September 1, 2015
by Adam L. Avallone
Bendett & McHugh, P.C. – USFN Member (Connecticut, Maine, Vermont)
A Connecticut trial court has held that a plaintiff’s failure to prove compliance with the notice provisions of Connecticut’s Emergency Mortgage Assistance Program (EMAP), C.G.S. §§ 8-265dd(b) and 8-265ee(a), deprive the court of subject matter jurisdiction. This is fatal to an action when challenged. People’s United Bank v. Wright, 2015 Conn. Super. LEXIS 694 (Conn. Super. Ct. Mar. 30, 2015).
Moreover, in a subsequent decision, the trial court awarded $13,893.75 in attorneys’ fees to counsel for the defendants for successfully defending the suit. People’s United Bank v. Wright, 2015 Conn. Super. LEXIS 1829 (Conn. Super. Ct. July 15, 2015).
The court considered C.G.S. § 8-265dd(b) and the language of C.G.S. § 8-265ee(a), which states: “no ... mortgagee may commence a foreclosure of a mortgage prior to mailing such notice.” [Emphasis added]. The court concluded that the legislature has not only forestalled a foreclosure judgment unless there has been compliance, but in a subsequent section, it has prohibited even the commencement of the action. Since it is well established in Connecticut that an action is commenced by service of process, any foreclosure writ of summons and complaint served on a mortgagor before or without compliance with the notice requirement would be a nullity.
In its ruling, the trial court considered a copy of the notice as well as deposition testimony of an employee of the servicer. The court distinguished the facts in Wright from a Connecticut Supreme Court case that found proof of regular mailing based on testimony that employees were directed to mail a letter, and further testimony of the usual custom in mailing letters for their employer. In Wright, the trial court determined that although, “a computer generated order to mail by certified mail was issued, the code number on the letter which is supposed to correspond with the order is missing on the notice.”
Further, the court concluded that not having the ability to question the employee of the servicer rendered his deposition testimony “contradictory, confusing and unreliable.” The court took issue both with the witness’ lack of personal knowledge of the general mailroom process and, more significantly, with the inability to say whether the notice was ever delivered to the mailroom. Next, the court found that a substantial basis for the witness’ assertion that certified mail was ordered was his observation of digital screens. However, the screens that the witness viewed were for a borrower other than the defendants in the present case. Further, the court noted that the letter log history, upon which the witness relied, contained only the name of the primary borrower. It did not include the name of the co-borrower, despite the letter being addressed to both borrowers.
The Wright decision makes clear that in the face of a denial of receipt, affirmative evidence of the actual sending of the notice may be required to demonstrate compliance under Connecticut’s EMAP statute.
The importance of maintaining and providing to counsel the business records and documents evidencing policies and procedures of the mailing of notices is shown in Wright. As the mailing of these notices is a condition precedent to the institution of a foreclosure action, foreclosing plaintiffs who are unable to provide proper evidence can find themselves with a substantial bill from defense counsel, as well as a dismissed action that requires restarting.
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