Opinion
FBTCV174053326
11-28-2017
Phil SMITH (Assignee of Infinity Trading Group) v. Michael RENZULLI et al.
UNPUBLISHED OPINION
OPINION
KAMP, J.
The issue before the court is the defendants’ motion for nonrecognition of the foreign judgment and dismiss the present case on the ground that the plaintiff lacks standing. For the reasons set forth below, the defendant’s motion is granted.
FACTS
On May 8, 2017, the plaintiff, Phil Smith, domesticated a judgment (# 102) obtained in Florida against the defendants, Michael and Norma Renzulli, pursuant to the Uniform Enforcement of Foreign Judgments Act (foreign judgments act), General Statutes § 52-604 et seq. The defendants filed a motion to dismiss (# 104) on June 13, 2017, on the ground that because the plaintiff lacks standing to domesticate the judgment, the court lacks subject matter jurisdiction. The defendants’ motion is accompanied by a memorandum of law and several exhibits (# 105). The plaintiff filed a memorandum in opposition to the motion as well as several exhibits (# 108) on July 13, 2017. The parties were heard at short calendar on July 31, 2017.
The motion is entitled " Motion for Non-Recognition of Judgment."
DISCUSSION
" The proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). " If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
The defendants recount a chain of assignments leading to the plaintiff’s purported procurement of the judgment and argue that the plaintiff lacks standing in the present case due to invalid assignments. First, the defendants contend that the September 26, 2016 assignment of the judgment from Infinity Trading Group, Inc. (Infinity)- the original plaintiff in the action in Florida- to Judgment Rescue, LLC (Rescue)- a successor in interest- was invalid under Fla. Stat. § 695.25 because the person who signed the assignment was not shown to be an authorized officer or agent of the corporation and the acknowledgment appears to be a personal, rather than corporate, acknowledgment. In support, the defendants submit a copy of the assignment in which one " Jay Stoelting" signs and acknowledges the assignment from Infinity to Rescue. The defendants argue that because the assignment to Rescue was invalid, Rescue was unable to assign the judgment to the plaintiff on October 13, 2016. In the alternative, the defendants argue that Rescue assigned the judgment to another entity, Recovery Concepts, LLC (Recovery), on September 28, 2016, and therefore Rescue no longer had an interest in the judgment that it purportedly assigned to the plaintiff. In support, the defendants submit a copy of the assignment from Rescue to Recovery.
The defendants also request an evidentiary hearing. " [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-54, 974 A.2d 669 (2009). The question presented to the court concerns the validity of the purported assignments; whether the assignments are legally sufficient, however, does not present a question that requires the resolution of a factual dispute, and therefore no evidentiary hearing is required.
In response, the plaintiff argues that he has standing in the present case. The plaintiff first argues that the initial assignment- from Infinity to Rescue- was valid. Specifically, the plaintiff denies that the statute identified by the defendants applies to the present case because that statute concerns real property and the assignment of the judgment was not a conveyance of real property, but instead involved the conveyance of personal property. The plaintiff also argues, however, that if the statute does apply, it does not render the assignment invalid because the statute permits different forms of acknowledgement than provided by the statute, and moreover, the failure to include Stoelting’s title was a minor clerical error. The plaintiff specifically notes that under Stoelting’s signature line, it reads, " Signature of Plaintiff, " which the plaintiff contends is an indication that Stoelting was an agent of the plaintiff in the original action. The plaintiff also relies upon the fact that the assignment was signed by a notary, which he argues proves that the document was properly acknowledged. Furthermore, the plaintiff argues that the defendants’ alternative argument fails because after the September 28, 2016, assignment from Rescue to Recovery, both parties rescinded the assignment and mutually declared it a nullity, thereby allowing Rescue to assign its interest in the judgment to the plaintiff on October 13, 2016. In support, the plaintiff submits the affidavit of Nigel Alston, the president of Rescue, in which Alston confirms that the assignment from Rescue to Recovery was nullified and that the judgment was subsequently assigned to Smith.
As a threshold matter, although the court may consider only certain kinds of substantive defenses in actions brought pursuant to the foreign judgments act; see Nastro v. D ’Onofrio, 76 Conn.App. 814, 823-24, 822 A.2d 286 (2003); standing is a procedural, rather than substantive, matter. Ferri v. Powell -Ferri, 326 Conn. 438, 447, 165 A.3d 1137 (2017). As the defendants do not raise an impermissible substantive defense by challenging the validity of the foreign judgment, but rather offer a procedural challenge of the enforcement of the foreign judgment, the defendants’ argument is cognizable. See Segal v. Segal, 86 Conn.App. 617, 626-39, 863 A.2d 221 (2004) (court considered procedural challenge to enforcement of foreign judgment, but determined that foreign court was proper forum for substantive challenge to validity of judgment); see also JPMorgan Chase Bank, N.A. v. Herman, 175 Conn.App. 662, 668, 168 A.3d 514 (2017) (court considered argument that Connecticut court, where judgment was domesticated, lacked personal jurisdiction, noting that " [a]t the outset, we need to clarify what the defendant is and is not arguing. The defendant is not attacking the judgment by arguing that the Florida court was without personal or subject matter jurisdiction, which is the typical method by which a party defends against the enforcement of a foreign judgment." [Emphasis in original.])
Given that the present case concerns the enforcement of a foreign judgment, there is also the question of which state’s law to consider. Procedural issues such as standing are governed by Connecticut law in actions brought in this state. Ferri v. Powell-Ferri, supra, 326 Conn. 447. In Connecticut, " [s]tanding is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Id., 448. Nevertheless, the court may be guided by the substantive law of another jurisdiction even as the court applies this state’s procedural laws. See People’s United Bank v. Kudej, 134 Conn.App. 432, 438, 39 A.3d 1139 (2012) (where challenge to standing turned on interpretation of statute from Massachusetts, Massachusetts case law interpreting statute considered). Moreover, because the question of standing in the present case turns on the validity of one or more assignment, looking to the law of the state in which the assignment occurred is appropriate. See 6 Am.Jur.2d, Assignments § 9, p. 151 (2008) (" Generally, questions as to the validity, enforceability, or effect of an assignment are governed by the law of the place where the assignment was made" [footnotes omitted]). Therefore, in the present case, the court will look to Florida law to determine whether the assignments are valid.
Florida’s statutory scheme and the language of § 695.25 indicate that the statute applies to the present case. Title XL of the Florida Statutes is entitled Real and Personal Property, and encompasses chapters 689-723. Chapter 698, entitled " Chattel Mortgages, " addresses acknowledgments in § 698.02. Section 698.02 of the Florida Statutes provides: " To entitle such mortgage to record, its execution must be acknowledged or proved in the manner provided for mortgages of real property." Accordingly, looking to chapter 695, " Record of Conveyances of Real Estate, " § 695.25 provides: " The forms of acknowledgment set forth in this section may be used, and are sufficient for their respective purposes, under any law of this state. The forms shall be known as ‘Statutory Short Forms of Acknowledgment’ and may be referred to by that name. The authorization of the forms in this section does not preclude the use of other forms." The corporate acknowledgment form in § 695.25 differs from the individual acknowledgment in relevant part by indicating that a corporate officer’s name is to be followed by that officer’s title. It also provides language indicating that the acknowledgment is " on behalf of the corporation."
" Chattel" is defined as " [m]ovable or transferable property; personal property ..." Black’s Law Dictionary (10th Ed. 2014) p. 286.
In House of Lyons, Inc. v. Marcus, 72 So.2d 34 (1954), the court considered the validity of an acknowledgement for a chattel mortgage. The court noted that " the only problem in the instant case is that of determining whether the acknowledgment by the corporate mortgagor can be considered ‘proper proof of the execution of the instrument, ’ or whether it must be held to be fatally defective." Id., 35. The court then reasoned that " [t]he decisions on the subject in other jurisdictions have been predicated, in many instances, upon specific statutory provisions prescribing the form of certificate to be used, particularly as to corporate acknowledgments ... However, by the rule in effect in Florida, the whole of the instrument acknowledged may be resorted to for support of the acknowledgment." (Citation omitted.) Id., 35. The court further determined that, where possible, the court should uphold certificates of acknowledgement, and that technical omissions and minor clerical errors were not enough to defeat an acknowledgment otherwise in substantial compliance with the law. Id., 36. The court considered that " [i]n the instrument the named individuals are described as president and secretary, respectively, of the corporate mortgagor. In the acknowledgment the named individuals further acknowledged that they executed the instrument ‘for the purpose therein expressed, ’ and the purpose expressed in the mortgage is that certain specifically described personal assets of the corporate mortgagor shall be bound as security for the payment of an acknowledged debt of the corporate mortgagor ..." Id. Ultimately, the court determined that the acknowledgment was valid.
Similarly, in Edenfield v. Wingard, 89 So.2d 776, 778 (1956), the court determined that an acknowledgment that appeared to be signed by the mortgagee, E.B. Edenfield, rather than the mortgagor, C.B. Edenfield, was sufficient in view of the court’s determination in House of Lyons, supra . In Edenfield, part of the acknowledgment read: " This day before the undersigned personally appeared E.B. Edenfield to me well known to be the individual described in and who executed the foregoing Deed of Mortgage, and acknowledged that he executed the same for the uses and purposes therein expressed." (Emphasis omitted; internal quotations marks omitted.) Id., 777. The court determined that " there can be no doubt that the certificate of the notary that the person who personally appeared before him was ‘the individual described in and who executed the foregoing deed of mortgage, and acknowledged that he executed the same for the uses and purposes therein expressed’ was sufficient to establish that such person was C.B. [the mortgagor] and not E.B. Edenfield [the mortgagee]." (Emphasis omitted.) Id., 778. In keeping with the policy that favors upholding certificates of acknowledgment, the court determined that the acknowledgement before it was sufficient.
In the present case, the deficiencies in the acknowledgment are factually distinguishable from the precedential case law in such a manner that the court is unable to determine that its shortcomings are due to mere technical omissions or clerical errors. Unlike the document described in House of Lyons, the instrument purporting to assign the judgment from Infinity to Rescue does not describe Stoelting by his title at any point. Rather, the instrument begins by identifying Infinity as the original judgment creditor and then shows Stoelting’s signature on the line marked " Signature of Plaintiff, " without any indication of Stoelting’s relationship to Infinity. Furthermore, the acknowledgment merely indicates the date upon which Stoelting acknowledged the instrument; it includes no language concerning whether it was acknowledged for the purpose expressed by the instrument. The document in the present case also lacks language similar to that which the court relied upon in Edenfield to connect the identity of the signing party with the party described and executing the instrument. Although neither § 695.25 nor the relevant case law mandate specific language to be used in an acknowledgment, in the present case, the instrument as a whole fails to create a reliable basis upon which the court could determine that the acknowledgment is valid. Accordingly, because the initial assignment from Infinity to Rescue is invalid, the subsequent assignments are null and the court need not address the defendants’ alternative argument.
By way of comparison, the document submitted by the defendants in the present case in which Rescue purportedly assigns the judgment to the plaintiff identifies the signing party, Alston, as the president of Rescue. Although the acknowledgment does not adhere to the form for corporate acknowledgements suggested by § 695.25, the instrument demonstrates Alston’s connection to the corporate party. Without any similar reference regarding Stoelting in the assignment between Infinity and Rescue- and without any extrinsic evidence regarding Stoelting’s authority, to the extent that the court could rely upon such evidence- the initial assignment is simply unable to meet the bare minimum standard for sufficiency.
CONCLUSION
For the foregoing reasons, the defendants’ motion is granted.