LB RPR REO LLC v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 189

On May 31, 2011, the plaintiff, LB–RPR REO Holdings, LLC, filed this foreclosure action against the defendants, Nimage Enterprises, LLC (Nimage) and Patricia Spanos.¹  On December 11, 2012, Nimage moved to dismiss the plaintiff's foreclosure action on the ground that the court lacks subject matter jurisdiction to entertain the action.   The gravamen of Nimage's argument was that the plaintiff was neither the holder nor the owner of the note at issue and therefore that the plaintiff lacked standing to bring the action.   In its objection to Nimage's motion, the plaintiff acknowledged that it was not the original holder of the note, but argued that it had become the owner of the note by virtue of a series of allonges.   In support of this contention, the plaintiff submitted to the court as evidence this series of allonges, among other documents.   On January 31, 2013, Nimage filed a reply wherein it essentially argued that the allonges did not demonstrate that the plaintiff is the current holder of the note in question.   With these arguments and the evidence before it, this court, J. Fischer, J., denied Nimage's motion to dismiss.   On February 22, 2013, Nimage moved to reargue the issue of subject matter jurisdiction and the court, J. Fischer, J., denied this motion on March 11, 2013.

On September 4, 2013, Nimage and Spanos moved to dismiss the plaintiff's action on the ground that the court lacks subject matter jurisdiction over the plaintiff's action.   This motion is now before the court.   Similar to the motion to dismiss filed in December of 2012, the essence of this motion to dismiss is that the plaintiff lacks standing because it is not the holder or owner of the note that it seeks to enforce.   In order to distinguish this motion from the motion to dismiss filed in December of 2012, the defendants argue that, at this juncture, they rely on additional evidence to demonstrate that the plaintiff lacks standing, namely, the plaintiff's responses to the defendants' request for admissions.   Based upon these admissions and the deficiencies with respect to the allonges, the defendants posit that the plaintiff lacks standing.   On October 3, 2013, the plaintiff filed an objection wherein it argues, first, that the court already has concluded that the plaintiff had established standing based upon essentially the same evidence presently before the court and, second, that even if the court were to revisit the issue of standing in light of new evidence, the defendants' arguments lack merit.   Inasmuch as the plaintiff claims the defendants' motion is frivolous and duplicative, the plaintiff seeks reimbursement for the costs to defend against the second motion to dismiss and also requests that sanctions be imposed upon the defendants.   The parties were heard at short calendar on October 21, 2013.

The court has thoroughly examined the record and briefs that were before the court when it decided the December 2012 motion to dismiss and has compared this to the record and briefs filed in connection with the motion to dismiss presently before the court.   The court concludes that the defendants have not submitted any additional evidence that would render their legal arguments, which essentially appear the same as those raised in the first motion to dismiss, meritorious.   To the extent that any of the arguments differ slightly from those raised in the motion to dismiss filed in December of 2012, the court finds these arguments unavailing.

The court, however, declines to award the plaintiff costs and declines to impose sanctions upon the defendants.   Indeed, “apart from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules ․ [T]rial courts have the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated.”  (Internal quotation marks omitted.)  DuBois v. William W. Backus Hospital, 92 Conn.App. 743, 748, 887 A.2d 407 (2005), cert. denied, 278 Conn, 907, 899 A.2d 35 (2006).   Here, there has been no demonstration that the defendants acted in bad faith and, furthermore, it must be noted that the defendants were represented by different counsel when filing the second motion to dismiss, which tends to undermine the notion that the defendants merely filed the present motion to dismiss in order to harass the plaintiff or to delay the proceedings.

It is with these considerations that the defendants' motion to dismiss is denied and the plaintiff's request for costs and sanctions is denied.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. The plaintiff also named OneBeacon Insurance Company and Rocco S. Cingari as defendants, however, the court will hereinafter refer to Nimage and Spanos as the defendants inasmuch as they filed the motion to dismiss presently before the court..  FN1. The plaintiff also named OneBeacon Insurance Company and Rocco S. Cingari as defendants, however, the court will hereinafter refer to Nimage and Spanos as the defendants inasmuch as they filed the motion to dismiss presently before the court.

Fischer, Jack W., J.