Jpmorgan Chase Bank, Nat'l Ass'n v. Essaghof

221 Conn.App. 475

302 A.3d 339

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Roger ESSAGHOF et al.

AC 45109

Appellate Court of Connecticut.

Argued April 25, 2023

Officially Released September 5, 2023

Ridgely Whitmore Brown, for the appellants (named defendant et al.).

Brian D. Rich, New Haven, for the appellee (plaintiff).

Elgo, Suarez and Bear, Js.

ELGO, J.

This foreclosure action returns to us on remand from the Supreme Court. In our prior opinion, this court rejected the various claims raised by the defendants, Roger Essaghof and Katherine Marr-Essaghof, ¹ who had appealed from the judgment of the trial court granting the motion of the plaintiff, JPMorgan Chase Bank, National Association, to reset the law days in accordance with a previous remand order of our Supreme Court. See JPMorgan Chase Bank, National Assn. v. Essaghof , 217 Conn. App. 93, 95, 287 A.3d 1124 (2022), vacated, 346 Conn. 909, 288 A.3d 1031 (2023). The defendants thereafter filed a petition for certification with the Supreme Court, in which they challenged only this court's conclusion that the trial court properly had denied their motion to dismiss predicated on the plaintiff's alleged noncompliance with the notice requirement of the Emergency Mortgage Assistance Program (EMAP) set forth in General Statutes § 8-265ee (a). ²

By order dated February 16, 2023, our Supreme Court granted that petition, vacated the judgment of this court, and remanded the case to us "with direction to reconsider in light of [its] decision in Bank of New York Mellon v. Tope , 345 Conn. 662, 286 A.3d 891 (2022)." ³ See JPMorgan Chase Bank, National Assn. v. Essaghof , 346 Conn. 909, 288 A.3d 1031 (2023). This court then ordered the parties to file supplemental briefs on the impact of that decision on the present appeal and heard argument from the parties on April 25, 2023. On August 1, 2023, our Supreme Court released its decision in KeyBank, N.A. v. Yazar , 347 Conn. 381, 297 A.3d 968 (2023), which concerns the proper statutory construction of the EMAP notice requirement codified in § 8-265ee (a). Accordingly, this court ordered the parties to file supplemental briefs on the impact of KeyBank, N.A. v. Yazar , supra, at 381, 297 A.3d 968, on this appeal. Having considered the defendants’ claim in light of the foregoing, we affirm the judgment of the trial court.

The facts relevant to this appeal are not in dispute and were set forth by this court in JPMorgan Chase Bank, National Assn. v. Essaghof , supra, 217 Conn. App. 93, 287 A.3d 1124. "In May, 2006, the defendants executed an adjustable rate promissory note in favor of Washington Mutual Bank, F.A. (Washington Mutual) in the amount of $1.92 million. ⁴ The loan was secured by a mortgage deed executed by the defendants on residential property in Weston. On June 24, 2008, the defendants executed a loan modification; they defaulted on the loan shortly thereafter. In September, 2008, the plaintiff acquired Washington Mutual and its assets, including the defendants’ loan.

"The plaintiff commenced this foreclosure action in March, 2009. Following a bench trial in 2015, the court rendered a judgment of strict foreclosure in favor of the plaintiff. The court found that the total debt was more than $3.2 million, while the fair market value of the property was $1.65 million, and set the law days. From that judgment, the defendants appealed to this court.

"While that appeal was pending, the plaintiff filed a motion for equitable relief in the trial court, seeking reimbursement from the defendants for property taxes and homeowners insurance premiums paid during the pendency of the appeal. After hearing argument and receiving supplemental briefing from the parties, the court granted the plaintiff's motion. The defendants then amended their appeal to include a challenge to that determination. As a result, two distinct claims were presented to this court in the defendants’ prior appeal: (1) whether the trial court improperly rejected their special defenses of fraudulent inducement and unclean hands; and (2) whether the trial court abused its discretion in ordering them to reimburse the plaintiff for property taxes and homeowners insurance premiums paid by the plaintiff during the pendency of the appeal. See JPMorgan Chase Bank, National Assn. v. Essaghof , 177 Conn. App. 144, 146, 171 A.3d 494 (2017), rev'd in part, 336 Conn. 633, 249 A.3d 327 (2020). This court rejected those claims and affirmed the judgment of the trial court in all respects. See id., at 163, 171 A.3d 494.

"Our Supreme Court subsequently granted the defendants’ petition for certification to appeal from that judgment, limited to the issue of whether this court properly had affirmed ‘the judgment of the trial court ordering the defendants to reimburse the plaintiff for property taxes and homeowners insurance premiums in violation of the provisions of General Statutes § 49-14 ....’ JPMorgan Chase Bank, National Assn. v. Essaghof , 328 Conn. 915, 915, 180 A.3d 962 (2018)....

"With respect to the certified issue, the Supreme Court concluded that ‘the trial court abused its discretion because the relief it ordered is inconsistent with the remedial scheme available to a mortgagee in a strict foreclosure.’ ⁵ Id., at 635, 249 A.3d 327. With respect to the defendants’ claim of judicial bias, the court refused to consider the merits of that contention, stating: ‘We decline to consider the merits of the defendants’ second claim because the defendants did not raise the disqualification issue before the trial court or the Appellate Court, and because it is outside the scope of the certified question.’ Id., at 639, 249 A.3d 327. The Supreme Court thus reversed in part the judgment of this court and ordered as follows: ‘[T]he case is remanded to that court with direction to reverse the trial court's order directing the defendants to reimburse the plaintiff for property taxes and homeowners insurance premiums and to remand the case to that court for the purpose of setting a new law day; the judgment of the Appellate Court is affirmed in all other respects.’ Id., at 653, 249 A.3d 327.

"On August 13, 2021, the plaintiff filed a motion in the trial court to reset the law days in accordance with that remand order. In response, [on August 27, 2021] the defendants filed an objection to that motion as well as a motion to dismiss, in which they argued that the trial court lacked subject matter jurisdiction over the foreclosure action due to the plaintiff's alleged failure to comply with the EMAP notice requirement. ⁶ The court held a hearing on those motions on October 8, 2021. It thereafter issued a memorandum of decision in which it denied the defendants’ motion to dismiss and set new law days in accordance with the remand order from the Supreme Court." (Footnotes in original.) JPMorgan Chase Bank, National Assn. v. Essaghof , supra, 217 Conn. App. at 96–99, 287 A.3d 1124.

In its memorandum of decision, the court emphasized that, although the issue of the plaintiff's compliance with the EMAP notice requirement had been litigated at the trial held in 2015, the defendants did not raise that issue in their appeal from the judgment of strict foreclosure. The court stated: "After judgment entered and the defendants appealed the judgment, the argument of an invalid demand notice and/or EMAP notice from Washington Mutual instead of [the plaintiff] does not appear in their appellate papers. The defendants had a clear opportunity to challenge the notice on substantive (rather than admissibility) grounds at trial in 2015, but did not. They also had the opportunity to include this issue in their appeal but did not. Instead, they waited six years, after decisions from both our Appellate and Supreme Courts affirming the underlying decision after trial, to raise this issue anew. ... As this is an issue that came up in trial—and was included in the defendants’ trial brief—it was ripe for appeal, but the defendants did not preserve the issue for appellate review." Because the defendants’ " ‘newly raised’ jurisdictional argument was previously argued" before the trial court in 2015 but thereafter abandoned on appeal, the court denied their motion to dismiss.

From that judgment, the defendants appealed to this court, which rejected the various claims raised by the defendants. See JPMorgan Chase Bank, National Assn. v. Essaghof , supra, 217 Conn. App. at 95, 287 A.3d 1124. The defendants then petitioned for certification, challenging only this court's determination that the trial court properly denied their motion to dismiss. Our Supreme Court granted that petition, vacated the judgment of this court, and remanded the case to us "with direction to reconsider in light of this court's decision in Bank of New York Mellon v. Tope , [supra, 345 Conn. 662, 286 A.3d 891 ]."

JPMorgan Chase Bank, National Assn. v. Essaghof , supra, 346 Conn. 909, 288 A.3d 1031. We now revisit that determination in accordance with the remand order.

In this appeal, the defendants claim that the EMAP notice requirement operates as a "condition precedent" to a court's exercise of subject matter jurisdiction over a foreclosure action. Relying on the precept that an issue of subject matter jurisdiction may be raised at any time; see, e.g., Oxford House at Yale v. Gilligan , 125 Conn. App. 464, 473, 10 A.3d 52 (2010) ; the defendants claim that the court improperly denied their motion to dismiss. For two distinct reasons, we disagree.

I

At the outset, we note our agreement with the defendants that compliance with the EMAP notice requirement is a condition precedent to the commencement of a foreclosure action. As our Supreme Court recently explained, "[i]f a mortgagee fails to comply with § 8-265ee (a), it has failed to satisfy a mandatory condition precedent and, therefore, has failed to allege a claim on which relief can be granted." KeyBank, N.A. v. Yazar , supra, 347 Conn. at 394, 297 A.3d 968. At the...