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Bank of New York Mellon v. Ruttkamp

Court of Appeals of Connecticut

March 12, 2019

THE BANK OF NEW YORK MELLON, TRUSTEE
v.
WILLIAM J. RUTTKAMP ET AL.

          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 ...


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