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Novato Jackson, LLC v. Jackson

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

April 18, 2016

Novato Jackson, LLC
v.
Jackson

         MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S OBJECTION THERETO

          Alfred J. Jennings, Jr., Judge Trial Referee.

         This foreclosure action was commenced by the plaintiff Novato Jackson, LLC with a return date of September 17, 2013. Process was served in the hands of the defendant Daren Jackson (" defendant") on August 27, 2013. Defendant appeared to represent himself but then was defaulted for failure to plead on October 22, 2013. Plaintiff's Motion for Judgment of Strict Foreclosure is pending, but defendant has now filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction which must be addressed first. The motion claims " lack of subject matter jurisdiction as plaintiff was not in possession of the alleged note when it filed this action." The motion was argued at the short calendar of April 4, 2016. The court permitted the filing of post-argument briefs which have now been filed by both parties. No affidavits have been presented by either party. The plaintiff relies on the allegations of the complaint and certain documents of assignment which were disclosed to the defendant in discovery.

         At oral argument the defendant asked for dismissal because no copy of the note was attached to the complaint as an exhibit and further, because the original Note has not been produced for review by the court, and because, allegedly, no copy of the Note had been provided to defendant. These arguments are factually incorrect and legally insufficient. There is no requirement that a plaintiff produce the original Note in court until the hearing on a motion for judgment of foreclosure. The complaint refers to the Note and designates the Note as Exhibit A to the complaint, but, instead of serving the exhibits as attachments to the complaint, the plaintiff exercised its right under Practice Book Section 10-29 to defer providing copies of the exhibits to defendants until they had appeared. Defendant Jackson entered his appearance on September 18, 2013, and copies of the complaint exhibits were certified as mailed to him on October 1, 2013 at the address given in his appearance form. In addition to the copies of the exhibits mailed on October 1, 2013, additional copies were disclosed to defendant's counsel on March 17, 2016 in response to a discovery request.

         Furthermore, in response to defendant's argument that he had never seen the original or a copy of the Note, the original Note was produced at short calendar by the plaintiff for examination by the court and by defense counsel. The court finds that the original Note was signed by the defendant Daren Jackson in favor of the original lender Greenpoint Mortgage Funding, Inc. in the amount of $125, 000 on July 18, 2007. The original Note is endorsed in blank by Greenpoint Mortgage Funding, Inc.

         The court agrees that defendant Jackson is not barred from contesting subject matter jurisdiction because he has been defaulted for failure to plead and remains in default status at this time. (A Motion to Open Default is pending.) See Deutsche Bank National Trust Company, Trustee v. Thompson, 163 Conn.App. 827 (2016), citing Whitaker v. Taylor, 99 Conn.App. 719, 725, 916 A.2d 834 (2007) (" Although it is established that entry of a default conclusively establishes the liability of a defendant [there is] no authority that entry of default conclusively established the subject matter jurisdiction of the court").

         Defendant insists on an evidentiary hearing on the issue of whether or not the plaintiff Novato Jackson, LLC had possession of the original Note when the action was commenced. The court holds that no evidentiary hearing is required since the record sufficiently establishes that Novato Jackson, LLC did have possession of the original Note when the action was commenced, and defendant has submitted no affidavit, document, or other evidence to the contrary.

         " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, construing them in a manner most favorable to the pleader . . . If the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question the plaintiff need not supply counteraffidavits or other evidence to support the complaint, . . . but may rest on the jurisdictional allegations therein." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 173, 73 A.3d 742 (2013), citing Electrical Contractors, Inc. v. Department of Education, 303 Conn. 402, 422, n.7, 35 A.3d 188 (2012).

         In this case the complaint alleged that the defendant signed the original note on July 18, 2007 payable to Greenpoint Mortgage Funding, Inc. The court has reviewed the original note and has found that it was endorsed in blank by Greenwood. It is further alleged in paragraph 6 that Greenwood assigned the Mortgage to Novato 12, LLC on December 19, 2012 with a copy of the assignment documents attached as Exhibit D. It is then alleged that Novato 12, LLC assigned the Mortgage to the original plaintiff Novato Jackson, LLC on July 29, 2013, approximately one month before this foreclosure action was commenced by service on Mr. Jackson. There were no further assignments of the Mortgage until it was assigned to the substituted plaintiff CSF4 V, LLC on March 6, 2015, some nineteen months after commencement of this action. The pre-litigation assignment documents are incorporated into the complaint as Exhibits D and E and more recently have been disclosed in discovery to the defendant. That documentation shows conclusively that Greenwood Mortgage Funding was in possession of the original Note from the time of its execution in 2007 until it assigned the Mortgage to Novato 12, LLC on December 19, 2012. This is so because the Assignment to Novato 12 assigned the Mortgage " together with all indebtedness, promissory notes, indebtedness, and other instruments secured thereby dated as of July 18, 2007." Furthermore the assignment documentation disclosed to the defendant on March 7, 2016 in response to his request for production, and attached to Plaintiff's Memorandum in Support of its Objection to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction dated April 13, 2016 includes as part of the December 19, 2012 assignment documentation a Note Allonge endorsing the promissory Note of July 18, 2007, " the original of said Note being attached hereto and made a part hereof" from Greenpoint Mortgage Funding, Inc. to Novato 12, LLC. This documentation conclusively demonstrates that Greenpoint continued to possess the original Note, endorsed in blank, from the time of its execution in 2007 until it was transferred to Novato 12, LLC and also endorsed to Novato 12, LLC on December 19, 2012. The effect of that documentation was threefold. Novato 12, LLC became the holder of the Note by the transfer of possession of the original Note that was attached to the Allonge. Novato 12 also became the holder of the Note by a specific endorsement to it by Allonge from Greenpoint, and Novato 12 became the owner of the Note and the indebtedness evidenced by the Note by virtue of the broad language of the Assignment itself.

         The assignment documentation dated July 29, 2013, just before litigation commenced, from Novato 12, LLC to the original plaintiff Jackson Novato, LLC exactly mirrors the language of the December 19, 2012 assignment documentation except that Novato 12, LLC became the assignor/endorser transferor, and Jackson Novato became the assignee, specific endorsee, and holder and possessor of the original Note, all of which remained the same until the assignment to the substituted plaintiff CSF4V, LLC on March 6, 2016. The plaintiff by these allegations of the complaint and disclosed transfer documentation has conclusively demonstrated the standing of Jackson Novato, LLC to commence this civil action of foreclosure, and defendant has submitted no affidavit or other evidence to rebut the plaintiff's jurisdictional allegations and submissions.

         The same result is reached when one considers the more general allegation of the complaint in para. 9 that " Plaintiff is the owner and holder of all right, title, and interest in the note and the mortgage with full authority to enforce the same." A similar allegation was made in the plaintiff's complaint in GMAC Mortgage, LLC v. Ford, supra (" Plaintiff is the holder of the note") without specifically saying that it was the holder of the note at the time the case had been commenced. The court nonetheless affirmed subject matter jurisdiction, saying " Because the complaint is part of the mesne process served to commence an action, it is implicit in that factual allegation that the plaintiff also held the note at the time the action was commenced." 144 Conn.App. at 174. Since defendant has submitted nothing to rebut that allegation, it is an additional reason why the plaintiff has standing.

         Order

         The Motion to Dismiss for Lack of Subject Matter Jurisdiction is therefore denied and ...


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