US v. Leon Sekulski (2012)

MEMORANDUM OF DECISION

Before the court is the defendant's motion to dismiss (# 154).   The matter was heard on the February 14, 2012 short calendar.   For the reasons given, the motion must be dismissed.

I

FACTS

This foreclosure action was commenced in the name of Wells Fargo Bank, N.A. d/b/a Americas Servicing Company (“Wells Fargo”) on November 13, 2006.   On January 18, 2007, a motion to correct party plaintiff was filed, seeking to change the plaintiff from Wells Fargo to U.S. Bank National Association, as Trustee for Structured Asset Investment Loan Trust Mortgage Pass–Through Certificate Series 2006–4 (“U.S.Bank”).¹  The motion was granted on January 29, 2007.

The complaint alleges the following relevant facts.   The defendant, Leon Sekulski, owned real property in New Hartford, Connecticut.   On or about February 10, 2006, the defendant executed and delivered to New Century Mortgage Corporation (“New Century”) a note for a loan in the original principal amount of $460,000.   On that date, to secure the note, the defendant executed and delivered to New Century a mortgage on the New Hartford property.   The mortgage was dated February 10, 2006, and recorded in the New Hartford Land Records on February 15, 2006.   The mortgage was thereafter assigned to U.S. Bank ² by virtue of a blank assignment of mortgage dated February 16, 2006, and recorded in the New Hartford Land Records on January 19, 2007.³

On January 18, 2012, the defendant filed the present motion to dismiss on the ground that the court lacks subject matter jurisdiction based on U.S. Bank's lack of standing.   U.S. Bank filed an objection on January 24, 2012.   Additional facts will be presented as necessary.

II

DISCUSSIONAMotion to Dismiss Standard

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.  Practice Book § 10–31(a).”  (Internal quotation marks omitted.)   Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213.

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213–14.  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Id., 214.

B

Analysis

The defendant asserts that U.S. Bank lacks standing for six reasons:  (1) It is not the owner and holder of the note and mortgage;  (2) The Trust Agreement regarding the pooling and servicing agreement appointing U.S. Bank as Trustee was not in effect before June 1, 2006, approximately four months after the assignment to U.S. Bank was executed;  (3) The action was incorrectly filed in a name other than the party's true name at the commencement of the action;  (4) The defendant was not properly notified before or after the assignment of his mortgage;  (5) The complaint does not allege how U.S. Bank has any relationship to the defendant;  and (6) U.S. Bank is not authorized to do business in Connecticut.   The court will address each in turn.

1

Owner and Holder of the Note and Mortgage

The defendant asserts that there is no evidence proving that the note and mortgage were specifically assigned to U.S. Bank by a valid and complete assignment.   According to the defendant, the assignment of the mortgage is incomplete and has various omissions, rendering the assignment invalid.   These deficiencies include no address listed for the assignee, no indication of where the assignee is organized or under which state's laws it exists, no indication of which book volume and page the mortgage being assigned is located, and non-compliance with California law.⁴

In opposition, U.S. Bank argues that it has standing by virtue of its status as holder of the note on the date the foreclosure action was commenced.   U.S. Bank asserts that General Statutes § 49–17 permits the holder of the note to foreclose on the mortgage even when the mortgage has not yet been assigned.   According to U.S. Bank, when the action was commenced, it was in possession of the note endorsed in blank, and production of the note establishes its prima facie case that it has standing.

Furthermore, U.S. Bank asserts that any alleged deficiencies in the assignment of mortgage does not deprive it of standing because the deficiencies are cured by the Validating Act, General Statutes § 47–36aa, which enables certain conveyancing defects to be cured if a party does not challenge the validity of the assignment within two years of its recording.   U.S. Bank contends that the assignment of mortgage was recorded on January 19, 2007, and the defendant failed to take any action to challenge its validity within two years of its recording.

“General Statutes § 49–17 ⁵ permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him ․ The statute codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage ․ Our legislature, by adopting § 49–17, has provide[d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him ․”

“The plaintiff's standing to enforce the promissory note is set forth by the provisions of the Uniform Commercial Code as adopted in General Statutes § 42a–1–101 et seq.   Under these statutes, only a ‘holder’ of an instrument or someone who has the rights of a holder is entitled to enforce the instrument ․ The ‘holder’ is the person or entity in possession of the instrument if the instrument is payable to bearer ⁶ ․ When an instrument is endorsed in blank, it becomes payable to bearer and may be negotiated by transfer of possession alone ․ Furthermore, [t]he possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity.   The production of the note establishes his case prima facie against the makers and he may rest there ․ It [is] for the [makers] to set up and prove the facts which limit or change the [bearer's] rights.”  (Citations omitted;  internal quotation marks omitted.)  Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 576–78, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

In the present case, a copy of the note was attached to the complaint.   U.S. Bank also requests that the court take notice of an affidavit submitted in support of a prior motion for summary judgment (# 145), in which an “authorized signer” for Wells Fargo, as U.S. Bank's loan servicing agent, attests that the note was endorsed in blank and that U.S. Bank was in possession of the note when it commenced the present action.   A true and accurate copy of the note was attached to the affidavit.

The defendant submitted no evidence to counter the authenticity of the note attached to the complaint or the affidavit submitted by U.S. Bank. See HSBC Bank USA, N.A. v. Navin, 129 Conn.App. 707, 711–12, cert. denied, 302 Conn. 948, 31 A.3d 384 (2011) (plaintiff had standing where the defendant offered no evidence to contest the plaintiff's sworn statement that it possessed the note at the time it commenced the action).

Pursuant to General Statutes § 49–17, as holder of the note, U.S. Bank had standing to commence the present action, regardless of whether the mortgage was properly assigned to U.S. Bank. See Bank of America, N.A. v. Morris, Superior Court, judicial district of Litchfield, Docket No. CV 09 5006281 (August 25, 2010, Roche, J.) (plaintiff had standing based on its status as holder of the note regardless of the defendant's assertion that there was an improper assignment of the mortgage).

2

Defective Assignment of Mortgage

The defendant argues that U.S. Bank lacks standing to enforce the note because the prospectus supplement, mortgage loan sale and assignment agreement, and the trust agreement establishing U.S. Bank as Trustee did not take place until June 2006, and, therefore, the mortgage could not have been assigned to U.S. Bank in February 2006.   In opposition, U.S. Bank contends, again, that it has standing by virtue of its status as holder of the note on the date the foreclosure action was commenced, and that any alleged deficiencies in the assignment of mortgage do not deprive it of standing because the deficiencies are cured by the Validating Act, General Statutes § 47–36aa.

U.S. Bank has standing by virtue of its status as holder of the note at the time the foreclosure action was commenced.  “It is well established that the holder of a promissory note secured by a mortgage automatically has standing and thus the right to enforce the mortgage.”   Ulster Savings Bank v. 28 Brynwood Lane, LTD, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X08 CV 05 4007323 (May 27, 2010, Jennings, Jr., J.T.R.).  “As a general proposition, it is established law that the mortgage bears a close relationship to the underlying debt.   The mortgage secures the debt ․ The mortgage follows the debt, in the sense that the assignment of the note evidencing the debt automatically carries with it the assignment of the mortgage.”  (Citations omitted.)  New Milford Savings Bank v. Jajer, 244 Conn. 251, 266, 708 A.2d 1378 (1998).

3

Incorrect Party Plaintiff

The defendant argues that U.S. Bank lacks standing because the action was incorrectly filed in a name other than the party's true name at the commencement of the action, and therefore, U.S. Bank cannot avail itself of General Statutes § 52–123.   The defendant also asserts that neither an amended complaint nor any other pleading was ever filed providing the defendant with notice as to who was suing him, its address, place of business, state of residence or any other identifying information.   In support of his argument, the defendant relies on America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005) and Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corp., Superior Court, judicial district of Hartford, Docket No. CV 03 0825180 (November 12, 2010, Sheldon, J.) (51 Conn. L. Rptr. 10).

In opposition, U.S. Bank contends, first, that its motion to correct party plaintiff was filed pursuant to General Statutes § 52–109, not General Statutes § 52–123, and that the cases cited by the defendant are inapplicable.   Moreover, U.S. Bank notes that the defendant did not oppose the motion.   U.S. Bank asserts that a motion to correct pursuant to General Statutes § 52–109 relates back to and corrects, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.

The motion to correct party plaintiff was filed pursuant to General Statutes § 52–109 which provides that “[w]hen any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”   The defendant did not object to the motion and it was granted on January 29, 2007.

“[O]ur rules of practice ․ permit the substitution of parties as the interests of justice require ․ These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common-law ․ General Statutes § 52–109 and [what is now] Practice Book § [9–20] allow a substituted plaintiff to enter a case [w]hen any action has been commenced in the name of the wrong person as plaintiff ․ Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.   In the context of analogous rules of federal civil procedure, it has been observed that [when] the change is made on the plaintiff's side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading ․ As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added ․ Thus, an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest ․”

“Under § 52–109, substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff ‘through mistake,’ which properly has been interpreted to mean an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the [action] ․ [O]nce such a determination is made ․ the substituted party is let in to carry on a pending suit, and is not regarded as commencing a new one.   After he is substituted he is ․ treated and regarded for most purposes just as if he had commenced the suit originally.   The writ, the complaint, the service of process, attachment made, bonds given, the entry of the case in court, the pleadings if need be, in short all things done in the case by or in favor of the original plaintiff ․ remain for the benefit of the plaintiff who succeeds him, as if done by and for him originally and just as if no change of parties had been made.   So far as the defendant is concerned, the same suit upon the same cause of action, under the same complaint and pleadings substantially in most cases, goes forward to its final and legitimate conclusion as if no change had been made.   This power of substitution is part of the law of procedure ․” (Citations omitted;  internal quotation marks omitted.)   DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 150–52, 998 A.2d 730 (2010).

The defendant relies on America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 474 and Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corp., supra, 51 Conn. L. Rptr. 10, but those cases are not applicable.   In the present case, the motion to amend the party plaintiff was brought and granted under General Statutes § 52–109, not General Statutes § 52–123.   General Statutes § 52–123 provides:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”  General Statutes § 52–123 applies when “the plaintiff's error does not result in the naming of an entirely different party, but instead involves merely an inaccurate designation of the name of the correct party, that is, a misnomer.”  (Internal quotation marks omitted.)   Presence Studios Westport v. Freelife International, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 99 0360617 (November 30, 2004, Doherty, J.) (38 Conn. L. Rptr. 336, 337).

In the present case, the action was originally brought in the name of the wrong entity, i.e., Wells Fargo, and thus, the motion to amend the party plaintiff was properly granted under General Statutes § 52–109.   The effect of the motion to amend was to substitute, ab initio, U.S. Bank for Wells Fargo.   See Alexander v. Alexander Yale & Towne, SPE, LLC, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X08 CV 08 5006843 (May 12, 2009, Jennings, Jr., J.T.R.) (47 Conn. L. Rptr. 824).   Although a motion to amend the complaint, reflecting that the proper plaintiff was U.S. Bank, may have been prudent, the failure to do so does not deprive U.S. Bank of standing or this court of subject matter jurisdiction.

4

Notification of Assignment of Mortgage

The defendant argues that U.S. Bank lacks standing because the defendant was not properly notified before or after the assignment of his mortgage.   U.S. Bank contends that the defendant was sent a loan servicing transfer letter in June 2006, a copy of which is attached to U.S. Bank's memorandum of law opposition to the motion to dismiss.   U.S. Bank also argues that when the assignment of mortgage was sent for recording on the New Hartford Land Records in January 2007, a copy was sent to the defendant because it was attached to the motion to amend the party plaintiff.   Thus, the defendant was sent a copy of the assignment one day before it was recorded.   Finally, U.S. Bank asserts that there is no requirement under the loan documents that the defendant be provided with prior notice of the transfer of the note or mortgage.

As this court has already determined, U.S. Bank has standing by virtue of its status as holder of the note at the time the foreclosure action was commenced.   There is no authority to support the defendant's position that any alleged failure to notify him of the assignment of the mortgage deprives U.S. Bank of standing as holder of the note.

5

U.S. Bank's Relationship to the Defendant

The defendant argues that U.S. Bank lacks standing because the complaint does not allege how U.S. Bank has any relationship to the defendant.   U.S. Bank contends that the defendant's argument is an improper basis for a motion to dismiss, that the correct way to dispute a party's allegations in a complaint is to file a request to revise, and that, because the defendant previously filed an answer, he waived his rights to file a request to revise pursuant to Practice Book § 10–6.

The motion substituting U.S. Bank as the party plaintiff cured any jurisdictional defect in the action resulting from Wells Fargo's lack of standing.   See DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 150–52.   The effect of the motion to amend was to substitute, ab initio, U.S. Bank for Wells Fargo.   See Alexander v. Alexander Yale & Towne, SPE, LLC, supra, 47 Conn. L. Rptr. 824.   Thus, although U.S. Bank did not specifically file an amended complaint reflecting that change, the granting of the motion to amend effectively changed all references within the complaint from Wells Fargo to U.S. Bank. Thus, the complaint alleges that U.S. Bank is the owner and holder of the note, which is in default, and that U.S. Bank is seeking to foreclose the mortgage securing that note.   Thus, the complaint apprises the defendant that the relationship between U.S. Bank and the defendant arises out of U.S. Bank's status as the owner and holder of the note securing the mortgage on the New Hartford property.

Accordingly, U.S. Bank is not deprived of standing based on an alleged deficiency in the complaint in apprising the defendant of the relationship between himself and U.S. Bank.

6

Certificate of Authority

The defendant asserts that U.S. Bank has not obtained a certificate of authority to transact business in Connecticut and, therefore, lacks standing to maintain the action.   According to the defendant, pursuant to General Statutes § 36a–425(a), U.S. Bank must comply with General Statutes § 33–920(a),⁷ which requires that U.S. Bank obtain a certificate of authority from the Secretary of State, which U.S. Bank has not done.   In opposition, U.S. Bank argues, first, that the defendant's claim of lack of corporate capacity to sue must be raised by way of special defense, not in a motion to dismiss.   Second, U.S. Bank asserts that it is not transacting business in Connecticut, and is not required to register with the Secretary of State because it is exempt under General Statutes § 33–920(b)(7), (8).⁸

“[I]t is well established in our case law that a challenge to the plaintiff's right to sue without a certificate of authority to transact business in Connecticut does not go the subject-matter jurisdiction of the Court, but is a matter of defense that is waived by the defendant unless it is pleaded as special defense and proved at trial ․ Indeed, by the terms of the controlling statute [General Statutes § 33–921] the court before which a challenge to a foreign corporation's capacity to sue is duly pleaded ‘may stay a proceeding commenced by ․ [the] corporation until it determines whether the ․ corporation requires a certificate of authority.   If it is so determined, the court may further stay the proceedings until the ․ corporation ․ obtains the certificate.’   The existence of this statutory authority to stay an unauthorized action by a foreign corporation so that the plaintiff might procure the necessary certificate of authority before proceeding further is clear evidence that the lack of such a certificate does not defeat the subject-matter jurisdiction of the Court.”  (Internal quotation marks omitted.)   Bank of New York v. Veglio, Superior Court, judicial district of Fairfield, Docket No. CV 07 5009817 (August 22, 2011, Hartmere, J.) (52 Conn. L. Rptr. 508).

Accordingly, the defendant's challenge to the court's subject matter jurisdiction based on whether U.S. Bank has obtained a certificate of authority is improper.

C

Conclusion

For the foregoing reasons, the defendant's motion to dismiss must be denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The suit was inadvertently brought in the loan servicer's name, i.e. Wells Fargo, rather than the real party in interest, i.e., U.S. Bank..  FN1. The suit was inadvertently brought in the loan servicer's name, i.e. Wells Fargo, rather than the real party in interest, i.e., U.S. Bank.

FN2. The complaint actually alleges that the mortgage was assigned to Wells Fargo.   The complaint, however, was effectively amended by the motion to correct party plaintiff.   See Alexander v. Alexander Yale & Towne, SPE, LLC, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X08 CV 08 5006843 (May 12, 2009, Jennings, Jr., J.T.R.) (47 Conn. L. Rptr. 824) (granting of motion to substitute party plaintiffs had “the effect of substituting ab initio the ․ plaintiffs correctly named in the amendment for the plaintiffs incorrectly named in the original complaint”)..  FN2. The complaint actually alleges that the mortgage was assigned to Wells Fargo.   The complaint, however, was effectively amended by the motion to correct party plaintiff.   See Alexander v. Alexander Yale & Towne, SPE, LLC, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X08 CV 08 5006843 (May 12, 2009, Jennings, Jr., J.T.R.) (47 Conn. L. Rptr. 824) (granting of motion to substitute party plaintiffs had “the effect of substituting ab initio the ․ plaintiffs correctly named in the amendment for the plaintiffs incorrectly named in the original complaint”).

FN3. The assertion that the mortgage was assigned to U.S. Bank by virtue of a blank assignment of mortgage dated February 16, 2006, and recorded on January 19, 2007, is not alleged in the complaint.   Rather, the defendant, in his memorandum of law in support of his motion to dismiss, cites to prior motions filed by U.S. Bank. U.S. Bank also references these dates in its memorandum of law in opposition to the motion to dismiss..  FN3. The assertion that the mortgage was assigned to U.S. Bank by virtue of a blank assignment of mortgage dated February 16, 2006, and recorded on January 19, 2007, is not alleged in the complaint.   Rather, the defendant, in his memorandum of law in support of his motion to dismiss, cites to prior motions filed by U.S. Bank. U.S. Bank also references these dates in its memorandum of law in opposition to the motion to dismiss.

FN4. The defendant asserts that the assignment of mortgage has a stamped signature from a vice-president records manager of New Century, which is not acceptable pursuant to California Civil Code § 8205(a)(2).   The defendant asserts that the assignment was completed on a Connecticut form but was acknowledged with a “California All Purpose Acknowledgment.”.  FN4. The defendant asserts that the assignment of mortgage has a stamped signature from a vice-president records manager of New Century, which is not acceptable pursuant to California Civil Code § 8205(a)(2).   The defendant asserts that the assignment was completed on a Connecticut form but was acknowledged with a “California All Purpose Acknowledgment.”

FN5. General Statutes § 49–17 provides:  “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”.  FN5. General Statutes § 49–17 provides:  “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”

FN6. A bearer is the “person in possession of an instrument ․ payable to bearer or endorsed in blank.”  General Statutes § 42a–1–201(b)(5)..  FN6. A bearer is the “person in possession of an instrument ․ payable to bearer or endorsed in blank.”  General Statutes § 42a–1–201(b)(5).

FN7. General Statutes § 36a–425(a) provides:  “Except as otherwise provided, in this title, no foreign banking corporation shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered to do so by any provision of the general statutes or any special act of this state;  provided, without excluding other activities which may not constitute transacting business in this state, no such foreign banking corporation shall be deemed to be doing or transacting business in this state for purposes of this section by reason of its acting as an investment adviser to the State Treasurer or by reason of its making loans whether secured or unsecured.   For purposes of this section, ‘foreign banking corporation’ means a banking corporation which is organized under the laws of or has its principal office in any state other than Connecticut or any foreign country.   Notwithstanding the provisions of this subsection, a foreign banking corporation which transacts business in this state for the purposes of section 33–920 or section 33–1210 shall comply with the requirements of subsection (a) of section 33–920 or subsection (a) of section 33–1210.”  General Statutes § 33–920(a) provides in relevant part:  “A foreign corporation, other than an insurance, surety or indemnity company, may not transact business in this state until it obtains a certificate of authority from the Secretary of the State.”.  FN7. General Statutes § 36a–425(a) provides:  “Except as otherwise provided, in this title, no foreign banking corporation shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered to do so by any provision of the general statutes or any special act of this state;  provided, without excluding other activities which may not constitute transacting business in this state, no such foreign banking corporation shall be deemed to be doing or transacting business in this state for purposes of this section by reason of its acting as an investment adviser to the State Treasurer or by reason of its making loans whether secured or unsecured.   For purposes of this section, ‘foreign banking corporation’ means a banking corporation which is organized under the laws of or has its principal office in any state other than Connecticut or any foreign country.   Notwithstanding the provisions of this subsection, a foreign banking corporation which transacts business in this state for the purposes of section 33–920 or section 33–1210 shall comply with the requirements of subsection (a) of section 33–920 or subsection (a) of section 33–1210.”  General Statutes § 33–920(a) provides in relevant part:  “A foreign corporation, other than an insurance, surety or indemnity company, may not transact business in this state until it obtains a certificate of authority from the Secretary of the State.”

FN8. General Statutes § 33–920(b) provides in relevant part that “[t]he following activities, among others, do not constitute transacting business within the meaning of subsection (a) of this section:  ․ (7) creating or acquiring indebtedness, mortgages and security interests in real or personal property;  (8) securing or collecting debts or enforcing mortgages and security interests in property securing the debts ․”.  FN8. General Statutes § 33–920(b) provides in relevant part that “[t]he following activities, among others, do not constitute transacting business within the meaning of subsection (a) of this section:  ․ (7) creating or acquiring indebtedness, mortgages and security interests in real or personal property;  (8) securing or collecting debts or enforcing mortgages and security interests in property securing the debts ․”

Pickard, John W., J.