Wells Fargo Bank, N.A. as Trustee v. Robert Treglia a/k/a Robert C. Treglia et al. (2011)

MEMORANDUM OF DECISION RE OBJECTION TO REQUEST TO REVISE DATED NOVEMBER 16, 2011 (# 133.00)

The court, having been presented with the defendant's, Michael Treglia, Request to Revise dated November 11, 2011 (# 131.00) and the plaintiff's Objection to Request to Revise dated November 16, 2011 (# 133.00) on the November 28, 2011 non-arguable short calendar and the parties having requested the court to take the matter on the papers submitted, hereby enters the following orders on the five numbered Objections.

1. Sustained.

2. Sustained.

3. Sustained.

4. Sustained.

5. Sustained.

The court hereby articulates its reasons for sustaining Objection to Request to Revise 2, 3, and 4. Each of these three Requests to Revise asks the plaintiff to delete the following phrase from the plaintiff's complaint:  “Defendant(s) ․ Edna N. Treglia a/k/a Edna Treglia (now deceased.)”

Paragraph 6 of the April 1, 2001 complaint alleges that:  “The decedent-borrower, Edna Treglia, died on or about July 5, 2003.”   This action was commenced by the complaint dated April 1, 2011.   The original complaint is the operative complaint.   The summons named “Robert Keyes, Administrator of the Estate of Edna N. Treglia” as a party defendant.   The heading of the April 1, 2001 complaint does not name Robert Keyes, Administrator as a defendant.   The heading name “Edna N. Treglia a/k/a Edna Treglia” as a defendant.   Paragraph 6 of the complaint names Robert Keyes, Administrator as a defendant.   The plaintiff alleges that Edna N. Treglia a/k/a Edna Treglia was already deceased as of the commencement of this 2011 lawsuit.   In prior litigation involving this same mortgage transaction, the plaintiff alleged that Edna N. Treglia a/k/a Edna Treglia was deceased.   In Wells Fargo Bank, N.A. v. Robert Treglia et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 06–5001250 S, the April 24, 2006 complaint in Paragraph 3 alleges:  “Defendant(s) ․ Edna N. Treglia a/k/a Edna Treglia (now deceased):”

This instant complaint alleges that on or about August 29, 2002 Edna N. Treglia a/k/a Edna Treglia executed the mortgage documents that are the subject of this litigation.   Based on her July 2003 death, the court concludes that the allegations are that the mortgage documents were executed during her lifetime.

The court finds that Edna N. Treglia a/k/a Edna Treglia is not named as a defendant in this 2011 lawsuit.

[A] dead person is a nonexistent entity and cannot be a party to a suit.   Therefore, proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity.   Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court.”  Volkmar v. State Farm Mutual Automobile Ins. Co., 104 Ill.App.3d 149, 151, 432 N.E.2d 1149 (1982);  accord Richie v. Laususe, 892 S.W.2d 746, 748 (Mo.Ct.App.1994).

Noble v. Corkin, 45 Conn.Sup. 330, 333 [21 Conn. L. Rptr. 547] (1998).

The court finds that Edna N. Treglia a/k/a Edna Treglia was not named as a party nor was she sued in this 2011 lawsuit.

In this 2011 lawsuit the plaintiff has not sued as a defendant “The Estate of Edna N. Treglia a/k/a Edna Treglia.

An estate is not a legal entity.   It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent.”  Bar Association v. Connecticut Bank & Trust Co., 20 Conn.Sup. 248, 262 [131 A.2d 646 (1957) ].   Not having a legal existence, it can neither sue nor be sued.  Vonchina v. Estate of Turner, 154 Cal.App.2d 134 [315 P.2d 723 (1957) ];  2 Locke & Kohn, Conn. Probate Practice 375.”  Estate of Schoeller v. Becker, 33 Conn.Sup. 79, 79–80, 360 A.2d 907 (1975).

Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600 (1985).

It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue.

Estate of Schoeller v. Becker, 33 Conn.Sup. 79, 79 (1975).

The plaintiff in this 2011 lawsuit has sued as a defendant, “Robert Keyes, Administrator of the Estate of Edna N. Treglia.”   The representative of the estate of a decedant is the proper party to be sued.  Isaac v. Mouni Sinai Hospital, supra, 3 Conn.App. 600.   The plaintiff has sued the proper party, the Administrator of Edna N. Treglia's estate.   In paragraph 6 of the plaintiff's complaint the plaintiff has alleged the appropriate facts permitting the Administrator to become a party defendant:  “The decedent-borrower, Edna Treglia, died on or about July 5, 2003.   The Defendant, Robert B. Keyes, was appointed the Administrator of the Estate of Edna N. Treglia, a/k/a Edna Treglia by Norwalk Probate Court on or about December 15, 2003 and may have possession of assets that could be used to cure any deficiency.”

Therefore the court finds that it has jurisdiction over the decedent's estate and that the proper party has been sued on behalf of the estate.   Therefore, the court has sustained Objections 2, 3 and 4 in the plaintiff's Objection to Request to Revise.

The plaintiff may wish to clear up any vagueness and inconsistencies in the pleadings by:  (1) Not referring to Edna N. Treglia a/k/a Edna Treglia as a “Defendant” in paragraphs 2, 3, and 4 leaving Robert Treglia a/k/a Robert C. Treglia as the only referenced defendant in these three paragraphs, (2) Stating that Edna N. Treglia a/k/a Edna Treglia's actions are her actions and not the actions of a defendant, (3) Eliminating “(now deceased),” since one could conclude that a deceased person executed the mortgage documents, (4) Eliminating the plural use of “Defendant(s)” in paragraphs 2, 3, and 4. If the “(s)” is eliminated then the complaint no longer could be read to refer to Edna N. Treglia a/k/a Edna Treglia as a party Defendant, (5) Remove the plural “Defendant(s)” in paragraph 10, since that paragraph only refers to one person, Robert Treglia a/k/a Robert C. Treglia, (6) Correct the Administrator's name consistent with the Norwalk Probate Court order, either Robert Keyes or Robert B. Keyes, (7) Have the Superior Court clerk correct the heading of the case to include either Robert Keyes or Robert B. Keyes, Administrator as a defendant in lieu of Edna N. Treglia a/k/a Edna Treglia, (8) Consistently refer in future pleadings the correct name of the Administrator (either Robert Keyes or Robert B. Keyes), (9) Consistently refer in future pleadings that Mr. Keyes is the “Administrator of the Estate of Edna N. Treglia a/k/a Edna Treglia,” (10) Verifying the proper appearance for the Administrator.   It is noted that Robert B. Keyes is a member of the bar.   As such he can file an attorney's appearance for the Administrator of a decedent's estate.   The question is can he file a self-represented appearance in his capacity as a duly appointed Administrator?  (11) Whether it is “Certificate” or “Certificates” in the plaintiff's name, and (12) Whether “2002–6” is stated once or twice in the plaintiff's name?   Although some typographical adjustments may have to be made, these last twelve comments are not orders of the court nor a formal request that the plaintiff amend its complaint nor that any defendant file a Request to Revise.

The court notes that there appears to be duplicate pleadings in the two Requests to Revise # 131.00 and # 132.00. The court cautions counsel not to file duplicate pleadings.   The court reserves the right to deny any and all requests and motions contained in duplicate pleadings.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.