Branch Banking and Trust Company v. Dennis Novak (2013)

MEMORANDUM OF DECISION ON MOTION TO DISMISS DATED OCTOBER 10, 2013 (# 127.00)

Defendant's Motion to Dismiss dated October 10, 2013 (# 127.00) was assigned for oral argument on the November 4, 2013 Law Arguable Short calendar, presided over by the undersigned.   The parties marked the Motion, Take Papers.   No party appeared and offered oral argument.

The Motion to Dismiss is denied for the following reasons:

1. The Motion to Dismiss was not served on all counsel/parties of record.   No copy of the Motion to Dismiss nor its supporting Memorandum were served on Dennis Novak, the appearing self-represented defendant who filed his appearance on July 16, 2012.  P.B. § 10–13.

2. Proof of service on the Motion to Dismiss failed to comply with the rules.   The Certification by Shepro and Hawkins, LLC on the Motion to Dismiss (# 127.00), fails to indicate that Dennis Novak, the self-represented defendant, was served.  P.B. § 10–14(a).

3. The Motion to Dismiss fails to allege lack of subject matter jurisdiction.

4. The only ground alleged in the Motion to Dismiss is that “the plaintiff fails to allege that it is the owner and holder of the modified note it is attempting to collect.   This implicates jurisdiction.”   These allegations do not claim lack of subject matter jurisdiction.  98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 783 (2012).

5. Shepro and Hawkins, LLC filed an appearance for the defendant on October 8, 2012 in addition to the self-represented appearance of Dennis Novack already on file.   The Motion to Dismiss was not timely filed by Shepro and Hawkins, LLC. P.B. 10–30;  Canton v. Cadle Properties of Connecticut, Inc. 145 Conn.App. 438, 449–50 (2013).

6. The defendant's claim of lack of jurisdiction has been waived because this Motion to Dismiss was not filed within “thirty days of the filing of an appearance.”  P.B. §§ 10–30, 10–32.

7. “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․” Rutka v. Meriden, 145 Conn.App. 202, 213 (2013).   The Motion to Dismiss does not raise an issue that disputes the authority of the court to adjudicate the collection of a promissory note.

8. The Motion to Dismiss is in contravention of public policy:  “every presumption favoring jurisdiction should be indulged.”  Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417 (2002).

9. The Motion to Dismiss is in contravention of public policy:  “the judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 16 (2001).

10. The issue raised in the Motion to Dismiss is not properly raised by this type of pleading.  Howard–Arnold, Inc. v. T.N.T. Realty, Inc., 145 Conn.App. 696, 712 (2013).

11. This Motion to Dismiss fails to give the plaintiff the right to plead over.  Larobina v. McDonald, 274 Conn. 394, 401 (2005).

12. The May 31, 2012 complaint alleges in paragraph 1 that the plaintiff lent the defendant $178,110 pursuant to a note dated on or about April 24, 2007 and that the note was further modified by the plaintiff and defendant on about May 18, 2009 for $177,664.72.   The plaintiff has not alleged that the note has been otherwise sold, conveyed, transferred, or assigned.   The allegations of paragraph 1 are sufficient to give the plaintiff standing.   Bank of America, N.A. v. DiLuca, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 09–5011073 S (April 30, 2013, Tierney, J.T.R.) [56 Conn. L. Rptr. 44].

13. Shepro and Hawkings, LLC may not be permitted to file pleadings or represent the self-represented defendant, Dennis Novack, since its October 8, 2012 appearance may be in violation of the hybrid representation rule.   State v. Gibbs, 254 Conn. 528, 610 (2000);  State v. Gethers, 192, Conn. 369, 393–4 (1985).

For the above reasons, the defendant's October 10, 2013 Motion to Dismiss (# 127.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.