Wells Fargo Bank, N.A. v. Saville K. McIntosh et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 124

In this foreclosure action, the plaintiff, Wells Fargo Bank, N.A., has brought suit against the defendants, Saville K. McIntosh and Bernadette Cruz, to foreclose the mortgage on the defendants' residence located at 13 Sention Avenue in Norwalk.   On October 25, 2010, the court entered a judgment of strict foreclosure against the defendants.   The court set the law day as January 4, 2011, and when the defendants failed to redeem by that date, title vested with the defendant.   Following the vesting of title, the plaintiff filed a motion for deficiency judgment against the defendants on January 14, 2011.   On February 14, 2011, counsel for the defendants filed an appearance.   On the following date, February 15, 2011, the defendants filed a motion to dismiss this action along with a supporting memorandum of law.   The defendants move to dismiss the present case on the ground that the court lacks personal jurisdiction because the defendants were never served with process.   On February 25, 2011, the plaintiff filed a memorandum of law in opposition to the defendants' motion.   The court held a hearing on the defendants' motion on March 15, 2011.   At this hearing, the court heard testimony from both of the defendants as well as State Marshal Thomas Foldy.   The court also ordered the parties to submit briefs regarding the issue of whether General Statutes § 49–15 prevented the court from granting this motion to dismiss because title had already vested with the plaintiff.   The plaintiff and the defendants submitted their post-hearing briefs on April 4, 2011, and April 7, 2011, respectively.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134 (2007).   Pursuant to Practice Book § 10–31, a defendant can bring a motion to dismiss for insufficient service of process.  “Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. ”  (Emphasis in original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80 (1989).  “One who is not served with process does not have the status of a party to the proceeding ․ A court has no jurisdiction over persons who have not been made parties to the action before it.”  (Internal quotation marks omitted.)  Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722 (2003).

In its post-hearing brief, the plaintiff admits that § 49–15 does not prevent the court from dismissing this case per se.   In fact, as clearly stated by the Connecticut Supreme Court, “although ․ a judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, the judgment can be attacked on the ground that the court lacked jurisdiction over the party challenging it.”  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576 (2008).   Accordingly, the determinative issue becomes whether the defendants were properly served with process.   According to the return of service, Marshal Foldy left abode service at the defendants' 13 Sention Avenue home on February 8, 2010.  “When ․ the defendant[s][are] ․ resident[s] of Connecticut who [claim] that no valid abode service has been made upon [them] that would give the court jurisdiction over [their] person, the defendant[s] [bear] the burden of disproving personal jurisdiction.   The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return.   When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.”  (Internal quotation marks omitted.)   Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 771 (2002).   Consequently, the burden is on the defendants to establish that they did not receive any process.

At the hearing before this court, both of the defendants testified that they have lived together at the 13 Sention Avenue property for the past eight years.   According to the defendants' testimony and the exhibits, they have continually resided at 13 Sention Avenue with two minor children during this period and they have not gone on any vacations for many years.   They only use the front door in order to enter and exit their home and that this is a high traffic entrance.   Although there is an additional rear door in which one may enter their home, this entrance is usually blocked and it is not available for public access.   The defendants both indicated that they never received the process in this matter and that they would have found the process had it been left at their home.   The court finds their testimony on this issue to be credible.   In contrast, Marshal Foldy testified that although he does not specifically remember serving process at the defendants' home on February 8, 2010, his usual practice is to leave the process at a dwelling's main entrance.   The court also finds Marshal Foldy's testimony credible in that the court believes that Marshal Foldy does not remember leaving process at this specific residence on the date in question.   Consequently, the court is left with the testimony of the defendants who claim they did not receive process, the return of service and the testimony of a marshal who does not remember leaving process at the defendants' residence.   After weighing the testimony of these three witnesses, reviewing the return of service and the Exhibits, the court finds that the defendants have met their burden to establish that they were not served with process.   Having determined that the defendants were not properly served, the court is without personal jurisdiction over the defendants.   As the defendants have filed a timely motion to dismiss challenging the court's personal jurisdiction over them, the court hereby opens the judgment and grants the defendants' motion to dismiss.

BY THE COURT

MINTZ, J.

Mintz, Douglas C., J.