortgage Services, Inc., as its Attorney-in-Fact. ("Wells Fargo.") Appended to the motion was a copy of the Assignment by which the mortgage deed and note were assigned to Wells Fargo. (Exhibit A.) An examination of the Assignment reveals that it was executed on November 10, 2003. The instant action commenced by a return date of August 30, 2005. After reviewing the motion, the court sua sponte ordered oral argument and briefing on the issue of whether the court has subject matter jurisdiction over the matter given that the Assignment by First Franklin to Wells Fargo had not been made "since the commencement of the action" as alleged in its motion, but rather, close to two years before the matter was returned to court. See Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 2d 525 (1990).
Practice Book § 9-16 provides: "If, pending the action, the plaintiff assigns the cause of action, the assignee, upon written motion, may either be joined as a co-plaintiff or be substituted as a sole plaintiff, as the judicial authority may order; provided that it shall in no manner prejudice the defense of the action as it stood before such change of parties.
Subsequent to the oral argument held on January 26, 2006, the plaintiff filed an Amended Motion to Substitute Party Plaintiff dated February 10, 2006, indicating that the action "was originally commenced with an improperly named and/or incorrect Plaintiff through mistake." It further alleged that the Assignment dated November 10, 2003 had been recorded on the New Britain Land Records on January 19, 2006.
For the reasons set forth below, the court finds that the failure to properly name the plaintiff at the time of the institution of this action deprives the court of jurisdiction over the subject matter and it should therefore be dismissed.
Plaintiff argues that there are two statutes which would allow the court to exercise jurisdiction over the matter despite the wrongly named plaintiff. The first is General Statute § 52-109 which states "[w]hen any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." The other is General Statute § 52-123 which states "[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes, or defects, if the person and the cause may be rightly understood and intended by the court."
In the thoroughly researched decision of DiLieto v. County Obstetrics and Gynecology Group et al., Superior Court, judicial district of Waterbury, Docket No. CV 97 0150435 (January 31, 2000, Sheldon, J.) ( 26 Conn. L. Rptr. 345), the court reviewed and analyzed the standard for the invocation of General Statute § 52-109. "The two conditions that must be met to invoke the statutory remedy of substitution are: first, that the action was commenced in the name of the wrong person by mistake; and second, that the proposed substitution is necessary for the determination of the real matter in dispute." (Citations omitted; internal quotation marks omitted.) However, the court also noted that "to prevail on a motion to substitute under General Statute § 52-109, a plaintiff must prove that the mistake which led him to misplead in the name of the wrong person did not result from his own failure to exercise reasonable diligence to know the truth." Id.
In the instant matter, the plaintiff has acknowledged in its Memorandum of Law and its Amended Motion to Substitute Party Plaintiff, both dated February 10, 2006, that it not only mistakenly named the plaintiff at the time of the commencement of the action, but that it had also failed to record the Assignment on the New Britain Land Records. It appears that Wells Fargo is the real party in interest relative to the foreclosure of the property and its substitution would be necessary for a determination of the real matter in dispute. Although at first blush it appears the first two conditions necessary to the invocation of § 52-109 have been met, a closer examination reveals the plaintiff has failed to meet the first condition regarding mistake. As noted in DiLieto, supra, a plaintiff must prove not only that a mistake was made, but also that it was one which did not result from his own failure to exercise reasonable diligence to know the truth. See Carpinella v. Shield, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160901 (October 10, 2003, Alvord, J.). Here, at the time of the commencement of the action, the plaintiff had full knowledge of its own actions in having executed the Assignment of the mortgage and note to Wells Fargo on November 10, 2003. Accordingly, it had absolutely no interest in the matter in August of 2005 when the action was filed. It has been noted that ". . . mistakes deemed correctable under the statute have obviously included errors as to who, among the successors to the original plaintiff's claim, actually had standing to assert the claim when the action was commenced." Id. See also Wickes Mfg. Co. v. Currier Electric Co., 25 Conn.App. 751, 596 A.2d 1331 (1991). However, "the term `through mistake,' as used in § 52-109, and adopted by the DiLieto decision means an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence, that he is the proper person to commence the lawsuit." Carpinella v. Shield, supra. Here, the mistake which led to First Franklin being named as plaintiff arose through its own negligence. It had a documented history regarding this loan as of the date of the filing of the lawsuit. Despite this institutional knowledge, it improperly brought this claim having no right to do so. As such, it cannot be said that First Franklin has met the first condition to invoke the statutory remedy of substitution under § 52-109.
Because of the reasons set forth in this memorandum supporting dismissal of the matter, the court will not address the issue of whether or not the failure to record the Assignment pursuant to General Statute § 47-10 and/or § 49-10 prior to the commencement of the action would deprive the court of jurisdiction.
Plaintiff has also referenced § 52-123 as supplemental authority in support of its Motion to Substitute Party Plaintiff. As noted above, the statute essentially states that no proceeding shall be set aside for circumstantial errors, mistakes, or defects. In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995), our Supreme Court specifically addressed the meaning and application of the statute. In that case, the sole issue was whether in a tax assessment appeal the plaintiff's designation of the board of tax review of West Hartford instead of the town of West Hartford as the defendant deprived the trial court of subject matter jurisdiction. The Court concluded that the naming of the board instead of the town was a circumstantial error, mistake or defect. It was a misnomer and therefore curable under the statute. "When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer." Lussier, v. Burns, 228 Conn. 343, 350, 636 A.2d 808 (1994). The statute was also used to allow substitution in Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161, 742 A.2d. 393 (1999) (following a foreclosure judgment it was permissible to correct plaintiff's name from Dyck O'Neal to Dyck O'Neal, Inc.); Lussier v. Burns, supra (changing from "State of Connecticut, Department of Transportation" to "Emil H. Frankel, Commissioner of Transportation of the State of Connecticut"); Cherry Hill Construction Company, Inc. v. Gateway Plaza, LLC, Superior Court, judicial district of Tolland, Docket No. CV 03 0081364 (February 5, 2004, Scholl, J.) (allowing an amendment to change the name of the plaintiff from "Cherry Hill Construction Company, Inc." to "Cherry Hill Const, Inc." on the grounds that a misnomer had occurred). In each instance, the misdesignation of the party was deemed to be a circumstantial error, mistake or defect.
Each case above clearly involved misnomers where the person and the cause could still be rightly understood and intended by the court. They all involved the identification of parties that had a justiciable interest in the matter before the court although inaccurately named. In the instant matter, the name of the plaintiff is beyond a misnomer and therefore more than a circumstantial error. At the time of the commencement of the action, First Franklin was not simply inaccurately named as the plaintiff; it had no substantive or justiciable interest in the proceedings. Put another way, it had no interest in the note or mortgage upon which it could bring or sustain a foreclosure action. It had assigned to another separate legal entity, Wells Fargo, all right, title and interest in and to the mortgage deed and note and had done so nearly two years before the action was commenced. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Citations omitted, internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, 55 Conn.App. 180, 183, 738 A.2d 715 (1999); Gregory v. Georgia Pacific Corporation, Superior Court, judicial district of New Britain, Docket No. CV 044003140 (May 19, 2005, Burke, J.). While § 52-123 is a remedial statute and therefore is to be applied liberally, the mistake made by the plaintiff in this matter rises beyond the level of those defects contemplated by the statute and it is therefore inapplicable. See America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005).
For the foregoing reasons the court finds it has no subject matter jurisdiction over the instant action and it is therefore ordered dismissed.