GMAC v. Pamela McCormack (2011)

MEMORARDUM OF DECISION RE MOTION TO CORRECT AND RECONSIDER (# 140)

Before the court is the motion to reconsider filed by the defendant, Pamela McCormack, on May 6, 2011.   The defendant asks the court to reconsider its April 19, 2011 decision denying the defendant's motion to dismiss.

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.”  (Citations omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692–93, 778 A.2d 981 (2001).

Moreover, “[t]he granting of a motion for reconsideration ․ is within the sound discretion of the court.”  (Internal quotation marks omitted.)   Mangiante v. Niemiec, 98 Conn.App. 567, 575, 910 A.2d 235 (2006).  “A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.”  (Internal quotation marks omitted.)   Id., 577.

Specifically, the defendant argues that the court made an error of “material significance” when it stated that the plaintiff, GMAC Mortgage, LLC, assigned the note and mortgage to MidFirst Bank (“MidFirst”) on September 29, 2004.   The defendant claims that the plaintiff assigned the mortgage to MidFirst on December 2, 2008, and that the assignment was recorded on December 4, 2008.   Thus, the plaintiff's assignment to MidFirst took place after this action was filed and not before.   The defendant contends that the court's misapprehension of this fact should compel it to change its previous decision and grant the defendant's motion to dismiss.

The court agrees with the defendant that it was mistaken when it stated that the mortgage was assigned from the plaintiff to MidFirst on September 24, 2004.   Upon further review, it appears that this assignment took place on December 2, 2008, and was recorded on December 4, 2008, as the defendant contends.   Further, the court agrees that this action was filed on October 17, 2008, prior to the assignment.   The court agrees that its decision shall be corrected reflecting the proper recordation date and spelling of the defendant's first name.

The court disagrees with the defendant, however, that its misstatement of this fact changes its decision denying the defendant's motion.   In its decision, this court relied upon Dime Savings Bank of Wallingford v. Arapi, 55 Conn.App. 180, 738 A.2d 715 (1999), which held that although an assignee of a mortgage is able to foreclose in its own name, it is free to prosecute the action in the name of the assignor.   The Appellate Court reasoned:  “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The statute authorizing standing in this case is General Statutes § 52–118, which provides in relevant part that ‘[an] assignee ․ may sue ․ in his own name ․’ The legislature's use of the word ‘may’ in the statute indicates that an assignee merely has the option to sue in his name.   Conversely, as the Supreme Court has stated, an assignee also has the option ‘to maintain [an] action in the name of his assignor.  Jacobson v. Robington, 139 Conn. 532, 539, 95 A.2d 66 (1953).”  (Citation omitted;  internal quotation marks omitted.)  Id., 184.

The fact that the mortgage was assigned after this action was commenced confirms that the plaintiff, the assignor, had standing to initiate this action on October 17, 2008.   Subsequent to December 4, 2008, when the mortgage was assigned and the assignment recorded, MidFirst, the assignee, could, however, choose to maintain this action in the name of the assignor.   See Jacobson v. Robington, supra, 139 Conn. 539.

Moreover, the court notes, as it did in its prior decision, that if the plaintiff does not file a motion to add MidFirst as a party plaintiff, the court may do so on its own pursuant to General Statutes § 52–107.   That section states:  “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others;  but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in.   If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

Order

The court hereby denies the defendant's motion to reconsider the April 19, 2011 decision addressing the defendant's motion to dismiss.   The motion to correct the recordation date of the assignment of mortgage and defendant's first name is hereby granted.

Devine, J.

Devine, James J., J.