213 Conn.App. 674
Conn. App. Ct.2022Background
- GMAT Legal Title Trust (later RMS Series Trust 2020-1) sued to foreclose a mortgage on the Catales' residence; plaintiff filed summary judgment materials including an affidavit of debt and an appraisal.
- Plaintiff filed a prejudgment remedy application to attach potential proceeds from an unrelated suit brought by Vito Catale (the "Catale action").
- The parties entered a court‑approved stipulation deferring a prejudgment remedy hearing until the Catale action resolved; defendants agreed not to dispose of identified assets and to notify plaintiff of any settlement.
- Plaintiff later filed an "ex parte" amended prejudgment remedy application (June 2020) incorporating prior affidavits and adding a loan‑servicer affidavit alleging exigency and a settlement; the court granted the application after considering defendants’ written objections but without a hearing.
- While this appeal was pending, the trial court granted summary judgment on liability and entered a strict foreclosure judgment finding debt substantially exceeded property value (creating a deficiency far greater than the $458,000 prejudgment remedy).
- Appellate court: affirmed the court’s jurisdiction to grant the ex parte prejudgment remedy and dismissed the remaining claims as moot because the foreclosure judgment rendered any post‑attachment hearing futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ex parte prejudgment remedy was jurisdictionally defective for failing to attach all affidavits to the application | Incorporation-by-reference of prior affidavits is permissible; affidavit attached showed exigency and others in the record showed probable cause | Statute requires affidavits be attached to the application; without them court lacked jurisdiction/authority | Court held incorporation by reference acceptable and the application was not defective; court had jurisdiction/authority to act |
| Whether defendants were denied due process by lack of a prompt postattachment hearing | Exigency justified immediate relief; postattachment hearing could follow | Denied a prompt postattachment hearing to contest probable cause and amount | Moot: subsequent summary judgment and strict foreclosure established probable cause and a deficiency exceeding the attachment, so no practical relief from a remand/hearing |
| Whether the application properly could be considered "ex parte" given notice and defendants’ response | Plaintiff relied on exigent circumstances and served notice; asked court to act promptly | Defendants argued factual disputes required a hearing and ex parte process was improper | Court noted "ex parte" label was misleading (defendants responded) but nonetheless considered objections and granted relief; ruling as to jurisdiction upheld |
| Appropriate appellate remedy if prejudgment remedy defective | Affirmance or, alternatively, remand for hearing | Vacatur of attachment and remand for prompt hearing | Court affirmed jurisdictional ruling; remainder of appeal dismissed as moot but left open trial‑court motions to modify/dissolve the prejudgment remedy |
Key Cases Cited
- Connecticut v. Doehr, 501 U.S. 1 (1991) (prejudgment attachment statutes must satisfy federal due process; exigency showing required for ex parte attachments)
- Lauf v. James, 33 Conn. App. 223 (1993) (affidavit requirement for prejudgment remedy—failure to provide an affidavit can defeat statutory authority to grant attachment)
- Amodio v. Amodio, 247 Conn. 724 (1999) (distinguishes subject matter jurisdiction from a court’s authority under a statute)
- Reinke v. Sing, 328 Conn. 376 (2018) (standard of review and presumptions favoring jurisdiction)
- Glanz v. Testa, 200 Conn. 406 (1986) (prejudgment attachment is a statutory remedy in derogation of common law)
- State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556 (2010) (describing § 52-278e ex parte prejudgment remedy standards and postattachment hearing process)
- Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791 (2007) (procedural statutory noncompliance often implicates authority rather than subject matter jurisdiction)
- TES Franchising, LLC v. Feldman, 286 Conn. 132 (2008) (probable cause for prejudgment remedy is a lower standard than a preponderance required to win on the merits)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (2013) (same point regarding probable cause vs. merits standard)