Opinion
CV186039200
08-24-2018
HSBC BANK USA, NATIONAL ASSOCIATION as Trustee FOR DBALT MORTGAGE LOAN TRUST, SERIES 2007-4 v. Horace SPENCE
UNPUBLISHED OPINION
OPINION
Mark H. Taylor, Judge
On May 15, 2018, the defendant, Horace Spence, filed a motion to dismiss this mortgage foreclosure action on the ground that there is no personal jurisdiction due to improper service of process. The plaintiff, HSBC Bank USA, filed an objection to the motion to dismiss on June 28, 2018. Two hearings were held by the court on July 16, 2018, and August 14, 2018. At both, the defendant appeared without counsel.
The plaintiff’s complete name is HSBC Bank USA, National Association as Trustee for DBALT Mortgage Loan Trust, Series 2007-4.
Although the property subject to the foreclosure is located in Waterbury, Connecticut, the defendant resides in New York state. As a nonresident individual, General Statutes § 52-59b(c) requires process to be served on the defendant "by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant’s last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State ..."
In the present case, the summons, complaint and return of service were filed with the court on March 6, 2018. On the return of service, dated February 28, 2018, State Marshal Nicole Baker attested that she served the process on the defendant by service on the Secretary of State and by certified mail, return receipt requested, "addressed to the within named defendant" Horace Spence, 3014 Kingsland Avenue, Bronx, N.Y. 10469.
The plaintiff then filed a motion for default for failure to appear on April 13, 2018, along with a supplemental return completed by Carlos Valderrama, a licensed process server from Deer Park, New York, who attested to performing in-hand service upon "JANE SMITH (NAME REFUSED), CO-OCCUPANT, a person of suitable age and discretion. Said premises is defendant’s place of residence within the state. On 3/13/18, deponent enclosed a copy of the above mentioned documents to HORACE SPENCE at said defendant’s Place of Residence, at 3014 KINGSLAND AVENUE, BRONX, N.Y. 10469 in a 1st Class postpaid properly addressed envelope ... under the exclusive care and custody of the United States Post Office." The plaintiff did not file a return receipt along with the supplemental return, but only a Certificate of Mailing attached to the affidavit of service. The motion for default for failure to appear was granted by the clerk on April 19, 2018. The defendant subsequently filed his appearance with the court on May 10, 2018, whereupon the default was automatically vacated, and the defendant filed this motion to dismiss on May 15, 2018.
The motion to dismiss was initially heard by the court on July 16, 2018, at which the defendant appeared without counsel and credibly testified that he did not receive the process served in this matter at the 3014 Kingsland Avenue property. Although the defendant owns the New York property as an investment or business property, he testified that he does not reside there and it is not his abode. He testified that he became aware of this foreclosure action from investors and tenants at the Waterbury property, which is the property subject to the foreclosure. On his appearance, however, the defendant stated his mailing address to be 3014 Kingsland Avenue, Bronx, N.Y. 10469, which is the same address service of process was sent by the marshal and then served by the New York State process server. The plaintiff therefore asserts that the defendant’s appearance is an admission that the New York address is his last known address, and service was made in compliance with our long-arm statute, General Statutes § 52-59b(c).
At the initial hearing on the motion to dismiss, held during the foreclosure short calendar on July 16, 2018, the court did not inquire of the plaintiff how it determined the New York address to be the defendant’s last known address. Therefore, a second hearing was scheduled to take evidence on the proper question of whether service at the New York address was legally sufficient as the defendant’s "last known address."
In Hartley v. Vitiello, 113 Conn. 74, 80-81, 154 A. 255 (1931), in which our Supreme Court considered whether a nonresident had been properly served under the long-arm statute, it stated that "it is reasonable probability of notice, not actual notice, which is the test ... The requirement that the copy be mailed to the defendant at his ‘last-known address’ does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute ... Interpreted in the sense which the legislature intended, our statute, if complied with, will certainly bring about a reasonable probability of actual notice of the pendency of the action to the defendant." (Citations omitted.) See Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008); Matthews v. SBA, Inc., 149 Conn.App. 513, 532-33, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
With the Hartley test in mind, this court now reviews the burden of proof in matters of personal jurisdiction. "As a general matter, the burden is placed on the defendant to disprove personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer’s return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return ... When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction ... If the defendant challenging the court’s personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff’s burden to prove the court’s jurisdiction." (Citations omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). "There should be no presumption of the truth of the plaintiff’s allegation of the additional facts necessary to confer jurisdiction ... Placing the burden on the plaintiff to prove contested factual issues pertaining to jurisdiction is in accord with rulings in other states which have addressed the same question." (Citation omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983); see Knipple v. Viking Communications, Ltd, 236 Conn. 602, 608 n.9, 674 A.2d 426 (1996).
Thus, in the present case, once the defendant contested personal jurisdiction, it was the plaintiff’s burden to produce evidence adequate to establish such jurisdiction. See, e.g., Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516. The defendant testified that the New York address is his business property. Although there is no appellate authority on point, some Superior Court judges have held that service sent to a nonresident’s last known place of business is sufficient under the statute. See, e.g., Murphy v. Safelite Fulfillment, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5026299-S (January 27, 2010, Peck, J.) (because "the defendant did not submit any evidence to dispute that this was his business address, the court finds that the plaintiff properly effectuated service pursuant to § 52-59b(c)"); Horniatko v. Riverfront Assn., LLC, Superior Court, judicial district of Hartford, Docket No. CV-04-4000332-S (June 21, 2005, Shapiro, J.) ("[t]his court agrees with the several courts which have considered this issue that mailing to a last known address which is a business address, in accordance with the statutory requirements, is sufficient"); Celik v. Dundar, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-95-0142921-S (July 12, 1995, D’Andrea, J.) (plaintiff complied with § 52-59b(c) by mailing a copy of the writ, summons and complaint to defendants’ business addresses in New York, even though they resided in Turkey); Tek-Motive, Inc. v. AFB, Inc., Superior Court, judicial district of New Haven, Docket No. CV-930349298-S (November 12, 1993, Zoarski, J.) (service delivered to defendant’s business address, rather than his residence, was adequate, even though plaintiff was aware that defendant’s actual residence was in Peru); see also Goktepe v. Lawrence, 220 F.R.D. 8, 12 (D.Conn. 2004) ("[t]he defendant has not cited any contrary authority or advanced any reason why this Court should decline to follow these well-reasoned decisions by Connecticut Superior Court judges").
Notably, however, unlike in the foregoing cases, the defendant here did not testify that he used the New York property as a business address. Nevertheless, the defendant did file an appearance with the Bronx New York address as his mailing address and failed to provide notice of a different address, as required by paragraph 8 of the note. Although he explains that this was done to conform the appearance with the address recited in the service of process, the court concludes that there are sufficient facts that there was a reasonable probability that service at the New York address would result in notice to the defendant of this action.
The defendant’s motion to dismiss is denied.
SO ORDERED