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KEYBANK, N.A. v. EMRE YAZAR ET AL.
(AC 42829)
Moll, Alexander and DiPentima, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendants. The plaintiff moved for summary judgment
to which the defendant O objected, claiming that the plaintiff had failed
to comply with the statutory (§ 8-265ee (a)) notice requirement of the
Emergency Mortgage Assistance Program, which requires a mortgagee
to provide certain specific notice to the mortgagor before it can com-
mence a foreclosure of a qualifying mortgage. O claimed that this failure
deprived the trial court of subject matter jurisdiction. The plaintiff
claimed that this requirement was satisfied, relying on notice that had
been sent prior to the commencement of a previous foreclosure action
involving the defendants brought by the original lender. That previous
foreclosure action was dismissed. The trial court concluded that the
plaintiff had complied with its obligations to send notices of default
and satisfied its EMAP obligations pursuant to § 8-265ee. The trial court
granted the motion for summary judgment and rendered judgment of
strict foreclosure, from which O appealed to this court. Held that the
trial court lacked subject matter jurisdiction because the plaintiff, as
the original plaintiff in the present action, failed to comply with the
jurisdictional condition precedent of the notice requirements of § 8-
265ee (a), and there was no dispute that the plaintiff did not mail
the defendants EMAP notice in connection with the present action;
moreover, a foreclosure action in which the EMAP notice requirement
applies must stand on its own EMAP notice, and, when a mortgagee’s
initial in-court attempt to foreclose results in a dismissal of that foreclo-
sure action, such that it must commence a foreclosure anew, § 8-265ee
(a) requires the mailing of a new EMAP notice in order to commence
the subsequent foreclosure action.
Submitted on briefs December 1, 2020—officially released August 10, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendants, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the defendants were
defaulted for failure to plead; thereafter, the court, Gen-
uario, J., granted the plaintiff’s motion for summary
judgment as to liability only; subsequently, the court,
Genuario, J., granted the plaintiff’s motion for a judg-
ment of strict foreclosure and rendered judgment
thereon, from which the defendant Ozlem Yazar
appealed to this court. Reversed; judgment directed.
Ozlem Yazar, self-represented, the appellant (defen-
dant).
Christopher J. Picard, for the appellee (plaintiff).
Opinion
MOLL, J. The defendant Ozlem Yazar,1 a self-repre-
sented party, appeals from the judgment of strict fore-
closure rendered by the trial court in favor of the plain-
tiff, KeyBank, N.A. On appeal, the defendant claims,
inter alia, that the plaintiff failed to comply with General
Statutes § 8-265ee (a), the notice provision of the Emer-
gency Mortgage Assistance Program (EMAP), General
Statutes § 8-265cc et seq., and that such noncompliance
left the court without subject matter jurisdiction to
entertain the foreclosure action. We agree and conclude
that the failure of the plaintiff (as the original plaintiff
in the present action) to mail an EMAP notice to the
defendant (as the mortgagor) in connection with the
present action deprived the court of subject matter
jurisdiction. Accordingly, we reverse the judgment of
the trial court and remand the case with direction to
dismiss the action.
The record reveals the following facts and procedural
history relevant to the defendant’s claims on appeal.
On June 19, 2014, Emre Yazar executed and delivered
a promissory note in the original principal amount of
$580,000 to First Niagara Bank, N.A. (First Niagara).
To secure the note, Emre Yazar and the defendant exe-
cuted a mortgage on real property located at 25 Fresh
Meadow Road in Weston (property), which mortgage
deed was recorded on the Weston land records. Begin-
ning in March, 2016, and each and every month there-
after, Emre Yazar failed to make payments on the note.
On August 22, 2016, First Niagara sent separate notices
of default and the notices prescribed by EMAP to Emre
Yazar and to the defendant, individually, to the property
address. On or about October 8, 2016, the plaintiff
acquired First Niagara. The plaintiff, through an agent,
has possession of the note and is the mortgagee of
record.
On January 16, 2017, the plaintiff commenced, in the
judicial district of Fairfield, a foreclosure action against
Emre Yazar and the defendant. See KeyBank N.A. v.
Yazar, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX-S (prior foreclosure action).
On April 26, 2017, however, the trial court dismissed
the action on the basis of the plaintiff’s failure to provide
the foreclosure mediator with the forms and informa-
tion required by General Statutes § 49-31l (c) (4), as
well as its failure to comply with the court’s order
requiring the submission of same by a date certain.2
On August 22, 2017, the plaintiff commenced, in the
judicial district of Stamford-Norwalk, the present fore-
closure action against Emre Yazar and the defendant,
bearing Docket No. CV-XX-XXXXXXX-S, alleging that the
note was in default and that the default had not been
cured. The plaintiff sought, among other things, foreclo-
sure of the mortgage and possession of the property.
On April 25, 2018, the plaintiff filed a motion for default
for failure to plead as to Emre Yazar and the defendant,
which was granted on May 2, 2018.3 Thereafter, the
defendant filed an answer and special defenses. On
September 13, 2018, the plaintiff filed a motion for sum-
mary judgment as to liability only (motion for summary
judgment), arguing that it had established a prima facie
case for foreclosure and that it had complied with the
EMAP notice requirement set forth in § 8-265ee (a). For
the latter proposition, the plaintiff exclusively relied on
the August 22, 2016 EMAP notices sent by First Niagara
in advance of the commencement of the prior foreclo-
sure action.4 In her memorandum in opposition to the
plaintiff’s motion for summary judgment, the defendant
argued, in part, that she had not received any EMAP
notices and that the plaintiff had not complied with the
EMAP notice requirement with respect to the present
action.
On November 21, 2018, having heard oral argument,
the trial court granted the plaintiff’s motion for sum-
mary judgment. The court determined that there was
no genuine issue of material fact that the note was
in default and that the plaintiff had complied with its
obligations to send notices of default and acceleration
to the mortgagors; the court further concluded that the
plaintiff had satisfied its EMAP obligations under § 8-
265ee. On April 1, 2019, the court rendered a judgment
of strict foreclosure. This appeal followed.
On September 28, 2020, during the pendency of this
appeal, this court ordered, sua sponte, the parties to
submit supplemental briefs to address the impact of
MTGLQ Investors, L.P. v. Hammons, 196 Conn. App.
636, 230 A.3d 882, cert. denied, 335 Conn. 950, 238 A.3d
21 (2020), on this appeal. The parties thereafter filed
supplemental briefs in accordance with this court’s
order.
As a threshold matter, the defendant claims that the
trial court lacked subject matter jurisdiction because
the plaintiff failed to comply with the EMAP notice
requirement of § 8-265ee (a). The plaintiff counters that
§ 8-265ee (a) was satisfied by virtue of the EMAP notices
that were sent on August 22, 2016, by First Niagara
before the commencement of the prior foreclosure
action. We agree with the defendant.5
We begin by setting forth the language of the statute.
Section 8-265ee (a) provides: ‘‘On and after July 1, 2008,
a mortgagee who desires to foreclose upon a mortgage
which satisfies the standards contained in subdivisions
(1), (9), (10) and (11) of subsection (e) of section 8-
265ff, shall give notice to the mortgagor by registered,
or certified mail, postage prepaid at the address of the
property which is secured by the mortgage. No such
mortgagee may commence a foreclosure of a mortgage
prior to mailing such notice. Such notice shall advise
the mortgagor of his delinquency or other default under
the mortgage and shall state that the mortgagor has
sixty days from the date of such notice in which to (1)
have a face-to-face meeting, telephone or other confer-
ence acceptable to the [Connecticut Housing Finance
Authority (authority)] with the mortgagee or a face-to-
face meeting with a consumer credit counseling agency
to attempt to resolve the delinquency or default by
restructuring the loan payment schedule or otherwise,
and (2) contact the authority, at an address and phone
number contained in the notice, to obtain information
and apply for emergency mortgage assistance payments
if the mortgagor and mortgagee are unable to resolve
the delinquency or default.’’ (Emphasis added.) Pursu-
ant to § 8-265cc, the term mortgagee is defined, for
purposes of General Statutes §§ 8-265cc through 8-
265kk, as follows: ‘‘(4) ‘Mortgagee’ means the original
lender under a mortgage, or its agents, successors, or
assigns . . . .’’
We next provide a review of this court’s decision in
MTGLQ Investors, L.P. v. Hammons, supra, 196 Conn.
App. 636. In Hammons, the plaintiff mortgagee, MTGLQ
Investors, L.P., brought a foreclosure action against the
defendant, against whom a judgment of strict foreclo-
sure ultimately was rendered. Id., 638. On appeal, the
defendant argued that the plaintiff failed to comply with
the EMAP notice requirement of § 8-265ee (a), leaving
the trial court without subject matter jurisdiction over
the foreclosure action. Id., 640–41. In response, the
plaintiff contended that § 8-265ee (a) was satisfied by
virtue of an EMAP notice sent in advance of a prior
foreclosure action against the defendant, which had
been commenced by a prior mortgagee (specifically,
Federal National Mortgage Association (Fannie Mae),
which assigned the mortgage to MTGLQ Investors, L.P.,
during the pendency of that prior action). Id., 639, 641.
After examining the relevant statutory language, we
agreed with the defendant, concluding, as a matter of
first impression, that the EMAP notice requirement of
§ 8-265ee (a), when applicable, is subject matter juris-
dictional and that the mailing of an EMAP notice in
advance of a prior foreclosure action by a prior mort-
gagee does not satisfy that requirement with respect to
a subsequent foreclosure action. Id., 638.
In Hammons, we reasoned: ‘‘The first sentence of
§ 8-265ee (a) creates a notice requirement applicable
to any ‘mortgagee who desires to foreclose upon a mort-
gage’ that satisfies the standards in [General Statutes]
§ 8-265ff (e) (1), (9), (10), and (11). The second sentence
then provides that ‘[n]o such mortgagee may commence
a foreclosure of a mortgage prior to mailing such
notice.’ . . . General Statutes § 8-265ee (a). By its use
of the phrase ‘such mortgagee,’ the second sentence
necessarily refers to the particular mortgagee in the
preceding sentence, i.e., the one that desires to fore-
close upon a mortgage. Stated differently, the second
sentence makes clear that it is directed—not to any
mortgagee in the chain of assignment but—to the mort-
gagee that wishes to ‘commence a foreclosure’ of an
applicable mortgage. In other words, the second sen-
tence is directed to the original plaintiff in a foreclosure
action. Such statutory provision then provides that such
mortgagee may not commence a foreclosure ‘prior to
mailing such notice,’ namely, the notice described in
the first sentence. In this regard, the second sentence
makes clear that it is the mortgagee that wishes to
commence a foreclosure that has the obligation of mail-
ing an EMAP notice. These provisions are clear and
unambiguous. Their plain terms indicate that, in appli-
cable cases, a mortgagee may not commence a foreclo-
sure action without first mailing the mortgagor the pre-
scribed notice. In the absence of such notice, a
foreclosure action may not be commenced.’’ (Emphasis
in original.) Id., 644–45. We went on to conclude that
‘‘the EMAP notice requirement set forth in § 8-265ee
(a), when applicable, is a condition precedent to the
commencement of a foreclosure action. As such, the
failure to comply with the notice requirement deprives
the trial court of subject matter jurisdiction. See Lam-
pasona v. Jacobs, [209 Conn. 724, 729–30, 553 A.2d 175]
(collecting cases for proposition that certain statutory
notice requirements constitute jurisdictional conditions
precedent to commencement of actions) [cert. denied,
492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989)].’’
(Footnote omitted.) MTGLQ Investors, L.P. v. Ham-
mons, supra, 196 Conn. App. 645.
We rejected the plaintiff’s argument in Hammons that
it had satisfied the EMAP notice requirement, stating:
‘‘There is nothing in the plain language of § 8-265ee (a)
to support the plaintiff’s argument that it may satisfy
the statute by relying on a prior mortgagee’s EMAP
notice sent prior to [the commencement of] a previously
dismissed foreclosure action. Moreover, in suggesting
that it may rely on an EMAP notice sent by a prior
mortgagee in connection with a separate foreclosure
action, the plaintiff’s reliance on the definition of
‘[m]ortgagee,’ which includes an original mortgage lend-
er’s ‘agents, successors, or assigns’; General Statutes
§ 8-265cc (4); is misplaced, for it ignores the plain mean-
ing of the text of § 8-265ee (a), which is carefully
directed to a particular mortgagee in time.’’ Id., 645–46.
The present case gives us occasion to hold explicitly
what we recognized implicitly in Hammons, namely,
that, a foreclosure action in which the EMAP notice
requirement applies; see footnote 5 of this opinion; must
stand on its own EMAP notice. Such a rule is implicit
in the statutory provision that no mortgagee intending
to foreclose on an eligible mortgage ‘‘may commence
a foreclosure of [such] mortgage prior to mailing such
notice.’’ General Statutes § 8-265ee (a). Such a statutory
condition aligns with the purpose of § 8-265ee (a),
which is to provide a mortgagor with notice of the
mortgagee’s intent to foreclose and of certain mortgage
relief that might assist him or her, in a prelitigation
forum, in resolving the alleged delinquency or other
default. In short, in the context of a case in which the
EMAP notice requirement applies, when a mortgagee’s
initial in-court attempt to foreclose results in a dismissal
of a foreclosure action, such that it must commence a
foreclosure anew, § 8-265ee (a) requires the mailing of
a new EMAP notice in order to commence a subsequent
foreclosure action.6
Mindful of the foregoing principles, we turn to the
relevant facts of the present case. According to the
affidavit in support of the plaintiff’s motion for summary
judgment, the original lender, First Niagara, had mailed
an EMAP notice to the defendant prior to the com-
mencement of an initial, separate foreclosure action
that was subsequently dismissed.7 Several months after
the dismissal, the plaintiff commenced a new foreclo-
sure action against the defendant, i.e., the present
action. There is no dispute that the plaintiff—as the
original plaintiff in the present action—did not mail
the defendant an EMAP notice in connection with the
present action. Because the plaintiff, as the original
plaintiff in the present action, failed to comply with
this jurisdictional condition precedent, the trial court
lacked subject matter jurisdiction.8
The judgment is reversed and the case is remanded
with direction to render judgment dismissing the action
for lack of subject matter jurisdiction.
In this opinion the other judges concurred.
1
The plaintiff also brought this action against Emre Yazar, who was
defaulted for failure to plead and is not participating in this appeal. Therefore,
our references to the defendant are only to Ozlem Yazar.
In addition, the record suggests that the defendants Emre Yazar and Ozlem
Yazar are former spouses, having divorced pursuant to a Turkish divorce
decree. The terms of any such decree and any postdissolution proceedings
in Turkey or Connecticut relating to the Yazars’ divorce are not relevant to
our resolution of this appeal.
2
On May 4, 2017, the plaintiff filed a motion to open the judgment of
dismissal. The trial court denied that motion.
3
After being defaulted, Emre Yazar submitted no other filing in this action.
4
In addition, on January 24, 2019, the plaintiff filed in the present action
an affidavit of compliance with EMAP, which also exclusively relied on the
August 22, 2016 EMAP notices.
5
The parties do not dispute that the EMAP notice requirement applies in
the present action. Cf. Washington Mutual Bank v. Coughlin, 168 Conn.
App. 278, 290, 145 A.3d 408 (under factual circumstances of case, i.e., secured
property not principal residence, defendants were not entitled to notice
pursuant to § 8-265ee), cert. denied, 323 Conn. 939, 151 A.3d 387 (2016).
Rather, the issue is whether the plaintiff complied with that requirement.
See MTGLQ Investors, L.P. v. Hammons, supra, 196 Conn. App. 644 n.9.
6
We note that our articulation of this rule is consistent with footnote 11
of the Hammons decision, in which we stated: ‘‘It would be a wholly different
matter had the plaintiff been substituted in the Fannie Mae action, in which
case it would not have had to mail the defendant a new EMAP notice.’’
MTGLQ Investors, L.P. v. Hammons, supra, 196 Conn. App. 646 n.11. This
is because the Fannie Mae action, as the prior foreclosure action, would
have remained standing on its own EMAP notice. That is, only the original
plaintiff was required to mail an EMAP notice, which it did.
7
As to this specific point, the plaintiff did not submit any countervailing,
admissible evidence.
8
The plaintiff contends that Hammons is distinguishable because it is
relying, not on an EMAP notice sent by a prior mortgagee but rather, on
the EMAP notice sent by First Niagara, to which it is the successor by
merger. This argument is unavailing in light of the rule expressly articulated
herein, namely, that a foreclosure action in which the EMAP notice require-
ment applies must stand on its own EMAP notice.