Bank of New York v. Consiglio

Decision Date06 January 2017
Docket NumberFSTCV085006978S
CourtConnecticut Superior Court
PartiesThe Bank of New York, as Trustee for the Benefit of CWALT, Inc., Alternative Loan Trust 2007-19 Mortgage Pass-Through Certificates, Series 2007-19 v. Andrew Consiglio et al



Hon Kevin Tierney, Judge Trial Referee.

This motion is the sixth pleading filed by the defendant, Andrew Consiglio, that claims that this court lacks subject matter jurisdiction over this one-count residential foreclosure lawsuit.

The operative complaint is the original March 10, 2008 one-count complaint that alleges that the defendant, Andrew Consiglio owed Magnus Financial Corporation $500, 000 as evidenced by a May 7, 2007 promissory note, which was secured by a first mortgage to Mortgage Electronic Registration Systems, Inc. solely nominee Lender for Magnus Financial Corporation on real property located at 81 High Clear Drive, Stamford Connecticut and recorded in the Stamford land records on May 8, 2007. Ex. 9. The matter first went to judgment before the undersigned on June 2, 2008 (#103.00 and #108.00). The defendant, Andrew Consiglio, thereafter filed two separate bankruptcy applications, none of which have a stay in effect as to this foreclosure action (#110.00, #121.00). On August 6, 2013 the plaintiff filed a Motion to Open Judgment, To Make New Findings, To Reenter Judgment After Termination of Bankruptcy Stay and To Award Additional Attorney Fees, which sought to assign new law days on the prior judgment of strict foreclosure (#121.00). This Motion to Open Judgment (#121.00) has been assigned thirteen times to short calendar hearings but no court order has entered on motion #121.00 because of the defendant's claim that the court lacks subject matter jurisdiction.

The defendant has filed a myriad of defenses and multiple claims of lack of subject matter jurisdiction. On January 30, 2014 the defendants filed a pleading requesting an extension of time to object to the plaintiffs' Motion to Substitute (#128.00). In that pleading the defendant noted that he became aware of new facts that the original plaintiff had no standing and thus the court lacked subject matter jurisdiction. The underlying January 16, 2014 Motion to Substitute (#127.00) was granted by Judge Mintz on May 27 2014 in the face of the defendant's raising the issue of standing (#127.89).

On April 6, 2014 he attempted to file an Answer and Special Defenses Answer even though he had been defaulted, the default had not been set aside and the judgments of June 2, 2008 (#108.00) and May 13, 2009 (#110.00) had not been vacated. This April 6, 2014 pleading contained one Specific Denial, ten Special Defenses and three Counterclaims (#138.00). Several of these Special Defenses allege that the plaintiff had no standing.

On June 16, 2014 the defendant filed the Defendant's Motion to Open and Vacate (#155.00). This seven-page motion stated various reasons why the plaintiff had no standing to file and prosecute this foreclosure lawsuit therefore the court lacked subject matter jurisdiction. This Motion to Open and Vacate was heard by Judge Mintz who on July 21, 2014 denied the motion (#155.87).

On August 4, 2014 the defendant filed The Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (#177.00). This motion stated, by this court's count, ten reasons why the court lacked subject matter jurisdiction in its twenty-one paragraphs. This Motion to Dismiss was heard and denied by Judge Mintz on August 4, 2014. Judge Mintz's order of denial stated: " The motion to dismiss is denied. The court finds the plaintiff has standing" (#177.86).

The defendant next filed on August 4, 2014 The Defendant's Motions for Extension to Reargue His Motion to Open and Vacate and For the Hearing on the Plaintiff's Motion to Open Judgment and Extend the Law Day (#178.00). This motion claimed that the plaintiff had no standing to file and prosecute this foreclosure lawsuit and thus the court lacked subject matter jurisdiction. Judge Mintz denied this motion (#178.86).

The most recent and the sixth defendant's motion addressing the defendant's claims that the plaintiff has no standing to commence and to maintain this foreclosure lawsuit and therefore the court lacks subject matter jurisdiction, is the March 13, 2016 the Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (#188.00) that is now before this court. It is a thirty-three paragraph Motion to Dismiss. Part of that same pleading is a thirty-four paragraph The Defendant's Memorandum of Law For the Defendant's Motion to Dismiss also dated March 13, 2016 coded in as the same computer number (#188.00). This court has read both the Motion to Dismiss and the defendant's Memorandum of Law in support of this Motion to Dismiss (#188.00). Although not set forth in numerical order, there are twenty-eight separate reasons claimed by the defendant why this court lacks subject matter jurisdiction in pleading #188.00. This court conducted a four-day evidentiary hearing on August 9, 10, 11 and 12, 2016 on this Motion to Dismiss. The parties furnished oral argument and waived the filing of post-hearing briefs.

" We are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009); Giannoni v. Commissioner of Transportation, 322 Conn. 344, 350, 141 A.3d 784 (2016).

" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . and a judgment rendered without subject matter jurisdiction is void . . ." Deutsche Bank National Trust Company v. Bialobrzeski, 123 Conn.App. 791, 798, 3 A.3d 183 (2010). Although the defendant filed his motion to dismiss alleging lack of subject matter jurisdiction, the burden of demonstrating that a party has standing to bring an action and that the court has subject matter jurisdiction is on the plaintiff. Id., 798; Seymour v. Region One Board of Education et al., 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).

In this case the defendant is alleging that the plaintiff lacks standing therefore the court is deprived of subject matter jurisdiction. Although motions to dismiss alleging personal jurisdiction deficiencies must be raised within a certain time limit from the filing of an appearance by that party, no such time limit exists for a motion to dismiss alleging lack of subject matter jurisdiction. " Because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013).

" Standing is the legal right to set the judicial process in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of the action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticeable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity . . . Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." The Investors Mortgage Company, Trustee v. Rodia, 31 Conn.App. 476, 479, 625 A.2d 833 (1993). " Standing does not hinge on whether the plaintiff will ultimately be entitled to relief on the merits of an action, but on whether he is entitled to seek the relief." Cottman Transmission Systems, Inc. v. Hocap Corporation, 71 Conn.App. 632, 638, 803 A.2d 402 (2002).

It is well established that the holder of a note has standing to bring an action for strict foreclosure. New England Savings Bank v. Bedford Realty Corporation, 238 Conn 745, 759, 680 A.2d 301 (1996) " A holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17. The possession by the bearer of a note endorsed 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 defendant to set up and prove the facts which limit or change the plaintiff's rights." Equity One, Inc. v. Shivers, supra, 310 Conn. 135. In addition to establishing standing, there must be evidence of when the note came into the plaintiff's possession. GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 174, 73 A.3d 742 (2013); Deutsche Bank National Trust Company v. Thompson, 163 Conn.App. 827, 832, 136 A.3d 1277 (2016). As already stated, it is the plaintiff's burden to prove the above elements to satisfy that this court has subject matter jurisdiction over this residential foreclosure action. Id., 836. The plaintiff's burden of proof in a motion to dismiss alleging lack of subject matter jurisdiction is a " colorable claim." The Investors...

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