MTGLQ Investors, L.P. v. Hammons ( 2020 )

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MTGLQ INVESTORS, L.P. v.
KEVIN HAMMONS ET AL.
(AC 42750)
Alvord, Moll and Beach, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant H. The plaintiff moved for summary judgment as to
liability only to which H objected, arguing that the plaintiff had failed
to comply with the statutory (§ 8-265ee (a)) notice requirement of the
Emergency Mortgage Assistance Program, which requires a mortgagee
to provide certain specific notice to the mortgagor before it can com-
mence a foreclosure of a qualifying mortgage. H argued that this failure
deprived the trial court of subject matter jurisdiction. The plaintiff
argued that this requirement was satisfied and relied on the notice sent
prior to the commencement of a previous foreclosure action brought
by its predecessor in interest, that was later dismissed for failure to
prosecute. Although the trial court acknowledged the plaintiff’s failure
to comply with the notice requirement and its attempts to import the
notice from the previous action, it granted the motion for summary
judgment. The trial court granted the plaintiff’s motion for a judgment
of strict foreclosure and rendered judgment thereon, from which H
appealed to this court. Held that the trial court lacked subject matter
jurisdiction because the plaintiff failed to comply with the notice require-
ment § 8-265ee (a), a jurisdictional necessity; as a matter of first impres-
sion, the notice requirement of § 8-265ee (a), when applicable, is a
condition precedent to the commencement of a foreclosure action and
the failure to comply deprives the trial court of subject matter jurisdic-
tion; moreover, the plaintiff could not prevail on its claim that it was
entitled to rely on the notice sent in a separate foreclosure action by
its predecessor in interest.
Argued January 22—officially released March 24, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the defendant Capital One Bank (USA),
N.A. et al., were defaulted for failure to appear; there-
after, the defendant Ameridge Condominium Associa-
tion, Inc., was defaulted for failure to plead; subse-
quently, the court, Bruno, J., granted the plaintiff’s
motion for summary judgment as to liability only; there-
after, the court, Bruno, J., granted the plaintiff’s motion
for a judgment of strict foreclosure and rendered judg-
ment thereon, from which the named defendant
appealed to this court. Reversed; judgment directed.
Kevin Hammons, self-represented, the appellant
(named defendant).
Jason E. Brooks, with whom, on the brief, was Denise
L. Morelli, for the appellee (plaintiff).
Opinion
MOLL, J. The defendant Kevin Hammons1 appeals
from the judgment of strict foreclosure rendered by the
trial court in favor of the plaintiff, MTGLQ Investors,
L.P. On appeal, the defendant claims that (1) the plain-
tiff’s failure to comply with General Statutes § 8-265ee
(a), the notice provision of the Emergency Mortgage
Assistance Program (EMAP), General Statutes § 8-
265cc et seq., left the court without subject matter juris-
diction to entertain the foreclosure action, (2) the court
abused its discretion in rendering summary judgment
without holding oral argument on his objection to the
motion, and (3) the court improperly denied his motion
for reconsideration with respect to the issue of stand-
ing. We agree with the defendant’s first claim and con-
clude, as a matter of first impression, that the EMAP
notice requirement contained in § 8-265ee (a), when
applicable, is a subject matter jurisdictional condition
precedent to the commencement of a foreclosure
action, such that the failure of the plaintiff (as the origi-
nal plaintiff in the present action) to mail an EMAP
notice to the defendant (as the mortgagor) deprived
the court of subject matter jurisdiction.2 Accordingly,
we reverse the judgment of the trial court and remand
the case with direction to dismiss the action.
The record reveals the following facts and procedural
history. Prior to the commencement of the present
action, on or about August 4, 2005, the defendant exe-
cuted a promissory note with American Mortgage Net-
work, Inc., for $140,000, secured by a mortgage on real
property located at 585 Glendale Avenue in Bridgeport
(property). The principal amount of the loan was later
modified to reflect an increased amount. Following an
assignment not relevant to this appeal, the mortgage
was assigned on December 4, 2013, to Federal National
Mortgage Association (Fannie Mae). On April 3, 2014,
the defendant’s loan servicer sent a letter to the defen-
dant notifying him that the loan was in default and
providing him with the opportunity to cure. Accompa-
nying that letter was the notice prescribed by EMAP.
Thereafter, Fannie Mae commenced a foreclosure
action against the defendant. See Federal National
Mortgage Assn. Fannie Mae v. Hammons, Superior
Court, judicial district of Fairfield, Docket No. CV-14-
6046100-S (Fannie Mae action). On August 8, 2017,
however, the trial court, Bellis, J., dismissed the action
pursuant to Practice Book § 14-3 on the ground that
Fannie Mae failed to prosecute the action with reason-
able diligence.3 Meanwhile, on June 28, 2017, Fannie
Mae had assigned the mortgage to the plaintiff. The
record does not reflect that a motion to substitute the
plaintiff was filed in the Fannie Mae action.
On November 24, 2017, the plaintiff commenced this
foreclosure action, bearing Docket No. CV-XX-XXXXXXX-
S, alleging that the note was in default and that the
default had not been cured by the defendant. The plain-
tiff sought, among other things, foreclosure of the mort-
gage and possession of the property. In his answer,
the defendant denied having received from the plaintiff
written notice of the default. On August 29, 2018, the
plaintiff moved for summary judgment as to liability
only, arguing that it had established a prima facie case
for foreclosure and that it had standing to bring the
action. In his memorandum in opposition to the plain-
tiff’s motion for summary judgment, the defendant
argued, in part, that the plaintiff failed to comply with
the EMAP notice requirement of § 8-265ee (a), thus
depriving the court of subject matter jurisdiction over
the foreclosure action. In its reply, the plaintiff, in
arguing that § 8-265ee (a) was satisfied, exclusively
relied on the April 3, 2014 EMAP notice sent prior to
the commencement of the Fannie Mae action.4
On January 18, 2019, after conducting an evidentiary
hearing on the EMAP notice issue, the trial court,
Bruno, J., granted the plaintiff’s motion for summary
judgment.5 The court determined that the plaintiff had
established a prima facie case for foreclosure, yet noted
‘‘the glaring exception of compliance with the require-
ment of EMAP notification.’’6 While expressing concern
over the plaintiff’s attempt to import the EMAP notice
from the Fannie Mae action into the present foreclosure
action, the court nonetheless concluded that the defen-
dant’s challenge to the plaintiff’s compliance with the
EMAP notice requirement was dilatory in nature and
that the absence of an EMAP notice by the plaintiff was
not prejudicial to the defendant in any way. On January
29, 2019, the defendant filed a motion for reconsidera-
tion wherein he again urged the court to dismiss the
action for lack of subject matter jurisdiction. The court
denied the motion for reconsideration. On March 21,
2019, the court rendered a judgment of strict foreclo-
sure. This appeal followed.
The defendant claims that the trial court was without
subject matter jurisdiction because the plaintiff failed
to comply with the EMAP notice requirement of § 8-
265ee(a), which the defendant contends was a condi-
tion precedent to the commencement of this foreclo-
sure action. The plaintiff counters that § 8-265ee (a)
was satisfied by virtue of the EMAP notice that was
sent on April 3, 2014, by Fannie Mae’s loan servicer prior
to the Fannie Mae action.7 According to the plaintiff,
the change in mortgagees following the April 3, 2014
EMAP notice, as well as the intervening dismissal of
the Fannie Mae action, are of no moment.8 We agree
with the defendant.
Our resolution of the defendant’s claim requires us
to determine whether the EMAP notice requirement of
§ 8-265ee (a) is subject matter jurisdictional and, if so,
whether the mailing of the April 3, 2014 EMAP notice
prior to the commencement of the Fannie Mae action
satisfies the EMAP notice requirement in the present
case. These are questions of statutory interpretation
over which we exercise plenary review. See Chase
Home Finance, LLC v. Scroggin, 194 Conn. App. 843,
851, 222 A.3d 1025 (2019). ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing 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 relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . . The test to determine ambi-
guity is whether the statute, when read in context, is
susceptible to more than one reasonable interpreta-
tion.’’ (Internal quotation marks omitted.) Gonzalez v.
O & G Industries, Inc., 322 Conn. 291, 302–303, 140
A.3d 950 (2016).
Furthermore, ‘‘[i]n determining whether a court lacks
subject matter jurisdiction, the inquiry usually does not
extend to the merits of the case. . . . In order to estab-
lish subject matter jurisdiction, the court must deter-
mine that it has the power to hear the general class [of
cases] to which the proceedings in question belong.
. . . In some cases, however, it is necessary to examine
the facts of the case to determine whether it is within
a general class that the court has power to hear.’’ (Cita-
tions omitted; internal quotation marks omitted.) Lam-
pasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175,
cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed.
2d 590 (1989). Such an examination was required in the
present action.
It is well settled that the Superior Court is authorized
to hear all causes of action, except those over which
the probate courts have original jurisdiction. General
Statutes § 51-164s. There is no question that the Supe-
rior Court is authorized to hear foreclosure cases. For
the reasons that follow, however, the jurisdiction of the
Superior Court in certain foreclosure cases is subject
to a condition precedent. That is, before the court can
entertain a foreclosure action, the mortgagee who
wishes to commence a foreclosure of any mortgage
encompassed by General Statutes § 8-265ff (e) (1), (9),
(10), and (11) must send, by certified or registered mail,
an EMAP notice to the mortgagor.
We begin by examining the language of the statute.
Section 8-265ee (a) provides: ‘‘On and after July 1, 2008,
a mortgagee who desires to foreclose upon a mortgage
which satisfies the standards contained in subdivisions
(1), (9), (10) and (11) of subsection (e) of section 8-
265ff, shall give notice to the mortgagor by registered,
or certified mail, postage prepaid at the address of the
property which is secured by the mortgage. No such
mortgagee may commence a foreclosure of a mortgage
prior to mailing such notice. Such notice shall advise
the mortgagor of his delinquency or other default under
the mortgage and shall state that the mortgagor has
sixty days from the date of such notice in which to (1)
have a face-to-face meeting, telephone or other confer-
ence acceptable to the [Connecticut Housing Finance
Authority (authority)] with the mortgagee or a face-to-
face meeting with a consumer credit counseling agency
to attempt to resolve the delinquency or default by
restructuring the loan payment schedule or otherwise,
and (2) contact the authority, at an address and phone
number contained in the notice, to obtain information
and apply for emergency mortgage assistance payments
if the mortgagor and mortgagee are unable to resolve
the delinquency or default.’’9 (Emphasis added.) Pursu-
ant to § 8-265cc, the term ‘‘[m]ortgagee’’ is defined, for
purposes of §§ 8-265cc through 8-265kk, as follows: ‘‘(4)
‘Mortgagee’ means the original lender under a mortgage,
or its agents, successors, or assigns . . . .’’
The first sentence of § 8-265ee (a) creates a notice
requirement applicable to any ‘‘mortgagee who desires
to foreclose upon a mortgage’’ that satisfies the stan-
dards in § 8-265ff (e) (1), (9), (10), and (11). The second
sentence then provides that ‘‘[n]o such mortgagee may
commence a foreclosure of a mortgage prior to mailing
such notice.’’ (Emphasis added.) General Statutes § 8-
265ee (a). By its use of the phrase ‘‘such mortgagee,’’
the second sentence necessarily refers to the particular
mortgagee in the preceding sentence, i.e., the one that
desires to foreclose upon a mortgage. Stated differently,
the second sentence makes clear that it is directed—
not to any mortgagee in the chain of assignment but—
to the mortgagee that wishes to ‘‘commence a foreclo-
sure’’ of an applicable mortgage. In other words, the
second sentence is directed to the original plaintiff in
a foreclosure action. Such statutory provision then pro-
vides that such mortgagee may not commence a foreclo-
sure ‘‘prior to mailing such notice,’’ namely, the notice
described in the first sentence. In this regard, the second
sentence makes clear that it is the mortgagee that
wishes to commence a foreclosure that has the obliga-
tion of mailing an EMAP notice. These provisions are
clear and unambiguous. Their plain terms indicate that,
in applicable cases, a mortgagee may not commence a
foreclosure action without first mailing the mortgagor
the prescribed notice. In the absence of such notice, a
foreclosure action may not be commenced.
On the basis of the foregoing, we conclude that the
EMAP notice requirement set forth in § 8-265ee (a),
when applicable, is a condition precedent to the com-
mencement of a foreclosure action. As such, the failure
to comply with the notice requirement deprives the trial
court of subject matter jurisdiction.10 See Lampasona
v. Jacobs, supra, 209 Conn. 729–30 (collecting cases for
proposition that certain statutory notice requirements
constitute jurisdictional conditions precedent to com-
mencement of actions). In the present case, a previous
mortgagee, Fannie Mae, through its loan servicer, had
mailed an EMAP notice to the defendant prior to the
commencement of a separate foreclosure action that
was subsequently dismissed. Thereafter, the plaintiff
commenced a new foreclosure action against the defen-
dant. There is no dispute that the plaintiff—as the origi-
nal plaintiff in the present action—did not mail the
defendant an EMAP notice as required by § 8-265ee (a).
There is nothing in the plain language of § 8-265ee
(a) to support the plaintiff’s argument that it may satisfy
the statute by relying on a prior mortgagee’s EMAP
notice sent prior to a previously dismissed foreclosure
action. Moreover, in suggesting that it may rely on an
EMAP notice sent by a prior mortgagee in connection
with a separate foreclosure action, the plaintiff’s reli-
ance on the definition of ‘‘[m]ortgagee,’’ which includes
an original mortgage lender’s ‘‘agents, successors, or
assigns’’; General Statutes § 8-265cc (4); is misplaced,
for it ignores the plain meaning of the text of § 8-265ee
(a), which is carefully directed to a particular mortgagee
in time.11
In sum, we conclude that a mortgagee that wishes
to commence a foreclosure of an applicable mortgage
must provide the prescribed EMAP notice in accor-
dance with § 8-265ee (a) prior to the commencement
of a foreclosure action, and the failure to do so deprives
the trial court of subject matter jurisdiction. Because
the plaintiff, as the original plaintiff in the present
action, failed to comply with this jurisdictional neces-
sity, the trial court lacked subject matter jurisdiction.
The judgment is reversed and the case is remanded
with direction to render judgment dismissing the action
for lack of subject matter jurisdiction.
In this opinion the other judges concurred.
1
The plaintiff also brought this action against Ameridge Condominium
Association, Inc. (Ameridge), Capital One Bank (USA), N.A. (Capital One),
Portfolio Recovery Associates, LLC (Portfolio), and the Department of Reve-
nue Services (DRS). Capital One, Portfolio, and DRS were defaulted for
failure to appear. Ameridge was defaulted for failure to plead. Therefore,
our references to the defendant are only to Kevin Hammons.
2
In light of our conclusion, we need not address the defendant’s other
claims.
3
On August 29, 2017, Fannie Mae filed a motion to open the judgment of
dismissal. The trial court denied that motion.
4
Indeed, on October 18, 2018, the plaintiff filed an affidavit of compliance
with EMAP, relying exclusively on the April 3, 2014 EMAP notice and stating
incorrectly that it had mailed such notice.
5
The propriety of the trial court’s conducting an evidentiary hearing on
the plaintiff’s motion for summary judgment is not a subject of this appeal.
See Wells Fargo Bank, N.A. v. Ferraro, 194 Conn. App. 467, 470, 221 A.3d 520
(2019) (reversing summary judgment on basis that ‘‘the trial court improperly
permitted, considered and relied on live testimony from witnesses at an
evidentiary hearing on the plaintiff’s motion for summary judgment’’); Magee
Avenue, LLC v. Lima Ceramic Tile, LLC, 183 Conn. App. 575, 585–86,
193 A.3d 700 (2018) (concluding that trial court improperly permitted and
considered defendant’s live testimony during hearing on motion for sum-
mary judgment).
6
The court did not expressly analyze whether the notice requirement of
§ 8-265ee (a) implicated its subject matter jurisdiction.
7
The plaintiff does not contend that § 8-265ee (a) is not subject matter
jurisdictional.
8
We note that the plaintiff also argues that the defendant did not properly
raise the issue of subject matter jurisdiction before the trial court by way
of a motion to dismiss pursuant to Practice Book § 10-30 (a) (1). This
argument is unavailing. ‘‘[O]nce the question of lack of jurisdiction of a
court is raised, [it] must be disposed of no matter in what form it is presented
. . . and the court must fully resolve it before proceeding further with the
case.’’ (Internal quotation marks omitted.) Machado v. Taylor, 326 Conn.
396, 402, 163 A.3d 558 (2017). Although the defendant did not properly raise
the issue of subject matter jurisdiction in a motion to dismiss, the trial court
‘‘was required to resolve the question of whether it had jurisdiction over
the subject matter irrespective of the propriety of the procedural vehicle
by which it was raised.’’ Id.
The plaintiff also suggests that the defendant had waived his EMAP related
objection. Given our conclusion that the notice requirement pursuant to
§ 8-265ee (a) implicates the court’s subject matter jurisdiction, the plaintiff’s
argument in this regard is without merit. See Peters v. Dept. of Social
Services, 273 Conn. 434, 441, 870 A.2d 448 (2005) (subject matter jurisdiction
requirement may not be waived).
9
As this court has explained, ‘‘the obligation to give notice pursuant to
§ 8-265ee before commencing a foreclosure action applies only if the plaintiff
is seeking to foreclose a mortgage that satisfies certain standards enumer-
ated in § 8-265ff (e).’’ Washington Mutual Bank v. Coughlin, 168 Conn. App.
278, 290, 145 A.3d 408, cert. denied, 323 Conn. 939, 151 A.3d 387 (2016); see
id. (in light of its conclusion that defendants were not entitled to notice
pursuant to § 8-265ee, court left open question of whether failure to comply
with notice requirement under § 8-265ee implicates subject matter jurisdic-
tion). Unlike the circumstances in Coughlin, there is no claim in the present
action that the mortgage does not fall within § 8-265ff (e) (1), (9), (10), and
(11). Rather, the issue here is whether the plaintiff complied with the EMAP
notice requirement, which the parties do not dispute us applicable.
10
Our conclusion is further supported by the great weight of Superior
Court authority, which has concluded that the EMAP notice requirement is
subject matter jurisdictional. See, e.g., M&T Bank v. Wolterstorff, Superior
Court, judicial district of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S
(September 10, 2018) (67 Conn. L. Rptr. 45, 46); West Coast Servicing, Inc.
v. Feaster, Superior Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX (November 20, 2017) (65 Conn. L. Rptr. 527, 529–30); People’s
United Bank v. Wright, Superior Court, judicial district of Stamford-Nor-
walk, Docket No. CV-XX-XXXXXXX-S (March 30, 2015) (60 Conn. L. Rptr. 69, 70).
11
It would be a wholly different matter had the plaintiff been substituted
in the Fannie Mae action, in which case it would not have had to mail the
defendant a new EMAP notice.