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Washington Mutual Bank v. Coughlin

Court of Appeals of Connecticut

September 13, 2016

WASHINGTON MUTUAL BANK
v.
LINDA S. COUGHLIN ET AL.

          Argued May 19, 2016

         Appeal from Superior Court, judicial district of New London, Hon. Robert C. Leuba, judge trial referee.

          Paulann H. Sheets, for the appellants (named defendant et al.).

          Brian D. Rich, with whom was Peter R. Meggers, for the appellee (substitute plaintiff).

          DiPentima, C. J., and Prescott and Pellegrino, Js.

          OPINION

          PRESCOTT, J.

         The defendants Linda S. Coughlin and Daniel F. Coughlin[1] appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, JPMorgan Chase Bank, National Association.[2]The defendants' sole claim on appeal[3] is that the court improperly denied their motion to dismiss, filed on the eve of trial. In that motion, they argued that the court lacked subject matter jurisdiction due to the original plaintiff's purported failure to comply with the notice requirement set forth in General Statutes § 8-265ee (a), [4]which is part of the Emergency Mortgage Assistance Program (EMAP). See General Statutes §§ 8-265cc through 8-265kk. The plaintiff responds that the original plaintiff did provide notice of EMAP to the defendants out of an abundance of caution, but that the defendants were not entitled to notice under § 8-265ee because the subject property was not their principal residence at the time the action was commenced. See General Statutes § 8-265ff.[5] Accordingly, it contends that the court properly denied the defendants' motion to dismiss. Having thoroughly reviewed the record, we agree with the plaintiff that the defendants were not entitled to notice pursuant to § 8-265ee, and, thus, we do not decide whether, in a case in which § 8-265ee is applicable, failure to comply with its notice requirement implicates the court's subject matter jurisdiction. We affirm the judgment of the trial court.

         The record reveals the following relevant facts and procedural history. In June, 2004, the defendants purchased real property located at 848-850 Noank Road in Mystic (subject property). At the time they purchased the subject property, the defendants' intent was to use it as a summer residence. The defendants' main residence was a home that Linda Coughlin owned in Norwalk.

         In order to finance the purchase of the subject property, the defendants executed a promissory note in the amount of $1, 700, 000 in favor of Washington Mutual Bank, FA. As security for that note, the defendants also executed a purchase money mortgage on the subject property in favor of Washington Mutual Bank, FA. In addition to the note and mortgage, the defendants also signed other documents at the real estate closing, including a second home rider. The second home rider provided that the defendants would use the subject property only as a second home.

         On July 1, 2008, Washington Mutual Bank, formerly known as Washington Mutual Bank, FA, commenced this action seeking foreclosure of the mortgage because the defendants had defaulted on the note by failing to make required monthly payments. The note and mortgage later were acquired by the plaintiff, which, in January, 2009, was substituted as plaintiff in place of Washington Mutual Bank.

         For approximately six years, the defendants represented themselves in the foreclosure action.[6] During that time, the defendants filed multiple bankruptcy actions that halted progress of the foreclosure proceedings for several years. Eventually, however, the plaintiff obtained relief from the latest bankruptcy stay, and a trial date was set. The defendants then retained their current counsel.[7] On the day before trial, after 5 o'clock in the afternoon, the defendants electronically submitted a motion to dismiss the action.[8]

         In their motion to dismiss, the defendants alleged that the original plaintiff had not complied with § 8-265ee (a) because it failed to provide them with notice of EMAP, and that, because of the lack of the statutorily required notice, the court did not have subject matter jurisdiction to hear the foreclosure action. Attached to the motion were affidavits by the defendants averring that they never were notified about EMAP. The defendants also suggested that the plaintiff had not remedied any lack of notice by filing ‘‘a defective and untrue affidavit of compliance five years and three months after commencement of the suit.'' The defendants were referring to an affidavit that the plaintiff had filed with the court a few weeks earlier. In that affidavit, a paralegal for Bendett & McHugh, P.C., the firm that represented the original plaintiff, [9] averred in relevant part as follows: ‘‘Based on Bendett & McHugh, PC's business records and its regular business practices, the plaintiff has complied with the provisions of [§] 8-265ee (a) (also known as Public Act[s] [2008, No.] 08-176, § 7) by Bendett & McHugh, PC giving on June 30, 2008 to all mortgagors a notice containing the information required by said statute.''

         The parties appeared for trial on the morning of October 21, 2014. Because the arguments raised in the defendants' motion to dismiss purported to implicate the court's subject matter jurisdiction, the defendants asked the court to postpone the trial to a later date. The plaintiff argued against any further continuances and requested a summary hearing on the motion to dismiss, suggesting that there was no merit to the motion and that it was simply intended to cause further delay. In support of its argument that the motion lacked merit, the plaintiff brought to the court's attention that the defendants had conceded in their motion to dismiss that EMAP notice was required only with respect to mortgages that encumbered a mortgagor's principal residence, and that it was prepared to offer the defendants' own deposition testimony establishing that the subject property was not their principal residence when the foreclosure action was commenced.[10] After taking a short recess, the court decided not to grant the defendants' request for a continuance, but to hear arguments on the motion to dismiss.

         Counsel for the defendants argued that her clients never received the statutorily mandated notice concerning EMAP, and that they did not learn of the program until after she began representing them and made inquiry about it. As proof of this assertion, she directed the court's attention to the defendants' affidavits appended to the motion to dismiss. Counsel also challenged the earlier affidavit filed by the plaintiff in which a paralegal asserted that proper notice was given to all mortgagors, arguing that the affidavit was not timely and questioning its veracity. She asserted that the legislature had intended that proper notice be a jurisdictional prerequisite to filing a foreclosure action, explaining in detail the history of the EMAP program and its importance in helping to keep parties in their homes during the financial crisis. Although counsel suggested that the defendants were eligible for EMAP because the subject property was the defendants' principal residence, she did not offer any evidence in support of that assertion.

         The plaintiff opposed the motion to dismiss, arguing that the defendants had been provided with the required notice as indicated in the affidavit filed with the court and that the defendants had failed to demonstrate beyond mere conjecture that the notice requirement implicated the court's subject matter jurisdiction. The plaintiff also again emphasized that the notice provision was not applicable here because the subject property was not the defendants' primary residence ...


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