Opinion
No. CV 08 5015493
June 18, 2009
MEMORANDUM OF DECISION RE (#105) MOTION TO DISMISS
The defendant, Ethan Book, has moved the court to dismiss the above-captioned matter for the reason that the court lacks the requisite jurisdiction to decide the case.
The basis of the movant Book's claim is the fact that the mortgage between the defendant-mortgagor, Monica Sullender, and the plaintiff mortgagee, U.S. Bank, N.A. is void and unenforceable. That claim is predicated upon the Book's contention that the subject property, which was mortgaged to U.S. Bank, N.A. by Sullender, was conveyed to Sullender in violation of standing orders issued as part of a dissolution of marriage case involving Book and Sullender's grantor, Daisy Sanchez.
The plaintiff, U.S. Bank, N.A., has filed an objection to the motion to dismiss. The parties appeared before the court and were heard and the court reserved decision.
Having considered the arguments and the briefs filed and also the applicable statutes, case law and Practice Rules, the court makes the following findings.
For the reasons set forth herein after, the court finds that this court does have the requisite jurisdiction to decide the issues presented and, for that reason, the motion to dismiss is hereby denied.
The movant has argued that the conveyance by Daisy Sanchez to Monica Sullender on July 6, 2007, was done in contravention of the Standing Orders set forth in Sec. 25-5 of the Practice Book and, for that reason, is void. Book then reasons that if the conveyance to Sullender is void, Sullender's mortgage to U.S. Bank, N.A. is also a nullity and here is no basis for this foreclosure action.
As the plaintiff points out, the marriage between Book and Sanchez was dissolved by a decree of this court on December 13, 2006, approximately seven months before the conveyance to Sullender. Nowhere does Book allege that SULLENDER was aware of Standing Orders or any other contingencies which would invalidate the conveyance to her. In fact, in his brief in support of the motion to dismiss, Book makes it clear that his attack on the conveyance in no way involves allegations of a fraudulent transfer between Sanchez and Sullender. His sole basis for attacking the conveyance is the fact that it violated the standing orders.
Sec. 25-5(1), P.B. provides, "Neither party shall sell, transfer, encumber . . . conceal, assign, remove or in any way dispose of, without the consent of any party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys fees in connection with this action."
Sec. 25-5(11)(b), P.B., provides, in relevant part, "FAILURE TO OBEY THESE ORDERS MAY BE PUNISHABLE BY CONTEMPT OF COURT. IF YOU OBJECT TO OR SEEK MODIFICATION OF THESE ORDERS DURING THE PENDENCY OF THIS ACTION, YOU HAVE A RIGHT TO A HEARING BEFORE A JUDGE WITHIN A REASONABLE TIME."
The penalties for violation of the Standing Orders include a finding of contempt by the offending party and/or orders of distribution which reflect the inequitable gain realized by the offending party. In Czarzasty v. Czarzasty, 101 Conn.App. 583, 596 n. 2 (2007), the court ordered half of what the defendant improperly withdrew from a joint account to be part of the plaintiff's share of assets. In Gibert v. Gilbert, 73 Conn.App. 473, 476 (2002), the court found that the plaintiff violated the Standing Orders and ordered him to reimburse the defendant for half their value.
The movant's expectation that the court would void the transfer of assets to a third party who paid fair value for the assets and who had no notice of the Standing Orders is unsupported.
The movant's remedies against Sullender under these facts do not include the voiding of the sale to Sullender and the mortgage from Sullender to U.S. Bank, N.A. If that was the practice the commerce of mortgages would grind to a halt.
And that is to presume that the Standing Orders were even in effect on July 6, 2007 when the conveyance occurred.
The chronology of events, as previously noted, indicate that the marriage was dissolved on December 13, 2006. The movant, Book, persistently argues that by virtue of the filing of his motion to vacate that judgment on December 20, 2006, the judgment is not final and the Standing Orders remained in full force and effect.
A review of the pleadings in Sanchez v. Book, the dissolution case, discloses that as a result of the December 20, 2006 filing, Book's motion to vacate appeared on the short calendar for hearing on February 1, 2007. It was not heard that day. It again appeared on the short calendar on February 8, 2007, and once again it was not heard. It was never calendared on any subsequent short calendar and was never heard and decided.
The court can and does find that for all intents and purposes, Book has abandoned his pursuit of the relief sought in that motion and has not attempted to have it decided for more than two years, yet all the while he claims to have the benefit of its pendency.
Practice Book § 10-31(a)(2) provides that a "motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. Blumenthal v. Barnes, 261 Conn. 434, 442 (2002). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Brookridge District Ass'n. v. Planning Zoning Commission, 259 Conn. 607, 611 (2002). "Where . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." Ferreira v. Pringle, 255 Conn. 330, 346-47 (2001). "A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action . . . Motions to dismiss are granted solely on jurisdictional grounds." Pitruzello v. Muro, 70 Conn.App. 309, 312 (2002).
On jurisdictional grounds, the court finds that the movant has failed to establish his assertion that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. (See Gurliacci v. Mayer, 218 Conn. 531, 544 (1991).
For the foregoing reasons, the court hereby finds that it does not lack the requisite jurisdiction to hear and decide this matter. The motion to dismiss is hereby denied.