Morgan Chase Bank, N. A. v. Ryder

Morgan Chase Bank, National Association v. Gary Ryder et al.

No. FSTCV186038553S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

August 6, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Tierney, Kevin, J.T.R.

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO DISMISS DATE STAMPED FEBRUARY 11, 2019 (#121.00) AS AMENDED BY MOTION TO DISMISS DATE STAMPED FEBRUARY 28, 2019 (#128.00)

Hon Kevin Tierney Judge Trial Referee

The defendant, Gary Ryder, filed the instant Defendant’s Motion to Dismiss (#121.00) and amended that Motion to Dismiss (#128.00) in this residential foreclosure action involving the $2, 450, 000 loan secured by a mortgage on real property located at 345 Round Hill Road, Greenwich, Connecticut. The operative one-count complaint is dated October 2, 2018 and contains the usual allegations in residential foreclosure complaints. The initial Return of Service in the court file is dated October 4, 2018. (#100.30.) The court finds that Gary Ryder filed his self-represented appearance. That self-represented appearance form is dated February 6, 2019 and was date stamped by the Court Clerk on February 11, 2019. The court finds that the Defendant’s Motion to Dismiss (#121.00) and the amended Motion to Dismiss (#128.00) were both filed "within thirty days of the filing of an appearance" and therefore both Motions to Dismiss comply with the time requirements of Practice Book § 10-30(b).

Both the Defendant’s Motion to Dismiss (#121.00) and his amended Motion to Dismiss (#128.00) raise issues permitted by Practice Book § 10-30(a). The two issues raised in these two Motions to Dismiss filed by the self-represented defendant Gary Ryder, are insufficiency of service of process on the defendant, Gary Ryder, based on his residency status and the invocation by Gary Ryder of the prior pending action-doctrine.

The court will first address the issue of insufficiency of service of process. The Summons in this court file names Gary Ryder as the "First Defendant" and states the following address for Gary Ryder: "c/o Secretary of State, 30 Trinity Street, Hartford, CT 06106 Address; 411 Seventh Avenue, Brooklyn, N.Y. 11215." The plaintiff alleges that Gary Ryder is an individual defendant who was not a resident of the State of Connecticut as of the commencement of this litigation. The plaintiff was required to serve Gary Ryder consistent with Gen. Stat. § 52-59b(c)

Any nonresident individual, ... over whom a court may exercise personal jurisdiction ... shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ... may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual, ... personally. The process shall be served by the officer to whom the same is directed upon Secretary of the State by leaving with or at the office of the Secretary of State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant’s last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State.

Gen. Stat. § 52-59b(c).

Under Gen. Stat. § 52-59b(c) the plaintiff, JP Morgan Chase Bank N.A., has the burden to prove that service on the nonresident defendant has been made properly, that the address is proper and that the service was made on the nonresident defendant as of the date in question. Cogswell v. American Transit Insurance Company, 282 Conn. 505, 514-15 (2007); Knipple v. Viking Communications, Ltd., 236 Conn 602, 607, fn.9 (1996). "This court has recognized that the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used." Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54 (1983).

The initial Return of Service dated October 4, 2018 is on file with the court clerk as pleading #100.30. According to that Return of Service all of the relevant foreclosure documents were served by a state marshal "at the office of Denise Merrill, Secretary of State, located at 30 Trinity Street, Hartford, CT 06106, Statutory Agent for Service and duly authorized to accept service on behalf of the within named Defendant, and paid statutory fees in the amount of $50.00 Gary Ryder." That initial Return of Service also states: "And afterwards, on the 4th of October 2018, a true and attested verified copy of the within original ... with an endorsement thereon of service upon the Connecticut Secretary of State, was deposited in the U.S. Mail, Wethersfield, Certified Mail number 7018 0680 0000 8572 4790 and Return Receipt Requested, addressed to the within named Defendant Gary Ryder 411 Seventh Avenue, Brooklyn, N.Y. 11215." At the hearing held on the Motions to Dismiss there was no issue concerning the accuracy of the information contained in the Return of Service nor was the serving Connecticut State Marshal, John T. Fiorillo, called to testify. "In any event, an officer’s return is only prima facie evidence of the facts stated therein. It may be contradicted and the facts shown to be otherwise." Cugno v. Kadin, 138 Conn. 341, 343 (1951).

This court finds that the facts contained within the October 4, 2018 Return of Service comply with Gen. Stat. § 52-59b(c) for service on Gary Ryder, if in fact Gary Ryder was a nonresident of the State of Connecticut at that time.

The remaining issue is the out of Connecticut residence status of Gary Ryder during the month of October 2018. At the hearing on the Motions to Dismiss ten exhibits were offered as well as the testimony of Gary Ryder. The aforesaid October 4, 2018 Return of Service was marked as Exhibit 4. Mr. Ryder testified that the Brooklyn, New York address was not his current address and that his current address is as stated in the February 2019 appearance in this file; Clam Island, Branford, Connecticut. Mr. Ryder did admit that he was a resident of 411 Seventh Avenue, Brooklyn, New York in 2018 but that he moved from that Brooklyn address in October 2018 never to return to Brooklyn.

There was prior litigation between the parties entitled JP Morgan Chase Bank, N.A. v. Gary Ryder et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV18-5020234 S. In the appearance section of the Edison file for that prior litigation kept by the court clerk’s office is a Limited Appearance form JD CL-121 Rev. 2-16 for this docket number FST CV18-5020234 S litigation. It was filed by Gary Ryder. It contains the signature of Gary Ryder and is dated October 17, 2018. The address used by Gary Ryder in that signed Limited Appearance form in that other litigation is "411 Seventh Avenue, Brooklyn, N.Y. 11215." Exhibit 9 is a pleading also in that prior litigation file dated October 17, 2018 stamped by the Superior Court Clerk on October 19, 2018 containing the same Brooklyn address for Gary Ryder in the signature page. (#110.00, page 16 of 28 pages; Ex. 9, page numbered 16.)

In the file before this court is a pleading filed by Gary Ryder date stamped by the Superior Court Clerk on December 3, 2018. It is sixteen pages in length. That pleading is entitled Defendant’s Motion to Vacate Default Motion and was signed by Gary Ryder using the Clam Island, Branford, CT 06405 address. (#107.00.) Attached to that December 3, 2018 pleading filed and signed by Mr. Ryder was an additional copy of the Limited Appearance in docket number FST CV18-5020234 S in which Mr. Ryder used the 411 Seventh Avenue, Brooklyn, N.Y. address as of October 17, 2018. (#107.00, 7th page of the 16-page pleading.) This same pleading #107.00 was marked as an exhibit before this court. Ex. 10. Also attached as one of those sixteen pages is another Limited Appearance form signed by Gary Ryder in this current docket number FST CV18-6038553 S dated October 19, 2018 which uses the address of 411 Seventh Avenue, Brooklyn, N.Y. 11215. (#107.00, 10th page of the 16-page pleading, see also Ex. 10.) In addition in the current file Gary Ryder prepared a pleading under a date of October 19, 2018. (#115.00, 13th page of 16-page pleading.) He utilized both docket numbers and labeled that pleading "Defendant’s Change of Address Notification." That Notification stated: "The Clerk of the Court is now on notice that this Defendant has changed address effective October 19, 2018. The correct address for the two civil cases captioned above must be modified within the Court’s docket entry system. Kindly make necessary change to the docket." That pleading was signed by Gary Ryder using his Clam Island, Branford, Connecticut 06405 address. (#115.00, see 13th and 14th pages thereof.)

There was also evidence before this court that in a deposition taken in the 2013 litigation pending in the Federal Court, Gary Ryder verified that his residence in that April 19, 2016 deposition was 411 Seventh Avenue, Brooklyn, New York. (Ex. 6, marked as "Exhibit E" at page 3, and in an October 31, 2018 Memorandum of Decision in FST CV18-5020234 S, pleading #113.00, page 2.)

From the above documents the court finds that the service was made by the state marshal utilizing the certified mail process authorized by Gen. Stat. § 52-59b on Gary Ryder, a nonresident defendant. The court finds that the Certified Mail number was 7018 0680 0000 8572 4790. That number was found within the initial Return of Service in the court file and marked Exhibit 4 at the hearing on the Motion to Dismiss. A four-page United States Post Office (USPS) tracking document was marked as Exhibit 5,...