October 11, 2016
by James Pocklington
Hunt Leibert – USFN Member (Connecticut)
For the last eighteen months, trial courts in Connecticut have been divided over the notice requirements of Conn. Gen. Stat. §§ 8-265dd(b) and 8-265ee(a) and whether it creates a statutory condition precedent to initiating suit. Beginning with the unprecedented People’s United Bank v. Wright, 2015 Conn. Super. LEXIS 694 (Conn. Super. Ct. Mar. 30, 2015) decision, courts have been divided on the issue, with the majority adopting the reasoning of Wright in the southwest of the state. See “A Failure to Establish Compliance Leads to More than a Dismissal,” published in the USFN e-Update (Sept. 2015 Ed.).
In its recently released opinion in Washington Mutual Bank v. Coughlin, AC 37645 (Sept. 13, 2016), the Appellate Court had the opportunity to settle this interpretative dispute and resolve whether compliance with the Emergency Mortgage Assistance Program (EMAP) statute was or was not jurisdictional. Ultimately (and apparently knowingly), the court elected to avoid the question, stating: “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.”
In Coughlin, the plaintiff-bank was faced with a jurisdictional motion to dismiss for failure to comply with the notice provisions filed on the eve of trial. The plaintiff-bank elected to attempt to proceed to trial and requested a summary hearing on the jurisdictional allegations. At the hearing it asserted both that, in an abundance of caution, it had complied with the statute and (even were the court to determine otherwise) that it did not need to — mooting the non-compliance issue.
By its wording, the EMAP statute only applies to a “principal residence.” Through deposition testimony and the defendants’ allegations in their motion to dismiss, the plaintiff-bank was able to demonstrate that the subject property was not the defendants’ principal residence — removing the applicability of the statute and a need to comply with it. Rather than base its decision on the factual eligibility argument, the trial court denied the motion with a finding that “[C]ompliance with [EMAP] is not a jurisdictional matter.”
On appeal, relying on Rafalko v. University of New Haven, 129 Conn. App 44, 51 n.3 (2011) (“[w]e may affirm a proper result of the trial court for a different reason”), the Appellate Court avoided the legal issue and found that based on the facts established at trial that the subject property was not a primary residence, and thus not eligible for EMAP, the denial of the motion to dismiss was proper, declaring: “[I]t is irrelevant for purposes of this appeal … whether failure to give such notice, if applicable, implicates the subject matter jurisdiction of the court.”
As part of its holding, the Appellate Court acknowledged that the term “principal residence” was undefined at law and corrected that issue, defining it as “the person’s chief or primary home, as distinguished from a secondary residence or a vacation home. We also take note of the fact that the statute refers to the principal residence, suggesting that a person can have only one principal residence at any given time for purposes of this statute.”
The issue of whether EMAP compliance is subject matter jurisdictional in general therefore remains unresolved, though it is inapplicable to properties that are not the principal residence at the time suit is initiated.
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