Bank of New York Mellon v. Ruttkamp

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THE BANK OF NEW YORK MELLON, TRUSTEE
v. WILLIAM J. RUTTKAMP ET AL.
(AC 40039)
Lavine, Alvord and Moll, Js.

Syllabus

The plaintiff bank, as trustee, sought to foreclose on a mortgage on certain
real property of the defendants W and S. Prior to trial, W was defaulted
for failure to plead and the defendant H Co. was defaulted for failure
to disclose a defense. After the plaintiff filed a motion for summary
judgment directed to S as to liability only, S filed an answer and special
defenses, alleging that the plaintiff lacked standing because it did not
exist under its stated name, as well as a one count counterclaim alleging
a violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-
110a et seq.), due to the plaintiff’s refusal to release a notice of lis
pendens on the subject property following the court’s earlier dismissal
of the action. Thereafter, the plaintiff filed a motion for summary judg-
ment as to S’s counterclaim, which the trial court granted. Subsequently,
the court granted the plaintiff’s motion for summary judgment directed
to S as to liability only. Thereafter, the court granted the plaintiff’s
motion for a judgment of strict foreclosure and rendered judgment
thereon, from which S appealed to this court. Held that S could not
prevail on her claim that the trial court lacked subject matter jurisdiction
due to the plaintiff’s lack of standing, which was based on her claim
that the plaintiff brought this action under its corporate brand name
and, thus, did not have the legal capacity to sue: given that S’s counsel
acknowledged, at oral argument before this court, that he could not
refute certain evidence presented by the plaintiff demonstrating that it
was a New York corporation under its stated name, S effectively aban-
doned her claim concerning the plaintiff’s alleged lack of standing, and
the record showed that the plaintiff is a legal entity with legal capacity
to sue; moreover, S’s claim that the trial court improperly rendered
summary judgment in favor of the plaintiff on S’s counterclaim was not
reviewable, S having failed to brief the claim adequately.
Argued December 11, 2018—officially released March 12, 2019

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Middlesex, where the named defendant was
defaulted for failure to plead; thereafter, the defendant
HOP Energy, LLC, was defaulted for failure to disclose a
defense; subsequently, the court, Morgan, J., dismissed
the action for lack of subject matter jurisdiction; there-
after, the court granted the plaintiff’s motion to open
the judgment; subsequently, the defendant Shlomit Rut-
tkamp filed a counterclaim; thereafter, the court,
Domnarski, J., granted the plaintiff’s motion for sum-
mary judgment as to the defendant Shlomit Ruttkamp’s
counterclaim; subsequently, the court, Aurigemma, J.,
granted the plaintiff’s motion for summary judgment as
to liability; thereafter, the court, Aurigemma, J.,
granted the plaintiff’s motion for a judgment of strict
foreclosure and rendered judgment thereon, from
which the defendant Shlomit Ruttkamp appealed to this
court. Affirmed.
John R. Williams, for the appellant (defendant
Shlomit Ruttkamp).
Benjamin T. Staskiewicz, for the appellee (plaintiff).
Opinion

MOLL, J. The defendant, Shlomit Ruttkamp,1 appeals
from the judgment of strict foreclosure rendered by the
trial court in favor of the plaintiff and counterclaim
defendant, The Bank of New York Mellon formerly
known as The Bank of New York, as Trustee on Behalf
of CIT Mortgage Loan Trust 2007-1. On appeal, the
defendant claims that the trial court (1) lacked subject
matter jurisdiction because of the plaintiff’s alleged lack
of standing and (2) improperly rendered summary judg-
ment in favor of the plaintiff on the defendant’s counter-
claim, which alleged that the plaintiff wrongfully failed
to release the notice of lis pendens it had recorded on
the land records of the subject property. We affirm the
judgment of strict foreclosure.
The following facts and procedural history are rele-
vant to this appeal. On December 14, 2006, William
J. Ruttkamp executed a promissory note, pursuant to
which he promised to pay to the order of Accredited
Home Lenders, Inc. (Accredited), the principal sum of
$333,000. The note was secured by a mortgage, exe-
cuted by William J. Ruttkamp and the defendant, on real
property located at 510 McVeagh Road in Westbrook,
in favor of Mortgage Electronic Registration, Inc., as
nominee for Accredited. The note and mortgage were
ultimately assigned to the plaintiff by virtue of an assign-
ment dated December 30, 2009, and recorded on Janu-
ary 12, 2010. Beginning on August 1, 2009, and every
month thereafter, William J. Ruttkamp failed to make
monthly payments due pursuant to the note. As a result,
the plaintiff commenced this foreclosure action in Feb-
ruary, 2010. The initial complaint alleged that the plain-
tiff was a Delaware corporation. On April 26, 2010, the
defendant filed a motion to dismiss for lack of subject
matter jurisdiction, claiming that the plaintiff brought
the action in its trade name only. On November 8, 2010,
the court denied the motion to dismiss, reasoning that
there was no evidence before it that the plaintiff’s name
was a trade name.
On May 6, 2011, the plaintiff filed a motion for sum-
mary judgment directed to the defendant as to liability
only. In its memorandum of law in support thereof, the
plaintiff stated: ‘‘The Bank of New York Mellon is the
corporate brand of The Bank of New York Mellon Cor-
poration and may also be used as a generic term to
reference the corporation as a whole or its various
subsidiaries.’’ On October 26, 2011, the defendant filed
an answer and special defenses, as well as an objection
and memorandum of law in opposition to the plaintiff’s
motion for summary judgment. In both filings, the
defendant claimed that the plaintiff lacked standing
because, although the plaintiff alleged in its complaint
that ‘‘it is a corporation duly authorized and validly
existing under the laws of the State of Delaware,’’ the
Delaware Division of Corporations had no record of
registration for any entity known as ‘‘The Bank of New
York Mellon,’’ while having a record of registration for
an entity known as ‘‘The Bank of New York Mellon
Corporation.’’ On February 27, 2012, the court denied
the plaintiff’s motion for summary judgment and con-
cluded that, because the plaintiff brought this action
under its corporate brand name and a brand name has
no legal capacity to sue, the plaintiff had no standing.
Thus, the court concluded that it lacked subject matter
jurisdiction and dismissed the action.
On June 26, 2012, the plaintiff filed a motion to open
the judgment of dismissal, stating that it had mistakenly
represented in its memorandum of law in support of
its motion for summary judgment that ‘‘The Bank of
New York Mellon is . . . the corporate brand of The
Bank of New York Mellon Corporation . . . .’’ The
plaintiff claimed, rather, that it was a corporation orga-
nized by a special act of the New York state legislature
and had been renamed ‘‘The Bank of New York Mellon.’’
On July 30, 2012, over the defendant’s objection, the
court granted the plaintiff’s motion to open the judg-
ment of dismissal.
On September 26, 2012, the plaintiff filed a request
for leave to file an amended complaint, in which it
averred that it is a ‘‘corporation organized by special
act of the New York state legislature . . . now known
as The Bank of New York Mellon . . . .’’ On October
23, 2012, the court overruled the defendant’s objection
to the plaintiff’s request for leave to amend. Meanwhile,
on October 5, 2012, the defendant filed a motion to
dismiss for lack of subject matter jurisdiction, con-
tending that the plaintiff brought the action in its trade
name and that there is no New York corporation named
‘‘The Bank of New York Mellon.’’ On October 31, 2012,
the court denied the defendant’s motion to dismiss.
On August 22, 2014, the plaintiff filed a request for
leave to file a second amended complaint, in which it
averred that the plaintiff is ‘‘a corporation duly author-
ized and validly existing under the laws of the State of
New York.’’ On September 29, 2014, the court overruled
the defendant’s objection thereto. On October 14, 2014,
the defendant filed another motion to dismiss, again
claiming that there is no New York corporation named
‘‘The Bank of New York Mellon’’ and that, therefore, the
action should be dismissed on the basis of the plaintiff’s
lack of standing. On November 19, 2014, the plaintiff
filed an objection to the defendant’s motion to dismiss
and attached a certification from the New York Banking
Department certifying that the plaintiff is a corporation
organized and operating under New York law. On
December 1, 2014, the court denied the defendant’s
motion to dismiss.
On January 7, 2015, the plaintiff filed a motion for
summary judgment directed to the defendant as to lia-
bility only.2 On January 21, 2015, the defendant filed
an answer and special defenses, in which the defendant,
inter alia, persisted in her claim that the plaintiff does
not exist under its stated name and, therefore, lacks
standing. In addition, on January 26, 2015, the defendant
filed a one count counterclaim, alleging a violation of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq., on the basis of the
plaintiff’s alleged refusal to file a release of the notice
of lis pendens3 on the subject property following the
court’s dismissal of the action on February 27, 2012.4 On
March 27, 2015, the plaintiff filed a motion for summary
judgment as to the defendant’s counterclaim, arguing
that the lis pendens remained valid because the Febru-
ary 27, 2012 judgment of dismissal was vacated and,
therefore, the plaintiff had no duty to release the lis
pendens. On April 21, 2015, the court granted the plain-
tiff’s motion for summary judgment as to the defen-
dant’s counterclaim. The court reasoned that ‘‘[t]here
is no genuine issue of fact raised in the counterclaim.
. . . The lis pendens remained in effect after [the] dis-
missal since it was possible to open the dismissal within
four months of its entry. In fact, the dismissal was set
aside. For this reason there was no final decree. See
Lee v. Duncan, 88 Conn. App. 319, [870 A.2d 1, cert.
denied, 274 Conn. 902, 876 A.2d 12] (2005).’’
On September 23, 2015, the defendant filed a memo-
randum of law in opposition to the plaintiff’s January
7, 2015 motion for summary judgment. The defendant
claimed that because the plaintiff did not offer any
evidence to refute the defendant’s special defenses,
which included her challenge to the plaintiff’s standing,
the plaintiff’s motion for summary judgment should be
denied. On May 2, 2016, the court ultimately granted
the plaintiff’s motion for summary judgment directed
to the defendant as to liability only. On December 23,
2016, the plaintiff moved for a judgment of strict foreclo-
sure, which the court granted on January 9, 2017. This
appeal followed.
The defendant first claims that the trial court lacked
subject matter jurisdiction on the basis of the plaintiff’s
lack of standing. Specifically, the defendant claims that
the plaintiff brought this action under its corporate
brand name and, therefore, did not have the legal capac-
ity to sue. The plaintiff, however, directs this court’s
attention to a certification from the New York Banking
Department that the Bank of New York Mellon is a
corporation organized under the laws of New York.5
During oral argument before this court, the defendant’s
counsel acknowledged that he could not refute the
plaintiff’s evidence that it was a New York corporation
under its stated name. Accordingly, the defendant effec-
tively abandoned her claim that the court lacked subject
matter jurisdiction on the basis of the plaintiff’s pur-
ported lack of standing, and, after our review of the
record, we conclude that the plaintiff is a legal entity
with legal capacity to sue.
The defendant next claims that the court improperly
rendered summary judgment in favor of the plaintiff on
the defendant’s counterclaim. Specifically, the defen-
dant claims that the court’s rendering of summary judg-
ment was incorrect, as a matter of law, because the
court’s February 27, 2012 dismissal for lack of subject
matter jurisdiction was a final judgment from which no
appeal was taken and, as a result, the plaintiff should
have released the lis pendens. We decline to review
this claim. The defendant’s argument in support of this
claim, in her brief before this court, comprises only
three sentences. The defendant argues conclusorily that
the court’s ruling was incorrect and that a lis pendens
must be released, as a matter of law, solely by virtue
of the fact that an action has reached final judgment
and no appeal has been taken. The defendant does not
address the statutory provisions governing notices of
lis pendens or their discharges. See General Statutes
§§ 49-8 and 52-325 through 52-326. The defendant also
does not cite any authority to support her implicit prop-
osition that a duty to release a lis pendens exists inde-
pendent of our General Statutes. In short, the
defendant’s claim is inadequately briefed, and, thus, we
decline to review it. See Pryor v. Pryor, 162 Conn. App.
451, 458, 133 A.3d 463 (2016).
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
William J. Ruttkamp and HOP Energy, LLC, d/b/a Valley Oil, were also
named as defendants, but they were defaulted, for failure to plead and
failure to disclose a defense, respectively, and are not participating in this
appeal. Accordingly, in this opinion we refer to Shlomit Ruttkamp as the
defendant unless otherwise noted.
2
The plaintiff also directed its motion to William J. Ruttkamp as to liability
only; on February 8, 2016, the court granted the motion as to William J.
Ruttkamp.
3
The plaintiff alleged that, on or about February 24, 2010, the plaintiff
recorded a notice of lis pendens in Volume 300 at Page 1011 of the Westbrook
Land Records with respect to the subject property.
4
The counterclaim does not cite any statutory authority other than
CUTPA.
5
Notably, such certification is the same document attached to the plain-
tiff’s objection to the defendant’s October 14, 2014 motion to dismiss.