The stories abound on foreclosure actions where the foreclosing lender was said not to have legal standing to bring the lawsuit.
What follows below are excerpts from decisions of the Connecticut Supreme Court and the Connecticut Appellate Court that describes what standing is, and the importance of having it before walking into a courthouse to initiate a lawsuit. It also addresses the connection, under Connecticut law, between standing, which a plaintiff must have before bringing a lawsuit, and subject matter jurisdiction, which is what a judge must have before rendering judgment in a particular case.(1)
From Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002):
We begin our analysis by underscoring that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. Ramos v. Vernon
, 254 Conn. 799, 808, 761 A.2d 705 (2000). ‘‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’’ (Internal quotation marks omitted.) Ganim v. Smith & Wesson Corp.
, 258 Conn. 313, 347, 780 A.2d 98 (2001).
‘‘This court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.’’ Daley v. Hartford, 215 Conn. 14, 27–28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). ‘‘[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.’’ Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). Moreover, ‘‘[t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.’’ Sadloski v. Manchester, 228 Conn. 79, 83, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995).
‘‘Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.’’ (Internal quotation marks omitted.) Harris v. New Milford
, 259 Conn. 402, 409–10, 788 A.2d 1239 (2002).
From Seguro v. Cummiskey, 82 Conn. App. 186, 199, 844 A.2d 224 (2004):
A party must be aggrieved to have standing to invoke the jurisdiction of the court. In re Shawn S.
, 262 Conn. 155, 164–65, 810 A.2d 799 (2002). ‘‘The fundamental test for determining aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] . . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].’’ (Internal quotation marks omitted.) Cardi Materials v. Connecticut Landscaping Bruzzi Corp.
, 77 Conn. App. 578, 581, 823 A.2d 1271 (2003).
Inasmuch as the state high court makes the observation that a court in Connecticut has no subject matter jurisdiction over a case when the plaintiff lacks standing, trial court judges may want to consider their judicial obligation to determine whether a foreclosing lender has any business appearing in their courtroom by carefully scrutinizing its court filings before granting a judgment in the case, even when the defendant/homeowner does not make an appearance in court. After all, a foreclosure judgment from a court that has no jurisdiction over the subject matter is vulnerable to being subsequently voided;(2) and if voided after a foreclosure sale has already taken place, leaves the foreclosure sale (as well as any and all subsequent sales of the subject property to innocent purchasers) also potentially vulnerable to being voided.
In states where a plaintiff's lack of standing to bring a foreclosure action leaves a court without subject matter jurisdiction to hear such an action, it should become the preferred practice for lower court judges to carefully scrutinize the plaintiff's right to bring the action from the outset.(3) Taking this approach will avoid creating the problem of unwinding a potentialy big mess down the road, when an attorney representing the homeowner files a motion (months, if not years, down the road) to declare void the foreclosure judgment, the foreclosure sale, and any title transfers subsequent to the foreclosure sale to innocent purchasers.
Those outside the state of Connecticut may wish to review their applicable laws to determine if a plaintiff's lack of standing leaves a court without subject matter jurisdiction.
(1) The issue of standing was also recently addressed by a Connecticut lower court in which it stopped a foreclosing lender from proceeding with a sale because of its lack of standing at the time the foreclosure action was filed. See Aurora Loan Servs., LLC v. Nuzzo, NNHCV075011888S Superior Court of Connecticut, Judicial District of New Haven at New Haven, 2008 Conn. Super. LEXIS 3002 (November 13, 2008) (access may require free registration at LexisOne Free Case Law).
(2) In Bicio v. Brewer, AC 25462 , 92 Conn. App. 158; 884 A.2d 12; 2005 Conn. App. LEXIS 458, (Ct. App. Ct. 2005), the Connecticut Appellate Court quoted from its earlier decision in General Motors Acceptance Corp. v. Pumphrey, 13 Conn. App. 223, 229, 535 A.2d 396 (1988), in which it indicated that "no principle is more universal than that the judgment of a court without jurisdiction is a nullity . . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged. . . . If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack." (Citation omitted; internal quotation marks omitted.)
(3) For an example of one Brooklyn, New York judge who has shown no reluctance in booting "standing-lacking" lenders and their attorneys from his courtroom, see Brooklyn Trial Judge Nixes "Rubber Stamp Method" Of Adjudicating Foreclosures; Lenders, Lawyers Lacking Legal Standing To Bring Actions Get Bounced.
For a related post on this issue, see Thousands Of Foreclosures Are Void, Says Massachusetts Class Action Demanding Lenders & Their Lawyers Prove Note Ownership. KappaMtgDocsMissing SloppyForeclosuresAlpha