Smith v. Renzulli

Phil SMITH (Assignee of Infinity Trading Group) v. Michael RENZULLI et al.

No. FBTCV174053326

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

November 28, 2017

UNPUBLISHED OPINION

OPINION

KAMP J.

The issue before the court is the defendants’ motion for nonrecognition of the foreign judgment and dismiss the present case on the ground that the plaintiff lacks standing. For the reasons set forth below, the defendant’s motion is granted.

FACTS

On May 8, 2017, the plaintiff, Phil Smith, domesticated a judgment (# 102) obtained in Florida against the defendants, Michael and Norma Renzulli, pursuant to the Uniform Enforcement of Foreign Judgments Act (foreign judgments act), General Statutes § 52-604 et seq. The defendants filed a motion to dismiss^[1] (# 104) on June 13, 2017, on the ground that because the plaintiff lacks standing to domesticate the judgment, the court lacks subject matter jurisdiction. The defendants’ motion is accompanied by a memorandum of law and several exhibits (# 105). The plaintiff filed a memorandum in opposition to the motion as well as several exhibits (# 108) on July 13, 2017. The parties were heard at short calendar on July 31, 2017.

DISCUSSION

" The proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). " If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

The defendants recount a chain of assignments leading to the plaintiff’s purported procurement of the judgment and argue that the plaintiff lacks standing in the present case due to invalid assignments. First, the defendants contend that the September 26, 2016 assignment of the judgment from Infinity Trading Group, Inc. (Infinity)- the original plaintiff in the action in Florida- to Judgment Rescue, LLC (Rescue)- a successor in interest- was invalid under Fla. Stat. § 695.25 because the person who signed the assignment was not shown to be an authorized officer or agent of the corporation and the acknowledgment appears to be a personal, rather than corporate, acknowledgment. In support, the defendants submit a copy of the assignment in which one " Jay Stoelting" signs and acknowledges the assignment from Infinity to Rescue. The defendants argue that because the assignment to Rescue was invalid, Rescue was unable to assign the judgment to the plaintiff on October 13, 2016. In the alternative, the defendants argue that Rescue assigned the judgment to another entity, Recovery Concepts, LLC (Recovery), on September 28, 2016, and therefore Rescue no longer had an interest in the judgment that it purportedly assigned to the plaintiff. In support, the defendants submit a copy of the assignment from Rescue to Recovery.^[2]

In response, the plaintiff argues that he has standing in the present case. The plaintiff first argues that the initial assignment- from Infinity to Rescue- was valid. Specifically the plaintiff denies that the statute identified by the defendants applies to the present case because that statute concerns real property and the assignment of the judgment was not a conveyance of real property, but instead involved the conveyance of personal property. The plaintiff also argues however, that if the statute does apply, it does not render the assignment invalid because the statute permits different forms of acknowledgement than provided by the statute, and moreover, the failure to include Stoelting’s title was a minor clerical error. The plaintiff specifically notes that under Stoelting’s signature line, it reads, " Signature of Plaintiff, " which the plaintiff contends is an indication that Stoelting was an agent of the plaintiff in the original action. The plaintiff also relies upon the fact that the assignment was signed by a notary, which he argues proves that the document was properly acknowledged. Furthermore, the plaintiff argues that the defendants’ alternative argument fails because after the September 28 2016, assignment from Rescue to Recovery, both parties rescinded the assignment and mutually declared it a nullity thereby allowing Rescue to assign its interest in the judgment to the plaintiff on October 13, 2016. In support, the plaintiff submits the affidavit of Nigel Alston, the president of Rescue, in which Alston confirms that the assignment from Rescue to Recovery was nullified and that the judgment was subsequently assigned to Smith.

As a threshold matter, although the court may consider only certain kinds of substantive defenses in actions brought pursuant to the foreign judgments act; see Nastro v. D ’Onofrio, 76 Conn.App. 814, 823-24, 822 A.2d 286 (2003); standing is a procedural, rather than substantive, matter. Ferri v. Powell -Ferri, 326 Conn. 438, 447, 165 A.3d 1137 (2017). As the defendants do not raise an impermissible substantive defense by challenging the validity of the foreign judgment, but rather offer a procedural challenge of the enforcement of the foreign judgment, the defendants’ argument is cognizable. See Segal v. Segal, 86 Conn.App. 617, 626-39, 863 A.2d 221 (2004) (court considered procedural challenge to enforcement of foreign judgment, but determined that foreign court was proper forum for substantive challenge to validity of judgment); see also JPMorgan Chase Bank, N.A. v. Herman, 175 Conn.App. 662, 668, 168 A.3d 514 (2017) (court considered argument that Connecticut court, where judgment was domesticated, lacked personal jurisdiction, noting that " [a]t the outset, we need to clarify what the defendant is and is not arguing. The defendant is not attacking the judgment by arguing that the Florida court was without personal or subject matter jurisdiction, which is the typical method by which a party defends against the enforcement of a foreign judgment." [Emphasis in original.])

Given that the present case concerns the enforcement of a foreign judgment, there is also the question of which state’s law to consider. Procedural issues such as standing are governed by Connecticut law in actions brought in this state. Ferri v. Powell-Ferri, supra, 326 Conn. 447. In Connecticut, " [s]tanding is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Id., 448. Nevertheless, the court may be guided by the substantive law of another jurisdiction even as the court applies this state’s procedural laws. See People’s United Bank v. Kudej, 134 Conn.App. 432, 438, 39 A.3d 1139 (2012) (where challenge to standing turned on interpretation of statute from Massachusetts, Massachusetts case law interpreting statute considered). Moreover, because the question of standing in the present case turns on the validity of one or more assignment, looking to the law of the state in which the assignment occurred is appropriate. See 6 Am.Jur.2d, Assignments § 9, p. 151 (2008) (" Generally, questions as to the validity, enforceability, or effect of an assignment are governed by the law of the place where the assignment was made" [footnotes omitted]). Therefore, in the present case, the court will look to Florida law to determine whether the assignments are valid.

Florida’s statutory scheme and the language of § 695.25 indicate that the statute applies to the present case. Title XL of the Florida Statutes is entitled Real and Personal Property, and encompasses chapters 689-723. Chapter 698, entitled " Chattel Mortgages, " ^[3] addresses acknowledgments in § 698.02. Section 698.02 of the Florida Statutes provides: " To entitle such mortgage to record, its execution must be acknowledged or proved in the manner provided for mortgages of real property." Accordingly, looking to chapter 695, " Record of Conveyances of Real Estate, " § 695.25 provides: " The forms of acknowledgment set forth in this section may be used, and are sufficient for their respective purposes, under any law of this state. The forms shall be known as ‘Statutory Short Forms of Acknowledgment’ and may be referred to by that name. The authorization of the forms in this section does not preclude the use of other forms." The corporate acknowledgment form in § 695.25 differs from the individual acknowledgment in relevant part by indicating that a corporate officer’s name is to be followed by that officer’s title. It also provides language indicating that the acknowledgment is " on behalf of the corporation."

In House of Lyons, Inc. v. Marcus, 72 So.2d 34 (1954) the court considered the validity of an acknowledgement for a chattel mortgage. The court noted that " the only problem in the instant case is that of determining whether the acknowledgment by the corporate mortgagor can be considered ‘proper proof of the execution of the instrument, ’ or whether it must be held to be fatally defective." Id., 35. The court then reasoned that " [t]he decisions on the subject in...