Argued
December 11, 2018
Procedural
History
Action
to foreclose a mortgage on certain real property owned by the
named defendant et al., and for other relief, brought to the
Superior Court in the judicial district of Middlesex, where
the named defendant was defaulted for failure to plead;
thereafter, the defendant HOP Energy, LLC, was defaulted for
failure to disclose a defense; subsequently, the court,
Morgan, J., dismissed the action for lack of subject
matter jurisdiction; thereafter, the court granted the
plaintiff's motion to open the judgment; subsequently,
the defendant Shlomit Ruttkamp filed a counterclaim;
thereafter, the court, Domnarski, J., granted the
plaintiff's motion for summary judgment as to the
defendant Shlomit Ruttkamp's counterclaim; subsequently,
the court, Aurigemma, J., granted the
plaintiff's motion for summary judgment as to liability;
thereafter, the court, Aurigemma, J., granted the
plaintiff's motion for a judgment of strict foreclosure
and rendered judgment thereon, from which the defendant
Shlomit Ruttkamp appealed to this court. Affirmed.
John
R. Williams, for the appellant (defendant
Shlomit Ruttkamp). Benjamin T. Staskiewicz, for the appellee
(plaintiff).
Lavine, Alvord and Moll, Js.
OPINION
MOLL,
J.
The
defendant, Shlomit Ruttkamp, [1] appeals from the judgment of
strict foreclosure rendered by the trial court in favor of
the plaintiff and counterclaim defendant, The Bank of New
York Mellon formerly known as The Bank of New York, as
Trustee on Behalf of CIT Mortgage Loan Trust 2007-1. On
appeal, the defendant claims that the trial court (1) lacked
subject matter jurisdiction because of the plaintiff's
alleged lack of standing and (2) improperly rendered summary
judgment in favor of the plaintiff on the defendant's
counterclaim, which alleged that the plaintiff wrongfully
failed to release the notice of lis pendens it had recorded
on the land records of the subject property. We affirm the
judgment of strict foreclosure.
The
following facts and procedural history are relevant to this
appeal. On December 14, 2006, William J. Ruttkamp executed a
promissory note, pursuant to which he promised to pay to the
order of Accredited Home Lenders, Inc. (Accredited), the
principal sum of $333, 000. The note was secured by a
mortgage, executed by William J. Ruttkamp and the defendant,
on real property located at 510 McVeagh Road in Westbrook, in
favor of Mortgage Electronic Registration, Inc., as nominee
for Accredited. The note and mortgage were ultimately
assigned to the plaintiff by virtue of an assignment dated
December 30, 2009, and recorded on January 12, 2010.
Beginning on August 1, 2009, and every month thereafter,
William J. Ruttkamp failed to make monthly payments due
pursuant to the note. As a result, the plaintiff commenced
this foreclosure action in February, 2010. The initial
complaint alleged that the plaintiff was a Delaware
corporation. On April 26, 2010, the defendant filed a motion
to dismiss for lack of subject matter jurisdiction, claiming
that the plaintiff brought the action in its trade name only.
On November 8, 2010, the court denied the motion to dismiss,
reasoning that there was no evidence before it that the
plaintiff's name was a trade name.
On May
6, 2011, the plaintiff filed a motion for summary judgment
directed to the defendant as to liability only. In its
memorandum of law in support thereof, the plaintiff stated:
‘‘The Bank of New York Mellon is the corporate
brand of The Bank of New York Mellon Corporation and may also
be used as a generic term to reference the corporation as a
whole or its various subsidiaries.'' On October 26,
2011, the defendant filed an answer and special defenses, as
well as an objection and memorandum of law in opposition to
the plaintiff's motion for summary judgment. In both
filings, the defendant claimed that the plaintiff lacked
standing because, although the plaintiff alleged in its
complaint that ‘‘it is a corporation duly
authorized and validly existing under the laws of the State
of Delaware, '' the Delaware Division of Corporations
had no record of registration for any entity known as
‘‘The Bank of New York Mellon, '' while
having a record of registration for an entity known as
‘‘The Bank of New York Mellon
Corporation.'' On February 27, 2012, the court denied
the plaintiff's motion for summary judgment and concluded
that, because the plaintiff brought this action under its
corporate brand name and a brand name has no legal capacity
to sue, the plaintiff had no standing. Thus, the court
concluded that it lacked subject matter jurisdiction and
dismissed the action.
On June
26, 2012, the plaintiff filed a motion to open the judgment
of dismissal, stating that it had mistakenly represented in
its memorandum of law in support of its motion for summary
judgment that ‘‘The Bank of New York Mellon is .
. . the corporate brand of The Bank of New York Mellon
Corporation . . . .'' The plaintiff claimed, rather,
that it was a corporation organized by a special act of the
New York state legislature and had been renamed
‘‘The Bank of New York Mellon.'' On July
30, 2012, over the defendant's objection, the court
granted the plaintiff's motion to open the judgment of
dismissal.
On
September 26, 2012, the plaintiff filed a request for leave
to file an amended complaint, in which it averred that it is
a ‘‘corporation organized by special act of the
New York state legislature . . . now known as The Bank of New
York Mellon . . . .'' On October 23, 2012, the court
overruled the defendant's objection to the
plaintiff's request for leave to amend. Meanwhile, on
October 5, 2012, the defendant filed a motion to dismiss for
lack of subject matter jurisdiction, contending that the
plaintiff brought the action in its trade name and that there
is no New York corporation named ‘‘The Bank of
New York Mellon.'' On October 31, 2012, the court
denied the defendant's motion to dismiss.
On
August 22, 2014, the plaintiff filed a request for leave to
file a second amended complaint, in which it averred that the
plaintiff is ‘‘a corporation duly authorized and
validly existing under the laws of the State of New
York.'' On September 29, 2014, the court overruled
the defendant's objection thereto. On October 14, 2014,
the defendant filed another motion to dismiss, again claiming
that there is no New York corporation named ‘‘The
Bank of New York Mellon'' and that, therefore, the
action should be dismissed on the basis of the
plaintiff's lack of standing. On November 19, 2014, the
plaintiff filed an objection to the defendant's motion to
dismiss and attached a certification from the New York
Banking Department certifying that the plaintiff is a
corporation organized and operating under New York law. On
December 1, 2014, the court denied the defendant's motion
to dismiss.
On
January 7, 2015, the plaintiff filed a motion for summary
judgment directed to the defendant as to liability
only.[2] On January 21, 2015, the defendant filed
an answer and special defenses, in which the defendant, inter
alia, persisted in her claim that the plaintiff does not
exist under its stated name and, therefore, lacks standing.
In addition, on January 26, 2015, the defendant filed a one
count counterclaim, alleging a violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes §
42-110a et seq., on the basis of the plaintiff's alleged
refusal to file a release of the notice of lis
pendens[3] on the subject property following the
court's dismissal of the action on February 27,
2012.[4] On March 27, 2015, the plaintiff filed a
motion for summary judgment as to the defendant's
counterclaim, arguing that the lis pendens remained valid
because the February 27, 2012 judgment of dismissal was
vacated and, therefore, the plaintiff had no duty to release
the lis pendens. On April 21, 2015, the court granted the
plaintiff's motion for summary judgment as to the
defendant's counterclaim. The court reasoned that
‘‘[t]here is no genuine issue of fact raised in
the counterclaim. . . . The lis pendens ...