Bank of New York v. Steven Gulick et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO REARGUE (# 117)

The issue presented is whether the court should reverse its previous decision granting the plaintiff's motion to strike the defendants' counterclaim.

The plaintiff, Bank of New York, commenced this action by service of process on the defendants, Steven Gulick and Maren Gulick, on April 2, 2009.   The defendants filed an answer with special defenses and a counterclaim on April 28, 2009.   The plaintiff then filed a request to amend and an amended complaint on July 28, 2009.   The defendants did not object to this request.   Accordingly, the amended complaint became operative pursuant to Practice Book § 10-60(a)(3).¹

In its amended complaint, the plaintiff alleges the following facts.   On June 27, 2006, Steven Gulick owed $485,220 to Countrywide Home Loans, as evidenced by a promissory note.   On the same day, the defendants secured this note by executing a mortgage on their property at 298 Rowland Road, Fairfield, Connecticut to Mortgage Electronic Registration Systems, Inc. (MERS), “Solely as Nominee for Countrywide Home Loans, Inc ․” The mortgage was recorded on July 3, 2006, and later assigned to the plaintiff as a successor in interest to the trustee Chase Bank, N.A. on April 2, 2009.   The assignment was then recorded on April 6, 2009.   The plaintiff alleges that it is currently the holder of both the note and mortgage which have been in default for nonpayment since October 20, 2008.

In their counterclaim, the defendants allege, inter alia, the following.   Maren Gulick is the current record title holder of the premises.   On or about June 27, 2006, Steven Gulick executed the note in the amount of $485,220.   Also on that date, Steven Gulick and Maren Gulick executed a mortgage, which identifies MERS as the mortgagee.   There was no debt in contemplation, either before or at the time that the mortgage was executed, between the defendants and MERS, and MERS never owned the debt evidenced by the note signed by Steven Gulick.   Therefore, the defendants allege, the mortgage is void ab initio.   They further allege that as a result of the mortgage being void ab initio, the assignment is also void ab initio, and the plaintiff did not acquire an interest in the mortgage by virtue of the void assignment.

The plaintiff filed a motion to strike the defendants' counterclaim on July 28, 2009, on the grounds that it is legally insufficient and that the counterclaim is improper because an action to quiet title cannot act as a motion to dismiss or to discharge an assignment or mortgage of record.   The defendants filed an objection and a memorandum in opposition to the motion to strike on August 7, 2009.   The plaintiff filed a reply to the defendants' opposition on February 12, 2010.   The court granted the plaintiff's motion to strike on June 28, 2010.

The defendants then timely filed a motion to reargue the motion to strike on July 13, 2010, to which the plaintiff filed an objection on July 28, 2010.   This court heard reargument at short calendar on October 18, 2010.

Practice Book § 11-12 provides in relevant part:  “(a) A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies ․ (c) The motion to reargue shall be considered by the judge who rendered the decision or order.   Such judge shall decide, without a hearing, whether the motion to reargue should be granted.   If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested ․” The decision of whether to grant a motion for reargument is within the sound discretion of the court.  Shore v. Haverson Architecture & Design, 92 Conn.App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907;  894 A.2d 988 (2006).   Furthermore, “it is the inherent authority of every court, as long as it retains jurisdiction, to reconsider a prior ruling.”  Steele v. Stonington, 225 Conn. 217, 219 n.4, 622 A.2d 551 (1993).

The defendants state as the grounds for their motion to reargue that although they have the right to replead their stricken counterclaim pursuant to Practice Book § 10-44,² they cannot appropriately replead in the absence of a decision by the court specifying the grounds on which it granted the motion to strike.   They assert that the court failed to issue a written decision when it granted the motion to strike and overruled the objection thereto, despite its obligation to do so pursuant to Practice Book § 10-43.³  In addition, the defendants have submitted a copy of a recent decision issued under similar procedural circumstances, Aurora Loan Services, LLC v. Tompkins, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 6001771 (April 15, 2010, Mintz, J.), for the court's consideration in its reevaluation of the parties' arguments.   In its objection, the plaintiff argues that the defendants' motion is actually a motion for articulation, and it reiterates its arguments with respect to the underlying motion to strike.   In the alternative to its request that the court deny the motion to reargue, the plaintiff requests that the court merely provide an articulation of its decision granting the motion to strike.

As a threshold matter, the court must address the issue of whether it only may articulate its reasons for granting the motion and overruling the objection, or it may reconsider those rulings.   Although the defendants' motion is based, in part, on their need for a memorandum of decision articulating the court's reasons for its decision, they have filed a motion to reargue, not a motion for articulation.   Moreover, although the court is bound to look at the substance of a motion, and not merely its form in determining the relief sought;  In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003);  the label of the defendants' motion and its substance are not in conflict.   In its motion to reargue, the defendants direct the court's attention to a recent Superior Court decision in which the court, Mintz, J., considered a motion to strike a counterclaim similar to that at issue in this case and denied the motion.   Implicit in that submission and the defendants' suggestion that this court review that decision in issuing its decision herein is that the defendants seek reconsideration of the court's rulings, and not merely an articulation.

The Supreme Court has explained the differing purposes of a motion to reargue and a motion for articulation.   In the context of a civil matter in which proof by clear and convincing evidence, rather than a preponderance of the evidence, was required and the trial court failed to specify the standard of proof applied, the court explained that the party claiming error has two options at the trial court level.  “If a party, following the rendering of the trial court's judgment, believes that the trial court potentially utilized the less stringent standard of preponderance of the evidence, that party has the burden of seeking an articulation if the decision is unclear;  see Practice Book § 66-5;  or reargument if impropriety is apparent;  see Practice Book § 11-12;  thus giving that court the opportunity to clarify the standard used or to correct the impropriety and thereby avoiding an unnecessary appeal.”   Kaczynski v. Kaczynski, 294 Conn. 121, 131, 981 A.2d 1068 (2009).   In the present case, the defendants chose to file a motion to reargue pursuant to Practice Book § 11-12, thereby providing the court “the opportunity ․ to correct the impropriety ․” See id.   Accordingly, the court may now turn to the merits of the plaintiff's motion to strike and the defendants' objection.

Practice Book § 10-39(a) provides in relevant part:  “[w]henever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   The court must “take the facts to be those alleged in the [pleading] ․ and ․ construe the [pleading] in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied ․ Moreover, [the court] note[s] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that ․ all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).   Also, the court should consider only the grounds for a motion to strike specified in the motion, as the Supreme Court “will not uphold the granting of [a] motion to strike on a ground not alleged ․” Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987);  see also Morris v. Hartford Courant Co., 200 Conn. 676, 682, 513 A.2d 66 (1986) (“grounds other than those specified should not be considered by the trial court in passing upon a motion to strike”).   In the plaintiff's motion to strike, the plaintiff asserts that the defendants' counterclaim is legally insufficient because it fails to set forth a claim upon which relief may be granted, and that an action to quiet title cannot act as a motion to dismiss an underlying complaint or to discharge an assignment of a mortgage.   In its memorandum in support, the plaintiff does not address the issue of legal sufficiency;  instead, the plaintiff argues that it has standing to bring suit.   The plaintiff argues that because it is the holder of the note and mortgage it has standing to bring this foreclosure action.   The defendants argue in their opposition to the motion to strike that they have sufficiently pleaded facts to establish the elements of a quiet title action in their counterclaim.   The defendants also argue that the counterclaim is appropriate because it is not brought to challenge the plaintiff's standing, but rather, it is brought to challenge the validity of the mortgage.   The plaintiff argues in its reply that the defendants' counterclaim misinterprets Connecticut foreclosure law, and that it is the holder of the note and mortgage.

The defendants' counterclaim should not be stricken on the ground that the plaintiff's standing may be contested only through a motion to dismiss.   First, although the plaintiff is correct insofar as the “proper procedural vehicle for disputing a party's standing is a motion to dismiss”;  (internal quotation marks omitted) D'Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005);  “[t]he issue of standing implicates subject matter jurisdiction ․” (Internal quotation marks omitted.)  Wilcox v. Webster, 299 Conn. 206, 213, 982 A.2d 1053 (2009).  “[A] challenge to a court's subject matter jurisdiction may be raised at any time and by any party ․ and that [o]nce ․ raised, [the challenge] must be disposed of no matter in what form it is presented.”   (Citation omitted;  internal quotation marks omitted.)  Oxford House at Yale v. Gilligan, 125 Conn.App. 464, 473, 10 A.3d 52 (2010).   Therefore, the assertion that the defendants' counterclaim is improper because they should have raised the issue by way of motion to dismiss is inapposite and the counterclaim should not be stricken on this ground.

Moreover, the defendants' counterclaim does not actually challenge the plaintiff's standing, but challenges the validity of the mortgage.   The counterclaim alleges “[t]here was no debt in contemplation or in fact between STEVEN J. GULICK or MAREN H. GULICK and MERS, and MERS did not own the debt evidenced by the Note, before or at the time, STEVEN J. GULICK and MAREN H. GULICK, executed the Mortgage.   The Mortgage created no right in MERS to enforce the debt evidenced by the Note because MERS never owned the debt evidenced by the Note. As a result of the foregoing, the Mortgage is void ab initio ․ As a result of the foregoing, the Assignment is void ab initio. ”  (Emphasis in original.)   This language challenges the validity of the mortgage based on the relationship between MERS and the defendants, and, by extension, challenges the validity of the assignment of the allegedly void mortgage to the plaintiff.   It does not challenge the plaintiff's standing.   The counterclaim does allege that the mortgage created no right in MERS “to enforce” the debt under the note, however, this allegation refers to whether the mortgage, as it was formed, was enforceable or valid.   The counterclaim does not assert that the plaintiff lacks standing to bring suit against the defendants.   Because the plaintiff has misinterpreted the defendants' counterclaim as a challenge to standing, the counterclaim should not be stricken on this ground for this reason as well.

Finally, the court need not consider the remaining ground asserted in the plaintiff's motion to strike, that the counterclaim is legally insufficient, because it has not briefed the issue.  “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.”  (Internal quotation marks omitted.)  Landmark Investment Group, LLC v. Chung Family Realty, 125 Conn.App. 678, 697, n.22, 10 A.3d 61 (2010).   Although the plaintiff asserts, on the face of its motion, that the defendants did not plead legally sufficient facts to support a quiet title claim, it has not provided any legal authority or analysis to support this assertion in any of its memoranda.   Without any analysis, this ground is deemed abandoned and this court will not grant the motion to strike the defendants' counterclaim on this basis.

For the foregoing reasons, that the order granting the plaintiff's motion to strike is reversed and the plaintiff's underlying motion to strike is now denied.

Owens, J.

FOOTNOTES

FN1. Practice Book § 10-60 provides in relevant part:  “(a) Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner ․ (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party ․”.  FN1. Practice Book § 10-60 provides in relevant part:  “(a) Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner ․ (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party ․”

FN2. Practice Book § 10-44 provides in relevant part:  “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading;  provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof ․”.  FN2. Practice Book § 10-44 provides in relevant part:  “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading;  provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof ․”

FN3. Practice Book § 10-43 provides:  “Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judicial authority, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based.”.  FN3. Practice Book § 10-43 provides:  “Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judicial authority, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based.”

Owens, Howard T., J.T.R.