Cheswold (TL), LLC, BMO Harris Bank, N.A. v. Kwong

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CHESWOLD (TL), LLC, BMO HARRIS BANK, N.A. v.
MATTHEW J. KWONG ET AL.
(AC 42221)
Alvord, Devlin and Pellegrino, Js.
Syllabus
The plaintiff, C Co., sought to foreclose municipal tax liens on certain real
property owned by the defendant K. Following K’s failure to pay his
property taxes for a number of years, the town of Newtown imposed
liens on the subject property and recorded them on the town land
records. Thereafter, the tax liens were assigned to C Co., which recorded
the assignment on the town land records. After C Co. had commenced
this action, it assigned the tax liens to A Co., which was substituted as
the plaintiff. The assignment to A Co. was not recorded on the town
land records. K thereafter moved to dismiss the action for lack of subject
matter jurisdiction on the ground that A Co. lacked standing to foreclose
the property because the assignment of the tax liens to it was not
recorded. The trial court denied K’s motion to dismiss, concluding that
A Co.’s failure to record the assignment did not deprive it of standing.
Thereafter, the trial court rendered a judgment of foreclosure by sale,
from which K appealed to this court. Held that the trial court properly
denied K’s motion to dismiss, as that court correctly determined that
A Co. had standing to pursue the foreclosure action; contrary to K’s
claim, A Co.’s failure to record the assignment of the tax liens on the
town land records did not deprive it of standing, as the more specific
statute (§ 12-195h) and rule of practice (§ 10-70) governing the assign-
ment and foreclosure of tax liens, which do not require recordation to
confer standing, take precedence over the more general land transfer
statute (§ 47-10), which does require it, and, furthermore, a tax lien,
similar to a mechanic’s lien, is more analogous to a transfer of debt
than to a transfer of title and, as such, is not considered a conveyance
under § 47-10.
Argued November 18, 2019—officially released March 3, 2020
Procedural History
Action to foreclose municipal tax liens on certain
real property owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of Danbury, where the defendant Capitol One
Bank (USA), N.A., et al. were defaulted for failure to
appear; thereafter, ATCF REO Holdings, LLC, was sub-
stituted as the plaintiff; subsequently, the court, Mintz,
J., denied the named defendant’s motion to dismiss and
rendered a judgment of foreclose by sale, from which
the named defendant appealed to this court. Affirmed.
Matthew J. Kwong, self-represented, the appellant
(named defendant).
David L. Gussak, for the appellee (substitute
plaintiff).
Opinion
PELLEGRINO, J. The self-represented defendant,
Matthew J. Kwong,1 appeals from the trial court’s judg-
ment of foreclosure by sale of his property located at
9 Bradley Lane in the village of Sandy Hook in Newtown
(property). He claims that the court erred in denying
his motion to dismiss for lack of subject matter jurisdic-
tion on the ground that the substituted plaintiff, ATCF
REO Holdings, LLC (ATCF),2 lacked standing to fore-
close the property because the assignment of certain
municipal tax liens to ATCF was not recorded on the
Newtown land records. Accordingly, the principal issue
in this appeal is whether the assignment of a municipal
tax lien is required to be recorded on the land records
in order for the assignee to have standing to foreclose
the property, which is an issue of first impression for
this court. For the following reasons, we conclude that
such recording is not required and affirm the judgment
of the trial court.
The following undisputed facts are relevant to our
disposition of this appeal. From 2009 to 2014, the defen-
dant failed to pay municipal taxes to the town of New-
town (town). As a result, the town imposed tax liens
on the defendant’s property and recorded them on the
town’s land records. The town then assigned the tax
liens to American Tax Funding, LLC, and recorded the
assignment on the land records. The tax liens were then
assigned to Cheswold (TL), LLC, BMO Harris Bank,
N.A. (Cheswold), which recorded the assignment.
On April 6, 2015, Cheswold commenced this foreclo-
sure action. On May 8, 2015, Cheswold filed a motion for
default against the defendant for his failure to appear,
which the court granted. At that point, the defendant
had not yet filed an appearance in the case. Cheswold
subsequently filed a motion for a judgment of strict
foreclosure. The trial court rendered a judgment of fore-
closure by sale and set a sale date. The defendant filed
an appearance on August 24, 2015, and, thereafter, filed
a motion to open and vacate the judgment, which the
trial court granted.
While the case was pending, Cheswold assigned the
tax liens to ATCF. The assignment was not recorded
on the town land records. Cheswold then filed a motion
to substitute ATCF as a party plaintiff in this case. The
trial court granted the motion and substituted ATCF as
the party plaintiff. Thereafter, ATCF filed a motion for
default as to the defendant for failure to plead, which
the trial court denied.
Following the denial of the motion for default, ATCF
filed a motion for a judgment of strict foreclosure. At
the April 26, 2018 hearing on the foreclosure motion,
the defendant, by oral motion, sought to dismiss the
action for lack of standing because ATCF failed to
record the assignment of the tax liens. The trial court,
Mintz, J., faced with a question of subject matter juris-
diction, suspended the hearing and gave both parties
an opportunity to file briefs on the issue of whether
the assignment of the tax liens to ATCF must be
recorded on the town land records in order for the
substituted plaintiff to have standing to foreclose the
liens, as argued by the defendant. In response, the par-
ties stipulated that if the motion to dismiss was denied,
then the action would be disposed of by a foreclosure
by sale in accordance with the findings that the parties
had agreed on.3 On September 14, 2018, the trial court
denied the defendant’s motion to dismiss, finding that
there was no requirement that the assignment be
recorded on the town land records. Consequently, the
court rendered a judgment of foreclosure by sale and
set a sale date of March 9, 2019. This appeal followed.
On appeal, the defendant claims that the trial court
improperly found that ATCF had standing to pursue
the foreclosure action because the assignment of the
tax liens on the defendant’s property had not been
recorded on the town land records.
We begin by setting forth the well established stan-
dard of review. ‘‘Standing is the legal right to set judicial
machinery in motion. One cannot rightfully invoke the
jurisdiction of the court unless he [or she] has, in an
individual or representative capacity, some real interest
in the cause of action, or a legal or equitable right, title
or interest in the subject matter of the controversy.
. . . Where a party is found to lack standing, the court
is consequently without subject matter jurisdiction to
determine the cause. . . . Our review of this question
of law is plenary.’’ (Citations omitted; internal quotation
marks omitted.) J.E. Robert Co. v. Signature Proper-
ties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013). ‘‘In
ruling [on] whether a complaint survives a motion to
dismiss, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . If . . . the plaintiff’s
standing does not adequately appear from all materials
of record, the complaint must be dismissed.’’ (Citation
omitted; internal quotation marks omitted.) Burton v.
Dominion Nuclear Connecticut, Inc., 300 Conn. 542,
550, 23 A.3d 1176 (2011).
This is a case of first impression. The sole issue before
this court is whether the trial court erred in denying
the defendant’s motion to dismiss for ATCF’s alleged
lack of standing. The defendant maintains that ATCF
lacks standing to foreclose the property because the
assignment of the tax liens was not recorded. The defen-
dant contends that General Statutes § 47-10,4 the land
transfer recordation statute, requires that all ‘‘convey-
ances’’ be recorded in order to be effective and that
tax liens are ‘‘conveyances’’ for the purposes of that
statute. ATCF disagrees, arguing that Practice Book
§ 10-70, which governs the foreclosures of municipal
tax liens, and General Statutes § 12-195h, detailing the
rights and obligations of assignees of municipal tax
liens, are the ‘‘prevailing and controlling authority, nei-
ther of which impose the requirement that an assign-
ment of the tax lien must be recorded in order to main-
tain a foreclosure action of the lien.’’
In its memorandum of decision, the trial court cited
this court’s decision in Astoria Federal Mortgage Corp.
v. Genesis Ltd. Partnership, 167 Conn. App. 183, 143
A.3d 1121 (2016), which addressed a similar issue in the
context of a mechanic’s lien. In that case, the defendant
appealed, claiming that the trial court improperly con-
cluded that the defendant lacked standing to foreclose a
mechanic’s lien, which was otherwise validly assigned,
because the assignment of the lien was not recorded.
Id., 185. This court reversed the judgment concluding
that the trial court incorrectly had applied the recorda-
tion requirements of § 47-10. Id., 202. This court,
applying principles of statutory interpretation, deter-
mined that the more specific statutes governing
mechanic’s liens, which did not require recordation,
should apply over more general statutes governing
transfers of title, which required recordation, namely,
§ 47-10.5 Id., 199.
The court in Astoria Federal Mortgage Corp. further
determined that the assignment of a mechanic’s lien
was more akin to a transfer of debt than to a transfer
of title. Id., 201. It relied on General Statutes § 49-33
(i), which provides that ‘‘[a]ny mechanic’s lien may be
foreclosed in the same manner as a mortgage.’’ See
Astoria Federal Mortgage Corp. v. Genesis Ltd. Part-
nership, supra, 167 Conn. App. 200. This court
explained that mortgage foreclosures are governed by
General Statutes § 49-17, which provides that ‘‘a valid
assignee of a mortgage note has standing to foreclose
irrespective of whether that assignee records the assign-
ment prior to instituting the action.’’ Id., 202. In addition,
this court concluded that ‘‘the failure of an assignee of
a mechanic’s lien to record an otherwise valid assign-
ment of the lien does not deprive the assignee of the
lien of standing to commence a foreclosure action.’’
Id., 204.
Relying on Astoria Federal Mortgage Corp., the trial
court in the present case determined that ATCF did
not lack standing to foreclose for failure to record the
assignment of the municipal tax liens. The trial court
stated that the specific procedures governing the fore-
closure of tax liens, found in General Statutes § 12-
195h6 and Practice Book § 10-70,7 do not contain any
requirement that the assignment of a tax lien be
recorded in order for the owner of the lien to have
standing to foreclose. Further, the trial court concluded
that the assignment of a tax lien, similar to that of a
mechanic’s lien, is more closely akin to the assignment
of a mortgage rather than a conveyance of title and
that, as such, the failure to record the assignment is
not fatal to standing.
On the basis of our review, we agree with the trial
court’s analysis and conclusion that the assignee’s fail-
ure to record the assignment of a tax lien does not
deprive it of standing to bring a foreclosure action. As
in Astoria Federal Mortgage Corp., we conclude that
the more specific statutes governing tax liens, which
do not require recordation, should take precedence
over the more general land transfer statutes, which do
require it. Here, § 12-195h and Practice Book § 10-70
control both the assignment and foreclosure of munici-
pal tax liens. They do not require that the assignment
of liens be recorded to confer standing. Further, we
agree with the trial court that a tax lien, similar to a
mechanic’s lien, is more analogous to a transfer of debt
than to a transfer of title and, as such, is not considered
a ‘‘conveyance’’ under § 47-10. Therefore, we conclude
that the trial court properly denied the defendant’s
motion to dismiss and rendered judgment of foreclosure
by sale in accordance with the findings as stipulated
by the parties.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
In this opinion the other judges concurred.
1
Capitol One Bank (USA), N.A., and Portfolio Recovery Associates, LLC,
were named as defendants in this case as subsequent encumbrancers in
interest. Neither of these defendants is a party to this appeal. We therefore
refer in this opinion to Kwong as the defendant.
2
The original plaintiff in this case, Cheswold (TL), LLC, BMO Harris Bank,
N.A., filed a motion to substitute ATCF as the party plaintiff, which was
granted by the trial court.
3
The trial court rendered the judgment of foreclosure by sale with the
following agreed on findings: ‘‘Debt: $61,264.03 as of [September 13, 2018]’’;
‘‘Attorney’s Fees: $5850’’; ‘‘Total: $67,114.03’’; ‘‘Appraisal Fee: $700’’; ‘‘Title
Search Fee: $225’’; ‘‘Fair Market Value: $160,000’’; ‘‘Land: $75,000’’; and
‘‘Improvements: $85,000.’’
4
General Statutes § 47-10 (a) provides: ‘‘No conveyance shall be effectual
to hold any land against any other person but the grantor and his heirs,
unless recorded on the records of the town in which the land lies. When a
conveyance is executed by a power of attorney, the power of attorney shall
be recorded with the deed, unless it has already been recorded in the records
of the town in which the land lies and reference to the power of attorney
is made in the deed.’’
5
This court explained: ‘‘In conducting this inquiry, we are guided by the
statutory interpretation principle that specific terms covering the given
subject matter will prevail over general language of the same or another
statute which might otherwise prove controlling. . . . The provisions of
one statute which specifically focus on a particular problem will always, in
the absence of express contrary legislative intent, be held to prevail over
provisions of a different statute more general in its coverage.’’ (Internal
quotation marks omitted.) Astoria Federal Mortgage Corp. v. Genesis Ltd.
Partnership, supra, 167 Conn. App. 199.
6
General Statutes § 12-195h provides in relevant part: ‘‘Any municipality
. . . may assign . . . any and all liens filed by the tax collector . . . .
[and] the assignee or assignees of such liens shall have and possess the
same powers and rights at law or in equity as such municipality . . . would
have had if the lien had not been assigned with regard to the precedence
and priority of such lien, the accrual of interest and the fees and expenses
of collection and of preparing and recording the assignment. The assignee
shall have the same rights to enforce such liens as any private party holding
a lien on real property including, but not limited to, foreclosure and a suit
on the debt. . . .’’
7
Practice Book § 10-70 (a) provides in relevant part: ‘‘In any action to
foreclose a municipal tax or assessment lien the plaintiff need only allege
and prove: (1) the ownership of the liened premises on the date when the
same went into the tax list, or when said assessment was made; (2) that
thereafter a tax in the amount specified in the list, or such assessment in
the amount made, was duly and properly assessed upon the property and
became due and payable . . . (4) that no part of the same has been paid;
and (5) other encumbrances as required by the preceding section.’’