Opinion
FSTCV096001209S
01-09-2017
Wells Fargo Bank, National Association as Trustee for the Certificate Holders of Structured Asset Mortgage Investments II, Inc. et al. v. Joseph S. Tarzia et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO VACATE JUDGMENT and DISMISS FORECLOSURE ACTION WITH PREJUDICE DATED MARCH 17, 2016 (#179.00)
Hon. Kevin Tierney, Judge Trial Referee.
This motion is the eighth pleading filed by the defendant, Joseph S. Tarzia, that claims that this court lacks subject matter jurisdiction over this one-count residential foreclosure lawsuit.
The operative complaint is the original February 9, 2009 one-count complaint that alleges that the defendant, Joseph S. Tarzia, owed American Brokers Conduit $1,334,000 as evidenced by a June 22, 2007 promissory note, which was secured by a first mortgage to " Mortgage Electronic Registration Systems, Inc. as Nominee for American Brokers Conduit" on real property located at 138 North Lake Drive, Stamford, Connecticut and recorded in the Stamford land records on July 10, 2007. This lawsuit went to a judgment of strict foreclosure before Douglas C. Mintz, J. on May 28, 2013 (#131.86). The defendant thereafter appealed on June 14, 2013 (#143.00). The appeal was assigned docket number AC 35791. On June 3, 2014 the Appellate Court affirmed the May 28, 2013 foreclosure judgment. 150 Conn.App. 660, 92 A.3d 983 (2014). On June 23, 2014 the defendant filed a Petition for Certification to the Supreme Court (#148.00). The Petition for Certification was assigned docket number PSC-13-0474. On September 17, 2014 the Supreme Court denied the defendant's Petition for Certification (#149.00) 314 Conn. 905, 99 A.3d 635 (2014).
In preparation for obtaining a foreclosure judgment after appeal, the plaintiff filed a Motion to Substitute Party Plaintiff on September 24, 2015 (#150.00). The undersigned granted the Motion to Substitute Party Plaintiff on October 15, 2015 (#150.01). The parties agree that the entity described in the plaintiff's name, " Structured Asset Mortgage Investments II, is " SAMI-II."
On September 24, 2015 the plaintiff filed its Motion to Reset Law Days After Appeal (#151.00). That motion has been assigned three times for a hearing but said hearing was prevented by the defendant's claim of lack of subject matter jurisdiction. At a November 16, 2015 hearing at which Motion #151.00 was scheduled to be heard, Judge Mintz entered the following order: " Attorney Scalzi shall file a Motion to Dismiss based on lack of subject matter jurisdiction on or before 1/8/2016. MOTION FOR JUDGMENT IN ACCORDANCE WITH OPINION OF APPELLATE COURT (#151.00), FORECLOSURE MEDIATION--OBJECTION (#160.00) and the Motion to Dismiss shall be heard on 4/7/2016 and 4/8/2016 before Judge Tierney." (#165.01) The defendant received an extension order permitting the Motion to Dismiss to be filed on February 22, 2016 (#171.01). On February 22, 2016 the defendant requested a further continuance to March 25, 2016 (#177.00). The extension was granted to March 18, 2016 with the hearing still to commence on the original date, April 7, 2016. The above Motion to Dismiss, ordered to be filed by the defendant's counsel of record originally on January 8, 2016, was filed on March 17, 2016 (#179.00). This court commenced the hearing on that motion on April 7, 2016 as scheduled by the above orders (#165.01, #171.01 and #177.01).
The return date of this residential foreclosure action was February 24, 2009. On that day Attorney Christopher Gerard Brown of the law firm of Begos Horgan & Brown, LLP of Westport, Connecticut filed an appearance for the defendant, Joseph S. Tarzia. An examination of the Superior Court computer Edison system as well as reported appellate cases indicate that Attorney Brown is an experienced defender of foreclosure lawsuits. Attorney Brown was trial counsel and appellate counsel for the defendant. He was succeeded by Attorney David A. Scalzi whose October 19, 2015 appearance was filed in lieu of Attorney Brown, then practicing with the law firm of Begos, Brown & Green, LLP. On May 25, 2016 Attorney Scalzi was joined by the Pro Hac Vice appearance of Attorney W. Jeffrey Barnes of Boca Raton, Florida. At all times in this litigation the defendant, Joseph S. Tarzia, has been represented by counsel.
On March 11, 2009 the defendant filed an Answer, Special Defenses and Counterclaim (#103.00). This pleading included six Special Defenses and a one-count Counterclaim alleging that the mortgage is void ab initio and the assignment by Mortgage Electronic Registration Systems, Inc. (MERS) is also void ab initio. This court finds that these pleadings raise the issue of standing and lack of subject matter jurisdiction.
On July 15, 2011 the defendant filed his objection to plaintiff's discovery requests, a number of which relate to standing such as Interrogatory 31. " State and explain which entity or entities you claim owned the debt evidenced by the Note from June 22, 2007 to present." (#112.00.)
On September 1, 2011 the defendant filed further objections to plaintiffs' discovery requests. A number relate to standing. For example, the objection to Interrogatory 3 states: " Tarzia disputes whether Wells Fargo is the 'holder.'" (#114.00.)
On March 19, 2012 the plaintiff filed its Motion for Summary Judgment (#124.00). After hearing been had Judge Mintz on May 7, 2012 granted Summary Judgment as to liability only. (#124.86.) The defendant had the opportunity to present its lack of standing arguments to the court in that proceeding. Thereafter the plaintiff obtained a judgment of strict foreclosure on May 28, 2013 (#131.86) from which the defendant appealed.
On May 23, 2013 the defendant filed an eleven-page Memorandum of Law with attached trial court decisions for a total pleading of fifty-five pages (#139.00). This was the defendant's opposition to the plaintiff's Motion for Judgment of Strict Foreclosure. In that Memorandum of Law the defendant raised the issue of standing by contesting " ownership" of the Note and " holder" status of the Note.
The defendant's unsuccessful appeal directly addressed the issue of ownership and holder status. The Appellate Court disposed of this argument by citing a series of recent foreclosure cases including RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011). The defendant had the opportunity to address the issue of standing, that is who was the owner and/or holder of the note, in the Appellate Court.
The defendant's June 23, 2014 Petition for Certification (#148.00) also gave the defendant the opportunity to address the standing (ownership and holder) issues with the Supreme Court.
The most recent and the eighth defendant's pleading addressing the defendant's claims that the plaintiff has no standing to commence and to maintain this foreclosure lawsuit and therefore the court lacks subject matter jurisdiction, is this instant March 17, 2016 Motion to Vacate Judgment and Dismiss Foreclosure Action with Prejudice that is now before this court (#179.00). It is a thirty-four paragraph Motion to Dismiss. This court has carefully read the Motion to Dismiss. Although not set forth in numerical order, there are forty-six separate reasons claimed by the defendant why this court lacks subject matter jurisdiction in pleading #179.00.
The first stated reason is fraud upon the court and the forty-sixth stated reason is Lender Process Services was under criminal investigation by the FBI for a laundry list of fraud and illegal activities in connection with false documents manufactured for filing in foreclosure actions in U.S. Courts. No facts at trial or in the Motion to Dismiss supported these claims. Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 223, 77 A.3d 748 (2013)
This court conducted four days of hearings on April 7, 2016, June 7, 2016, September 13, 2016, and September 14, 2016 on this Motion to Dismiss. Both parties furnished oral argument and both parties waived the filing of post-hearing briefs. The matter was then submitted to this court on September 14, 2016.
The defendant was ordered to file a Motion to Dismiss based on lack of subject matter jurisdiction by two orders (#165.01 and #171.01). A Motion to Dismiss must comply with P.B. § 10-30. " This Motion shall always be filed with a supporting memorandum of law and, when appropriate, with supporting affidavits as to facts not apparent on the record." P.B. § 10-30(c). The defendant's March 17, 2016 filing combines improperly two different motions that request two different forms of relief each of which require the support of different facts and legal theories: opening a judgment and a motion to dismiss. The court only ordered the filing of a Motion to Dismiss.
The March 17, 2016 Motion to Dismiss appears to allege forty-six reasons for dismissal in its thirty-four numbered paragraphs. Most of the reasons contain no recitation of supporting facts nor any legal authority. In the first paragraph addressed to JURISDICTION the defendant cites one procedural statute, Gen. Stat. § 52-212a, and attempts to cite two Supreme Court cases without name or date, both of which involved opening dissolution of marriage judgments. The cited statute and two partially cited cases are irrelevant as to a Motion to Dismiss in a foreclosure case on the basis of lack of subject matter jurisdiction. Later on in the Motion to Dismiss the defendant correctly cites only one case, a decision from 2011. Twice the defendant cites General Statute § 49-17 but without reference to any language in that statute. The Motion to Dismiss contains two citations to well known foreclosure cases without a volume and page reference, just the Appellate Court and Supreme Court docket number; one from 2003 and the second from 2011.
The court finds that these limited citation of facts and legal authorities cannot be considered by this court as a " supporting memorandum of law." P.B. § 10-30(c). Mejias v. Sebastian, Superior Court, judicial district of New London at New London, Docket Number FA 98-0116648 86711 (Lifshitz, FSM, December 1, 2004).
A memorandum of law setting forth the movant's legal claims is essential for the opposing party to evaluate fully and respond legally to these claims of law for the ultimate judgment of the court. Without such a memorandum of law the opposing party is unable effectively to rebut the legal claims upon which the movant bases his motion . . .Executive Rental and Leasing, Inc. v. Gershuny, McGettigan, Cameron Agency, Inc., 36 Conn.Supp. 567, 570, 420 A.2d 1171 (Superior Court, Appellate Division 1980).
The court denies the March 17, 2016 Motion to Vacate Judgment and Motion to Dismiss Foreclosure Action with Prejudice (#179.00) for the defendant's failure to file a supporting memorandum of law which would adequately support each of the forty-six separate factual and legal claims alleging that this court lacks subject matter jurisdiction. Pleading (#191.00) dated April 6, 2016 was not simultaneously filed with the Motion to Dismiss and no permission for the April 6, 2016 late filing was requested or obtained (#191.00). The Memorandum is required to be filed at the time of filing the Motion to Dismiss. P.B. § 10-30(c) (" This motion shall always be filed with a supporting memorandum of law . . .").
In the event that the March 17, 2016 Motion to Dismiss (#179.00) is considered by itself to be both a Motion to Dismiss and a supporting Memorandum of Law, the court will continue to resolve the issues raised by this Motion to Dismiss.
" We are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009); Giannoni v. Commissioner of Transportation, 322 Conn. 344, 350, 141 A.3d 784 (2016).
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . and a judgment rendered without subject matter jurisdiction is void . . ." Deutsche Bank National Trust Company v. Bialobrzeski, 123 Conn.App. 791, 798, 3 A.3d 183 (2010). Although the defendant filed his motion to dismiss alleging lack of subject matter jurisdiction, the burden of demonstrating that a party has standing to bring an action and that the court has subject matter jurisdiction is on the plaintiff. Id., 798; Seymour v. Region One Board of Education et al., 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
In this case the defendant is alleging that the plaintiff lacks standing therefore the court is deprived of subject matter jurisdiction. Although motions to dismiss alleging personal jurisdiction deficiencies must be raised within a certain time limit from the filing of an appearance by that party, no such time limit exists for a motion to dismiss alleging lack of subject matter jurisdiction. " Because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013).
" Standing is the legal right to set the judicial process in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of the action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticeable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity . . . Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." The Investors Mortgage Company, Trustee v. Rodia, 31 Conn.App. 476, 479, 625 A.2d 833 (1993). " Standing does not hinge on whether the plaintiff will ultimately be entitled to relief on the merits of an action, but on whether he is entitled to seek the relief." Cottman Transmission Systems, Inc. v. Hocap Corporation, 71 Conn.App. 632, 638, 803 A.2d 402 (2002).
It is well established that the holder of a note has standing to bring an action for strict foreclosure. New England Savings Bank v. Bedford Realty Corporation, 238 Conn. 745, 759, 680 A.2d 301 (1996) " A holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17. The possession by the bearer of a note endorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there. . . . It is for the defendant to set up and prove the facts which limit or change the plaintiff's rights." Equity One, Inc. v. Shivers, supra, 310 Conn. 135. In addition to establishing standing, there must be evidence to when the note came into the plaintiff's possession. GMAC Mortgage, LLC. v. Ford, 144 Conn.App. 165, 174, 73 A.3d 742 (2013); Deutsche Bank National Trust Company v. Thompson, 163 Conn.App. 827, 832, 136 A.3d 1277 (2016). As already stated, it is the plaintiff's burden to prove the above elements to satisfy that this court has subject matter jurisdiction over this residential foreclosure action. Id., 836. The plaintiff's burden of proof in a motion to dismiss alleging lack of subject matter jurisdiction is a " colorable claim." The Investors Mortgage Company, Trustee v. Rodia, supra, 31 Conn.App. 479. The defendant's proof must be substantially higher to overcome the minimal burden of proof of a colorable claim.
The holder of a note is presumed to be the rightful owner of the underlying debt and unless the party defending against the foreclosure action rebuts that presumption, the holder has standing to foreclose the mortgage; the holder only has to produce the note to establish that presumption. RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011). Summary judgment was granted on May 7, 2012 (#124.86). A judgment of strict foreclosure entered on May 28, 2013 (#131.86). The judgment of strict foreclosure was affirmed by the Appellate Court on June 3, 2014 (#146.00), 150 Conn.App. 660, 667, 92 A.3d 983 (2014). The Petition for Certification was denied by the Supreme Court on September 17, 2014 (#149.00) 314 Conn. 905, 99 A.3d 635 (2014). Based upon this evidence, the court finds that the plaintiff has sustained its burden of proof to show that it has standing.
Connecticut courts are confronted with foreclosure defenses that the plaintiff lacks standing and therefore the court is deprived of subject matter jurisdiction. Caselaw has been consistent in citing the general proposition that " because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." Equity One, Inc. v. Shivers, supra, 310 Conn. 125-26. Caselaw further states, " Indeed, once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." Deutsche Bank National Trust Company v. Bialobrzeski, supra, 123 Conn.App. 798. " It is the plaintiff who bears the burden of proving subject matter jurisdiction, whenever and however raised." Deutsche Bank National Trust Company v. Thompson, supra, 163 Conn.App. 836. " The objection of want of jurisdiction may be made at any time . . . and the court or tribunal may act on its own motion, and should do so when lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430-31, 829 A.2d 801 (2003).
Bumping up against the above rules is the legal principle of finality of judgments. " Although we have held that a challenge to a court's subject matter jurisdiction 'can be raised at any time . . . and the lack thereof cannot be waived'; LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976), quoting Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974), Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appealed dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979), we have also recognized that 'the modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal." Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984).
Connecticut adopted the provisions of Section 12 of Restatement (Second) of Judgments. " Under the restatement view, a collateral attack on a judgment in a contested case, such as this one, may raise only limited claims of lack of subject matter jurisdiction. A subsequent challenge to subject matter jurisdiction, when that issue was not actually litigated in the prior action, is authorized only if the litigant can show that 'the tribunal's excess of authority was plain or has seriously disturbed the distribution of governmental powers or has infringed a fundamental constitutional protection.'" Id., 114-15; Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979). " Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so." Id., 362-63.
On August 30, 2016 the Connecticut Supreme Court revisited the finality of judgment limitation on the trial court's power to consider postjudgment claims of lack of subject matter jurisdiction. Sousa v. Sousa, 322 Conn. 757, 143 A.3d 578 (2016). The Supreme Court reaffirmed the finality of judgment principles of Section 12 of the Restatement (Second) of Judgments, Vogel v. Vogel, supra, 178 Conn. 362-63 and adopted Justice Peters' dissent in Broaca v. Broaca, 181 Conn. 463, 469, 435 A.2d 1016 (1980). The first step is for the trial court to determine if the lack of jurisdiction was " entirely obvious." That first step was also described as a determination as to whether " the tribunal's excess of authority was plain." Vogel v. Vogel, supra, 178 Conn. 362-63. That same first step was described as " the subject matter of the action was so plainly beyond the court's jurisdiction." Restatement (Second) of Judgment, Section 12.
The public policy behind the finality of judgment rule is as follows:
Although challenges to subject matter jurisdiction may be raised at any time, it is well settled that " [f]inal judgments are . . . presumptively valid . . . and collateral attacks on their validity are disfavored." (Citations omitted.) Hirtle v. Hirtle, 217 Conn. 394, 401, 586 A.2d 578 (1991). " The reason for the rule against collateral attack is well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . . [T]he law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court's decision . . . If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character when it is pleaded or produced in evidence against him in subsequent proceedings. Unless it is entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to indirect assaults upon it." (Emphasis added; internal quotation marks omitted.) In re Shamika F., supra, 256 Conn. at 406-07, 773 A.2d 347.Sousa v. Sousa, supra, 322 Conn. 771.
Under Sousa v. Sousa to be " entirely obvious" the " jurisdictional deficiency must amount to a 'fundamental mistake' that is 'so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority.'" Sousa v. Sousa, supra, 322 Conn. 773. The Supreme Court noted that collateral attacks on a judgment should be permitted only in " rare instances" and " only for the exceptional case in which the court that rendered judgment lacked even an 'arguable basis' for jurisdiction." Id., 773. " The importance of finality in litigation means that the exception to the claim preclusion rule applies in only the most limited circumstances." Id., 773. " Our cases demonstrates that it is extraordinarily rare for a tribunal's jurisdiction to be so plainly lacking that it is 'entirely obvious.'" Id., 773. Sousa adopts Justice Peters's dissent; " I would emphasize the truly exceptional nature of the 'plainly beyond' cases." Broaca v. Broaca, supra, 181 Conn. 473.
If the lack of jurisdiction is entirely obvious, the court may consider the attack on the court's subject matter jurisdiction. If the court concludes that the claim is not " entirely obvious, " the court must consider the following: " the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong public policy reasons for giving him a second opportunity to do so." Vogel v. Vogel, supra, 178 Conn. 362-63; Sousa v. Sousa, supra, 322 Conn. 772.
The considerations for this public policy analysis and whether public policy reasons support giving the litigant a second bite of the apple are: " whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments." Id., 784; Morris v. Irwin, 4 Conn.App. 431, 434, 494 A.2d 626 (1985).
The court therefore must examine the defendant's allegations that the plaintiff lacks standing and thus the court is deprived of subject matter jurisdiction both in the evidence offered in the four-day hearing as well as that contained in the forty-six reasons set forth in the Motion to Dismiss (#179.00). Although case law is not replete with examples of " entirely obvious" lack of subject matter jurisdiction decisions, this court offers the following as " entirely obvious" examples: a decedent's estate is not a proper or legal entity to commence a lawsuit as it has no standing and thus the court lacks subject matter jurisdiction. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985); a deceased person cannot sue. Lockwood v. Lockwood, 56 Conn. 106, 109, 14 A. 293 (1887); failure to comply with statutory notice requirements. Treat v. Town Plan and Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958); only the real property owner has standing to commence an action to discharge a mechanic's lien under Gen. Stat. § 49-35a. Rechovos Corporation v. SAB Construction Management, LLC, Superior Court, judicial district of Hartford, Docket Number HHD CV 16-6068052 S (July 7, 2016, Wahla, J.) [62 Conn.L.Rptr. 559, ]; and a trade name, whether registered or not, is not a legal entity and has no standing to sue. GMA Yacht Sales v. Skagit Marine Distributing, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 99-0364155 S (September 7, 2000, Skolnick, J.) [28 Conn.L.Rptr. 227, ].
This court cannot enumerate each of the claims that the defendant has placed before this court claiming that these deficiencies deprive this court of subject matter jurisdiction. There are dozens and dozens of claims; so many claims that it is an insurmountable effort for this court to discuss each and every reason in order to consider the finality of judgment principle for each of the myriad of legal and factual issues claimed.
This court finds that this lawsuit has been in judgment since May 28, 2013 (#131.86). The law days were stayed on that judgment due to the appellate stay. As already stated the plaintiff's September 24, 2015 Motion to Reset Law Days After Appeal (#151.00) is still pending due to the defendant's claims of lack of subject matter jurisdiction.
The return date of this residential foreclosure is February 24, 2009. There are currently 3, 329 civil cases on the active civil docket in the Stamford/Norwalk judicial district. There are only 15 cases with return dates earlier than to February 24, 2009 in those 3, 329. This case is therefore older than over 99.54% of the Stamford civil cases.
This residential foreclosure matter went to judgment on May 28, 2013. It is currently waiting a new judgment status upon the prosecution of motion #151.00. The court finds that the instant Motion to Dismiss (#179.00) is a collateral attack on the judgment, now over three years old in litigation approaching eight years old. Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 853-54, 74 A.3d 1192 (2013).
The court will discuss one of a myriad of subject matter jurisdiction claims made by the defendant: (1) The Trust documentation is inconsistent and is in violation of the rules, procedures and precepts established by the IRS, the Pooling and Servicing Agreement and the Securities and Exchange Commission. The court will discuss this claim under the lens of our finality of judgment rules. (1) The Trust Documentation is Inconsistent and is in Violation of the Rules, Procedures and Precepts Established by the IRS, the Pooling and Servicing Agreement and the Securities and Exchange Commission
Prior to filing the Motion to Dismiss on March 17, 2016, the defendant hired Richard Kahn of Forensic Professionals Group USA, Inc. On November 16, 2015 the defendant filed the following pleadings: four-page Defendant's Disclosure of Expert Witness (#166.00), two-page Resume of Richard Kahn (#167.00), eight-page Declaration of Richard Kahn, Testifying Expert in the Field of Mortgage Foreclosure Fraud and Securitization Investigation (#168.00), and a one-page Notice of Filing of Declaration of Expert Richard Kahn (#169.00). On March 29, 2016 the February 10, 2016 Affidavit of Richard Merrill Kahn was filed that contains twenty pages under a signature date of March 28, 2016. This is a combination affidavit of Richard Kahn's background, a list of documents reviewed and a report that has attached a series of mortgage documents, as well as claims of errors and inconsistencies (#182.00).
At the last day of hearing, on September 14, 2016, the court permitted the defendant to make an offer of proof of the reasons for dismissal and the admission as ID exhibits of the documents supporting these reasons. Moye v. Commissioner of Correction, 168 Conn.App. 207, 239-40, 145 A.3d 362 (2016) The defendant proffered the offer of proof and instead of stating the reasons for dismissal, merely explained the ID exhibits being offered by the description of each exhibit, its date and its provenance. The contents, legal and factual significance of the exhibits proffered for identification in the defendant's offer of proof was not stated. The court marked all of the proffered exhibits as ID There are 79 ID exhibits. All seventy-nine identification exhibits are available for later court review (#204.00).
Exhibit 4 ID is Richard Kahn's report and Exhibit 5 ID is the supplement to Richard Kahn's report. The remainder of the documents marked as ID exhibits were from Mortgage Electronic Registration Systems, Inc. (MERS), Connecticut Department of Banking, Security and Exchange Commission (SEC) records obtained from its ledger system, records of SAMI II Trust 2007-AR4, REMIC provisions, various federal statutes, IRS rules and regulations, New York Department of Corporation records, the note, mortgage deed, assignment of mortgage, the foreclosure complaint from this litigation, real estate appraisal, Florida Secretary of State records, Delaware records, American Home Mortgage records, Connecticut Attorney General opinions, Comptroller of Currency records, Brooklyn Law School records and a four-hundred-nine-page Pooling and Servicing Agreement for SAMI II Trust-AR4.
Richard Kahn's twenty-page report (#182.00) contains a section entitled FINDINGS. The first notation in that report is that this foreclosure was commenced by a named plaintiff that had the insertion of the phrase " the certificate holders of" printed after " Wells Fargo Bank, National Association as Trustee for." That scrivener's error was noted in the plaintiff's pleadings, admitted by the plaintiff and corrected by the court ordering the substitution of party plaintiff on October 15, 2015 (#150.01). The phrase " the certificate holders of" has been removed from the original plaintiff's name.
The entirety of Richard Kahn's FINDINGS in pleading #182.00, page 7, line 22 through and including page 11, line 5, is as follows:
11. Expert's Narrative Summary of Defects and Discrepancies Found in Plaintiff's Claims
This is my narrative. My findings with references to inclusions of evidence appear below this section.
These undisputable evidence reporting in this investigation and provided herein due to its nature and source reveals that ONE of the Plaintiffs captioned owned or own this. In addition, the event of ownership claimed by Plaintiff took place after the instant foreclosure action was filed. The first thing I noticed in the borrower documentation was the egregious 125% Pay Option ARM loan terms in this case. The Connecticut Attorney General along with Attorney General's in multiple other states has identified this type of loan as deceptive and predatory. The loan modifications and workouts developed as a result appear not to have been performed on this loan.
That would be in keeping with the findings that the Structured Asset Mortgage Investments II Trust 2007-AR4 or SAMI-II_2007-AR4 did not purchase and does not own the subject loan. One cannot modify a loan they don't own, even if Attorney Generals have or the parties have agreed to do separately as Wells Fargo did with the Connecticut Attorney General.
The first thing I noticed in the foreclosure court documentation was that the Party Plaintiff Name, included a separate corporation, STRUCTURED ASSET MORTGAGE I VESTMENTS II INC or SAMI-II Inc. who was an interim purchaser of loans from EMC Corp and seller to SAMI-II_2007-AR4. The scrivener's error applied for in the court and granted, cleared up the ambiguity. SAMI-II Inc. had no " certificate holders." SAMI-II_2007-AR4 has the certificate holders.
I make the clear distinction between the two unrelated entities in this report. Structured Asset Mortgage Investments II Trust 2007-AR4 is referenced as SAMI-II_2007-AR4. STRUCTURED ASSET MORTGAGE INVESTMENTS II INC is referenced as SAMI-II Inc. The research reveals Wells Fargo is Trustee to SAMI-II_207-AR4 which is a Trust and not to the unrelated corporation SAMI-II Inc.
SAMI-II_2007-AR4 is a registered Residential Mortgage Backed Security (" RMBS") required to file its initial first year deal documents with the Securities and Exchange Commission (SEC). I have reviewed these filing. The facts they reveal are considered undisputable due to the nature of sworn oath federal filings and their source, the Securities and Exchange Commission. SAMI-II_2007-AR4 elected to be treated as a Real Estate Mortgage Investment Conduit (REMIC) in accordance with IRS Code 860A-G. Their SEC filings detail their election and compliance in great detail.
Plaintiff SAMI-II_2007-AR4 claims to have taken ownership of this loan by action of an Assignment of Mortgage (AOM) recorded 04/17/2009.
The Complaint filing to foreclose was filed on 02/09/2009. AOM is dated 03/26/2009 and recorded 04/17/2009 after the filing of the foreclosure case. The sworn affidavit for Plaintiff by Mazariegos, the Assistant VP of JPMorgan Chase Bank purporting to be servicer to Plaintiff Wells Fargo as Trustee in this case, confirms purported ownership by the AOM taking place months after the foreclosure was initiated. The AOM is attached as one of the exhibits to the affidavit. Also attached is the defective Note endorsement addressed herein.
Claims that Plaintiff SAMI-II_2007-AR4 took ownership of this loan by the AOM recorded 04/17/2009 fail on multiple levels. The AOM exhibits material misrepresentations as well.
SAMI-II_2007-AR4 is a REMIC prohibited by regulations from certain actions. 14 acknowledged in the SAMI-II_2007-AR4 deal documents filed with the SEC.
SAMI-II_2007-AR4 could not take ownership of a defaulted loan. The subject loan was in default on the date of this AOM.
SAMI-II_2007-AR4 could not take ownership of a loan from any party other than SAMI II, Inc. This AOM does not reflect the required conveyance parties, it reflects prohibited parties.
SAMI-II_2007-AR4 could not take ownership of a loan identified after 90 days from the closing date in 2007. Under no conditions could an identified loan be substituted for defects after 2 years from the closing date. This AOM purports to transfer ownership of this defaulted loan well after the post 2-year transfer prohibition.
Additionally I find material defects and discrepancies in the body of the AOM itself.
There is and never was a corporation Mortgage Electronic Registration Systems (MERS) or MERS Corp or DBA in Ocala, FL.
MERS is required by its Rules to act as Nominee, at the direction of the Lender. In this case lender American Brokers Conduit was defunct in Chapter 11 liquidating bankruptcy in Delaware as of 08/06/2007. They didn't exist at the time of the AOM recorded 04/17/2009.
The signer Liquenda Allotey is a notoriously known " robo-signer." So much so that he has been addressed in news agency reports. He worked for the notorious document creation firm Lender Processing Services. He was not a MERS executive. He signed with a slashing mark that has varied across many recordations. He claimed to be executive of many different corporations. His name is synonymous with the most infamous robo-signers. Even so, the other facts of that are undisputable due to their source undermine the validity of the AOM with or without Allotey's false signature and executive position issues.
Most critically, any claim of SAMI-II_2007-AR4 to have bought this loan back in 2007 are easily extinguished by their record of intervening endorsements required along the purchases and sales of loans from origination to them. The Trustee of SAMI-IC2007-AR4 is on record as examining these in 2007. The endorsements required were specifically and distinctly identified. All intervening parties were required to endorse.
Sale from lender American Brokers Conduit to EMC is evidenced by the endorsement on the Note.
Missing: Endorsement of sale from EMC to SAMI-Il, Inc.
Missing: Endorsement from SAMI-II Inc. SAMI-II_2007-AR4.
As the loan documents were certified within months on loans purchased, requiring any defective loans to be noticed to the Trustee and certificate holders and no such notice on the subject loan was provided, the subject loan with its defective endorsements was clearly NOT in the mortgage pool purchased.
It's as simple as that. The loan's note on its face, evidences it was not purchased by the SAMI-II 2007-AR4. Creating a defective AOM to create ownership does not create ownership of the Note. The mortgage follows the Note, not the other way around.
While SAMI-II_2007-AR4 is representing to be buying loans, in stark prohibition to its REMIC election, Moody's the official rating agency of SAMI-II_2007-AR4 is reporting they are liquidating loans as they are allowed to do as a REMIC. They started out buying $1.303 billion loans and they now own $420 million. Originally the loans were AAA and now they are Junk Bond rated, selling at pennies on the dollar or not selling at all. If this loan were still in the SAMI-II 2007-AR4 loan pool, which the evidence demonstrates it is not, the loan could be purchased whole for a small fraction of its original value due to the Moody's junk bond ratings of ALL the loans remaining in SAMI-II_2007-AR4 as of the date of this report.
This concludes the FINDINGS section of Richard Kahn's Report (#182.00) as placed in this Memorandum of Decision on pages 17 through 19.
The court finds under the above circumstances, the claimed defective assignment and claimed defective endorsements are not " entirely obvious." Sousa v. Sousa, supra, 322 Conn. 773.
The court finds that the defendant, Joseph S. Tarzia, had the opportunity to litigate the question of subject matter jurisdiction in the original action which commenced in February 2009. This Motion to Dismiss is the eighth time that the defendant has challenged the plaintiff's standing. The defendant has failed to identify a strong public policy for his continuation of the claim of lack of subject matter jurisdiction. The court cannot find such a strong public policy based on the evidence presented and the status of this litigation file. The court finds as follows:
This Motion to Dismiss is a collateral attack on the May 28, 2013 judgment of strict foreclosure. Weyher v. Weyher, III, 164 Conn.App. 734, 745-46, 138 A.3d 969 (2016).
The defendant litigated this matter to a judgment of strict foreclosure during the first four years. The appellate process took another sixteen months. The defendant chose to file this Motion to Dismiss on March 17, 2016, over seven years after the commencement of this foreclosure litigation. The court finds that this is tantamount to the defendant's consenting to the court's jurisdiction.
This foreclosure litigation is very old, older than 99.54% of the civil cases on the Stamford Court civil docket. The Return date is almost eight years ago.
This is the eighth time the defendant has filed pleadings addressing lack of subject in the jurisdiction. A number of these motions have been duly heard and denied. One court specifically found that the plaintiff has standing.
The defendant has not demonstrated any miscarriage of justice in the court's continuing jurisdiction. No other entity is claiming ownership of this Note or the right to foreclose this mortgage. The defendant has not produced any evidence naming another entity that claims ownership of this note.
This claim of lack of standing in the main is technical and does not demonstrate any abuse of authority by this court to retain jurisdiction.
Finality of judgments in foreclosure cases is a preferred result. Foreclosure determines issues of title to real estate in a timely fashion. " Our Supreme Court has stated that 'as best we can determine, the legislature's purpose in enacting § 49-15 was . . . to set an orderly framework for a mortgagee's exercise of the equity of redemption . . . and " to ensure equitable foreclosure proceedings." First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 613, 785 A.2d 1148 (2001). " In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing." Suffield Bank v. Berman, 25 Conn.App. 369, 373, 594 A.2d 493 (1991).
The above are all of the critical considerations in determining finality of judgments. The court finds that the claimed defective mortgage documents do not deprive the court of subject matter jurisdiction.
The court finds that the denial of this March 17, 2016 Motion to Vacate Judgment and Dismiss Foreclosure Action with Prejudice is a textbook example of the proper application of the principle of finality of judgments. 418 Meadow Street Association, LLC v. Levine, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 07-5012777 S (October 4, 2010, Dooley, J.) [50 Conn.L.Rptr. 736, ].
The court denies the Defendant's Motion to Vacate Judgment and Motion to Dismiss Foreclosure Action with Prejudice dated March 17, 2016 (#179.00).