Opinion
CV156029875S
01-14-2016
McCue Mortgage Co. v. New London County Mutual Ins. Co
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #101.00
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
On August 13, 2015, the plaintiff, McCue Mortgage Company (McCue) filed an amended complaint against the defendant, New London County Mutual Insurance Company (New London). The plaintiff alleges the following facts. The Connecticut Housing Finance Authority (CHFA) holds a mortgage on a property located in Ansonia, Connecticut. The mortgage and mortgage note were originated by McCue, but subsequently assigned to the CHFA. McCue retains certain duties and the mortgage " is serviced on behalf of CHFA by McCue . . ." The property owner, Nicole Echevarria, holds a property insurance policy from New London. When the property was damaged by a fire in 2013, New London denied coverage to Echevarria. As the mortgagee of the property, McCue initiated the present action in order to obtain coverage. Count one of the amended complaint alleges a breach of contract claim against New London for denying insurance coverage. In count two, McCue seeks a " declaration of the relative rights and duties of the relations . . . including a declaration that the Mortgagee [CHFA and McCue] is entitled to coverage under the insurance policy issued by [New London] due to the damage to the Property."
Echevarria is not a party to this action.
On July 20, 2015, the defendant filed a motion to dismiss (101.00) and supporting memorandum (102.00). On July 28, 2015, the plaintiff filed exhibit A, which is titled " OFFICIAL INSURANCE NOTIFICATIONS--Mortgagee Copy Only, " and is referenced in the amended complaint as the " certificate of insurance." On August 19, 2015, the plaintiff filed a memorandum of law in opposition (107.00). On September 8, 2015, the defendant filed a reply memorandum in support of its motion to dismiss (108.00). On September 25, 2015, the plaintiff filed a reply memorandum of law in opposition to the defendant's motion to dismiss (112.00). The reply memorandum included two affidavits from Katherine McCue Scierka, dated August 18, 2015, and September 25, 2015. Lastly, on October 28, 2015, the defendant filed a sur-reply memorandum in support of motion to dismiss (114.00). The defendant has not filed any evidence. The parties presented oral arguments on November 2, 2015, at which time the defendant objected to various paragraphs in the plaintiff's affidavits.
II
DISCUSSION
A. Motion to Dismiss
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). " [T]he 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).
B. Parties' Arguments
In its motion to dismiss and reply memoranda, the defendant asserts that the plaintiff does not have standing because the plaintiff has not alleged any legal interest in the property nor claimed to have sustained any loss as result of the fire. The defendant maintains that the evidence and allegations establish [the CHFA as the mortgage interest in the property]. Because there are " absence of facts as to whether the plaintiff has a specific, personal and legal interest" in the property, the defendant argues that McCue does not have standing to maintain this action.
In its memorandum of law in opposition and subsequent memoranda, the plaintiff argues that the motion to dismiss becomes moot if the court grants the plaintiff's pending motion to add third party plaintiff, the CHFA. Separately, the plaintiff maintains that they are a named party in the defendant's insurance policy as a mortgagee, and as such has specific, personal and legal interest in the policy; additionally, they argue that under appropriate circumstances, an agent has standing to sue on behalf of his principal. In support of its position, the plaintiff filed as an exhibit a " certification of insurance, " which under the " Mortgagee" section provides " CHFA CO MCCUE MTG C, P0 BOX 1000, NEW BRITAIN, CT 06050." The plaintiff also provides two affidavits from the Executive Vice President of McCue, Katherine McCue Scierka (Scierka). In the August 18, 2015 affidavit, Scierka states that " McCue originates loans and services mortgages on behalf of the CHFA" and " [a]fter originating the loan, the Note and Mortgage [provided to Echevarria] were assigned by McCue to the CHFA, while McCue maintained the servicing responsibilities of the loan." Additionally, " the [New London] policy lists Echevarria as the named insured and the CHFA and McCue as mortgagee." The affidavit asserts that " McCue is required by the CHFA to pursue insurance claims on mortgaged property and is named in the [New London] policy together with CHFA as mortgagee." In the September 25, 2015 affidavit, Scierka also states that " [a]t all times while servicing the loan, McCue and/or its counsel retained possession of the original Note and Mortgage."
The court will address the plaintiff's motion to add third party plaintiff in a separate decision.
C. Issue of Standing
" The issue of standing implicates this court's subject matter jurisdiction." Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 21, 31, 755 A.2d 860 (2000), overruled in part on other grounds by, Waterbury v. Washington, 260 Conn. 506, 800 A.2d 1102 (2002); Steeneck v. University of Bridgeport, 235 Conn. 572, 580, 668 A.2d 688 (1995) (" [w]here a plaintiff lacks standing to sue, the court is without subject matter jurisdiction"). " Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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." (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 253, 745 A.2d 800 (2000). " Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Citation omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005).
In order to resolve the question of standing, the court must address two issues. The first issue is whether as a matter of law, McCue has standing when the certificate of insurance titles the Mortgagee as " CHFA CO MCCUE MTG C." The second issue is whether as a matter of law, McCue has standing in its breach of contract claim, having previously assigned its interest to the CHFA.
D. Analysis--C/O
The plaintiff provides a certificate of insurance that names CHFA c/o McCue Mtg. Co. under the mortgagee section. According to Black's Law Dictionary, " c/o" is an abbreviation of " care of." Black's Law Dictionary (10th Ed. 2014). " The designation 'c/o' or 'care of simply means that one party accepts or receives something for another party. As an Ohio appellate court has explained, the symbol 'c/o' . . . [is] not ambiguous . . . [and] means 'in care of and means that another only has 'custody' or 'temporary charge' over an item belonging to another. (Internal quotation marks omitted.) Keystone Manufacturing, LLC v. Accuro Medical Products, LLC, United States District Court, Docket No. 1:12CV1186, (GJQ) (W.D. Mich. May 28, 2013) . " 'Care of, ' used in a legal sense, denotes a disclosed agency relationship. See, e.g., CSX Transp. Co. v. Novolog Bucks County, 502 F.3d 247, 258 (3rd Cir. 2007)." Bruner v. Discover Bank, 360 S.W.3d 774, 776 (Ky.App. 2012). In the present case, the certificate of insurance reveals that McCue, as an agent of the CHFA, accepts or receives the insurance policy on behalf of the CHFA. Stated another way, McCue receives information from New London in care of, or in temporary charge of, the mortgagee of the insurance policy, the CHFA.
" Care of usually abbreviated as c/o on envelopes signifies an intermediary who is responsible for transferring a piece of mail between the postal system and the final addressee." Wikipedia, http://en.wiktionary.orgwiki/care_of (last visited December 28, 2015); see also C& R Forestry, Inc. v. Consolidated Human Resources, AZ, Inc., United States District Court, Docket No. CV05381N, (EJL) (D.Idaho August 28, 2008).
E. Analysis--Assigned Interest
The plaintiff's affidavits states that the note and mortgage were assigned by McCue to the CHFA. McCue is not bringing a foreclosure action; rather, it is alleging a breach of contract claim against New London, for an insurance policy on a property that the CHFA is the mortgagee and McCue is the loan servicer. " A valid assignment transfers to the assignee exclusive ownership of all of the assignor's rights to the subject assigned and extinguishes all of those rights in the assignor." Mall v. LaBow, 33 Conn.App. 359, 362, 635 A.2d 871 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1208 (1994). " [A] loan servicer need not be the owner or holder of the note and mortgage in order to have standing to bring a foreclosure action if it otherwise has established the right to enforce those instruments . . ." J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 327-28, 71 A.3d 492 (2013). " [W]e simply note that a plaintiff, in establishing the loan servicer's authority to enforce the instrument, must provide sufficient evidence of such authority to demonstrate that the principals unequivocally manifested their intention to authorize the [the loan servicer] to exercise [those] rights . . . (Internal quotation marks omitted.) Id., at 328 n.19
In its memorandum of law in opposition to the motion to dismiss, the plaintiff relies on Kennedy Funding, Inc. v. Greenwich Landing, LLC, 135 Conn.App. 58, 63, 43 A.3d 664, cert. denied, 305 Conn. 914, 45 A.3d 99 (2012), and alleges that under appropriate circumstances, an agent does have standing to sue on behalf of his principal. In Kennedy, the court sets out the test for asserting the authority of an agent to bring a foreclosure action: " The proper test for assessing the authority of the plaintiff to bring the foreclosure action in this case is stated in 2 Restatement (Third), Agency § 6.01, comment (d)(1), pp. 12-13 (2006). That comment provides in relevant part: 'When an agent enters into a contract on behalf of a disclosed principal, the agent is not a party to the contract unless the agent and the third party so agree . . . The manner in which an agent's name appears in a contract is often relevant to establishing whether the agent agreed to become a party to the contract . . .' " (Footnote omitted.) Id., at 63. In applying this test to the present matter, the agent, McCue, is not a party to the contract because there is no factual allegation that the third party, New London, agreed. As further support, the certificate of insurance lists McCue as c/o, or in care of, the correspondences on behalf of the mortgagee, CHFA.
Contrastingly, the court in Kennedy determined that the plaintiff, although described as an agent, actually had the authority to enforce the promissory note and mortgage. " The record establishes that the principals designated the plaintiff as the payee and holder of a negotiable promissory note documenting the defendants' indebtedness. By this designation, the principals unequivocally manifested their intention to authorize the plaintiff to exercise the rights that the law of negotiable instruments confers on the holder of a negotiable promissory note." Id., at 64.
In her August 18, 2015 affidavit, Scierka states that McCue assigned the note and mortgage to the CHFA, while McCue maintained loan servicing responsibilities. McCue has not provided any factual allegations that support the proposition that it has the right to enforce the note and mortgage. Taking into account the affidavits and certificate of insurance, the plaintiff has failed to successfully demonstrate a specific, personal and legal interest in the present action; thus, as a matter of law, the plaintiff does not have standing and the court lacks subject matter jurisdiction. The court grants the defendant's motion to dismiss.
Compare, GMAC Mortgage, LLC v. Clayton, Superior Court, judicial district of Fairfield, Docket No. CV-12-6032189-S, (June 3, 2015, Jennings, J.T.R.) (court found subject matter jurisdiction because (1) plaintiff alleged in complaint they were party entitled to collect debt evidenced by note and party entitled to enforce mortgage; (2) defendant did not challenge that statement; and (3) defendant stated that plaintiff is servicing company of loan in question, entitled to receive payments).
III
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to dismiss for lack of subject matter jurisdiction.
SO ORDERED.