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Ditech Financial, LLC v. Joseph

Court of Appeals of Connecticut

September 17, 2019


          Argued May 13, 2019

         Procedural History

         Action to foreclose a mortgage on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Fairfield; thereafter, MTGLQ Investors, L.P., was substituted as the plaintiff; subsequently, the named defendant was defaulted for failure to plead; thereafter, the court, Hon. Alfred J. Jennings, Jr., judge trial referee, granted the motion filed by the substitute plaintiff for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant appealed to this court. Reversed; further proceedings.

          Maud Joseph, self-represented, the appellant (named defendant).

          Benjamin T. Staskiewicz, for the appellee (substitute plaintiff).

          Lavine, Keller and Harper, Js.


          KELLER, J.

         The self-represented defendant, Maud Joseph, appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, MTGLQ Investors, L.P. (MTGLQ).[1] On appeal, the defendant claims that the court (1) lacked subject matter jurisdiction because the named plaintiff, Ditech Financial, LLC (Ditech), lacked standing to commence this action, (2) improperly granted Ditech's motion to substitute, (3) lacked authority to render a judgment of strict foreclosure, and (4) improperly denied her motion for reargument. Because the resolution of the defendant's first claim as to standing is dependent on disputed factual findings that cannot be resolved due to an inadequate appellate record, and because this claim implicates the subject matter jurisdiction of the trial court, we are unable to review the merits of this appeal. We therefore reverse the judgment of the trial court and remand the case for further proceedings.

         We briefly set forth the procedural history and facts relevant to this appeal. On October 27, 2016, Ditech commenced this action alleging that the defendant and Manita Cenat (Cenat) executed and delivered to Countrywide Bank, FSB, a note for a loan in the principal amount of $140, 000 (note). To secure the note, Ditech alleged that the defendant and Cenat executed a mortgage dated December 12, 2007, for property located at 116 North Bishop Avenue in Bridgeport. Ditech alleged that it was the holder of the note and that the note was in default. Accordingly, it elected to accelerate the balance due, declared the balance due infull, and sought to foreclose the mortgage securing the note.

         On May 11, 2017, the defendant and Cenat filed jointly a motion to dismiss arguing that the court lacked personal jurisdiction over them because service of process was not properly effectuated. By order dated June 7, 2017, the court denied the defendant's motion. The court concluded that the defendant had not sustained her burden of overcoming the presumption of the truth of the facts stated in the return of service attested to by the marshal.

         As discussed in footnote 1 of this opinion, Ditech filed a motion to substitute MTGLQ as the plaintiff on June 22, 2017, representing that it had assigned the subject mortgage deed and note, including the cause of action, to MTGLQ. The defendant filed an objection to Ditech's motion to substitute arguing, inter alia, that the assignment was not made while the action was pending and that Ditech lacked standing in the first instance. The court granted Ditech's motion on July 13, 2017. In addressing the defendant's objection, it concluded that the assignment took place thirty-nine days after this action commenced and, thus, it overruled the defendant's objection. The court did not address the defendant's standing argument and stated: ‘‘Defendant's challenge to Ditech Financial's standing to commence this action is not properly raised in an objection to motion to substitute. See Practice Book § 10-30.''

         On September 22, 2017, the plaintiff filed a motion for default for failure to plead arguing that the defendant and Cenat had failed to plead within the time required by Practice Book § 10-8. That same day, the plaintiff filed a motion for judgment of strict foreclosure.

         On September 29, 2017, pursuant to Practice Book § 10-35, both the defendant and Cenat filed requests to revise the plaintiff's complaint. The plaintiff filed an objection to the requests of the defendant and Cenat to revise on October 5, 2017. On October 23, 2017, the court sustained all of the plaintiff's objections.

         On November 22, 2017, despite the defendant having filed her request to revise, which is a responsive plead-ing, [2] on September 29, 2017, the clerk granted the plaintiff's September 22, 2017 motion ...

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