Bank of America, National Association v. Michael C. La Mesa et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 138)

I

INTRODUCTION

On March 19, 2013, defendant Michael C. La Mesa filed a motion entitled “Alleged Defendant's Verified Motion To Dismiss Complaint, With Prejudice, In Lieu Of Answer, Or In The Alternative, And Only If That Motion To Dismiss Is Denied, Alleged Defendant's Verified Answer to Complaint With A Request For Judicial Notice Of Fact And Law.” The court interprets the latter motion to be a motion to dismiss the complaint.   The motion came before the court and was heard on May 6, 2013.   The motion is denied.

II

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, Bank of America, National Association, filed its complaint on February 22, 2012, alleging that defendant Michael C. La Mesa (“the defendant”) owned real property at 364 Torringford Street, Torrington, CT (“the property”).   It further alleges that, on or about October 4, 2005, the defendant executed a note for a loan in the principal amount of $113,000 and borrowed that sum from First Magnus Financial Corporation (“FMFC”).  The plaintiff claims that, to secure the note, the defendant also executed and delivered a mortgage on the property to Mortgage Electronic Registration Systems, Inc. as nominee for FMFC. The plaintiff claims that the mortgage, subsequently, was assigned to it and it is now the holder of the note and mortgage.   The complaint further alleges that the note is in default, and that the plaintiff elected to accelerate the balance due on the note and foreclose the mortgage that secures the note.

A

The First Motion to Dismiss

On October 15, 2012, the defendant moved to dismiss the complaint (hereinafter, “the first motion to dismiss”), alleging that the plaintiff lacked standing to bring the foreclosure action “and the lack of a proper controversy to establish the court's subject matter jurisdiction.”   As will be demonstrated, infra, the “law of the case” doctrine has application to the issue before this court.   Therefore, it is appropriate to review, in some detail, the manner in which the first motion to dismiss was addressed.

In the course of the first motion to dismiss, the self-represented defendant claimed, inter alia, that the plaintiff's counsel had not established its “agency relationship” with the plaintiff;  that he, the “alleged defendant,” has no business relationship with the plaintiff;  that “Freddie Mac [is] the owner[ ] of the mortgage;” and that the plaintiff failed to establish that it is the holder of the note or mortgage.   The defendant argued that the plaintiff took the “FMFC instruments, altered them, and [is] now claiming those altered instruments are recorded in the Torrington land records ․”

The plaintiff objected to the motion to dismiss in a brief filed on November 13, 2012.   The plaintiff accompanied the brief with an affidavit and exhibits.   The plaintiff argued, first, that it had met the requirements of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692g(b).  It also argued that, although Freddie Mac is the owner of the debt, the plaintiff is the holder of the note;  the mortgage was assigned to it;  and it has the right to enforce the note.   The plaintiff argued that the note it possesses is endorsed in blank, and, as such, the note is payable to the bearer, which, in this case, is the plaintiff.   See General Statutes §§ 42a–3–109, 42a–3–205.   The plaintiff submitted an affidavit, executed by Joseph Neiport, Jr., Assistant Vice President of the Bank of America, National Association, who asserted that the note at issue was endorsed from FMFC to Countrywide Bank, N.A.;   it was endorsed from Countrywide, N.A., to Countrywide Home Loans, Inc;  and, finally, the last endorsement, which was an endorsement in blank, was from Countrywide Home Loans, Inc. The affidavit claims that the plaintiff is the holder of the note and was in possession of the note at the time it commenced the action.   The affidavit also asserts that the defendant is in default under the loan documents for failure to make payments.   The note attached to the affidavit supports the claims therein.

The first motion to dismiss came before the court, Trombley, J., and was heard on December 10, 2012.   In the course of that hearing, the plaintiff showed the original note to the defendant, who denied signing the note.   Hr'g. Tr. 5, December 10, 2012.   The court then ordered the defendant to be placed under oath, and asked the defendant, again, if the note bore his signature.   Hr'g. Tr. 6–7.   Once he was under oath, the defendant stated that he could not “confirm” that the signature was his.   Hr'g. Tr. 7. The court then asked the defendant if he had been making payments on his mortgage, to which the defendant replied, inter alia, that “I don't have any obligation to disclose personal information.”   Hr'g. Tr. 8. Despite repeated inquiries from the court, the defendant declined to answer the court's questions on this issue.

The court found that the plaintiff had produced the original note to the court for its review and that the plaintiff is the holder of the original note.   Hr'g. Tr. 17–18.   The court thereafter denied the first motion to dismiss.   Hr'g. Tr. 21.

B

The Second Motion to Dismiss

On March 19, 2013, the defendant filed a second motion to dismiss, which is the motion now before this court.   As he did in the first motion to dismiss, the defendant claims that the plaintiff has no standing and that the court lacks subject matter jurisdiction in this case.

The defendant also seems to be suggesting that the individual who appeared in court is not the named defendant in this case.   The named defendant, whose signature appears on the original promissory note presented by the plaintiff in open court, is Michael C. La Mesa. The second motion to dismiss is allegedly authored by “Michael Charles:  La Mesa.” Def.'s Second Mot. to Dismiss 10 ¶ 39.¹  The court finds, based on the content of the pleadings in this case and admissions made by the defendant at oral argument, that the author of the motion at issue and the person who appeared at oral argument is the named defendant, Michael C. La Mesa.

The defendant claims that the plaintiff's standing has not been established, that he owes no debt “under the note in question,” and that “the plaintiff is attempting to steal a house and an account without a gun.”   The defendant argues that the note, in the plaintiff's possession, carries a new account number and that “[t]he account/loan number to which the undersigned agreed and signed for was changed without his knowledge or consent.”

The plaintiff objects to the motion to dismiss, and refers the court to its previously filed affidavit which, with its attachments, establishes that the plaintiff is the holder of the note at issue.   The plaintiff also argues that the defendant is rearguing his first motion to dismiss.

III

DISCUSSION

In deciding this motion to dismiss, the court is obligated to “take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ․ If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.”  (Citation omitted;  internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 108–09, 967 A.2d 495 (2009).   This motion will be decided on the basis of the well pleaded facts and the record.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

In the present case, the plaintiff's objection to the second motion to dismiss refers, in part, to its previously filed affidavit.   Pursuant to the preceding authority, the court will consider the plaintiff's prior filings as well as the defendant's December 10, 2012 and May 6, 2013 testimony.   Despite the fact that the defendant was under oath at the May 6, 2013 hearing, on more than one occasion he declined to respond to the court's questions.   The court warned the defendant that a failure to respond to the court's questions could result in an adverse inference being drawn against him.   Nonetheless, his answers were nonresponsive on multiple occasions.

The defendant's second motion to dismiss challenges the plaintiff's standing to bring this action.  “Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ․ When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ․ Standing requires no more than a colorable claim of injury;  a [party] ordinarily establishes ․ standing by allegations of injury.   Similarly, standing exists to attempt to vindicate arguably protected interests ․”

Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 567–68, 775 A.2d 284 (2001).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.  Practice Book § 10–31(a).  [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.)  May v. Coffey, supra, 291 Conn. 113.  “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.)  New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).

In order to have standing, the plaintiff need only establish that it is the holder of the note.  General Statutes § 49–17 “provides an avenue for the holder of the note to foreclose on the property [even] when the mortgage has not been assigned to him.”  Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003).   The statute codifies the common-law principle that “[t]he 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.”  New Milford Savings Bank v. Jajer, 244 Conn. 251, 266, 708 A.2d 1378 (1998);  see Bankers Trust Co. of California, N.A. v. Vaneck, 95 Conn.App. 390, 39 1–92, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006).

In the course of the May 6, 2013 hearing, the plaintiff produced the original note for the defendant's review in open court.   The plaintiff also made the original note available to the court for its review.   The note produced in court supports the plaintiff's claim that it is the bona fide holder of the promissory note secured by a mortgage on the defendant's property.

In the course of denying the first motion to dismiss, the court, Trombley, J., found that the “holder” of an instrument or someone who has the rights of a holder is entitled to enforce the instrument.  General Statutes § 42a–3–301.   The “holder” is the person or entity in possession of the instrument if the instrument is payable to bearer.  General Statutes § 42a–1–201(b)(21)(A).   When an instrument is endorsed in blank, it “becomes payable to bearer and may be negotiated by transfer of possession alone ․” General Statutes § 42a–3–205(b).  The court then found, on December 10, 2012, that “the note is endorsed in blank and thus the plaintiff is the [proper] party to prosecute the action ․” Hr'g Tr. 14.

The plaintiff, by way of its possession of an instrument payable to bearer, is a valid holder of the instrument and, therefore, is entitled to enforce it.   Ninth RMA Partners, L.P. v. Krass, 57 Conn.App. 1, 7, 746 A.2d 826, cert. denied, 253 Conn. 918, 755 A.2d 215 (2000).  “The 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 was for the defendant to set up and prove the facts which limit or change the plaintiff's rights.”  (Internal quotation marks omitted.)  SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn.App. 563, 571, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998).

The court takes note of the defendant's recalcitrance when presented with simple, straightforward questions at the hearing.   The defendant indicated that he could not confirm his own signature on the note.   He acknowledged that he signed a note, reflecting the fact that he had borrowed $113,000 from FMFC. However, he declined to answer the court's questions on the issue of whether he had made any payments on the note.   The court concludes that, if the defendant had answered the latter question, the answer would have been adverse to the defendant's interest in this case.  “[A]n adverse inference may be drawn by witnesses' refusal to testify in a civil proceeding.”   In re Felicia S., Superior Court, Juvenile Matters, Ninth District at Montville (May 21, 1993, Silbert, J.).

In the present case, the defendant's erroneous belief that the plaintiff's counsel was required to prove his “agency relationship with the plaintiff,” and his argument that the note has acquired an additional or different account number since it was first signed, are insufficient to rebut the prima facie showing made by the plaintiff.   It may be that the defendant does not appreciate the distinction between the showing that is sufficient to survive a motion to dismiss based on alleged lack of standing and the showing that is sufficient to prevail on the merits.  “Standing requires no more than a colorable claim of injury;  a plaintiff ordinarily establishes his standing by allegations of injury.”  (Emphasis in original;  internal quotation marks omitted.)  Presidential Capital Corp. v. Reale, 231 Conn. 500, 505, 652 A.2d 489 (1924);  see Wells Fargo Bank, N.A. v. Murphy, Superior Court, judicial district of Tolland, Docket No. CV 06 6000043 (December 10, 2008, Vacehelli, J.);   see also Citimortgage, Inc. v. Gaudiano, 142 Conn.App. 440, (2013).

Moreover, the defendant's motion to dismiss is defective based on the application of the law of the case doctrine.   That doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   Such rulings are not to be lightly changed.  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)   Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).

However, “[t]he law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).  “New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Emphasis added;  internal quotation marks omitted.)  Id.

The “new facts” raised by the defendant are not significant, nor are they relevant to the issue of whether the plaintiff has standing to bring its action.   The second motion to dismiss is a re-worded, but substantively duplicative, version of the first motion to dismiss that was denied on December 10, 2012.   The defendant does not identify any authority relevant to the issue of standing that has developed since his first motion to dismiss was denied.   In various subsequent pleadings filed by the defendant, and in the second motion to dismiss, the defendant either implies or states that Judge Trombley's decision, denying his first motion to dismiss, was “wrongly decided.”   The defendant has failed to present any facts or law that would justify a departure from the law of the case doctrine.   Consequently, the law of the case doctrine controls with regard to this issue.   Branch v. Grogan–Barone, Superior Court, judicial district of New Britain, Docket No. CV 08 4018808 (April 29, 2011, Sweinton, J.);   Center Capital Corp. v. Hall, Superior Court, judicial district of New Britain, Docket No. CV 92 0452084 (February 24, 1994, Lavine, J.) (11 Conn. L. Rptr. 215).

The defendant, who frequently seeks indulgence due to his status as a self-represented litigant, will not be penalized on this occasion for filing what is, in the end, a duplicative motion.   However, he is on notice that further duplicative filings may expose him to sanctions, including but not limited to an order to pay plaintiff's attorneys fees to the extent that the plaintiff incurs such fees in the course of responding to a duplicative motion.

The court notes that the defendant, anticipating the possibility that his motion to dismiss would be denied, included an answer to the complaint as a part of his motion to dismiss.   Def.'s Second Mot. to Dismiss 21–26.   There is no provision in the Practice Book for an answer that is a part of a motion to dismiss.   Consequently, the defendant is ordered to re-file his answer as a separate pleading and in a manner that conforms to the requirements of Practice Book §§ 10–46 through 10–52.²  The defendant will effect that filing within one week of the date of this ruling.

IV

CONCLUSION

For all of the foregoing reasons, the defendant's second motion to dismiss is denied.

So ordered.

John A. Danaher III

FOOTNOTES

FN1. The significance of inserting a colon between his given name and his surname is best known to the defendant.   The court also notes that the defendant signed his motion and the certification with the name “Michael Charles,” which is how he initially introduced himself at oral argument on May 6, 2013.   His pleading is unclear relative to the question of whether the author of the pleading is, in fact, the named defendant.  “Michael C. La Mesa, an alleged defendant in the above-entitled action, by and through Michael Charles:  La Mesa (“the undersigned” or “alleged defendant”), a living man, an authorized Signatory for Michael C. La Mesa, with personal knowledge of matters set forth herein and one of the people of Connecticut, in correct public capacity ․” Def.'s Mot. to Dismiss 10..  FN1. The significance of inserting a colon between his given name and his surname is best known to the defendant.   The court also notes that the defendant signed his motion and the certification with the name “Michael Charles,” which is how he initially introduced himself at oral argument on May 6, 2013.   His pleading is unclear relative to the question of whether the author of the pleading is, in fact, the named defendant.  “Michael C. La Mesa, an alleged defendant in the above-entitled action, by and through Michael Charles:  La Mesa (“the undersigned” or “alleged defendant”), a living man, an authorized Signatory for Michael C. La Mesa, with personal knowledge of matters set forth herein and one of the people of Connecticut, in correct public capacity ․” Def.'s Mot. to Dismiss 10.

FN2. The court notes that the defendant claims that he has “reserved all rights to amend this Answer.”   The defendant does not have a unilateral “right” to amend an answer.   Any proposed amendments are and will be governed by Practice Book § 10–60, et seq..  FN2. The court notes that the defendant claims that he has “reserved all rights to amend this Answer.”   The defendant does not have a unilateral “right” to amend an answer.   Any proposed amendments are and will be governed by Practice Book § 10–60, et seq.

Danaher, John A., J.