Pennymac Corp. v. Tarzia ( 2022 )

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PENNYMAC CORP. v. JOSEPH TARZIA ET AL.
(AC 44378)
Prescott, Alexander and Suarez, Js.
Syllabus
The plaintiff, P Co., sought to foreclose a mortgage on certain real property
owned by the defendant T. P Co., as holder of the note and mortgage
at the time of the commencement of the action, sent a letter to T by
certified mail return receipt requested, notifying him that the loan was
in default and, pursuant to statute (§ 8-265ee (a)), provided him with
the specific notice required to be given prior to its commencement of
a foreclosure of a qualifying mortgage under the Emergency Mortgage
Assistance Program (EMAP). Thereafter, P Co. assigned the note and
mortgage to W Co., and W Co. was substituted as the plaintiff. Subse-
quently, the trial court rendered judgment of strict foreclosure, and set
law days. T filed a motion to open on the last extended law day, claiming
that the judgment needed to be opened so that he may pursue a motion
to dismiss the action for P Co.’s failure to comply with the notice
provision of § 8-265ee (a). Specifically, T claimed that P Co. never sent
the EMAP notice and, in support of that contention, provided the affidavit
of a consultant who previously worked in the United States Postal
Service (USPS). The consultant claimed in a report that, although P Co.
created a certified mail label, the EMAP notice was never actually placed
in the mail system, as revealed by a tracking query he produced from
the USPS website. Subsequently, the trial court denied T’s motion. On
appeal, T claimed, inter alia, that the trial court incorrectly determined
that it had subject matter jurisdiction over the foreclosure action on
the ground that P Co. provided T with the required EMAP notice. Held
that the trial court correctly determined that it had subject matter juris-
diction over the present foreclosure action and that the court’s factual
findings that P Co. complied with the EMAP notice requirement under
§ 8-265ee (a) were not clearly erroneous, as W Co.’s evidence amply
supported the trial court’s factual finding that P Co. provided the required
EMAP notice to T: W Co. provided the court with an affidavit by its
counsel certifying that P Co. had mailed T the EMAP notice and, in
support thereof, attached a photocopy of an envelope addressed by its
counsel to T, which included the certified mail barcode and correspond-
ing certified mail numbers, as well as the physical receipt provided by
the USPS to P Co.’s counsel, and the lack of evidence of a return receipt
postcard corresponding to the EMAP notice was inconsequential, as
lack of receipt did not affect proof of EMAP compliance; moreover,
T’s contention that the trial court failed to give proper weight to his
evidentiary submissions was unavailing because, despite an isolated
statement by the trial court regarding the late and protracted state of
the proceedings, the court explicitly stated that it had carefully reviewed
and considered the motion, the related filings and exhibits attached
thereto, and that it had weighed both parties’ evidence before ultimately
finding that T’s submissions failed to refute W Co.’s evidence; further-
more, the trial court was free to discredit or find unpersuasive T’s
evidence, and this court declined to reweigh the evidence in T’s favor
on appeal.
Argued December 9, 2021—officially released September 13, 2022
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk,
where Wilmington Trust National Association as
Trustee for MRFA Trust 2015-1 was substituted as the
plaintiff; thereafter, the court, Hon. William A. Mot-
tolese, judge trial referee, granted the plaintiff’s motion
for judgment of strict foreclosure and rendered judg-
ment thereon; subsequently, the court, Kavanewsky,
J., denied the named defendant’s motion to open the
judgment, and the named defendant appealed to this
court. Affirmed.
Alexander H. Schwartz, for the appellant (named
defendant).
Jeffrey M. Knickerbocker, for the appellee (substitute
plaintiff).
Opinion
ALEXANDER, J. The defendant Joseph Tarzia
appeals from the trial court’s denial of his motion to
open the judgment of strict foreclosure rendered in
favor of the substitute plaintiff, Wilmington Trust
National Association as Trustee for MFRA Trust 2015-
1.1 On appeal, the defendant claims that the court incor-
rectly determined that it had subject matter jurisdiction
over this foreclosure action on the ground that the
original plaintiff, Pennymac Corp. (Pennymac), com-
plied with General Statutes § 8-265ee (a), the notice
provision of the Emergency Mortgage Assistance Pro-
gram (EMAP), General Statutes § 8-265cc et seq. We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to our disposition of this appeal. On May 31, 2017,
Pennymac commenced this foreclosure action against
the defendant. According to the complaint, on Decem-
ber 15, 2006, the defendant executed a promissory note
in the amount of $1 million payable to the order of
Washington Mutual Bank, FA, and secured by a mort-
gage on the property located at 70 Cranberry Road in
Norwalk and Westport (property). The mortgage and
the note eventually were assigned to Pennymac before
it commenced this action.
On July 31, 2017, Pennymac filed an affidavit certi-
fying that it had provided the defendant with the notice
required by the EMAP.2 In the affidavit, a paralegal
employed by the plaintiff’s counsel3 averred that, ‘‘based
on [the] business records [of the plaintiff’s counsel] and
its regular business practices, [Pennymac] has complied
with the [EMAP] by [the plaintiff’s counsel] giving on
April 19, 2016 to all mortgagors a notice containing the
information required by said statute.’’ Attached to the
affidavit is a photocopy of an envelope addressed from
the plaintiff’s counsel to the defendant, depicting the
certified mail barcode and corresponding certified mail
number. Also attached to the affidavit is a letter, dated
April 19, 2016, from the plaintiff’s counsel to the defen-
dant providing him, among other things, notice pursuant
to the EMAP.
In April, 2018, Pennymac assigned the note and the
mortgage to the plaintiff. On May 29, 2018, Pennymac
filed a motion to substitute the plaintiff as the party
plaintiff, which the court granted on June 18, 2018. On
June 11, 2019, the plaintiff filed a motion for judgment
of strict foreclosure. On January 13, 2020, the court
rendered a judgment of strict foreclosure and set law
days to commence on April 14, 2020. The court then
issued a series of five orders opening the judgment of
strict foreclosure and extending the commencement of
law days until June 2, 2020, July 7, 2020, August 4, 2020,
September 9, 2020, and finally to October 6, 2020. The
defendant did not appeal from the January 13, 2020
judgment of strict foreclosure or any of the subsequent
orders extending the law days.
On the October 6, 2020 law day, the defendant filed
a motion to open the judgment of strict foreclosure. In
his motion, the defendant asserted that the judgment
of strict foreclosure must be opened ‘‘in order to permit
him to pursue a motion to dismiss this action for [the]
plaintiff’s failure to comply with the [EMAP].’’ The
defendant contemporaneously filed with his motion to
open: (1) an October 6, 2020 affidavit by the defendant’s
counsel, Alexander H. Schwartz; and (2) an unsigned,
unsworn report (report) authored by Peter Wade, a
senior consultant for U.S. Postal Mail Fraud Investiga-
tions at Humatec, which is an expert witness con-
sulting firm.
In his affidavit, the defendant’s counsel avers that,
on July 20, 2020, he retained Wade to provide an opinion
as to whether the certified letter ‘‘prepared by’’ the
plaintiff’s counsel containing the EMAP notice ‘‘was
delivered’’ to the defendant. The defendant’s counsel
describes Wade’s qualifications as an individual with
‘‘decades of experience with the U.S. Postal Service
[(USPS)] and Postal Inspection Service,’’ with a special-
ization ‘‘in postal inspection polices and investigative
methods and techniques.’’ The defendant’s counsel
states that Wade previously served as the Assistant
Regional Chief Postal Inspector for the Northeast
Region, and Postmaster for the U.S. Virgin Islands and
Puerto Rico. The defendant’s counsel concluded his
affidavit by stating that he received Wade’s report on
October 5, 2020, and that ‘‘a true copy of [the report]
is attached hereto.’’
In the report, Wade opines that the certified mail
letter from the plaintiff’s counsel to the defendant con-
taining the EMAP notice ‘‘has never been placed in the
U.S. mail.’’ To support this opinion, Wade states that
‘‘the USPS keeps track of the progress of certified mail
from its initial induction at a mail processing center
through to the final disposition of that letter.’’ Wade
then states that on October 4, 2020, he performed a
tracking query on the USPS website for the certified
mail number depicted on the envelope that the plain-
tiff’s counsel attached to its July 31, 2017 affidavit of
EMAP compliance. Wade states that this query revealed
that the plaintiff’s counsel had ‘‘created’’ a certified mail
label, however, the certified mail letter ‘‘was not yet in
the system.’’ (Emphasis in original.) Wade attached to
his report a printout of the USPS website that reveals
the result of his tracking query. This printout provides
in relevant part: ‘‘[l]abel [c]reated, not yet in system’’
and that ‘‘[a] status update is not yet available on your
package. It will be available when the shipper provides
an update or the package is delivered to USPS.’’4
On October 8, 2020, the plaintiff filed an objection
to the defendant’s motion to open. Therein, the plaintiff
contended that the July 31, 2017 affidavit of EMAP
compliance established that the EMAP notice was pro-
vided to the defendant. The plaintiff argued that the
EMAP compliance affidavit was filed on the docket
three years ago and previously was uncontested by the
defendant. The plaintiff also explained that the USPS
provided the plaintiff’s counsel with a receipt when it
physically deposited the certified mail containing the
EMAP notice with the USPS. The plaintiff attached this
USPS receipt to its objection, which shows that, on
April 19, 2016, the plaintiff’s counsel deposited with the
Farmington branch of the USPS a letter addressed to
the defendant by certified mail return receipt requested.
Each page of the USPS receipt is marked with a dated
stamp from the Farmington branch of the USPS. The
plaintiff finally argued that Wade’s report is flawed
because he could not have obtained tracking informa-
tion for a certified mail letter sent more than four years
prior to the creation of his report because the USPS
online tracking system only retains records for two
years. The plaintiff attached a printout from the USPS
website evincing its data retention policy. On October
16, 2020, the plaintiff filed an amended objection to the
defendant’s motion to open, arguing that the motion
was moot because title vested with the plaintiff after
the October 6, 2020 law day passed.
On October 26, 2020, the defendant filed a reply mem-
orandum in further support of his motion to open, to
which he attached an October 20, 2020 affidavit by
Wade. The defendant’s reply reiterates the conclusions
of Wade’s affidavit in which he opines, without citation,
that ‘‘[i]t is true that the [USPS] retains records of certi-
fied mail delivery for two years. However, the two year
period of time commences from the end of the month
in which that certified item was delivered to the
addressee. Had this certified letter which was prepared
for mailing on April 19, 2016, been delivered on or before
September 20, 2018, there would be no record of that
article in the [USPS] tracking system today. The fact
that the data is available demonstrates that the item
was not delivered.’’ (Emphasis omitted.) The defendant
further argued that his motion to open was not moot
because he filed his motion to open on the law day,
which imposed an automatic appellate stay tolling the
law days until the expiration of the applicable appeal
period.5
On October 29, 2020, the court, without holding a
hearing, issued an order denying the defendant’s motion
to open. The court stated at the outset that it had ‘‘care-
fully reviewed and considered’’ the motion to open, the
related filings, and all the exhibits attached thereto. The
court determined that the motion to open was not moot
because it was filed timely. The court then found that
the plaintiff’s evidence established that Pennymac pro-
vided the defendant with the EMAP notice. The court
reasoned that ‘‘the plaintiff has shown in its own affida-
vit that it did send the required notice to the defendant,
properly addressed, in the manner prescribed by the
[EMAP]. It has provided a USPS receipt to that effect.
. . . Further, the defendant has not provided sufficient
cause to [establish] that the notice was [not] mailed.
The defendant’s claim in the affidavits he has provided,
that the notice never entered the USPS ‘mail stream,’
does not necessarily refute the evidence that the plain-
tiff did what the [EMAP] requires. And finally, the court
gives little weight to the defendant’s claims, especially
given the context of the late and protracted stage of
these proceedings.’’ (Citation omitted.) This appeal fol-
lowed.
On appeal, the defendant claims that the court incor-
rectly determined that it had subject matter jurisdiction
over this foreclosure action on the ground that Pen-
nymac provided the defendant with the required EMAP
notice.6 The defendant narrowly argues that the court
improperly credited the plaintiff’s evidence and discred-
ited Wade’s expert ‘‘opinion’’ not because ‘‘it was out-
weighed by other, more weighty evidence, but because
of when during the course of litigation [the] defendant
offered it.’’ (Emphasis added.) The plaintiff responds
that the court properly denied the defendant’s motion
to open on the basis of the plaintiff’s evidence, which
established that Pennymac had complied with the
EMAP notice requirement.7
We first set forth the standard of review and legal
principles relevant to our resolution of this appeal. The
sole dispositive issue in this appeal is whether the court
properly determined that it had subject matter jurisdic-
tion because Pennymac had complied with the EMAP
notice requirement, which is a mixed question of law
and fact.8 We exercise plenary review over the court’s
ultimate legal determination as to whether it had subject
matter jurisdiction because that is a question of law.
See Caverly v. State, 342 Conn. 226, 233, 269 A.3d 94(2022) (determination as to trial court’s subject matter
jurisdiction is question of law). ‘‘When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record. . . . It is well established that,
in determining whether a court has subject matter juris-
diction, every presumption favoring jurisdiction should
be indulged.’’ (Citation omitted; internal quotation
marks omitted.) Jenzack Partners, LLC v. Stoneridge
Associates, LLC, 334 Conn. 374, 382, 222 A.3d 950(2020). Conversely, the court’s factual finding that Pen-
nymac provided the EMAP notice to the defendant is
subject to the clearly erroneous standard of review. ‘‘A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Myrtle Mews Assn.,
Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010);
id. (using mixed standard of review to question of
whether service conferred personal jurisdiction over
defendant); see also Deutsche Bank National Trust Co.
v. McKeith, 156 Conn. App. 36, 40, 111 A.3d 545 (2015)
(same).
The EMAP notice requirement is contained in § 8-
265ee (a), which provides in relevant part: ‘‘On and
after July 1, 2008, a mortgagee who desires to foreclose
upon a mortgage which satisfies the standards con-
tained in subdivisions (1), (9), (10) and (11) of subsec-
tion (e) of section 8-265ff, shall give notice to . . . [the]
mortgagor by registered, or certified mail, postage pre-
paid at the address of the property which is secured
by the mortgage. No such mortgagee may commence
a foreclosure of a mortgage prior to mailing such notice.
Such notice shall advise the [mortgagor] of his delin-
quency or other default under the mortgage and shall
state that the [mortgagor] has sixty days from the date of
such notice in which to (1) have a face-to-face meeting,
telephone or other conference acceptable to the [Con-
necticut Housing Finance Authority] with the mort-
gagee or a face-to-face meeting with a consumer credit
counseling agency to attempt to resolve the delinquency
or default by restructuring the loan payment schedule
or otherwise, and (2) contact the authority, at an
address and phone number contained in the notice, to
obtain information and apply for emergency mortgage
assistance payments if the mortgagor and mortgagee
are unable to resolve the delinquency or default.’’9 Gen-
eral Statutes (Supp. 2022) § 8-265ee (a).
This court has held that a mortgagee’s failure to com-
ply with the EMAP notice requirement deprives a court
of subject matter jurisdiction. This court recently held,
as a matter of first impression, that ‘‘a mortgagee that
wishes to commence a foreclosure of an applicable
mortgage must provide the prescribed EMAP notice in
accordance with § 8-265ee (a) prior to the commence-
ment of a foreclosure action, and the failure to do so
deprives the trial court of subject matter jurisdiction.’’
MTGLQ Investors, L.P. v. Hammons, 196 Conn. App.
636, 646, 230 A.3d 882, cert. denied, 335 Conn. 950,
238 A.3d 21 (2020). Applying this rule, this court in
Hammons concluded that, although ‘‘a previous mort-
gagee . . . through its loan servicer, had mailed an
EMAP notice to the defendant prior to the commence-
ment of a separate foreclosure action that was subse-
quently dismissed,’’ there was ‘‘no dispute that the plain-
tiff—as the original plaintiff in the present action—did
not mail the defendant an EMAP notice as required by
§ 8-265ee (a).’’ Id., 645; see also KeyBank, N.A. v. Yazar,
206 Conn. App. 625, 634, 261 A.3d 9 (applying Hammons
to conclude that court lacked subject matter jurisdic-
tion because original plaintiff ‘‘did not mail the defen-
dant an EMAP notice in connection with the present
action’’), cert. granted, 340 Conn. 901, 263 A.3d 100(2021).10 Accordingly, for the court to have subject mat-
ter jurisdiction, Pennymac must have provided the
required EMAP notice to the defendant by mail prior
to the commencement of the present action.
Moreover, the EMAP ‘‘does not require a return
receipt’’ for the provision of the required notice to a
mortgagor, and ‘‘the lack of a return receipt in the
record does not affect [a mortgagee’s] compliance with
the [EMAP].’’ Aurora Loan Services, LLC v. Condron,
181 Conn. App. 248, 279, 186 A.3d 708 (2018). Conse-
quently, we are guided by the general principles regard-
ing the proof required to establish that a letter was
actually placed in the mail. Id., 269–71 (noting that dis-
tinction between first class mail and certified mail
return receipt is manner of delivery). Whether a letter
actually was placed in the mail ‘‘may be proved either
by direct or circumstantial evidence. It may be proved
by the testimony of the person who deposited it or by
proof of facts from which it may be reasonably inferred
that it was duly deposited. . . . Any other rule would
ignore the realities of today’s business practice.’’ (Inter-
nal quotation marks omitted.) Bank of New York Mellon
v. Mazzeo, 195 Conn. App. 357, 376, 225 A.3d 290 (2020).
In the present case, although both parties presented
conflicting evidence as to whether Pennymac provided
the required EMAP notice to the defendant,11 we con-
clude that the plaintiff’s evidence amply supports the
court’s factual finding that Pennymac provided the
required EMAP notice to the defendant. Particularly,
the plaintiff provided the court with the July 31, 2017
affidavit by the plaintiff’s counsel certifying that ‘‘based
on [the] business records [of the plaintiff’s counsel]
and its regular business practices,’’ it had mailed the
defendant the EMAP notice on April 19, 2016.12 In sup-
port, the plaintiff’s counsel attached a photocopy of an
envelope addressed by the plaintiff’s counsel to the
defendant, which includes the certified mail barcode
and corresponding certified mail numbers. In its objec-
tion to the defendant’s motion to open, the plaintiff
submitted the physical receipt that the Farmington
branch of the USPS provided the plaintiff’s counsel
when it physically deposited the EMAP notice with the
USPS. The USPS receipt shows that, on April 19, 2016,
the plaintiff’s counsel deposited with the Farmington
branch of the USPS the subject letter to the defendant
by certified mail return receipt requested, and the
receipt is date stamped by the Farmington branch of
the USPS. The fact that the plaintiff did not present
evidence of the return receipt corresponding to the
EMAP notice is inconsequential. See, e.g., Aurora Loan
Services, LLC v. Condron, supra, 181 Conn. App. 279(lack of return receipt ‘‘does not affect’’ proof of EMAP
compliance). Accordingly, the plaintiff’s evidence sup-
ports the court’s finding that Pennymac provided the
defendant with the required EMAP notice.
The defendant spends a majority of his appellate brief
challenging the final sentence of the court’s decision
that it gave ‘‘little weight’’ to the defendant’s submis-
sions ‘‘given the context of the late and protracted state
of these proceedings.’’ We reject the defendant’s con-
tention. Despite the court’s isolated statement as to the
protracted state of the proceedings, its analysis of the
issues before it reflects that the court did, in fact, base
its decision on a careful review of the evidence and the
applicable law. The court explicitly stated at the outset
of its decision that it had ‘‘carefully reviewed and con-
sidered’’ the motion to open, the related filings, and all
the exhibits attached thereto. The court later stated
that it had ‘‘carefully reviewed all of the filings that
bear on’’ Pennymac’s compliance with the EMAP notice
requirement. The court weighed both parties’ evidence
and ultimately found that the defendant’s submissions
failed to refute the plaintiff’s evidence, which estab-
lished that the EMAP notice requirement had been satis-
fied. The court was free to discredit or find unpersua-
sive the defendant’s evidence, and we decline the
defendant’s invitation to reweigh the evidence in his
favor on appeal.13 See, e.g., Deutsche Bank National
Trust Co. v. McKeith, supra, 156 Conn. App. 43 (trial
court properly credited marshal’s return and discred-
ited affidavit in resolving jurisdictional question); Sakon
v. Glastonbury, 111 Conn. App. 242, 254–55, 958 A.2d
801 (2008) (declining to reweigh evidence on appeal),
cert. denied, 290 Conn. 916, 965 A.2d 554 (2009). Thus,
there is no basis on which to conclude that the court
summarily denied the defendant’s motion to open solely
because of when it was filed.
In light of the foregoing, we conclude that the court
correctly determined that it had subject matter jurisdic-
tion over this action and that the court’s factual finding
that Pennymac complied with the EMAP notice require-
ment was not clearly erroneous because it was sup-
ported by the plaintiff’s evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original plaintiff, Pennymac Corp., commenced this action against
the following defendants: Joseph Tarzia; Webster Bank, N.A.; Capital One
Bank (USA), N.A.; and Carmine Aquino. We refer to Joseph Tarzia as the
defendant because he is the only defendant relevant to this appeal.
On May 29, 2018, Pennymac Corp. filed a motion to substitute Wilmington
Trust National Association as Trustee for MFRA Trust 2015-1 as the plaintiff
on the ground that it had acquired the right to collect the debt alleged in
the complaint. On June 18, 2018, the court granted the motion to substitute.
Consequently, we refer to Pennymac Corp. by name and to Wilmington
Trust National Association as Trustee for MFRA Trust 2015-1 as the plaintiff.
2
As subsequently outlined in this opinion, the notice provision of the
EMAP, § 8-265ee (a), requires in certain cases that a mortgagee, prior to its
commencement of a foreclosure action, ‘‘give notice to . . . [the] mortgagor
by registered, or certified mail, postage prepaid at the address of the property
which is secured by the mortgage.’’ This EMAP notice ‘‘shall advise the
[mortgagor] of his delinquency or other default under the mortgage and
shall state that the [mortgagor] has sixty days from the date of such notice
in which to (1) have a face-to-face meeting, telephone or other conference
acceptable to the [Connecticut Housing Finance Authority] with the mort-
gagee or a face-to-face meeting with a consumer credit counseling agency
to attempt to resolve the delinquency or default by restructuring the loan
payment schedule or otherwise, and (2) contact the authority, at an address
and phone number contained in the notice, to obtain information and apply
for emergency mortgage assistance payments if the [mortgagor] and mort-
gagee are unable to resolve the delinquency or default.’’ General Statutes
(Supp. 2022) § 8-265ee (a).
We note that, although the legislature has amended § 8-265ee (a) since
the events underlying this appeal; see Public Acts 2021, No. 21-44; those
amendments have no bearing on the merits of this appeal. All references
herein to § 8-265ee are to the version appearing in the 2022 supplement to
the General Statutes.
3
Both Pennymac and the plaintiff were represented by the same law firm,
Bendett & McHugh, P.C. For clarity, we refer to Bendett & McHugh, P.C.,
as the plaintiff’s counsel.
4
Wade also states in his report that, on October 3, 2020, he personally sent
an exemplary certified mail letter to the plaintiff’s counsel using Stamps.com
software, which a USPS tracking query reveals was in ‘‘preshipment.’’ Wade
further attaches to his report a random USPS tracking query for a certified
mail letter that was delivered. Wade contends that, because the result of
all three of these USPS tracking queries are different, the plaintiff’s counsel
never mailed the EMAP notice to the defendant.
5
The defendant does not renew this argument on appeal, however, we
note that, once the time to appeal from the initial foreclosure judgment has
expired, the mere filing of a motion to open does not impose an automatic
appellate stay to toll the law day. See, e.g., Deutsche Bank National Trust
Co. v. Pardo, 170 Conn. App. 642, 652–53, 155 A.3d 764 (motion to open
challenging court’s jurisdiction filed prior to passage of law day, but heard
and decided after law day, does not trigger automatic stay that tolls running
of law days), cert. denied, 325 Conn. 912, 159 A.3d 231 (2017).
6
The defendant states in his principal appellate brief that his ‘‘challenge
[is] not that he did not receive the EMAP notice. He claimed and proved
that [Pennymac] never sent the notice to him in the first place,’’ and that
he ‘‘does not claim that the [court] misconstrued the law . . . and thereby
committed a clear error of law.’’ In light of the unique arguments and facts
presented by this appeal, we confine our decision to the precise issue
presented. See footnotes 5, 7, 8, 9, and 11 of this opinion.
7
The plaintiff advances two additional arguments that require little discus-
sion. First, the plaintiff argues that this appeal is moot because title to the
property absolutely vested in the plaintiff as a result of the passage of the
October 6, 2020 law day and, thus, there is no practical relief that can be
granted to the defendant on appeal. An appeal in a foreclosure action ordi-
narily is moot after the passage of the law day because title is absolute in
the encumbrancer. See Wachovia Mortgage, FSB v. Toczek, 189 Conn. App.
812, 818–20, 209 A.3d 725, cert. denied, 333 Conn. 914, 216 A.3d 650 (2019).
One rare exception to this general rule is an appeal from a motion to open
that challenges whether ‘‘the court lacked jurisdiction over either the person
or the case at the time the judgment of strict foreclosure was entered.’’
(Internal quotation marks omitted.) Deutsche Bank National Trust Co. v.
McKeith, 156 Conn. App. 36, 41, 111 A.3d 545 (2015); see also U.S. Bank
National Assn. v. Rothermel, 339 Conn. 366, 377–80, 260 A.3d 1187 (2021)
(outlining ‘‘rare and exceptional cases’’ in which courts may ‘‘exercise a
limited form of continuing jurisdiction over motions to open judgments of
strict foreclosure after the passage of the law days’’); Argent Mortgage Co.,
LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008) (The trial court’s
lack of jurisdiction is a proper ground to open the foreclosure judgment
after the passage of law days because ‘‘[n]o principle is more universal than
that the judgment of a court without jurisdiction is a nullity. . . . Such a
judgment, whenever and wherever declared upon as a source of a right,
may always be challenged.’’ (Internal quotation marks omitted.)). Therefore,
this appeal is not moot due to the passage of the law day because, even
though the plaintiff has title to the property, the defendant’s motion to open
challenged the court’s subject matter jurisdiction.
Second, the plaintiff argues that the defendant’s appeal constitutes an
impermissible collateral attack on the judgment of strict foreclosure, from
which the defendant did not appeal. See Bank of New York Mellon v. Tope,
202 Conn. App. 540, 549–50, 246 A.3d 4 (appeal from court’s denial of motion
to open challenging court’s subject matter jurisdiction to render judgment
of strict foreclosure constituted impermissible collateral attack because
defendant failed to establish that ‘‘the trial court’s lack of subject matter
jurisdiction is entirely obvious’’), cert. granted, 336 Conn. 950, 251 A.3d 618(2021), and cert. granted, 339 Conn. 901, 260 A.3d 483 (2021). In light of
our conclusion that the court properly denied the defendant’s motion to
open, we need not reach the plaintiff’s alternative collateral attack argument.
See, e.g., Riley v. Travelers Home & Marine Ins. Co., 333 Conn. 60, 87 n.11,
214 A.3d 345 (2019) (declining to reach alternative argument).
8
Both parties on appeal assert that we should apply an abuse of discretion
review because this is an appeal from the denial of a motion to open.
Although both parties are correct that we ordinarily review a court’s ruling
on a motion to open a judgment for an abuse of discretion; see Conroy v.
Idlibi, 343 Conn. 201, 204, 272 A.3d 1121 (2022); the dispositive issue in this
appeal is not whether the trial court properly exercised its discretion in
denying the motion to open but, rather, whether the trial court properly
determined that it had subject matter jurisdiction under the circumstances
of this case. See Citibank, N.A. v. Lindland, 310 Conn. 147, 166, 75 A.3d 651(2013) (exercising plenary review in appeal from motion to open challenging
court’s subject matter jurisdiction). The issue of subject matter jurisdiction
is not a matter of discretion. Id.9
There is no dispute on appeal that Pennymac was required to comply
with the provisions of § 8-265ee prior to commencing this foreclosure action.
See, e.g., Washington Mutual Bank v. Coughlin, 168 Conn. App. 278, 290,
145 A.3d 408 (‘‘the obligation to give notice pursuant to § 8-265ee before
commencing a foreclosure action applies only if the plaintiff is seeking to
foreclose a mortgage that satisfies certain standards enumerated in [General
Statutes] § 8-265ff (e)’’), cert. denied, 323 Conn. 939, 151 A.3d 387 (2016).
10
Our Supreme Court granted the plaintiff’s petition for certification to
appeal from this court’s judgment in Yazar as to two issues: (1) ‘‘Did the
Appellate Court correctly conclude that a mortgagee’s failure to comply
with the . . . [EMAP] notice requirements set forth in . . . § 8-265ee (a)
deprives the trial court of subject matter jurisdiction over the mortgagee’s
foreclosure action?’’ And (2) ‘‘[d]id the Appellate Court correctly conclude
that an EMAP notice that had been sent by a mortgagee to a mortgagor
prior to a first foreclosure action, which was later dismissed, did not satisfy
the notice requirements of § 8-265ee (a) in connection with a second foreclo-
sure action subsequently commenced against the mortgagor based on the
same default under the same mortgage?’’ (Internal quotation marks omitted.)
KeyBank, N.A. v. Yazar, 340 Conn. 901, 901, 263 A.3d 100 (2021). Neverthe-
less, ‘‘there is no reason to conclude that a granting of certification by our
Supreme Court necessarily signifies disapproval of the decision from which
certification to appeal was granted. There is no authority to support the
proposition that a grant of certification by our Supreme Court immediately
invalidates or overrules this court’s decision; a grant of certification stays
further proceedings and subjects this court’s decision to further review. In
such circumstances, prior to a final determination of the cause by our
Supreme Court, a decision of this court is binding precedent on this court.’’
(Emphasis omitted; internal quotation marks omitted.) Ortiz v. Commis-
sioner of Correction, 211 Conn. App. 378, 386 n.4, 272 A.3d 692 (2022).
11
We note that ‘‘where a jurisdictional determination is dependent on the
resolution of a critical factual dispute, it cannot be decided on a motion to
dismiss in the absence of an evidentiary hearing to establish jurisdictional
facts. . . . An evidentiary hearing is necessary because a court cannot make
a critical factual [jurisdictional] finding based on memoranda and documents
submitted by the parties.’’ (Internal quotation marks omitted.) Giannoni v.
Commissioner of Transportation, 322 Conn. 344, 350, 141 A.3d 784 (2016).
Here, assuming without deciding that the parties’ conflicting submissions
created a critical factual dispute, the court’s failure to hold an evidentiary
hearing to resolve this dispute is beyond the scope of this appeal for two rea-
sons.
First, neither party requested that the court hold a hearing to resolve any
critical factual jurisdictional dispute, either prior to or after the court’s
decision denying the defendant’s motion to open. This court has held that
it is a party’s burden to request an evidentiary hearing to resolve a critical
jurisdictional factual dispute and, in the absence of such a request, a trial
court properly can resolve a critical jurisdictional factual dispute without
holding an evidentiary hearing. See, e.g., Priore v. Haig, 196 Conn. App.
675, 687, 230 A.3d 714 (trial court properly determined critical jurisdictional
factual dispute without hearing because, inter alia, plaintiff failed to request
evidentiary hearing until after court ruled on motion to dismiss), rev’d on
other grounds, 344 Conn. 636, A.3d (2022); Walshon v. Ballon Stoll
Bader & Nadler, P.C., 121 Conn. App. 366, 371, 996 A.2d 1195 (2010) (trial
court properly decided critical factual dispute on basis of parties’ pleadings
and affidavits because, inter alia, plaintiff did not request evidentiary hear-
ing). Thus, we decline to reverse the judgment of the trial court on a ground
that was not raised before it. See Diaz v. Commissioner of Correction,
335 Conn. 53, 58, 225 A.3d 953 (2020) (‘‘[O]nly in [the] most exceptional
circumstances can and will this court consider a claim, constitutional or
otherwise, that has not been raised and decided in the trial court. . . . The
reason for the rule is obvious: to permit a party to raise a claim on appeal
that has not been raised at trial—after it is too late for the trial court or the
opposing party to address the claim—would encourage trial by ambuscade,
which is unfair to both the trial court and the opposing party.’’ (Internal
quotation marks omitted.)).
Second, the defendant does not claim on appeal that the court failed to
hold a hearing to resolve a critical factual jurisdictional dispute. See, e.g.,
Johnson v. Preleski, 335 Conn. 138, 152 n.15, 229 A.3d 97 (2020) (‘‘ ‘our
system is an adversarial one in which the burden ordinarily is on the parties
to frame the issues, and the presumption is that issues not raised by the
parties are deemed waived’ ’’); Bank of New York Mellon v. Francois, 198
Conn. App. 885, 890–91, 234 A.3d 1089 (2020) (declining to address issues
on appeal that were not briefed). Consequently, we decline to sua sponte
raise and dispose of this appeal on this unpreserved and unraised ground.
See, e.g., State v. Stephenson, 337 Conn. 643, 650–54, 255 A.3d 865 (2020)
(Appellate Court abused its discretion by disposing of appeal on ‘‘distinct
question’’ that was not raised by parties on appeal).
12
The evidence that the plaintiff’s counsel mailed the EMAP notice as
part of its regular business practice constitutes circumstantial evidence,
which alone supports the court’s finding. Circumstantial evidence that a
customary or ordinary procedure was followed is sufficient to support a
finding that a letter was mailed. See, e.g., Kerin v. Udolf, 165 Conn. 264,
268, 334 A.2d 434 (1973) (mailing of installment check was established
because defendant and his employee testified that they followed their cus-
tomary procedure to stamp and then deposit check in mail); Central National
Bank v. Stoddard, 83 Conn. 332, 76 A. 472 (1910) (mailing of bank notices
was established because they were ‘‘in properly addressed and stamped
envelopes’’ deposited ‘‘in the usual place in the bank for letters to be mailed,
and that they were taken from that place by one whose duty it was to post
them,’’ and defendant ‘‘did not deny having received the notices’’); State v.
Morelli, 25 Conn. App. 605, 610–11, 595 A.2d 932 (1991) (mailing of breath
tests was established because police officer who administered tests testified
that it was department’s ‘‘ ‘course of habit’ ’’ to mail tests results to subject
of test).
13
After a thorough review of the record, it is clear that the defendant
waited until the final law day to challenge Pennymac’s compliance with the
EMAP notice requirement, which was more than three years after Pennymac
had filed its affidavit of compliance with the EMAP. The defendant chal-
lenged the notice approximately ten months after the court rendered judg-
ment of strict foreclosure and almost three months after the defendant’s
counsel retained Wade as an expert.