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MARY JACKSON ET AL. v. PENNYMAC
LOAN SERVICES, LLC
(AC 43042)
Bright, C. J., and Prescott and Flynn, Js.
Syllabus
The plaintiffs appealed from the trial court’s dismissal of their action against
the defendant, a mortgage servicing company, in which they alleged
that the defendant violated the mortgage release statute (§ 49-8) by
failing to provide a timely and valid release of their mortgage. The court
dismissed the action for lack of subject matter jurisdiction due to the
plaintiffs’ alleged failure to demonstrate their compliance with the
requirements of § 49-8 (c) regarding the statutory demand notice for
release of the mortgage. This ground was not argued by the defendant
in its motion to dismiss. On appeal, the plaintiffs claimed that the trial
court deprived them of due process by dismissing their action on a
ground that the court raised sua sponte without affording them notice
or an opportunity to be heard. Held:
1. The trial court improperly granted the motion to dismiss, as that court
improperly addressed, sua sponte, the issue of the plaintiffs’ alleged
noncompliance with the statutory demand notice requirements in § 49-
8 (c) without first providing the plaintiffs with notice or a reasonable
opportunity to submit evidence of their compliance with those require-
ments; the plaintiffs were not given the opportunity to contest whether
they were required to demonstrate on the notice that was attached to
the complaint that the notice had been received by the defendant or its
attorney, and the defendant’s special defenses that alleged that the
plaintiffs failed to satisfy all conditions precedent, including sending
the required written demand notice to the defendant, were insufficient
to place the plaintiffs on notice that they were required to demonstrate
that they complied with the notice requirements of § 49-8 (c); moreover,
any alleged failure to satisfy the written demand notice requirements
did not deprive the court of jurisdiction to hear the matter, but rather
impacted the court’s authority to grant the relief sought by the plaintiffs;
furthermore, regardless of whether the issue was jurisdictional or simply
related to the court’s authority, due process required the defendant to
have raised in its motion to dismiss the issue of the plaintiffs’ compliance
with the statutory demand notice requirements of § 49-8 (c) or, failing
that, required the court to have provided the parties with notice that
the statutory demand notice requirements issue was to be decided before
it granted the defendant’s motion to dismiss on that ground.
2. The defendant could not prevail on its claim that the dismissal of the
plaintiffs’ action could be affirmed on the alternative ground that they
were not aggrieved pursuant to § 49-8 because they did not suffer any
harm and, therefore, did not have standing, as § 49-8 was a penalty
statute that did not require the plaintiffs to suffer actual damages; the
defendant did not provide evidence that it complied with the statute
(§ 49-9a) that would have upheld the defendant’s release of mortgage
that contained a ‘‘scrivener’s error,’’ and the plain language of § 49-8
provided damages for aggrieved persons if the mortgagee fails to execute
or deliver a timely release of mortgage, and the plaintiffs, who allegedly
did not receive a timely release of the mortgage on their property after
they undisputedly sold the property in a short sale, were accordingly
aggrieved persons within the meaning of § 49-8.
Argued November 12, 2020—officially released June 8, 2021
Procedural History
Action to recover damages for the defendant’s failure
to timely release a certain mortgage, and for other relief,
brought to the Superior Court in the judicial district of
New Haven, where the court, Wilson, J.; dismissed the
plaintiffs’ action, and the plaintiffs appealed to this
court. Reversed; further proceedings.
Sabato P. Fiano, with whom, on the brief, was Lori
A. DaSilva-Fiano, for the appellants (plaintiffs).
Jeffrey C. Ankrom, with whom, on the brief, was
Donald E. Frechette, for the appellee (defendant).
Opinion
FLYNN, J. The plaintiffs, Mary Jackson and Johnnie
Jackson, appeal from the judgment of the trial court
granting the motion of the defendant, Pennymac Loan
Services, LLC, to dismiss the action of the plaintiffs in
which they alleged that the defendant violated General
Statutes § 49-8 (c) by failing to provide a timely release
of their mortgage. The defendant did not argue in its
motion that the action should be dismissed for lack of
subject matter jurisdiction due to the plaintiffs’ alleged
failure to satisfy the requirements of § 49-8 (c) regarding
a statutory demand notice for release of the mortgage.
Nevertheless, the court dismissed the action on that
ground. On appeal, the plaintiffs claim that the court
deprived them of due process by dismissing their action
on a ground that the court had raised sua sponte without
affording them notice or an opportunity to be heard.
We agree with the plaintiffs that neither the defendant’s
motion to dismiss nor the court alerted them that their
alleged noncompliance with the statutory demand
notice requirements in § 49-8 (c) was at issue and,
accordingly, we reverse the judgment of the trial court.
At the outset, we note that at the center of the plain-
tiffs’ appeal is § 49-8, which concerns, inter alia, the
release of a satisfied mortgage, and provides in relevant
part: ‘‘(a) The mortgagee or a person authorized by law
to release the mortgage shall execute and deliver a
release to the extent of the satisfaction tendered before
or against receipt of the release: (1) Upon the satisfac-
tion of the mortgage . . . . (c) The mortgagee or plain-
tiff or the plaintiff’s attorney, as the case may be, shall
execute and deliver a release within sixty days from
the date a written request for a release of such encum-
brance (1) was sent to such mortgagee, plaintiff or
plaintiff’s attorney at the person’s last-known address
by registered or certified mail, postage prepaid, return
receipt requested, or (2) was received by such mort-
gagee, plaintiff or plaintiff’s attorney from a private
messenger or courier service or through any means of
communication, including electronic communication,
reasonably calculated to give the person the written
request or a copy of it. The mortgagee or plaintiff shall
be liable for damages to any person aggrieved at the
rate of two hundred dollars for each week after the
expiration of such sixty days up to a maximum of five
thousand dollars or in an amount equal to the loss
sustained by such aggrieved person as a result of the
failure of the mortgagee or plaintiff or the plaintiff’s
attorney to execute and deliver a release, whichever is
greater, plus costs and reasonable attorney’s fees.’’
The following facts and procedural history, as stated
by the trial court, are relevant to the resolution of the
plaintiffs’ claims on appeal. ‘‘On May 7, 2018, the plain-
tiffs . . . filed a two count complaint against the defen-
dant . . . alleging the following facts. The plaintiffs
owned property known as 261 Winthrop Avenue in New
Haven, Connecticut (property). [The] property was
encumbered by a mortgage given by the plaintiffs, dated
October 13, 2010, and recorded on October 15, 2010,
in the New Haven land records (land records) that, after
several assignments, was assigned to the defendant by
assignment dated January 2, 2014, and recorded on
January 14, 2014, in the land records. On or about Janu-
ary 20, 2016, the plaintiffs paid off the mortgage to
the defendant by wire transfer in accordance with the
defendant’s payoff statement, which the plaintiffs and
the defendant had negotiated. The defendant was noti-
fied of the statutorily mandated sixty day period to
issue a valid release of the mortgage pursuant to . . .
§ 49-8, but the defendant failed to timely provide a
proper and valid executed release of mortgage within
that time period. The defendant violated § 49-8 and is
liable for statutory damages in the amount of $5000,
plus reasonable attorney’s fees and costs.’’ (Footnotes
omitted.) The court further stated that the defendant
filed an answer and special defenses in which it alleged
that it was assigned the subject mortgage on the prop-
erty and received sufficient funds to pay off the mort-
gage, however, the defendant denied that it had failed
to provide a proper and valid release. The defendant
moved to dismiss the action for lack of subject matter
jurisdiction on the grounds that the plaintiffs were nei-
ther classically nor statutorily aggrieved. Alternatively,
the defendant sought summary judgment.
In a decision filed May 21, 2019, the court granted
the defendant’s motion to dismiss. The court deter-
mined that ‘‘§ 49-8 is a penalty statute, and the plaintiffs
can be, potentially, statutorily aggrieved simply by not
having received a timely valid release from the defen-
dant within sixty days of the requisite notice/request
for release of mortgage having been sent and/or
received . . . . The plaintiffs can only be aggrieved
pursuant to § 49-8 if they have strictly complied with
the statutory notice provisions.’’ Although the court
never notified the plaintiffs that it was considering
granting the motion to dismiss on grounds that it had
raised sua sponte concerning the plaintiffs’ compliance
with the statutory demand notice requirements in § 49-
8 (c), it, nonetheless, did so. It concluded that the plain-
tiffs had not complied with these requirements: ‘‘First,
the plaintiffs fail to indicate on the notice itself, and
fail to present other evidence in support, that the notice
was ‘sent’ to the defendant by registered or certified
mail, return receipt requested, as required by the stat-
ute. Second, the plaintiffs fail to indicate on the notice
itself, and fail to present other evidence in support,
that the notice was ‘received’ by the defendant or the
defendant’s attorney from a private messenger or cou-
rier service or through any means of communication,
including electronic communication, as required by
statute. . . . The court has further reason to doubt that
the plaintiffs have sufficiently complied with the
requirements in the statute; specifically, that the plain-
tiffs sent such notice to the defendant’s last known
address. In the assignment of the mortgage to the defen-
dant, the address for the defendant is listed as: 6101
Condor Drive, Moorpark, CA 93021-2603. . . . The
notice, however, lists a different zip code than the one
provided on the assignment. The notice is addressed
with the zip code 93201.’’ (Internal quotation marks
omitted.) The court concluded that, because ‘‘the plain-
tiffs have not met their burden of establishing that they
complied with statutory demand notice in § 49-8, the
court lacks subject matter jurisdiction. Therefore, the
defendant’s motion to dismiss is granted. In light of the
court’s ruling on the motion to dismiss, it need not
address the alternate motion for summary judgment.’’
This appeal followed.
I
The plaintiffs claim that the court violated their right
to due process when it granted the defendant’s motion
to dismiss on grounds that the court had raised sua
sponte. The plaintiffs specifically contend that the
defendant did not raise in its motion to dismiss the
issue of their alleged failure to satisfy the statutory
demand notice requirements in § 49-8 (c), and that the
court did not give them notice or an opportunity to be
heard and present evidence of their compliance on that
issue before it determined that their failure to satisfy
those statutory requirements caused them to lack stand-
ing. We agree.
The following principles guide our analysis. Our
review of the court’s decision on a motion to dismiss
is plenary. See Izzo v. Quinn, 170 Conn. App. 631, 636,
155 A.3d 315 (2017). Additionally, our review of whether
a party has been deprived of due process is a question
of law over which our review is plenary. See Mikucka
v. St. Lucian’s Residence, Inc., 183 Conn. App. 147,
160–61, 191 A.3d 1083 (2018).
The language of § 49-8 (c) indicates that the defen-
dant is required to provide a release of mortgage, to
the extent of the satisfaction, within sixty days from
the date that the plaintiffs properly sent a written
demand for release of such mortgage or from the date
that it was properly received. General Statutes § 49-8
(c). The issue of the plaintiffs’ alleged failure to comply
with the statutory demand notice requirements in § 49-
8 (c), however, was not raised by the defendant in its
motion to dismiss, in its accompanying memorandum
of law, or during argument on the motion to dismiss.
Rather, in its motion to dismiss, the defendant claimed
that the plaintiffs lacked standing because ‘‘they never
suffered any harm and thus are neither classically nor
statutorily aggrieved.’’ In its memorandum of law in
support of its motion to dismiss, the defendant argued
that the plaintiffs did not suffer an injury because the
defendant had provided a release of mortgage that was
effective to discharge the mortgage, despite a ‘‘typo-
graphical error,’’ and that the plaintiffs were not
aggrieved because they were not the owners of the
property.
Although the plaintiffs, in their complaint, alleged
an injury to an interest protected by § 49-8, the court
determined that the plaintiffs were not aggrieved
because they had failed to demonstrate, by the notice
itself or by other evidence, that they had complied
strictly with the requirements regarding a statutory
demand notice for release of mortgage in § 49-8 (c). ‘‘A
fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved . . . . Generally, when the exercise of
the court’s discretion depends on issues of fact which
are disputed, due process requires that a trial-like hear-
ing be held, in which an opportunity is provided to
present evidence and to cross-examine adverse wit-
nesses.’’ (Citation omitted; internal quotation marks
omitted.) Szot v. Szot, 41 Conn. App. 238, 241, 674 A.2d
1384 (1996); see also Conboy v. State, 292 Conn. 642,
652, 974 A.2d 669 (2009) (‘‘where a jurisdictional deter-
mination is dependent on the resolution of a critical
factual dispute, it cannot be decided on a motion to
dismiss in the absence of an evidentiary hearing to
establish jurisdictional facts’’).
We conclude that the court improperly addressed,
sua sponte, the issue of the plaintiffs’ alleged noncom-
pliance with the statutory demand notice requirements
in § 49-8 (c) without first providing the plaintiffs with
notice or a reasonable opportunity to submit evidence
of their compliance with those requirements. Addition-
ally, the plaintiffs did not have an opportunity to contest
whether they were required to demonstrate on the
notice that was attached to the complaint that the notice
had been received by the defendant mortgagee or its
attorney.
The defendant argues that the court properly con-
cluded that the plaintiffs failed to demonstrate that they
had complied with the statutory written demand notice
for release of mortgage requirements in § 49-8 (c). The
defendant argues that the plaintiffs ‘‘had sufficient
opportunity to demonstrate they fulfilled all conditions
precedent’’ and that the plaintiffs ‘‘refused to present
any evidence’’ of their compliance with the statutory
demand notice requirements in § 49-8 (c). The defen-
dant’s argument, however, presumes that the plaintiffs
knew that compliance with the statutory demand notice
requirements in § 49-8 (c) was at issue in the motion
to dismiss and that they had an opportunity to present
evidence. This argument ignores the dispositive fact
that neither the defendant movant nor the court notified
the plaintiffs that an issue to be decided by the court
in ruling on the defendant’s motion to dismiss was
whether the plaintiffs had complied with those statutory
requirements.
The defendant, nonetheless, contends that the plain-
tiffs somehow were on notice that the court might grant
the motion to dismiss, sua sponte, on grounds relating
to the plaintiffs’ compliance with the statutory demand
notice requirements in § 49-8 (c) by virtue of the defen-
dant’s special defenses. The defendant raised as a spe-
cial defense to the complaint that the plaintiffs failed
to satisfy all conditions precedent, including sending
the required written demand notice to the defendant.
We are not persuaded.
If the defendant wanted to place the plaintiffs on
notice that it was seeking to have the court address
this issue when ruling on its motion to dismiss, it needed
to raise the issue in connection with its motion to
dismiss. The defendant’s special defenses did not place
the plaintiffs on notice that the issue, which was never
raised in the motion to dismiss, could be the dispositive
basis for the court’s decision. ‘‘The purpose of requiring
written motions is not only the orderly administration
of justice . . . but the fundamental requirement of due
process of law.’’ (Citation omitted; internal quotation
marks omitted.) Berglass v. Berglass, 71 Conn. App.
771, 783, 804 A.2d 889 (2002).
The defendant next cites Ghent v. Meadowhaven
Condominium, Inc., 77 Conn. App. 276, 823 A.2d 355
(2003), as authority for its contention that it was the
plaintiffs’ burden, somehow, to anticipate that the court
would raise, sua sponte, the issue of their alleged non-
compliance with the statutory demand notice require-
ments in § 49-8 (c), which the defendant argues is a
condition precedent that must be satisfied in order for
the trial court to have subject matter jurisdiction. The
defendant contends that the plaintiffs’ failure to satisfy
that condition precedent warrants this court’s dismissal
of the appeal for lack of jurisdiction. We disagree.
This court decided in Ghent that the requirements in
’’[General Statutes] §§ 49-8 and 49-13 act as a limitation
on the trial court’s general authority to grant relief, but
do not involve its subject matter jurisdiction . . . .’’
Id., 278 n.1. ‘‘A court does not truly lack subject matter
jurisdiction if it has competence to entertain the action
before it. . . . Although related, the court’s authority
to act pursuant to a statute is different from its subject
matter jurisdiction. The power of the court to hear and
determine, which is implicit in jurisdiction, is not to be
confused with the way in which that power must be
exercised in order to comply with the terms of the
statute.’’ (Citations omitted; internal quotation marks
omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724
A.2d 1084 (1999). Consequently, any alleged failure to
satisfy the written demand notice requirement, does
not deprive the court of jurisdiction to hear the matter,
but rather it impacts the court’s authority to grant the
relief sought by the plaintiffs. Furthermore, regardless
of whether the issue is jurisdictional or simply relates
to the trial court’s authority, due process requires the
movant to have raised in its motion to dismiss the issue
of the plaintiffs’ compliance with the statutory demand
notice requirements in § 49-8 (c) or, failing that, requires
that the court to have provided the parties with notice
that the issue was to be decided before it granted the
defendant’s motion to dismiss on that ground. Lack
of that notice prevented the plaintiffs from presenting
evidence that they had complied with the statutory
demand notice requirements in § 49-8 (c).
II
The defendant argues that the court’s granting of the
motion to dismiss should be affirmed on the alternative
grounds that the plaintiffs were not aggrieved pursuant
to § 49-8 and, therefore, did not have standing because
they (1) did not suffer any damages and cannot demon-
strate any legally cognizable harm, (2) did not suffer
any possibility of harm, and (3) are not the owners of
the property. The defendant raised these issues in its
motion to dismiss and the court, in its memorandum
of decision, disagreed with the defendant’s standing
arguments. We also are not persuaded by these argu-
ments.
Our review of a court’s legal conclusion regarding
standing is plenary. Heinonen v. Gupton, 173 Conn.
App. 54, 59, 162 A.3d 70, cert. denied, 327 Conn. 902,
169 A.3d 794 (2017). To establish statutory standing,
the plaintiffs must ‘‘claim injury to an interest protected
by that legislation.’’ (Internal quotation marks omitted.)
State Marshal Assn. of Connecticut, Inc. v. Johnson,
198 Conn. App. 392, 402, 234 A.3d 111 (2020). Statutory
interpretation involves a question of law over which
our review is plenary. Friezo v. Friezo, 281 Conn. 166,
180, 914 A.2d 533 (2007).
Section 49-8 sounds in tort and prescribes damages
for a breach of the statutory duty to release a mortgage.
Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193,
200–201, 931 A.2d 916 (2007). In their complaint, the
plaintiffs claimed an injury to an interest protected by
§ 49-8, namely, the defendant’s failure to release the
mortgage timely following their satisfaction of the mort-
gage, which is sufficient to demonstrate standing under
the statute. ‘‘A statutorily aggrieved person need not
have sustained any injury.’’ Lewis v. Planning & Zoning
Commission, 62 Conn. App. 284, 297, 771 A.2d 167
(2001).
Section 49-8 (c) specifies that the mortgagee is liable
to an aggrieved person for the greater of either $200
for each week after the expiration of the sixty days up
to a maximum of $5000 or an amount equal to the loss
sustained by the aggrieved person as a result of the
failure to execute and deliver a release. General Statutes
§ 49-8 (c). This court held in Bellemare v. Wachovia
Mortgage Corp., 94 Conn. App. 593, 602, 894 A.2d 335
(2006), aff’d, 284 Conn. 193, 931 A.2d 916 (2007), that,
‘‘even though § 49-8 allows the aggrieved party to
recover actual damages, the statute does not require
that the aggrieved party suffer actual damages in order
to recover. In that light, it is apparent that the right
vested in mortgagors by § 49-8 is to exact a penalty on
a mortgagee who fails, on proper demand, to provide
a release of mortgage within the statutorily prescribed
time. Because the wronged party is entitled to an award
of damages irrespective of whether there has been a
showing of actual damages, the statute best can be
understood as a coercive means to penalize those who
violate its prescriptions.’’ Because § 49-8 is a penalty
statute that does not require the plaintiffs to suffer
actual damages, the defendant cannot prevail on its
argument that the plaintiffs lack standing because they
did not suffer actual damages.
The defendant further argues that the plaintiffs
lacked standing because they have not suffered any
possibility of harm. The defendant contends that the
original release can be considered valid pursuant to
General Statutes § 49-9a, despite a ‘‘scrivener’s error.’’
The defendant noted in its appellate brief that it had
executed the release as the attorney-in-fact for Bank
of America, N.A., when the defendant, as the mortgagee,
should have executed the release in its own name, Pen-
nymac Loan Services, LLC. The release states that
‘‘Bank of America, N.A., is the holder of a certain Mort-
gage that was made by Mary L. Jackson and Johnnie
Jackson . . . Bank of America, N.A., does hereby
acknowledge that it has received full payment and satis-
faction . . . and in consideration thereof, does hereby
cancel and release said Mortgage.’’ The release was
signed by ‘‘Bank of America, N.A., by Pennymac Loan
Services, LLC, its Attorney-in-Fact . . . Kristopher
Sandberg.’’ In its memorandum of law in support of its
motion to dismiss, the defendant noted that although
it, and not Bank of America, N.A., was the mortgagee,
pursuant to the savings clause of § 49-9a, a release is
valid as if it had appeared in the name of the mortgagee.
Section 49-9a (a) provides in relevant part that ‘‘a
release of mortgage executed by any person other than
an individual that is invalid because it is not issued or
executed by, or fails to appear in the name of the record
holder of the mortgage on one, two, three or four-family
residential real property located in this state . . . shall
be as valid as if it had been issued or executed by,
or appeared in the name of, the record holder of the
mortgage . . . provided an affidavit is recorded in the
land records of the town where the mortgage was
recorded [and states certain facts as specified in subdi-
visions (1) through (4) of subsection (a)].’’ (Emphasis
added.) The court determined that it was not necessary
to address the defendant’s argument regarding § 49-9a.
The court noted that, even if that statute were applica-
ble, the statute requires that an affidavit be recorded
in the land records as a condition precedent, and the
defendant failed to provide the court with a copy of
such an affidavit and that the defendant’s attorney noted
that he had not filed such an affidavit. We agree with the
court that in the absence of evidence of the recording
of an affidavit pursuant to § 49-9a (a), the defendant
could not invoke that statute.
Alternatively, the defendant contends that the origi-
nal release was effective despite a ‘‘scrivener’s error’’
and further argues that, regardless of the effectiveness
of the original release, the corrected release was retro-
actively effective as to the date of the recording of the
original release. The court was not persuaded by these
arguments and neither are we. In order to establish
standing, the plaintiffs need only ‘‘a colorable claim of
injury,’’ and they can establish aggrievement by demon-
strating ‘‘a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.’’ (Internal quotation marks omitted.)
AvalonBay Communities, Inc. v. Orange, 256 Conn.
557, 568, 775 A.2d 284 (2001). The plaintiffs allege in
their complaint that they paid off the mortgage and that
the defendant failed to timely release the mortgage after
having been given notice. These allegations contain a
colorable claim of injury. The issues of whether the
original release was valid or whether the corrected
release cured any defect do not implicate standing.
Instead, those issues relate to the merits of the plaintiffs’
claim that the defendant violated § 49-8 by failing to
release the mortgage timely.
The defendant additionally argues, as an alternative
ground for affirmance, that the plaintiffs did not suffer
any monetary damages and, therefore, lack standing
because they were not the owners of the property and
had received forgiveness of $72,256.44 through a short
sale of the property. In their complaint, the plaintiffs
alleged that the defendant failed to provide a valid
timely release of mortgage and that ‘‘[a]t all times herein
mentioned’’ the plaintiffs were the owners of the prop-
erty. Attached as an exhibit to the complaint was a
copy of a document in which the defendant approved
the plaintiffs’ request for a short sale of the property
and provided that, if certain terms, which included the
defendant receiving the net proceeds from the sale,
were met then the defendant would release the mort-
gage upon its satisfaction. Also attached to the com-
plaint was a copy of a January 25, 2016 wire transfer
receipt showing the negotiated payment from the plain-
tiffs to the defendant. The defendant attached to its
‘‘motion to dismiss or, in the alternative, for summary
judgment’’ an affidavit of Johnny Morton, a foreclosure
operations supervisor of the defendant, in which Mor-
ton stated that, in January, 2016, the defendant agreed
to accept all net proceeds of a short sale of the property
in exchange for satisfaction of the mortgage, and that,
on January 25, 2016, the defendant was paid in full
satisfaction of the mortgage. In its memorandum of law
in opposition to the defendant’s motion to dismiss, the
plaintiffs do not dispute the existence of a short sale,
but contend that they have standing to bring an action
pursuant to § 49-8 because Superior Court case law
indicates that a homeowner who gave a warranty deed
to an eventual buyer of the property has a legally pro-
tected interest in providing clear and marketable title
to that property. See New England Home Buyers, LLC
v. DMR Builders, LLC, Superior Court, judicial district
of Waterbury, Docket No. CV-XX-XXXXXXX-S (May 5,
2009).
Although the trial court did not find facts relating to
the ownership of the property, it is undisputed that
there was an agreement for a short sale of the property.
The court concluded that the defendant could not pre-
vail on its arguments regarding standing and stated that
‘‘[t]he statute clearly contemplates that a mortgagor can
bring an action pursuant to § 49-8, and that a party does
not have to suffer actual loss or injury in order to be
‘aggrieved’ pursuant to this statute,’’ and determined
that the plaintiffs, as the mortgagors, were potentially
aggrieved parties pursuant to § 49-8 if they satisfied the
statutory demand notice provision of the statute.
The defendant has not cited any case law, nor are
we aware of any, that provides that mortgagors who
alleged in their complaint that the mortgagee failed to
timely release their mortgage, somehow, are not
aggrieved pursuant to § 49-8. The plain language of § 49-
8 (c) provides that ‘‘[t]he mortgagee . . . shall be liable
for damages to any person aggrieved . . . .’’ (Emphasis
added.) This court’s decision in Hall v. Kasper Associ-
ates, Inc., 81 Conn. App. 808, 846 A.2d 228 (2004), rein-
forces the notion that the ability to be aggrieved pursu-
ant to § 49-8 (c) is not exclusive to property owners.
In Hall, the seller’s attorney who had signed an agree-
ment that indemnified the title insurer from any loss
suffered as a result of an unreleased mortgage encum-
brance was a ‘‘person aggrieved’’ pursuant to § 49-8 (c).
Id., 812–13.
Even if we were to conclude that the statute is ambig-
uous; see General Statutes § 1-2z; we nonetheless would
reach the same conclusion in light of the following
legislative history. In Bellemare v. Wachovia Mortgage
Corp., supra, 94 Conn. App. 604–605, which concerned
whether the trial court properly determined that the
tort statute of limitations applied to the claim of the
plaintiff mortgagor, who had sold her home, that the
defendant mortgagee failed to deliver a timely release
of mortgage upon her satisfaction of the mortgage, this
court noted: ‘‘[I]n 1986, during the hearings to amend
§ 49-8a, the cousin of § 49-8, Representative William L.
Wollenberg noted the ‘constant problem in the real
estate [world] with mortgage releases . . . . When it
comes time to sell a house or any real estate a release of
that mortgage is necessary. . . . What has developed
is an extreme difficulty in getting out of state mortgage
companies and financial people . . . [t]o . . . give
you the pay off, let alone a formal release of the mort-
gage for the land records.’ 29 H.R. Proc., Pt. 11, 1986
Sess., pp. 4167–68. . . . [I]n 1995, § 49-8 was amended
as part of ‘An Act Concerning Release or Satisfaction
of a Mortgage Lien.’ Public Acts 1995, No. 95-102, § 1.
The stated purpose of ‘An Act Concerning Release or
Satisfaction of a Mortgage Lien’ was to ‘revise the proce-
dure for the release or satisfaction of a mortgage lien
by increasing incentives to assure lenders comply with
laws requiring releases and by enhancing the remedies
and options available to mortgagors and attorneys when
lenders fail to comply.’ . . . Accordingly, the legisla-
tive history and statutory scheme of § 49-8 establish
that the statute was enacted and continues not only
to protect property owners, but it has a more general
purpose of enhancing the marketability of titles and
facilitating economic intercourse in deeded transac-
tions. See id.; Conn. Joint Standing Committee Hear-
ings, Banks, 1979 Sess., pp. 283–84; 29 H.R. Proc., Pt. 11,
1986 Sess., pp. 4166–68.’’ (Citations omitted; emphasis
omitted.)
The plain language of the statute provides damages
for aggrieved persons if the mortgagee fails to execute
or deliver a timely release of mortgage. See General
Statutes § 49-8 (c). The legislative history makes clear
that the statute is meant to facilitate the marketability of
properties by penalizing mortgagees who fail to provide
mortgagors with a timely release of mortgage. The plain-
tiff mortgagors, who allegedly did not receive a timely
release of the mortgage on their property after they
undisputedly sold the property in a short sale, are
aggrieved persons within the meaning of § 49-8 (c).
Accordingly, we determine that the defendant cannot
prevail on its standing arguments.
We conclude that the court improperly granted the
defendant’s motion to dismiss because it, sua sponte,
raised and addressed the issue regarding the plaintiffs’
compliance with the statutory demand notice require-
ments of § 49-8 (c) without providing them with notice
or an opportunity to be heard. We do not agree with
the defendant that the court’s decision can be affirmed
on the alternative grounds it has raised.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.