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Lienfactors, LLC v. Beebe

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Mar 30, 2007
2007 Ct. Sup. 4373 (Conn. Super. Ct. 2007)

Opinion

No. FST CV 06 400 7993

March 30, 2007


MEMORANDUM OF DECISION RE MOTION TO DISMISS (131.00)


I. Background

In its complaint the plaintiff, LienFactors, LLC, (LienFactors) alleged that in 1990 Grand Properties obtained a judgment against the defendant Marcus Beebe in the amount of $12,700.22. It is further alleged that Grand Properties filed a judgment lien on real property owned by Beebe on the Town of Wilton Land Records on January 18, 2005. In November 2005 Grand Properties assigned its rights to the judgment and judgment lien to LienFactors which subsequently commenced this action to foreclose the lien.

Beebe has moved to dismiss the action on the grounds that notice of the judgment was not filed in the Superior Court which is a prerequisite to the issuance of an execution on the judgment, and the court lacks jurisdiction over this foreclosure action pursuant to General Statutes § 52-380a(c).

II. Standard of Review

A motion to dismiss is the proper means to raise the issue of lack of subject matter jurisdiction. St. George v. Gordon, 264 Conn. 538, 545 (2003); Practice Book § 10-31(a). When the issue of lack of subject matter jurisdiction is raised the court must resolve it before proceeding further, because the issue involves a court's authority to adjudicate the case. Esposito v. Specyalski, 268 Conn. 336, 348 (2004).

III. Discussion

On November 19, 1990, on "motion for judgment upon default and weekly order of payments" by Grand Properties Corporation against Marcus Beebe, the Superior Court for the Judicial District of Stamford/Norwalk in Docket Number CV 89 0100245 entered judgment in the amount of $9,420.00 in damages, $3,118.02 in interest and $149.20 in costs against Beebe with a "$10.00 weekly payment order."

At that time Section 354 (now Section 17-22) of the Practice Book read:

A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed forthwith by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk's office. Proof of service shall be in accordance with Sec. 123.

According to an unrebutted affidavit the court file in CV 89 0100245 contains no notice of judgment and the docket sheet makes no reference to such a notice. In 1990 Section 361 (now Section 17-28) of the Practice Book stated:

Execution upon such judgment shall be stayed until twenty days after the clerk receives from the plaintiff, or his attorney, one copy of the notice and judgment, with a certification that one copy thereof was served upon each judgment debtor in the manner and form described by Sec. 120 or by mailing it to him at his last known address. If such service is made by mail, the certification shall recite the date of mailing and the address to which the notice and judgment were mailed.

Without any notice of judgment in the court file no execution may issue on the judgment against Beebe.

General Statutes § 52-380a(c) provides that "No action to foreclose a judgment lien filed pursuant to this section [referring to § 52-380a(a)] may be commenced unless an execution may issue pursuant to Section 52-356a." Section 52-356a authorizes a clerk of the court to issue an execution against non-exempt personal property on the basis of an unsatisfied money judgment only after any stay of enforcement has expired. As pointed out above, that stay of execution established by Practice Book 361 (now Section 17-28) has not expired.

LienFactors contends that Beebe has had ample notice of the judgment against him pointing to a letter sent to him by Grand Properties' attorney in September 1991 and another letter from LienFactors in 2005. However, neither letter satisfied the filing of notice with the court requirement, because they were not filed with the clerk, nor the proof of service requirement. Furthermore, neither letter made reference to the judgment provision of ten dollar weekly payments.

LienFactors also argues that the Practice Book provisions that notice of judgment "shall" be sent to the clerk's office and that execution "shall" be stayed until twenty days after the clerk's receipt of the notice, should be construed as directory not mandatory. The court is not persuaded by this argument. The purpose of the filing of the notice of judgment requirement is to assure the court as much as possible that a non-appearing defendant has notice of the judgment soon after it is entered so that appeal rights can be exercised, a motion to reopen can be timely made, and generally, so a defendant is aware of his judgment-debtor status. In the underlying case default for non-appearance was entered July 18, 1989 and judgment entered on November 19, 1990. The letter dated September 16, 1991 and not filed with court does not fulfill these purposes.

This court concludes that the Practice Book provisions are mandatory in that the filing of the notice and the stay of execution when the filing is not accomplished are substantive matters, i.e., they are "the essence of the thing to be accomplished"; Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 19 (2004) (holding that such matters are matters of substance, making the provisions that direct that they occur mandatory).

The court concludes that the contentions that Beebe is precluded from succeeding on his motion to dismiss by operation of the doctrines of unclean hands or laches must fail. There is no evidence before the court to sustain these equitable arguments.

IV. Conclusion

The motion to dismiss is granted.


Summaries of

Lienfactors, LLC v. Beebe

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Mar 30, 2007
2007 Ct. Sup. 4373 (Conn. Super. Ct. 2007)
Case details for

Lienfactors, LLC v. Beebe

Case Details

Full title:LIENFACTORS, LLC v. MARCUS P. BEEBE

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Mar 30, 2007

Citations

2007 Ct. Sup. 4373 (Conn. Super. Ct. 2007)
2007 Ct. Sup. 4682
43 CLR 184