Astoria Federal Mortgage Corp. v. Genesis Ltd. Partnership , 167 Conn. App. 183 ( 2016 )

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ASTORIA FEDERAL MORTGAGE CORPORATION v.
GENESIS LIMITED PARTNERSHIP ET AL.
(AC 37754)
Keller, Mullins and Norcott, Js.
Argued February 11—officially released July 26, 2016
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Hon. John W. Moran, judge trial
referee.)
Jane I. Milas, with whom, on the brief, was Jaime
Paoletti, for the appellant (defendant Professional Ser-
vices Group, Inc.).
Stephen G. Walko, with whom were Frank Velardi
and, on the brief, Julia E. Braun, for the appellee (sub-
stitute plaintiff).
Opinion
KELLER, J. In this foreclosure action, the defendant
Professional Services Group, Inc.,1 appeals from the
trial court’s judgment granting the motion filed by the
plaintiff, Bellmore Partners, Inc.,2 to dismiss the defen-
dant’s cross claim. The defendant claims that the court
erred by granting the plaintiff’s motion to dismiss
because it improperly concluded that the defendant
lacked standing. We agree and accordingly reverse the
judgment of the court.
The following procedural history is relevant to this
appeal. On October 15, 2009, Astoria Federal Mortgage
Corporation (Astoria) filed a four count complaint
against Genesis Limited Partnership (Genesis) and the
defendant, seeking, inter alia, foreclosure of two mort-
gages that Genesis had executed and delivered to Ast-
oria for property located at 89 Minerva Street in Derby
(Derby property). In the complaint, Astoria alleged that
it was in possession of two notes that were secured by
two mortgages on the Derby property: (1) a note dated
May 14, 2004, wherein Genesis had promised to pay
Astoria $210,000; and (2) a note dated June 20, 2005,
wherein Genesis had promised to pay Astoria $165,000.
Furthermore, Astoria acknowledged that the defendant
maintained an encumbrance of record on the Derby
property, which it alleged was subordinate in right to
the claimed mortgages, ‘‘by virtue of a [m]echanic’s
[l]ien in the original principal amount of [$293,800]
dated September 8, 2009, and recorded in volume 589
at page 253 of the Derby land records.’’ On October
23, 2009, Astoria filed a motion for default against the
defendant for its failure to appear, which the court
denied on October 27, 2009. On December 10, 2009,
Astoria filed a demand for disclosure of defense against
the defendant.
On December 21, 2009, the defendant filed its disclo-
sure of defense and its answer and special defense. In
its disclosure of defense and as a special defense, the
defendant asserted that it held a valid mechanic’s lien on
the Derby property, which was security for construction
work on the Derby property that it had commenced on
March 12, 2002, and which it alleged was a claim prior
in right to the mortgages claimed by Astoria.
On July 19, 2010, Genesis filed a chapter 11 bank-
ruptcy petition in the United States Bankruptcy Court
for the District of Connecticut.
During the pendency of Genesis’ bankruptcy proceed-
ings, the defendant, on August 13, 2011, assigned its
mechanic’s lien on the Derby property to Viking Acquisi-
tions, LLC (Viking). On September 30, 2011, this assign-
ment was recorded at volume 633, page 273 of the Derby
land records.
On April 12, 2012, the Bankruptcy Court issued an
‘‘Order Regarding Limited Relief from the Automatic
Stay,’’ which stated the following: ‘‘The court having
held a hearing on March 20, 2012, with respect to the
motion for relief from stay filed by [the plaintiff] on
January 10, 2011 . . . and the motion for immediate
order of relief from stay for violation of court ordered
stipulations filed by [the plaintiff] on February 13, 2012
. . . the parties having requested limited relief at the
hearing to allow the parties to move forward with pro-
ceedings in Connecticut Superior Court as to the extent,
validity, and priority of the mechanic’s lien . . . alleg-
edly held by [the defendant] on [the Derby property];
and the court having determined that cause exists to
grant limited relief from stay as requested by the parties,
it is hereby
‘‘Ordered that relief from the automatic stay is
granted, for cause, pursuant to 11 U.S.C. § 362 (d) (1)
to allow the parties to move forward with proceedings
in Connecticut Superior Court for the limited purpose
of determining the extent, validity and priority of the
[defendant’s mechanic’s lien]; and it is hereby further
‘‘Ordered that relief from the automatic stay is also
granted to allow the parties to proceed in Connecticut
state court with any appeals from any decision of the
Connecticut Superior Court as to the extent, validity,
and priority of [the defendant’s mechanic’s lien]
. . . .’’3
On April 18, 2012, Astoria moved to substitute the
plaintiff in the foreclosure proceeding. The court
granted Astoria’s motion on May 14, 2012.
On September 20, 2012, the court granted the plain-
tiff’s motion for a determination of priorities and
ordered the following: ‘‘The court finds the priorities
to be (1) the first mortgage dated May 14, 2004, and
(2) the second mortgage dated June 20, 2006. No further
determination is made.’’4
On October 12, 2012, Viking assigned the defendant’s
mechanic’s lien back to the defendant, but this assign-
ment was not recorded in the Derby land records until
June 26, 2014.
On March 18, 2014, the bankruptcy court dismissed
Genesis’ chapter 11 bankruptcy case.
On April 16, 2014, the defendant filed a cross claim
against Genesis, in which it sought, inter alia, to fore-
close the mechanic’s lien that it held on the Derby
property. In its cross claim, the defendant alleged that
it had ‘‘furnished materials and rendered services to
Genesis in the construction, raising, removal or repairs
to the property owned by Genesis,’’ and that it had
‘‘commenced to furnish materials and render services
on or about March 12, 2002, and ceased furnishing mate-
rials and rendering services on August 20, 2009.’’
On June 17, 2014, the plaintiff filed a motion to dis-
miss the defendant’s cross claim. In the motion, the
plaintiff asserted that the defendant’s cross claim
should be dismissed because ‘‘[a]t the time the cross
claim was filed, [the defendant] was not the holder
of the [mechanic’s] lien and therefore [did] not have
standing to pursue foreclosure.’’ In its memorandum of
law in support of the motion, which was also filed on
June 17, 2014, the plaintiff argued, inter alia, that the
defendant did not have standing to foreclose its
mechanic’s lien on the Derby property because it had
failed to record the October 12, 2012 assignment
whereby Viking assigned the mechanic’s lien back to
the defendant. Therefore, the plaintiff argued, the defen-
dant did not have standing because it was not the record
holder of the lien on April 16, 2014, which was the date
on which it filed its cross claim seeking foreclosure of
the lien.
On July 15, 2014, the defendant filed its opposition
to the plaintiff’s motion to dismiss, wherein it argued
that it did have standing to bring its cross claim against
Genesis because the October 12, 2012 assignment was
valid despite the defendant’s failure to record the
assignment prior to its commencement of the foreclo-
sure action. The defendant also asserted that on June 26,
2014, it had recorded the October 12, 2012 assignment in
volume 696, page 51 of the Derby land records. The
defendant attached a copy of the recorded assignments
to its opposition.
On October 14, 2014, the court held a hearing on the
plaintiff’s motion to dismiss.5 On January 22, 2015, the
court issued a memorandum of decision wherein it
granted the plaintiff’s motion to dismiss the defendant’s
cross claim. In its memorandum of decision, the court
stated the following: ‘‘On April 16, 2014, the defendant
. . . filed a cross [claim] against codefendant Genesis
. . . seeking to foreclose a mechanic’s lien, dated Sep-
tember 8, 2009, against Genesis . . . .
‘‘Prior thereto, [the defendant] assigned its mechan-
ic’s lien to Viking . . . on August 13, 2011. On Septem-
ber [30], 2011, at 12:13 p.m., this assignment6 was
recorded at volume 633, page 273, of the Derby land
records.
‘‘Subsequently, on October 12, 2012, Viking . . .
assigned the same mechanic’s lien back to [the defen-
dant]. This second assignment was not recorded until
4:01 p.m. on June [26], 2014, at volume 696, page 51,
of the Derby land records.
‘‘[The plaintiff], successor to Astoria . . . by virtue
of a valid assignment of a note and mortgage, dated
September 29, 2010, challenges the standing of [the
defendant] to file the present cross claim. It argues that
[the defendant] did not own or possess the mechanic’s
lien as [the defendant] had assigned its mechanic’s lien
to Viking . . . and Viking . . . was the owner of
record of the mechanic’s lien on April 16, 2014. . . .
‘‘Reference to General Statutes § 47-10 (a) provides
resolution of the issue of standing here. Section 47-10
(a) provides in relevant part: ‘No conveyance shall be
effectual to hold any land against any other person but
the grantor and his heirs, unless recorded on the records
of the town in which the land lies. . . .’ The failure to
record renders an assignee without standing to maintain
an action against any party except the grantor and his
heirs. . . . This court finds that the assignment of the
mechanic’s lien, dated October 12, 2012, but not
recorded until June 26, 2014, was not effectual against
any [party] except Viking . . . and that [the defendant]
did not have standing to file the April 16, 2014 cross
claim.
‘‘The motion of [the plaintiff] to dismiss the April 16,
2014 cross claim is granted.’’ (Citation omitted; footnote
in original.)
On February 11, 2015, the defendant filed a motion to
reargue with respect to the plaintiff’s motion to dismiss.
The court denied the defendant’s motion on the same
date. This appeal followed.
We address the defendant’s claim that the court erred
in granting the plaintiff’s motion to dismiss because it
improperly concluded that the defendant lacked stand-
ing as a result of its failure to record, prior to filing its
cross claim, the October 12, 2012 assignment of the
mechanic’s lien. The defendant makes two arguments
with respect to this claim: (1) the court erred by improp-
erly interpreting and applying § 47-10 to the unrecorded
October 12, 2012 assignment of the mechanic’s lien;
and (2) the court erred by relying on other nonbinding
trial court decisions. We reverse the court’s judgment
on the basis of the defendant’s first argument.7
We begin our analysis of this argument by setting
forth the appropriate standard of review. ‘‘The standard
of review for a court’s decision on a motion to dismiss
. . . is well settled.’’ (Internal quotation marks omit-
ted.) Manning v. Feltman, 149 Conn. App. 224, 229–30,
91 A.3d 466 (2014). ‘‘A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the court’s
ultimate legal conclusion and resulting [determination]
of the motion to dismiss will be de novo. . . . In under-
taking this review, we are mindful of the well estab-
lished notion that, in determining whether a court has
subject matter jurisdiction, every presumption favoring
jurisdiction should be indulged. . . .
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction . . . may encounter dif-
ferent situations, depending on the status of the record
in the case. . . . Different rules and procedures will
apply, depending on the state of the record at the time
the motion is filed.
‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint alone, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . other types of
undisputed evidence . . . and/or public records of
which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein.’’
(Citations omitted; emphasis in original; footnotes omit-
ted; internal quotation marks omitted.) Conboy v. State,
292 Conn. 642, 650–52, 974 A.2d 669 (2009).8
On appeal, the defendant argues that the court
erred by concluding that it did not have standing to
bring its cross claim against Genesis seeking foreclo-
sure of the mechanic’s lien that it held because,
pursuant to § 47-10, it had not recorded the October
12, 2012 assignment of the lien at the time it filed
its cross claim. Specifically, the defendant argues
that the court erred in this regard because its con-
clusion did not harmonize the statutory requirements
of § 47-10 with those of General Statutes §§ 49-10,9
49-17,10 and 49-33.11 In opposition, the plaintiff argues
that the court’s conclusion was proper because § 47-
10 applies to assignments of mechanic’s liens, thereby
requiring the defendant, as an assignee of such a lien, to
record the October 12, 2012 assignment prior to seeking
foreclosure of the lien in order to have standing.
Because we conclude that noncompliance with the
recording requirement of § 47-10 is not fatal to a party’s
standing to bring an action to foreclose a mechanic’s
lien, we therefore conclude that the court in the present
case erred in its determination that the defendant
lacked standing to bring its cross claim by virtue of its
failure to record the October 12, 2012 assignment prior
to filing its cross claim.
‘‘[A] party must have standing to assert a claim in
order for the court to have subject matter jurisdiction
over the claim. . . . Standing is the legal right to set
judicial machinery 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 action, or a legal or equitable
right, title or interest in the subject matter of the contro-
versy.’’ (Internal quotation marks omitted.) People’s
United Bank v. Kudej, 134 Conn. App. 432, 438–39, 39
A.3d 1139 (2012). ‘‘In order to determine whether a
party has standing to make a claim under a statute, a
court must determine the interests and the parties that
the statute was designed to protect . . . . Essentially
the standing question in such cases is whether the . . .
statutory provision on which the claim rests properly
can be understood as granting persons in the plaintiff’s
position a right to judicial relief. . . . The plaintiff must
be within the zone of interests protected by the statute.’’
(Internal quotation marks omitted.) Connecticut Car-
penters Benefit Funds v. Burkhard Hotel Partners II,
LLC, 83 Conn. App. 352, 355, 849 A.2d 922 (2004).
The present appeal raises the issue of whether § 47-
10, the Connecticut land transfer recordation statute,
which generally applies to conveyances of land, applies
to an assignment of a mechanic’s lien, which is governed
by § 49-33. In conducting this inquiry, we must employ
relevant statutory construction principles. We note that
‘‘[w]hen construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . [W]e seek to determine, in a
reasoned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning . . . [General
Statutes §] 1-2z directs us first to consider the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of [the] text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Dairyland Ins. Co. v. Mitchell, 320 Conn. 205, 211 n.9,
128 A.3d 931 (2016).
‘‘It is an accepted principle of statutory construction
that, if possible, the component parts of a statute should
be construed harmoniously in order to render an overall
reasonable interpretation. . . . [T]he legislature is
always presumed to have created a harmonious and
consistent body of law . . . . [T]his tenet of statutory
construction . . . requires [an appellate court] to read
statutes together when they relate to the same subject
matter . . . . Accordingly, [i]n determining the mean-
ing of a statute . . . we look not only at the provision
at issue, but also to the broader statutory scheme to
ensure the coherency of our construction. . . . [T]he
General Assembly is always presumed to know all the
existing statutes and the effect that its action or non-
action will have upon any one of them.’’ (Citation omit-
ted; internal quotation marks omitted.) Board of Educa-
tion v. State Board of Education, 278 Conn. 326, 333–34,
898 A.2d 170 (2006).
Section 47-10 provides in relevant part that ‘‘[n]o con-
veyance shall be effectual to hold any land against any
other person but the grantor and his heirs, unless
recorded on the records of the town in which the land
lies. . . .’’ Given that the term ‘‘conveyance’’ is not stat-
utorily defined, we may look to the commonly approved
meaning of the term. See O’Dell v. Kozee, 307 Conn.
231, 243–44, 53 A.3d 178 (2012). Our Supreme Court
has observed that ‘‘[a] conveyance, [i]n its most com-
mon usage [is a] transfer of title to land from one person,
or class of persons, to another by deed. [The] [t]erm
may also include assignment, lease, mortgage or
encumbrance of land . . . .’’ (Emphasis added; internal
quotation marks omitted.) Groton v. Mardie Lane
Homes, LLC, 286 Conn. 280, 288–89, 943 A.2d 449(2008); see also Black’s Law Dictionary (9th Ed. 2009).
Our Supreme Court and this court also have concluded
that a mortgage is considered a conveyance of land
within the meaning of the Connecticut recordation stat-
ute, § 47-10. See Farmers & Mechanics Savings Bank
v. Garofalo, 219 Conn. 810, 816 n.8, 595 A.2d 341 (1991);
Second National Bank of New Haven v. Dyer, 121 Conn.
263, 267, 184 A. 386 (1936); Family Financial Services,
Inc. v. Spencer, 41 Conn. App. 754, 761, 677 A.2d 479(1996). Also, ‘‘[t]he assignment [of a mortgage] is in
effect a conveyance of the land included in the mort-
gage.’’ Second National Bank of New Haven v. Dyer,
supra, 267. To date, however, no Connecticut appellate
court has opined as to whether an assignment of a
mechanic’s lien is a conveyance of land within the mean-
ing of § 47-10. This is the issue that confronts us in the
present appeal.
A mechanic’s lien, also called a construction lien in
some jurisdictions, ‘‘is a statutory lien on buildings and
other improvements on realty, and on the realty itself,
in favor of contractors, materialmen, and other classes
of workers, as a security device to help ensure that
those who improve real property receive payment even
in the absence of a contractual relationship between
the lien claimant and the owner of the property.’’ (Foot-
notes omitted.) 53 Am. Jur. 2d 88–89, Mechanic’s Liens
§ 1 (2006). The statute that governs mechanic’s liens in
Connecticut is § 49-33, which provides in relevant part:
‘‘If any person has a claim for more than ten dollars
for materials furnished or services rendered in the con-
struction, raising, removal or repairs of any building or
any of its appurtenances or in the improvement of any
lot or in the site development or subdivision of any plot
of land, and the claim is by virtue of an agreement with
or by consent of the owner of the land upon which the
building is being erected or has been erected or has
been moved, or by consent of the owner of the lot being
improved or by consent of the owner of the plot of land
being improved or subdivided, or of some person having
authority from or rightfully acting for the owner in
procuring the labor or materials, the building, with the
land on which it stands or the lot or in the event that
the materials were furnished or services were rendered
in the site development or subdivision of any plot of
land, then the plot of land, is subject to the payment
of the claim. . . .’’ See footnote 11 of this opinion.
Section 49-33 ‘‘creates a statutory right in derogation
of the common law . . . [but] its provisions should be
liberally construed in order to implement its remedial
purpose of furnishing security for one who provides
services or materials. . . . [A reviewing court’s] inter-
pretation, however, may not depart from reasonable
compliance with the specific terms of the statute under
the guise of a liberal construction. . . . [Moreover] the
provisions of [the Connecticut] statute differ suffi-
ciently from the mechanic’s lien legislation of other
states so that precedents elsewhere are of limited utility
in the interpretation of [the Connecticut statute].’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) New England Savings Bank v. Meadow
Lakes Realty Co., 243 Conn. 601, 611–12, 706 A.2d 465(1998). Our Supreme Court has noted that ‘‘the
important purpose of mechanic’s lien statutes [is] to
provide an inexpensive and simple method for material
suppliers and contractors to secure the value of the
services or materials that they have added to the prop-
erty [which is subject to the mechanic’s lien].’’ Red
Rooster Construction Co. v. River Associates, Inc., 224
Conn. 563, 573, 620 A.2d 118 (1993). Finally, because
a mechanic’s lien foreclosure action is an equitable
proceeding; Russo Roofing, Inc. v. Rottman, 86 Conn.
App. 767, 776, 863 A.2d 713 (2005); a court, in its equita-
ble powers, must look to substance over form, may
consider equitable principles even though they may not
have been specifically pleaded, and ‘‘may consider all
relevant circumstances to ensure that complete justice
is done.’’ McKeever v. Fiore, 78 Conn. App. 783, 788,
829 A.2d 846 (2003).
Against this background, we must decide whether
the recording requirements set forth in § 47-10 apply
to the assignment of a mechanic’s lien. Specifically, we
must decide whether an assignee of a mechanic’s lien
lacks standing to bring an action to foreclose the lien
as a result of its failure, prior to bringing the foreclosure
action, to record the assignment in the relevant town
land records. In conducting this inquiry, we are guided
by the statutory interpretation principle that ‘‘specific
terms covering the given subject matter will prevail
over general language of the same or another statute
which might otherwise prove controlling. . . . The
provisions of one statute which specifically focus on a
particular problem will always, in the absence of
express contrary legislative intent, be held to prevail
over provisions of a different statute more general in
its coverage.’’ (Internal quotation marks omitted.) Hou-
satonic Railroad Co. v. Commissioner of Revenue Ser-
vices, 301 Conn. 268, 302, 21 A.3d 759 (2011).
Our review of § 49-33, as well as other Connecticut
statutes specifically governing mechanic’s liens; see
General Statutes §§ 49-34 through 49-47a; and relevant
case law pertaining to these statutes, reveals no require-
ment that the assignment of a mechanic’s lien be
recorded in order to confer standing upon an assignee
of the lien to bring an action to foreclose it. With respect
to the general issue concerning which parties typically
have standing to enforce a mechanic’s lien, our Supreme
Court, in Seaman v. Climate Control Corp., 181 Conn.
592, 595, 436 A.2d 271 (1980), stated the following:
‘‘Those who provide services or materials in connection
with the construction of a building are entitled to claim
a lien on the land that they have improved if they fall
into one of two categories. Lienors are protected if they
have a claim either (1) by virtue of an agreement with
or the consent of the owner of the land, or (2) by
the consent of some person having authority from or
rightfully acting for such owner in procuring labor or
materials.’’12 Neither this court nor our Supreme Court,
however, has determined whether principles of assign-
ment and recordation override these fundamental
standing requirements for a party to foreclose a
mechanic’s lien. In order to guide our inquiry in this
regard, we seek guidance from certain provisions of
the mechanic’s lien statute, specifically, subsection (i)
of § 49-33, as well as case law pertaining to the foreclo-
sure of mortgages.
Subsection (i) of § 49-33 states that ‘‘[a]ny mechanic’s
lien may be foreclosed in the same manner as a mort-
gage.’’ Our Supreme Court also has opined that ‘‘to the
extent the foreclosure of mortgages and mechanic’s
liens involve similar procedural steps, the law estab-
lished in mortgage foreclosure actions also applies to
mechanic’s liens.’’ Handsome, Inc. v. Planning & Zon-
ing Commission, 317 Conn. 515, 528, 119 A.3d 541(2015). As a result, we deem the statutes pertaining to
the foreclosure of mortgages, as well as pertinent case
law, to be instructive as to our inquiry regarding an
assignee’s standing to foreclose a mechanic’s lien.13 In
this vein, we particularly focus on § 49-17, which gov-
erns the foreclosure of a mortgage by the owner of debt
without legal title.
On the basis of our reading of the plain language of
these statutes, and in accordance with the principle
that statutory provisions that focus on more specific
topics should prevail over the requirements of statutes
that are more general in their coverage; see Housatonic
Railroad Co. v. Commissioner of Revenue Services,
supra, 301 Conn. 302; we conclude that the dictates of
§§ 49-33 and 49-17 must trump those of § 47-10 because
§ 47-10 covers the general topic of land conveyances,
whereas §§ 49-33 and 49-17 cover the more specific
topics of mechanic’s liens and mortgage foreclosures,
respectively.
Section 49-17, titled ‘‘Foreclosure by owner of debt
without legal title,’’ provides in relevant part that
‘‘[w]hen any mortgage is foreclosed by the person enti-
tled to receive the money secured thereby but to whom
the legal title to the mortgaged premises has never been
conveyed, the title to such premises shall, upon the
expiration of the time limited for redemption and on
failure of redemption, vest in him in the same manner
and to the same extent as such title would have vested
in the mortgagee if he had foreclosed.’’ ‘‘[Section] 49-
17 codifies the well established common-law principle
that the mortgage follows the note, pursuant to which
only the rightful owner of the note has the right to
enforce the mortgage. . . . Our legislature, by adopt-
ing § 49-17, created a statutory right for the rightful
owner of a note to foreclose on real property regardless
of whether the mortgage has been assigned to him.’’
(Internal quotation marks omitted.) JPMorgan Chase
Bank, National Assn. v. Simoulidis, 161 Conn. App.
133, 144 n.9, 126 A.3d 1098 (2015), cert. denied, 320
Conn. 913, 130 A.3d 266 (2016). Thus, pursuant to this
statute, a valid assignee of a mortgage note has standing
to foreclose irrespective of whether that assignee
records the assignment prior to instituting the action.
Two leading commentators on Connecticut foreclosure
actions have refined the principle codified in § 49-17:
‘‘Although it should be clear that the assignee of a mort-
gage deed cannot foreclose without prior compliance
with . . . § 49-10 and . . . § 47-10, such is clearly not
the situation with the assignee or holder of a mortgage
note.’’ (Emphasis in original.) 1 D. Caron & G. Milne,
Connecticut Foreclosures (5th Ed. 2011) § 5-2:2, p. 163.
We are aware that mechanic’s liens are not com-
pletely analogous to mortgages insofar as, unlike mort-
gages, mechanic’s liens typically are not separated into
a note and a deed. Indeed, our Supreme Court has
observed that there are ‘‘clear differences’’ between
mortgages and mechanic’s liens: ‘‘A mechanic’s lien,
unlike a mortgage, is not an agreement or contract
between parties but rather a lien upon real estate which
the plaintiff seeks to take by force of law and eventually
to foreclose. . . . Unlike a mortgage deed, which may
be reformed to reflect the contracting parties’ mutual
intent, the placement of a mechanic’s lien is a unilateral
act in which the lienor bears the burden of demonstra-
ting statutory compliance.’’ (Citation omitted; internal
quotation marks omitted.) First Constitution Bank v.
Harbor Village Ltd. Partnership, 230 Conn. 807, 821,
646 A.2d 812 (1994). In this same decision, however,
our Supreme Court noted that reliance on mortgage
law to assess a particular aspect of the law governing
mechanic’s liens is appropriate, ‘‘particularly when sim-
ilar guiding policies are in play.’’ Id., 820.14 In this vein,
we think that the principle that the mortgage follows
the note, or the debt, can be analogized to mechanic’s
liens for purposes of foreclosure standing. Specifically,
on the basis of our reading of the plain language of §§ 47-
10, 49-17, and 49-33 (i), we conclude that the failure of
an assignee of a mechanic’s lien to record an otherwise
valid assignment of the lien does not deprive the
assignee of the lien of standing to commence a foreclo-
sure action.
Although our research reveals no Connecticut appel-
late authority that directly supports the proposition that
an assignee of a mechanic’s lien need not record an
otherwise validly assigned mechanic’s lien in order to
have standing to foreclose it, our conclusion is bol-
stered by this court’s decision in Connecticut Carpen-
ters Benefit Funds v. Burkhard Hotel Partners II, LLC,
supra, 83 Conn. App. 352. In that case, this court exam-
ined the issue of whether a party that had not directly
furnished materials or rendered services on a property
subject to a mechanic’s lien nevertheless had standing
to foreclose the mechanic’s lien by virtue of the fact
that it ‘‘[stood] in the shoes’’ of the employees who
had furnished materials and rendered services on the
property. Id., 354–55. This court answered this question
in the affirmative. Id., 360–61. Although the appeal did
not involve the absence of a recordation, let alone the
absence of a recordation with respect to an assignment,
the case did involve the question of whether a party
that appeared to lack statutory standing to foreclose a
mechanic’s lien nevertheless fell within the protection
of the Connecticut mechanic’s lien statutes, thereby
conferring standing to foreclose a mechanic’s lien.
Moreover, this court’s reasoning in Connecticut Car-
penters Benefits Funds sheds light on the importance
of permitting foreclosure of mechanic’s liens in the
interest of furnishing laborers with compensation for
materials or services that they had provided for the
subject property. See id., 358–60.
This court further supported its conclusion that the
employee benefits funds had standing to foreclose the
mechanic’s lien by referring to the reasoning of deci-
sions from appellate courts in other jurisdictions, which
had addressed similar standing issues involving
mechanic’s liens, and which had analyzed statutes that
were similar in nature to the Connecticut mechanic’s
lien statutes insofar as they had to be liberally construed
and they protected persons who provided labor or ser-
vices. Id., 359–60. This court noted the importance of
the fact that the parties asserting standing in those cases
were found to have standing to enforce mechanic’s liens
primarily because they fell within the zone of interests
to be protected by the statutes, and they were seeking
to enforce the liens for the benefit of the persons who
actually had performed the labor that had given rise to
the liens. Id., 355, 359–60.
We iterate that the court in the present case was
required to consider the allegations in the cross claim
in their most favorable light and to indulge every pre-
sumption favoring jurisdiction. See Manning v. Felt-
man, supra, 149 Conn. App. 229–30. The defendant, in
its cross claim, asserted that it commenced providing
materials and services to the Derby property on March
12, 2002, and that it ceased such provision on August
20, 2009. The defendant also asserted in its cross claim
that a principal balance amounting to $293,800
remained due and owing to it for the services and mate-
rials provided, that on September 8, 2009, its president
caused a certificate of mechanic’s lien in writing to be
recorded at volume 589, page 253 of the Derby land
records, and that on this same date, it also gave written
notice to Genesis communicating its intent to claim
a mechanic’s lien. In support of its cross claim, the
defendant attached an April 16, 2014 notice of lis pen-
dens ‘‘claiming a foreclosure of a mechanic’s lien from
[Genesis] to [the defendant] in the principal amount
of [$293,800] plus interest and legal fees, recorded on
September 8, 2009 on the Derby [land records] in vol-
ume 589, page 253,’’ along with the property description
that was filed in the same land records. In support of
its motion in opposition to the plaintiff’s motion to
dismiss, the defendant submitted a July 7, 2014 affidavit
wherein the defendant’s president, Domenic Paniccia,
averred, inter alia: that the defendant had filed a
mechanic’s lien against the Derby property, dated Sep-
tember 8, 2009, at volume 589, page 253 of the Derby
land records; that it had assigned the mechanic’s lien
to Viking on or about August 13, 2011; and that Viking
had assigned the mechanic’s lien back to the defendant
on October 12, 2012. The defendant also filed a certified
copy of the August 13, 2011 assignment of the mechan-
ic’s lien, which was recorded in the Derby land records
on September 30, 2011, as well as a certified copy of
the October 12, 2012 assignment of the mechanic’s lien,
which was recorded in the Derby land records on June
26, 2014. The court, in its memorandum of decision
dismissing the defendant’s cross claim, found that the
defendant ‘‘assigned its mechanic’s lien to [Viking] on
August 13, 2011,’’ and that ‘‘on October 12, 2012, [Viking]
assigned the same mechanic’s lien back to [the defen-
dant].’’ (Emphasis added.) Finally, Astoria, in its com-
plaint and in its demand for a disclosure of defense from
the defendant, acknowledged that ‘‘[the defendant] may
claim an interest in [the Derby property] by virtue of
a [m]echanic’s [l]ien in the original principal amount
of [$293,800] dated September 8, 2009, and recorded in
volume 589 at page 253 of the Derby land records.’’
The defendant established, by the allegations of its
cross claim and proof submitted to the court, that it
had been validly assigned a mechanic’s lien for the
construction work that it had performed on the Derby
property. Thus, the defendant has established that it is
entitled to pursue its statutory remedy under § 49-33.
In light of the remedial purpose of the mechanic’s lien
statutes, the requirement that such statutes be con-
strued liberally, and the fact that an action to foreclose
a mechanic’s lien is equitable in nature, we are not
persuaded that the defendant’s failure to record the
assignment of the lien prior to filing its cross claim
deprived it of standing to foreclose the lien.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The named defendant in this action, Genesis Limited Partnership, is not
a party to the present appeal. Furthermore, David E. Paniccia was cited in
as a defendant but also is not a party to this appeal. Therefore, in this
opinion, we refer to Genesis Limited Partnership as Genesis and to Profes-
sional Services Group, Inc., as the defendant.
2
On May 14, 2012, Bellmore Partners, Inc., was substituted as the plaintiff
in this foreclosure proceeding. Therefore, in this opinion, we refer to Bellm-
ore Partners, Inc., as the plaintiff and to the original named plaintiff, Astoria
Federal Mortgage Corporation, as Astoria.
3
11 U.S.C. § 362 (2012), entitled ‘‘Automatic stay,’’ provides in relevant
part:
‘‘(a) Except as provided in subsection (b) of this section, a petition filed
under section 301, 302, or 303 of this title, or an application filed under
section 5 (a) (3) of the Securities Investor Protection Act of 1970, operates
as a stay, applicable to all entities of—
‘‘(1) the commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other action or
proceeding against the debtor that was or could have been commenced
before the commencement of the case under this title, or to recover a
claim against the debtor that arose before the commencement of the
case under this title . . .
‘‘(4) any act to create, perfect, or enforce any lien against property
of the estate;
‘‘(5) any act to create, perfect, or enforce against property of the
debtor any lien to the extent that such lien secures a claim that arose
before the commencement of the case under this title;
‘‘(6) any act to collect, assess, or recover a claim against the debtor
that arose before the commencement of the case under this title . . .
‘‘(d) On request of a party in interest and after notice and a hearing, the
court shall grant relief from the stay provided under subsection (a) of
this section, such as by terminating, annulling, modifying, or conditioning
such stay—
‘‘(1) for cause, including the lack of adequate protection of an interest
in property of such party in interest . . . .’’
4
We note that this ruling determining priorities is not the subject of the
present appeal.
5
At the hearing, counsel for the plaintiff urged the court to dismiss the
defendant’s cross claim for lack of subject matter jurisdiction by virtue of
the fact that it was not the holder of the mechanic’s lien. Plaintiff’s counsel
further argued that, throughout the foreclosure proceedings and the bank-
ruptcy proceedings that had occurred prior to the date of the hearing, the
defendant effectively had represented that it was the holder of the mechan-
ic’s lien because it had participated in those proceedings. Plaintiff’s counsel
nevertheless argued that the defendant lacked standing to foreclose the lien
because Viking was the holder of record of the lien at the time that the
defendant filed its cross claim. In opposition, counsel for the defendant
urged the court not to dismiss its cross claim because it was undisputed
that Viking had reassigned the lien to the defendant prior to its filing of the
cross claim. Counsel for the defendant also represented to the court that
the plaintiff was not prejudiced by the defendant’s failure to record the
October, 2012 assignment of the mechanic’s lien, that the defendant was
the lien holder, that it had performed the work subject to the lien, and that
it was the party which had an interest in its foreclosure.
6
‘‘The court declines any comment regarding the legal sufficiency or
validity of the assignments of the mechanic’s lien herein—such as, for
instance, whether the validating act, General Statutes § 47-36aa, cured any
defects—as those are questions for another time.’’
7
Because we agree with the defendant’s first argument and reverse the
court’s decision on this ground, we need not address the defendant’s other
argument. See Ludgin v. McGowan, 64 Conn. App. 355, 357 n.1, 780 A.2d
198 (2001).
8
We also exercise plenary review in this appeal because we must interpret
and determine the applicability of statutes. See Dairyland Ins. Co. v. Mitch-
ell, 320 Conn. 205, 210, 128 A.3d 931 (2016) (issue of whether insurance
policy exclusion was valid pursuant to meaning and applicability of statute
entails plenary review); J.E. Robert Co. v. Signature Properties, LLC, 309
Conn. 307, 317–18, 71 A.3d 492 (2013) (question of standing pursuant to
statute entails plenary review).
9
General Statutes § 49-10, entitled ‘‘Assignment of mortgage debt. Form
of instrument. Requirements. Sufficient notice of assignment. Allocation of
recording fees paid by a nominee of a mortgage. Operation of executed
assignment,’’ provides in relevant part: ‘‘(a) As used in this section, ‘mortgage
debt’ means a debt or other obligation secured by mortgage, assignment of
rent or assignment of interest in a lease.
‘‘(b) Whenever any mortgage debt is assigned by an instrument in writing
containing a sufficient description to identify the mortgage, assignment of
rent or assignment of interest in a lease, given as security for the mortgage
debt, and that assignment has been executed, attested and acknowledged
in the manner prescribed by law for the execution, attestation and acknowl-
edgement of deeds of land, the title held by virtue of the mortgage, assign-
ment of rent or assignment of interest in a lease, shall vest in the
assignee. . . .
‘‘(i) An assignment executed in accordance with this section shall operate
to assign the interest of the assignor in the mortgage which is the subject
of the assignment, even if such interest is, in fact, acquired by the assignor
after executing such assignment or does not appear of record until after
the execution of such assignment. . . .’’
10
General Statutes § 49-17, entitled ‘‘Foreclosure by owner of debt without
legal title,’’ provides: ‘‘When any mortgage is foreclosed by the person enti-
tled to receive the money secured thereby but to whom the legal title to
the mortgaged premises has never been conveyed, the title to such premises
shall, upon the expiration of the time limited for redemption and on failure
of redemption, vest in him in the same manner and to the same extent as
such title would have vested in the mortgagee if he had foreclosed, provided
the person so foreclosing shall forthwith cause the decree of foreclosure
to be recorded in the land records in the town in which the land lies.’’
11
General Statutes § 49-33, entitled ‘‘Mechanic’s lien. Precedence. Rights
of subcontractors,’’ provides in relevant part: ‘‘(a) If any person has a claim
for more than ten dollars for materials furnished or services rendered in
the construction, raising, removal or repairs of any building or any of its
appurtenances or in the improvement of any lot or in the site development
or subdivision of any plot of land, and the claim is by virtue of an agreement
with or by consent of the owner of the land upon which the building is
being erected or has been erected or has been moved, or by consent of the
owner of the lot being improved or by consent of the owner of the plot of
land being improved or subdivided, or of some person having authority from
or rightfully acting for the owner in procuring the labor or materials, the
building, with the land on which it stands or the lot or in the event that the
materials were furnished or services were rendered in the site development
or subdivision of any plot of land, then the plot of land, is subject to the
payment of the claim.
‘‘(b) The claim is a lien on the land, building and appurtenances or lot
or in the event that the materials were furnished or services were rendered
in the site development or subdivision of any plot of land, then on the
plot of land and the claim takes precedence over any other encumbrance
originating after the commencement of the services, or the furnishing of
any such materials, subject to apportionment as provided in section 49-36.
‘‘(c) If any such liens exist in favor of two or more persons for materials
furnished or services rendered in connection with the same construction,
raising, removal or repairs of any building or any of its appurtenances, or
in the improvement of any lot, or in the site development or subdivision of
any plot of land, no one of those persons shall have any priority over another
except as hereinafter provided. . . .
‘‘(i) Any mechanic’s lien may be foreclosed in the same manner as a
mortgage.’’
12
In Seaman v. Climate Control Corp., supra, 181 Conn. 595–96, our
Supreme Court observed that ‘‘[l]ienors in the second category must give
timely notice of their intent to claim a lien in order to perfect their lien,
while those in the first category need not give such notice. General Statutes
§ 49-35. Lienors in the second category include subcontractors and persons
who furnish materials or services by virtue of a contract with the original
contractor or with any subcontractor, that is to say at least first and second
tier subcontractors. General Statutes § 49-35.’’
13
Although we find these statutes to be instructive, they are not controlling
for purposes of our analysis. With respect to pertinent case law concerning
foreclosure of mortgages, we acknowledge that the plaintiff argues that
Family Financial Services, Inc. v. Spencer, supra, 41 Conn. App. 754, is
controlling precedent. We disagree. In that case, this court held, inter alia,
that a mortgage assignment and power of attorney needed to be recorded
on the land records in order to be effective against a mortgagor. Id., 760–62.
We note, however, that our Supreme Court’s decision in RMS Residential
Properties, LLC v. Miller, 303 Conn. 224, 32 A.3d 307 (2011), overruled in
part on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309
Conn. 307, 325 n.18, 71 A.3d 492 (2013), essentially superseded this court’s
holding in Family Financial Services, Inc., as it pertained to whether the
failure to record rendered an assignment ineffective. Our Supreme Court,
in RMS Residential Properties, LLC, concluded that, pursuant to § 49-17,
the rightful owner of a mortgage note has a right to foreclose the mortgage
regardless of whether the mortgage had been assigned to him. See RMS
Residential Properties, LLC v. Miller, supra, 230; see also Equity One, Inc.
v. Shivers, 310 Conn. 119, 126–27, 74 A.3d 1225 (2013) (acknowledging
statutory right to foreclose set forth in § 49-17 and further noting that stand-
ing to enforce note is established by provisions of Uniform Commercial
Code); Countrywide Home Loans Servicing, LP v. Creed, 145 Conn. App.
38, 49–53, 75 A.3d 38 (concluding that plaintiff had standing to foreclose
mortgage note and agreeing with plaintiff that defendant did not produce
evidence that recording error as to assignment rebutted presumption that
plaintiff had standing to foreclose by virtue of possessing note), cert. denied,
310 Conn. 936, 79 A.3d 889 (2013). The statutory right set forth in § 49-17
overrides any recording requirement for purposes of standing to foreclose
a mortgage, and, therefore, the plaintiff’s argument that Family Financial
Services, Inc. v. Spencer, supra, 760–62, should control is misplaced.
14
In First Constitution Bank v. Harbor Village Ltd. Partnership, supra,
230 Conn. 807, our Supreme Court analyzed the issue of whether a mechan-
ic’s lien was invalid as against a subsequently and properly recorded mort-
gage that had been executed on the same property, due to the fact that the
mechanic’s lien certificate that was recorded in the town clerk’s office
omitted an attached description of the property subject to the lien. Id.,
808. Our Supreme Court held that the mechanic’s lien was valid despite a
recording error. Most notably, in its decision, the court discussed the policy
of Connecticut courts to construe the mechanic’s lien statutes liberally in
order to achieve the remedial purpose of the statutes, and it observed that
‘‘our courts have been liberal in validating liens despite claimed errors on
the face of the lien certificate where the mistake was made in good faith
and no resulting prejudice was claimed.’’ (Internal quotation marks omitted.)
Id., 815–16. Moreover, the court analogized the error at issue with mortgage
recordation errors: ‘‘In the context of mortgages, we have recognized that
[m]any errors in recording . . . are so neutralized by other matters which
do appear in the record, that no searcher after the title possibly could be
misled. . . . [S]uch shortcomings should not affect the validity of the record
as notification.’’ (Internal quotation marks omitted.) Id., 819.