215 Conn.App. 190
Conn. App. Ct.2022Background:
- Pennymac commenced foreclosure May 31, 2017 on Tarzia’s mortgage; it filed a July 31, 2017 affidavit asserting it mailed the EMAP notice on April 19, 2016 and attached a photocopy of a certified-mail envelope.
- Pennymac later assigned the loan to Wilmington Trust, which was substituted as plaintiff; the court entered judgment of strict foreclosure on January 13, 2020 and extended law days several times through October 6, 2020.
- On the final law day (Oct. 6, 2020) Tarzia moved to open the judgment, alleging Pennymac never mailed the EMAP notice and submitted an expert report (Peter Wade) claiming USPS tracking showed the certified-label was "created, not yet in system."
- Wilmington Trust produced the USPS deposit receipt dated April 19, 2016 showing the plaintiff’s counsel deposited a certified-mail letter at the Farmington USPS branch; no return receipt was produced.
- The trial court, after reviewing filings (no evidentiary hearing), found the plaintiff’s evidence showed compliance with the EMAP mailing requirement and denied the motion to open; Tarzia appealed, arguing lack of subject matter jurisdiction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court had subject matter jurisdiction because EMAP notice was mailed prior to suit | Plaintiff: Its affidavit, copy of addressed certified-mail envelope, and the USPS deposit receipt establish the required mailing under § 8-265ee(a) | Defendant: The certified-label was never entered into USPS system (per Wade), so notice was never mailed and court lacked jurisdiction | Court: Affirmed — factual finding that plaintiff mailed the EMAP notice was supported; thus court had subject matter jurisdiction |
| Whether absence of the return-receipt defeats proof of EMAP compliance | Plaintiff: Return receipt not required by EMAP; deposit receipt and business records suffice | Defendant: Lack of return receipt undermines proof of delivery | Held: Lack of return receipt is inconsequential; statute does not require it and prior authority allows circumstantial proof of mailing |
| Whether the trial court improperly discounted defendant’s late submissions and should have held a hearing | Plaintiff: Court properly weighed evidence; no party requested an evidentiary hearing | Defendant: Court gave little weight due to timing and should not have discredited Wade without a hearing | Held: Court explicitly reviewed and weighed evidence; no abuse in crediting plaintiff’s evidence and court did not need to hold a hearing absent a request |
Key Cases Cited
- MTGLQ Investors, L.P. v. Hammons, 196 Conn. App. 636 (Conn. App. 2020) (failure to mail EMAP notice prior to foreclosure deprives trial court of subject matter jurisdiction)
- Aurora Loan Servs., LLC v. Condron, 181 Conn. App. 248 (Conn. App. 2018) (EMAP does not require a return receipt; absence of return receipt does not defeat compliance)
- Bank of N.Y. Mellon v. Mazzeo, 195 Conn. App. 357 (Conn. App. 2020) (mailing can be proved by circumstantial evidence and business practices)
- Deutsche Bank Natl. Trust Co. v. McKeith, 156 Conn. App. 36 (Conn. App. 2015) (appellate court will defer to trial court credibility findings resolving jurisdictional facts)
- Kerin v. Udolf, 165 Conn. 264 (Conn. 1973) (customary business procedure circumstantially establishes mailing)
- Giannoni v. Comm’r of Transp., 322 Conn. 344 (Conn. 2016) (when subject-matter jurisdiction depends on critical factual disputes, an evidentiary hearing is required unless parties fail to request one)