FSB v. Donna Connolly et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO SUBSTITUTE AS SOLE PARTY PLAINTIFF

The issue before the court is whether to grant the motion to substitute party plaintiff in this summary process proceeding.   This court finds that the notice to quit is defective and deprives the court of subject matter jurisdiction to adjudicate the summary process action as well as the motion to substitute party plaintiff.   Therefore, the summary process action is dismissed.

I

FACTS

On March 21, 2013, title to 53 Southbury Road, Roxbury, CT (“the property”) vested in OneWest Bank, FSB (“OneWest”) by virtue of a strict foreclosure.   On April 11, 2013,¹ OneWest conveyed, by quit claim deed, the property to OWB REO, LLC (“OWB”).   Thereafter, on June 23, 2013, OneWest served a notice to quit possession of the property on the defendants, Donna Connolly, Art Connolly, Jane Doe I, John Doe I, Jane Doe II and John Doe II. The notice to quit identifies OneWest as the owner of the property and directs the defendants to quit possession on or before June 28, 2013.   On July 9, 2013, OneWest filed the present summary process action.

On August 7, 2013,² OWB conveyed the property, by special limited warranty deed, to 53 Southbury Road, LLC (“the LLC”).  On August 22, 2013, the LLC filed the present motion to substitute itself as the sole party plaintiff.   A hearing on the motion was held on August 28, 2013.   Neither OneWest nor OWB appeared at the hearing.

At the hearing, the defendants objected to the motion, arguing that the notice to quit is defective and this court lacks subject matter jurisdiction because, at the time the notice to quit was served, OWB, not OneWest, was the owner of the property.   Therefore, the defendants contend, the notice to quit is defective on its face, as it identifies OneWest as the owner, and the complaint is defective as it was filed by OneWest, not OWB. According to the defendants, these defects cannot be cured by substituting the LLC, the current owner, into the action.

In contrast, the LLC argued that the notice to quit is not defective because OneWest is the parent company of OWB. Although the LLC did acknowledge that OneWest and OWB are separate and distinct legal entities, the LLC presented a witness, Mr. Almeida, who testified that it is a common practice in the foreclosure industry, specifically with banks, to transfer foreclosed properties to a holding company, a “so-called management company for the parent company,” and “for bookkeeping purposes that's where the asset stays until it is liquidated.”   Hr'g Tr. 13.   Mr. Almeida testified that he is an independent broker, currently working under the banner of the RE/MAX Right Choice, and he is contracted by, among others, OneWest to represent it in the handling and management of its foreclosed properties.   Mr. Almeida testified that he was assigned the property in this case and was familiar with the relationship between OneWest and OWB, stating that he was told by one of the senior vice presidents that OneWest owns OWB. He also testified that he was the listing agent for the property, representing OneWest, and handled the sale of the property to the LLC.

II

DISCUSSION

“A notice to quit is a condition precedent to a summary process action and, if defective, deprives the court of subject matter jurisdiction.”  (Internal quotation marks omitted.)  Firstlight Hydro Generating Co. v. First Black Ink, LLC, 143 Conn.App. 635, 639, 70 A.3d 174 (2013).  “Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit ․ As a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a–23] is a jurisdictional necessity.”  (Internal quotation marks omitted.)  U.S. Bank National Assn. v. Karl, 128 Conn.App. 805, 808, 18 A.3d 685, cert. denied, 302 Conn. 909, 23 A.3d 1249 (2011).

General Statutes § 47a–23(a) provides in relevant part that “[w]hen the owner or lessor ․ desires to obtain possession or occupancy of any land or building ․ such owner or lessor ․ shall give notice to each lessee or occupant to quit possession ․” General Statutes § 47a–1(e) defines “owner” as “one or more persons,³ jointly or severally, in whom is vested (1) all or part of the legal title to property, or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and includes a mortgagee in possession.”

Before addressing the motion to substitute the LLC as the party plaintiff, this court must first determine whether a valid notice to quit was served on the defendants, or, in other words, whether OneWest was the “owner” of the property on the date it served the notice to quit.  “A party seeking summary process must allege and prove ownership, or that it acts as the legal representative of an owner, of the subject property and assert a demand for possession in the form of a notice to quit.”  Scott v. Heinonen, 118 Conn.App. 577, 586, 985 A.2d 358 (2009), cert. denied, 295 Conn. 909, 989 A.2d 603 (2010).

Generally, “[t]he transfer of title does not defeat or affect [a] notice to quit served by the prior owner before transfer of title.”   Moore v. Milazzo, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH–8401–5898–WH (February 6, 1984, Harrigan, J.), citing Urban v. Prims, 35 Conn.Sup. 233, 406 A.2d 11 (1979).   In Urban v. Prims, supra, the landlord's predecessor in title served the tenant with a notice to quit and the landlord, thereafter, brought a summary process action to evict the tenant.   The tenant moved to dismiss the action, arguing, in effect, that “the owner of the premises at the time of the issuance of the notice to quit must remain the owner at the time of the issuance of the complaint.”  Id., 235.   The court rejected the tenant's argument, finding that requiring the original owner to remain the owner during the pleadings, the trial and throughout the appeal stage would result in “bizarre and humorous” consequences.  Id. The court held that the landlord was not required to commence the summary process proceedings anew by re-serving a notice to quit.  Id., 234–36.

The present case, however, is distinguishable from Prims because there is no evidence that OneWest was the owner, as defined by General Statutes § 47a–1(e), on the date it served the notice to quit.   Moreover, “[w]hen we have construed ‘owner’ in the context of real estate, we have defined the term with reference to title.   When we say, a [person] has the title to ․ [property], we mean, he [or she] is the owner of it;  and vice versa ․ Ownership is an essential incident of title and according to the commonly approved usage of the language ․ an owner is one that owns;  one that has the legal or rightful title whether the possessor or not.”  (Citations omitted;  internal quotation marks omitted.)  Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 372, 743 A.2d 653 (2000).   Moreover, “when the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Socha v. Bordeau, 277 Conn. 579, 587, 893 A.2d 422 (2006).   Neither OneWest nor OWB filed briefs on this issue or appeared at the hearing on the motion to substitute.   The court's file contains certified copies of the quit claim deed from OneWest to OWB, and the special limited warranty deed from OWB to the LLC. These deeds indicate that, on the date the notice to quit was served on the defendants, the record owner of the property was OWB, not OneWest.

In SCG Capital Corp. Profit Sharing Trust v. S & K's Bagels, LLC, Superior Court, judicial district of Tolland, Docket No. CV–09–4012118–S (February 23, 2010, Santos, J.), the court held that a trust lacked standing to sustain a summary process action against a tenant where the trust had recently changed its name but failed to update the land records for the property in question and, therefore, was not the record owner of the property.   There, SCG Capital Corporation Profit Sharing Trust (“SCG”) brought a summary process action after serving the tenant with a notice to quit listing itself as the owner of the property.  Id. However, a title search revealed that the owner of the property was Stamford Computer Group, Inc. Profit Sharing Trust (“Stamford Computer Group”).  Id. SCG acknowledged that it changed its name from Stamford Computer Group to SCG, but argued that there had been no change in the legal or beneficial ownership of the trust during its existence.  Id. Rather, due to an oversight, an affidavit reflecting the name change had not been filed on the land records.  Id. SCG argued, therefore, that the record owner of the property at the commencement of the action was the same entity as the named plaintiff.  Id. The court found this argument unpersuasive, noting that statutes relating to summary process must be narrowly construed and strictly followed.  Id. As SCG was not the record owner of the property, the court found that it lacked subject matter jurisdiction because SCG had no standing to bring the summary process action.  Id.

In the present case, as previously noted, the certified copies of the deeds indicate that, on the date the notice to quit was served on the defendants, the record owner of the property was OWB, not OneWest.   There is no evidence before this court which sets forth, with any certainty, the legal relationship between OneWest and OWB. During the hearing, counsel for the LLC represented that he was told by OneWest that it owns OWB. However, “as a general rule, statements by counsel not under oath, are not evidence.”   Yomtov v. Yomtov, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. FA–10–4019319–S (July 8, 2013, Richards, J.);   see Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985) (counsel's representations “are not ‘evidence’ and certainly not ‘proof’ ”);  Irizarry v. Irizarry, 90 Conn.App. 340, 345, 876 A.2d 593 (2005) (“representations of counsel are not evidence”).   Furthermore, the testimony of Mr. Almeida, to the effect that he was told by an unnamed senior vice president that OneWest owns OWB, is inadmissible hearsay.   See Beit v. Rustici, Superior Court, judicial district of New London, Docket No. CV–11–6010485–S (October 2, 2012, Cosgrove, J.) (statement constitutes hearsay where substance of assertion is not within the personal knowledge of the witness).   Mr. Almeida did testify that, although he did not have direct knowledge of the corporate structures of either OneWest or OWB, he was familiar with the practice of transferring foreclosed properties to holding companies and that he saw the quitclaim deed transferring the property from OneWest to OWB for one dollar.   This evidence, however, is insufficient to satisfy the burden of proving that OneWest was the owner of the property on the date that it served the notice to quit.

Accordingly, the notice to quit is defective and deprives the court of subject matter jurisdiction to adjudicate the summary process action and the motion to substitute party plaintiff.   Therefore, the summary process action is dismissed.

So ordered.

BY THE COURT,

Marano, J.

FOOTNOTES

FN1. The conveyance was recorded in the land records on April 30, 2013..  FN1. The conveyance was recorded in the land records on April 30, 2013.

FN2. The special limited warranty deed was signed and notarized on August 7, 2013, and “received for record” by the town clerk on August 22, 2013.   The LLC asserts in its motion that it acquired title and ownership of the property on August 21, 2013..  FN2. The special limited warranty deed was signed and notarized on August 7, 2013, and “received for record” by the town clerk on August 22, 2013.   The LLC asserts in its motion that it acquired title and ownership of the property on August 21, 2013.

FN3. “Person” means “an individual, corporation, limited liability company, the state or any political subdivision thereof, or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any other legal or commercial entity.”  General Statutes § 47a–1(f)..  FN3. “Person” means “an individual, corporation, limited liability company, the state or any political subdivision thereof, or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any other legal or commercial entity.”  General Statutes § 47a–1(f).

Marano, Richard M., J.