Citimortgage, Inc. v. Sherri Saunders et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 104)

This is a foreclosure action in which the defendant, Sherri Saunders, has filed a motion to dismiss in which she alleges that the plaintiff, CitiMortgage, Inc., lacks standing to maintain this action because it must show evidence that it owns the note and mortgage.   The defendant also alleges other grounds for dismissal which appear to allege that the plaintiff did not provide full disclosure, establish the facts that give rise to the claim, or did not provide legal consideration.   Since the defendant filed an answer prior to the filing of her motion to dismiss, the court will not consider these claims in this context.¹  This is because under our rules the filing of a subsequent pleading in the order of pleadings waives the right to file a pleading which precedes it in the order of pleadings.  Practice Book § 10-7 provides:  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleadings provided in that section.”   Pursuant to Practice Book § 10-6 a motion to dismiss precedes the answer in the order of pleadings.   However, Practice Book § 10-33 states:  “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  “Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed.”  (Citation omitted.)  Bank of New York v. Bell, 120 Conn.App. 837, 843 (2010).   Therefore the court must consider the defendant's motion to the extent it challenges the plaintiff's standing to maintain this action.

“A motion to dismiss for lack of standing attacks the jurisdiction of the court, asserting essentially that the plaintiff cannot as a matter of law or fact state a claim that should be heard by the court ․ In ruling on a motion to dismiss, the court must take the facts alleged in the complaint as true, construing them in the manner most favorable to the pleader.”  (Citations omitted.)  Capasso Restoration, Inc. v. City of New Haven, 88 Conn.App. 754, 758-9 (2005).

In the complaint, the plaintiff alleges that the defendant executed a note to Principal Residential Mortgage, Inc., and, to secure the note, she executed a mortgage to Mortgage Electronic Registration Systems, Inc. as Nominee for Principal Residential Mortgage, Inc. on the premises known as 14 Woolam Road, East Windsor, Connecticut.   The complaint alleges that an assignment of the mortgage to CitiMortgage, Inc. will be recorded on the East Windsor land records.   It alleges that the plaintiff is entitled to collect the debt evidenced by the note.   The complaint also alleges that the note is in default.

The defendant claims that the plaintiff must show evidence that it owns the note and mortgage.  “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 necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651 (2009).

“In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party] had to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that [the mortgagee] had defaulted on the note.”  (Internal quotation marks omitted.)  Franklin Credit Management Corporation v. Nicholas, 73 Conn.App. 830, 838 (2002).   Here the plaintiff has alleged that it will record an assignment of the mortgage to it.   It also alleges that it is “the party entitled to collect the debt evidenced by said note” and that the “note and mortgage are now in default.”   Complaint, paragraphs 5, 6. This is sufficient to support the plaintiff's standing.   The plaintiff need not allege the evidence on which it will prove these allegations.  Practice Book § 10-1 provides that:  “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ․” Thus the plaintiff need not allege how it intends to prove it is the holder of the mortgage or has the right to collect on the note.

In any event, in response to the motion to dismiss, the plaintiff has submitted affidavits and copies of the note and mortgage which indicate that the original note and mortgage were assigned to the plaintiff and the plaintiff is now the holder of the note and mortgage.   Therefore, it has standing to pursue this action.

For the reasons stated above, the Motion to Dismiss is denied.

Jane S. Scholl, J.

FOOTNOTES

FN1. Even assuming that the defendant's motion to dismiss could be interpreted as a motion for summary judgment since her motion is entitled:  “Motion for Dismissal of Case for Failure to Respond and Provide the Necessary Evidence Requested by Defendant and Award Summary Judgment to Defendant,” she has not submitted any affidavit or other documents in support of her motion as required by Practice Book § 17-45..  FN1. Even assuming that the defendant's motion to dismiss could be interpreted as a motion for summary judgment since her motion is entitled:  “Motion for Dismissal of Case for Failure to Respond and Provide the Necessary Evidence Requested by Defendant and Award Summary Judgment to Defendant,” she has not submitted any affidavit or other documents in support of her motion as required by Practice Book § 17-45.

Scholl, Jane S., J.