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KEYBANK, N.A. v. EMRE YAZAR ET AL.
(SC 20648)
Robinson, C. J., and McDonald, D’Auria,
Mullins and Ecker, Js.
Syllabus
Pursuant to statute (§ 8-265ee (a)), ‘‘a mortgagee who desires to foreclose
upon a mortgage . . . shall give notice to each homeowner who is a
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.’’
Pursuant further to statute (§ 8-265dd (b)), ‘‘no judgment of strict foreclosure
nor any judgment ordering a foreclosure sale shall be entered in any
action instituted by the mortgagee . . . for the foreclosure of an eligible
mortgage unless . . . notice to the homeowner who is a mortgagor has
been given by the mortgagee in accordance with section 8-265ee and
the time for response has expired . . . .’’
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendants. The named defendant, E, had executed a
promissory note in favor of the plaintiff’s predecessor, F Co., that was
secured by the mortgage. The defendant O, who is E’s former spouse,
was not a signatory to the note. E subsequently failed to make required
payments on the note, and, in 2016, F Co. sent separate notices of default
to both E and O. Pursuant to § 8-265ee (a), F Co. also sent E and O
notices that advised them of the resources available under the state’s
Emergency Mortgage Assistance Program (EMAP), which is designed
to assist homeowners in avoiding foreclosure by providing a mechanism
and funding for emergency mortgage and lien assistance payments.
Thereafter, the plaintiff became the payee of the note as successor by
virtue of its merger with F Co., and it commenced a foreclosure action
against E and O that was subsequently dismissed. The plaintiff then
commenced a second foreclosure action against E and O, the present
action, which was based on the same default that was the subject of
the earlier foreclosure action. The trial court subsequently granted the
plaintiff’s motion for summary judgment as to liability and rendered
judgment of strict foreclosure. O appealed to the Appellate Court, claim-
ing that the trial court lacked subject matter jurisdiction over the present
foreclosure action because the plaintiff had failed to comply with the
EMAP notice requirement contained in § 8-265ee. The plaintiff countered
that § 8-265ee was satisfied when EMAP notices were sent to E and O
in 2016. The Appellate Court agreed with O and concluded that, in
accordance with its recent decision in MTGLQ Investors, L.P. v. Ham-
mons (196 Conn. App. 636), the EMAP notice requirement is jurisdic-
tional, the particular mortgagee that wishes to foreclose must be the
same entity that sends the EMAP notice, § 8-265ee requires that each
foreclosure action be preceded by the sending of an EMAP notice, and,
accordingly, the plaintiff could not rely on the 2016 EMAP notice sent
by F Co. before the earlier foreclosure action was commenced. The
Appellate Court reversed the judgment of the trial court and remanded
the case with direction to render judgment dismissing the action for
lack of subject matter jurisdiction. On the granting of certification, the
plaintiff appealed to this court. Held:
1. The Appellate Court incorrectly concluded that the EMAP notice require-
ment set forth in § 8-265ee (a) is subject matter jurisdictional, but,
contrary to the plaintiff’s claim, that requirement is a mandatory condi-
tion precedent to the filing of a foreclosure action:
a. This court concluded, after reviewing the language of § 8-265ee (a),
that that statute creates a mandatory obligation, on the part of the
mortgagee, to provide an EMAP notice to the homeowner prior to initiat-
ing a foreclosure action, and the mortgagee’s failure to provide such
notice means that the mortgagee has failed to satisfy a condition prece-
dent and, therefore, has failed to allege a claim on which relief can
be granted:
The plain language of § 8-265ee (a) provides that a mortgagee who seeks
to foreclose a mortgage ‘‘shall’’ give notice to a homeowner, and, although
the use of the word ‘‘shall’’ does not invariably create a mandatory duty,
the language of § 8-265ee supported O’s position that the statute creates
a mandatory obligation that must be satisfied prior to the mortgagee’s
initiation of the foreclosure action, as the EMAP notice requirement is
not merely one of convenience but, rather, relates to the substantive
rights of and resources available to homeowners under the EMAP provi-
sions, § 8-265ee and a related EMAP provision, § 8-265dd, both articulate
the consequences for failing to give notice or for failing to allow the
required waiting period to pass prior to initiating a foreclosure action,
and the legislature made it clear that the burden rests with the mortgagee
to file an affidavit to demonstrate compliance with the EMAP notice
requirement.
b. Contrary to the Appellate Court’s conclusion, the EMAP notice require-
ment does not implicate a court’s subject matter jurisdiction:
This court’s prior case law has distinguished between conditions imposed
on the commencement of a statutorily created right of action, which
generally are deemed to be jurisdictional, and conditions imposed on a
common-law action, which are deemed to be nonjurisdictional, a mort-
gage foreclosure is a common-law cause of action, even though Connecti-
cut’s foreclosure system is a combination of both statutory law and
common law, foreclosure related statutes did not supplant the common-
law cause of action itself, there was no intent on the part of the legislature
to abrogate this common-law process or to change the jurisdiction of
the courts in § 8-265ee, and, accordingly, the EMAP notice requirement
in § 8-265ee is not jurisdictional.
Moreover, this court overruled the Appellate Court’s decision in MTGLQ
Investors, L.P., to the extent that it held that the EMAP notice require-
ment is jurisdictional.
Furthermore, contrary to the claim of the amicus curiae, this court’s
determination that the EMAP notice requirement does not implicate
subject matter jurisdiction did not frustrate the legislative intent of cer-
tain 2008 amendments to the EMAP notice requirement statute, as the
public policy of informing homeowners of their rights and the resources
available to them to assist in avoiding foreclosure is preserved by this
court’s holding that the EMAP notice requirement is a mandatory condi-
tion precedent.
2. The Appellate Court correctly concluded that the plaintiff had failed to
satisfy its EMAP notice obligation under § 8-265ee because, even though
F Co. sent an EMAP notice to O in 2016, prior to the commencement
of the earlier foreclosure action, the plaintiff never sent a new EMAP
notice prior to the initiation of the second, and wholly separate, present
foreclosure action:
Although § 8-265ee was ambiguous as to whether a separate EMAP notice
must be provided prior to the initiation of each foreclosure action, the
legislative history surrounding the enactment of EMAP made clear that
protections for homeowners was the impetus behind imposing more
stringent requirements on lenders, EMAP notice serves a critical role in
protecting homeowners by informing them of the resources available
to assist in avoiding foreclosure and what rights homeowners have in
accessing those resources, a homeowner’s right to access EMAP does
not end after a first foreclosure action is dismissed or withdrawn, and
a homeowner must be provided with notice that the resources under
EMAP are still available in subsequent foreclosure actions because it
would be unreasonable to expect lay homeowners to know that they
continue to have access to this specialized program in the event that
they are not provided with notice in a subsequent foreclosure action.
Moreover, the text of § 8-265ee supported the conclusion that a mort-
gagee must provide an EMAP notice for each foreclosure action initiated,
insofar as the sending of the EMAP notice prompts the beginning of a
timeline for receiving EMAP assistance, and, if a new notice were not
required, and, therefore, a new timeline were not set, the remedies
available would appear to have ‘‘expired’’ in light of when notice had
been provided in a previously withdrawn or dismissed case.
Furthermore, the need for an EMAP notice prior to the commencement
of any foreclosure action is especially evident when, as in the present
case, the defendant homeowner was not a signatory to the note, did not
actually receive an EMAP notice prior to the first foreclosure action,
and was aware only that the first foreclosure action had been dismissed,
and, accordingly, the plaintiff’s failure to provide an EMAP notice to O
prior to the commencement of the second foreclosure action impaired
O’s ability to take advantage of resources that may have helped her
retain her interest in her property.
In addition, this court disagreed with the Appellate Court to the extent
that it suggested that it is legally significant that different entities were
required to send the EMAP notices because the plaintiff, as the successor
to F Co., operated as the same ‘‘mortgagee,’’ a term defined by statute
(§ 8-265cc (4)) as ‘‘the original lender under a mortgage, or its agents,
successors, or assigns,’’ for purposes of the EMAP statutes, and, there-
fore, there was no substantive difference for the purposes of the statutory
scheme between F Co. and the plaintiff.
Argued November 21, 2022—officially released August 1, 2023
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, Genuario, 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 judgment of strict
foreclosure and rendered judgment thereon, from which
the defendant Ozlem Yazar appealed to the Appellate
Court, Moll, Alexander and DiPentima, Js., which
reversed the trial court’s judgment and remanded the
case with direction to render judgment dismissing the
action; thereafter, the plaintiff, on the granting of certifi-
cation, appealed to this court. Reversed in part; judg-
ment directed.
Geoffrey K. Milne, with whom, on the brief, was
Victoria L. Forcella, for the appellant (plaintiff).
Ozlem Yazar, self-represented, the appellee (defen-
dant).
Jeffrey Gentes, Anika Singh Lemar, Zachary Shelley,
law student intern, and Natasha Reifenberg, law stu-
dent intern, filed a brief for the Housing Clinic of Jerome
N. Frank Legal Services Organization as amicus curiae.
Opinion
McDONALD, J. This certified appeal concerns this
state’s Emergency Mortgage Assistance Program (EMAP),1
General Statutes §§ 8-265cc through 8-265kk,2 which is
designed to assist homeowners in avoiding foreclosure
by providing a mechanism and funding for emergency
mortgage and lien assistance payments, among other
resources. See General Statutes §§ 8-265dd and 8-265ee.
As part of EMAP, § 8-265ee (a) requires mortgagees to
provide notice to homeowners to inform them of the
resources available under the program. In this appeal,
we must consider two questions relating to this notice
requirement. First, we have to determine whether the
EMAP notice requirement in § 8-265ee (a) is jurisdic-
tional. Second, we must decide whether an EMAP
notice sent before the commencement of a prior fore-
closure action by the predecessor mortgagee is valid
for a subsequent action initiated by the successor mort-
gagee. We conclude that the EMAP notice requirement
in § 8-265ee (a), although a mandatory condition prece-
dent, is not jurisdictional in nature. Second, we con-
clude that § 8-265ee (a) requires that a mortgagee provide
an EMAP notice for each foreclosure action initiated.
Therefore, in the present case, the plaintiff, KeyBank,
N.A., was required to provide an EMAP notice to the
defendant Ozlem Yazar3 prior to initiating a subsequent
foreclosure action after a prior foreclosure action had
been dismissed.
In June, 2014, Emre Yazar (Emre) executed and deliv-
ered a note in the principal amount of $580,000 to First
Niagara Bank, N.A., to refinance an existing loan and
to convert it from a fixed rate to a variable rate. The
defendant, who is Emre’s former spouse,4 was not a
signatory to the note. To secure the note, Emre and the
defendant executed a mortgage on real property they
jointly owned in Weston. Beginning in March, 2016, and
for the months following, Emre failed to make required
payments on the note. On August 22, 2016, First Niagara
sent separate notices of default to both Emre and the
defendant at the address of the mortgaged property.
Accompanying each notice of default was a notice from
First Niagara regarding EMAP. As required by § 8-265ee
(a), the EMAP notices advised Emre and the defendant
of the availability of EMAP and informed them of the
resources available to help them avoid foreclosure. The
notices informed them that, within sixty days of the
date of the letter, they had the right to have a meeting
with the mortgagee or a consumer credit counseling
agency to attempt to resolve the default, and they had
the right to contact the Connecticut Housing Finance
Authority to obtain information and to apply for emer-
gency mortgage assistance payments if the parties were
unable to resolve the default. See General Statutes § 8-
265ee (a). Lastly, the notices advised Emre and the
defendant that a court may not render a foreclosure
judgment prior to the expiration of a required wait-
ing period.
In October, 2016, First Niagara merged with and into
the plaintiff. The plaintiff is now the payee of the note
as successor by virtue of merger with First Niagara. On
January 16, 2017, the plaintiff commenced a foreclosure
action against Emre and the defendant based on an
alleged default on the note by Emre, beginning in March,
2016. KeyBank, N.A. v. Yazar, Superior Court, judicial
district of Fairfield, Docket No. FBT-CV-XX-XXXXXXX-S.
On April 26, 2017, the trial court dismissed the action
because of the plaintiff’s failure to provide the foreclo-
sure mediator with the forms and information required
by General Statutes (Rev. to 2017) § 49-31l (c) (4) (now
§ 49-31l (d)) and its subsequent failure to comply with
the court’s order requiring submission of such forms
by a date certain.
On or about August 24, 2017, the plaintiff commenced
the present foreclosure action against Emre and the
defendant based on the same default by Emre alleged
in the first foreclosure action and on Emre’s failure to
cure such default.5 Thereafter, the defendant attempted
to participate in foreclosure mediation on various occa-
sions, to which the plaintiff and Emre both objected
because the defendant was not the borrower on the
note. The trial court denied the defendant’s initial peti-
tions to participate but eventually granted a subsequent
petition to participate in mediation. The foreclosure
mediation was assigned to a mediator but was termi-
nated before mediation with the mortgagee was sched-
uled because Emre, the borrower, indicated he was not
interested in keeping the property. Even though the
defendant was the resident and a homeowner, the plain-
tiff did not allow for assumption of the note, and, there-
fore, the mediation was terminated because the borrower
declined any further mediation proceedings. Thereafter,
Emre and the defendant were defaulted for failure to
plead. The defendant then filed an answer and special
defenses. On September 13, 2018, the plaintiff filed a
motion for summary judgment as to liability, arguing
that it complied with the requisite EMAP notice provi-
sions and established a prima facie case for foreclosure.
The plaintiff argued that the EMAP notice6 sent by First
Niagara to the defendant prior to the commencement
of the previous foreclosure action satisfied the EMAP
notice requirement for the present action. The defen-
dant argued in response that the August 22, 2016 EMAP
notice did not satisfy the statutory requirements for the
present foreclosure action and that, in any event, she
never received the initial EMAP notice, which was
returned to the ‘‘sender.’’7 The trial court heard argu-
ment on the motion and, thereafter, granted the plain-
tiff’s motion for summary judgment. The court determined
that there was no genuine issue of material fact regard-
ing the default of the note and that the plaintiff satisfied
its notice obligations regarding default, acceleration of
the mortgage, and EMAP. The court subsequently ren-
dered judgment of strict foreclosure.
Thereafter, the defendant appealed to the Appellate
Court, arguing that the trial court lacked subject matter
jurisdiction over the foreclosure action because the
plaintiff failed to comply with the EMAP notice require-
ments contained in § 8-265ee. KeyBank, N.A. v. Yazar,
206 Conn. App. 625, 627, 261 A.3d 9 (2021). The plaintiff
countered that § 8-265ee was satisfied by the August
22, 2016 EMAP notice sent by First Niagara prior to the
initiation of the first foreclosure action. Id., 629–30.
The Appellate Court agreed with the defendant and
concluded that, in accordance with its recent decision
in MTGLQ Investors, L.P. v. Hammons, 196 Conn. App.
636, 638, 645, 230 A.3d 882, cert. denied, 335 Conn. 950,
238 A.3d 21 (2020), the EMAP notice is jurisdictional.
See KeyBank, N.A. v. Yazar, supra, 629–32. The court
reiterated its holding in Hammons that the particular
mortgagee entity that wishes to foreclose on the mort-
gage must be the same entity that sends the EMAP
notice. See id., 631–33. It also held that § 8-265ee
requires that each foreclosure action stand on its own
EMAP notice. Id., 633. As such, the court concluded
that the plaintiff could not rely on the previous EMAP
notice sent by First Niagara before the prior foreclosure
action was commenced. See id., 634 and n.8. Accord-
ingly, the Appellate Court reversed the judgment of the
trial court and remanded the case with direction to
render judgment dismissing the action for lack of sub-
ject matter jurisdiction. Id., 634.
The plaintiff subsequently filed a petition for certifica-
tion to appeal, which we granted, limited to the follow-
ing issues: (1) ‘‘Did the Appellate Court correctly conclude
that a mortgagee’s failure to comply with the [EMAP]
notice requirements set forth in . . . § 8-265ee (a)
deprives the trial court of subject matter jurisdiction
over the mortgagee’s foreclosure action?’’ And (2) ‘‘[d]id
the Appellate Court correctly conclude that an EMAP
notice that had been sent by a mortgagee to a [home-
owner] prior to a first foreclosure action, which was
later dismissed, did not satisfy the notice requirements
of § 8-265ee (a) in connection with a second foreclosure
action subsequently commenced against the [home-
owner] based on the same default under the same mort-
gage?’’ KeyBank, N.A. v. Yazar, 340 Conn. 901, 263 A.3d
100 (2021).
On appeal, the plaintiff contends that the Appellate
Court incorrectly concluded both that the EMAP notice
was jurisdictional in nature and that the August 22, 2016
EMAP notice did not satisfy the plaintiff’s obligation
under § 8-265ee. We disagree with the Appellate Court
that the EMAP notice is jurisdictional in nature, but we
agree that the plaintiff’s EMAP notice obligation under
the statute was not satisfied because the plaintiff never
issued a new EMAP notice prior to the initiation of this
second, and wholly separate, foreclosure action, which
we conclude it was required to do under the statute.
I
We begin with the plaintiff’s contention that the
Appellate Court incorrectly concluded that the EMAP
notice required by § 8-265ee (a) is subject matter juris-
dictional in nature. The plaintiff argues that, notwith-
standing the use of the word ‘‘shall’’ in § 8-265ee (a),
the EMAP notice requirement in § 8-265ee is directory
rather than mandatory and that the Appellate Court
incorrectly concluded that the requirement implicates
subject matter jurisdiction. We address each contention
in turn.
A
Whether the EMAP notice provision in § 8-265ee is
directory or mandatory is a question of statutory inter-
pretation, over which we exercise plenary review. See,
e.g., Day v. Seblatnigg, 341 Conn. 815, 826, 268 A.3d
595 (2022). We review § 8-265ee in accordance with
General Statutes § 1-2z and our familiar principles of
statutory construction. See, e.g., Wind Colebrook South,
LLC v. Colebrook, 344 Conn. 150, 161, 278 A.3d 442
(2022).
We begin with the text of the statute. Section 8-265ee
(a) provides in relevant part: ‘‘[A] mortgagee who
desires to foreclose upon a mortgage . . . shall give
notice to each homeowner who is a mortgagor by regis-
tered, 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 mort-
gage prior to mailing such notice. Such notice shall
advise the homeowner of his delinquency or other
default under the mortgage and shall state that the
homeowner has sixty days from the date of such notice
in which to (1) have a face-to-face meeting, telephone
or other conference acceptable to the authority with the
mortgagee or a face-to-face meeting with a consumer
credit counseling agency to attempt to resolve the delin-
quency 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 homeowner and
mortgagee are unable to resolve the delinquency or
default.’’ (Emphasis added.)
Relevant to this appeal, the plain language of § 8-
265ee (a) provides that each mortgagee who desires to
foreclosure on a mortgage ‘‘shall’’ give notice to home-
owners by registered or certified mail, postage prepaid,
at the address of the property secured by the mortgage.
‘‘[T]his court has often stated that the use of the word
shall, though significant, does not invariably create a
mandatory duty. . . . The usual rule, however, is that
[t]he . . . use of the word shall generally evidences an
intent that the statute be interpreted as mandatory.’’
(Internal quotation marks omitted.) 1st Alliance Lend-
ing, LLC v. Dept. of Banking, 342 Conn. 273, 282, 269
A.3d 764 (2022). ‘‘The test to be applied in determining
whether a statute is mandatory or directory is whether
the prescribed mode of action is the essence of the
thing to be accomplished, or in other words, whether
it relates to a matter of substance or a matter of conve-
nience. . . . If it is a matter of substance, the statutory
provision is mandatory.’’ (Internal quotation marks omit-
ted.) Id.
Here, the language of § 8-265ee militates in favor of
the defendant’s position that the statute creates a man-
datory obligation of the plaintiff prior to initiating suit.
The EMAP notice requirement is not merely one of conve-
nience but, rather, relates to the substantive rights of and
resources available to homeowners under the EMAP
provisions. Section 8-265ee and a related EMAP provi-
sion, § 8-265dd, both articulate the consequences for
failing to give notice or for failing to allow the required
waiting period to pass prior to initiating suit. Specifically,
§ 8-265ee prohibits the initiation of a valid suit without
providing the EMAP notice by affirmatively providing
that ‘‘[n]o such mortgagee may commence a foreclosure
of a mortgage prior to mailing such notice.’’ General
Statutes § 8-265ee (a). Section 8-265dd, which estab-
lishes EMAP, also prevents the court from rendering
any judgment of foreclosure until the EMAP notice has
been sent, the sixty day response time has expired,
and, if relevant, a determination has been made on the
application for emergency mortgage assistance pay-
ments. See General Statutes § 8-265dd (b); see also Gen-
eral Statutes § 8-265ee (a). Specifically, the statute pro
vides in relevant part: ‘‘[N]o judgment of strict foreclosure
nor any judgment ordering a foreclosure sale shall be
entered in any action instituted by the mortgagee . . .
for the foreclosure of an eligible mortgage unless . . .
notice to the homeowner who is a mortgagor has been
given by the mortgagee in accordance with section 8-
265ee and the time for response has expired . . . .’’
General Statutes § 8-265dd (b).8
As such, we conclude that the EMAP notice provision
in § 8-265ee is a mandatory requirement. We also con-
clude that the EMAP notice is a condition precedent
to the filing of a foreclosure action. To have a cause
of action on which relief can be granted, the notice
requirement must be fulfilled. The legislature has made
it clear that the burden rests with the mortgagee to
demonstrate compliance with the EMAP notice require-
ment. Specifically, subsection (b) of § 8-265ee requires
the mortgagee to file an affidavit with the court stating
that the notice provisions of subsection (a) have been
complied with and that the relevant time period has
expired. Only after the mortgagee files such an affidavit
may the foreclosure suit continue. See General Statutes
§ 8-265ee (b). If a mortgagee fails to comply with § 8-
265ee (a), it has failed to satisfy a mandatory condition
precedent and, therefore, has failed to allege a claim
on which relief can be granted.9
B
We next turn to the plaintiff’s contention that the
EMAP notice requirement does not implicate a court’s
subject matter jurisdiction. A determination regarding
a trial court’s subject matter jurisdiction is a question
of law, over which our review is plenary. See, e.g., Bank
of New York Mellon v. Tope, 345 Conn. 662, 677, 286
A.3d 891 (2022). It is well established that, in a common-
law action, such as a foreclosure action, there is a
presumption in favor of jurisdiction, and a strong show-
ing of legislative intent is required to overcome this
presumption. See Neighborhood Assn., Inc. v. Lim-
berger, 321 Conn. 29, 45–46, 136 A.3d 581 (2016). Not
all statutory conditions precedent are jurisdictional,
and ‘‘our case law has distinguished between conditions
imposed on the commencement of a statutorily created
right of action and statutory conditions imposed on
an action existing under the common law. The former
generally is deemed to be jurisdictional, whereas the
latter is not.’’ Id., 46.
It is well settled that a mortgage foreclosure is a
common-law cause of action. See, e.g., id., 48; see also,
e.g., Society for Savings v. Chestnut Estates, Inc., 176
Conn. 563, 568, 409 A.2d 1020 (1979) (‘‘[mortgage] fore-
closure is a common-law, nonstatutory process’’). Mort-
gage foreclosures are distinguishable from other forms
of foreclosure actions—for example, the right to fore-
close a lien for common charges—that have been prop-
erly characterized as statutory rights of action, as they
are grounded in the legislature’s expansion of Connecti-
cut foreclosure rights through statute. See, e.g., Neigh-
borhood Assn., Inc. v. Limberger, supra, 321 Conn. 48.
The Superior Court’s equitable power to hear mortgage
foreclosure cases, however, derives solely from the
common law. See, e.g., Society for Savings v. Chestnut
Estates, Inc., supra, 568. Accordingly, because a mort-
gage foreclosure is a common-law process, the EMAP
notice requirement in § 8-265ee is not jurisdictional unless
the legislature clearly evidenced an intent to abrogate
this common-law process.
‘‘[Although] the legislature’s authority to abrogate the
common law is undeniable, we will not lightly impute
such an intent to the legislature.’’ (Internal quotation
marks omitted.) Matthiessen v. Vanech, 266 Conn. 822,
838, 836 A.2d 394 (2003). ‘‘[T]he presumption that the
legislature does not have such a purpose [to eliminate
or alter a common-law right] can be overcome only if
the legislative intent is clearly and plainly expressed.’’
(Internal quotation marks omitted.) Id., 838–39. We see
no such clear and plain expression of an intent to
change the jurisdiction of the courts in § 8-265ee. But
cf. Spears v. Garcia, 263 Conn. 22, 28–29, 818 A.2d 37
(2003) (holding that General Statutes § 52-557n (a) (1)
‘‘clearly and expressly abrogates the traditional com-
mon-law doctrine in this state that municipalities are
immune from suit for torts committed by their employ-
ees and agents’’ by articulating statutory cause of action
and liability for damages caused by municipalities’ agents
and employees). Therefore, we conclude that the EMAP
notice requirement is not jurisdictional. Rather, it is a
mandatory condition precedent to the commencement
of a foreclosure action.10
The defendant contends that this court should con-
clude that the EMAP notice requirement is jurisdictional
for the same reasons that led the Appellate Court to
reach that conclusion in MTGLQ Investors, L.P. v.
Hammons, supra, 196 Conn. App. 636. We decline to
do so. In Hammons, the Appellate Court addressed the
question of whether the EMAP notice requirement is
jurisdictional as a matter of first impression. See id.,
638. It concluded 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.’’ Id., 645. In concluding that, because the
EMAP notice requirement was a mandatory condition
precedent, it must a priori be jurisdictional, the Appel-
late Court failed to consider the distinction between
conditions legislatively imposed on statutory causes of
action and those legislatively imposed on common-law
causes of action. As previously noted, statutory condi-
tions imposed on common-law actions, such as mort-
gage foreclosures, are generally not jurisdictional unless
the legislature has made it clear that it wished to alter
the court’s jurisdiction or to abrogate the common-law
right. See, e.g., Neighborhood Assn., Inc. v. Limberger,
supra, 321 Conn. 46; Matthiessen v. Vanech, supra, 266
Conn. 838. As such, we disagree with and overrule the
Appellate Court’s decision in Hammons to the extent
that it held that the EMAP notice requirement is jurisdic-
tional.
The amicus argues that the Connecticut foreclosure
system is a combination of both the common-law and
statutory remedies provided by the legislature, and that
the detailed statutory framework of EMAP indicates
that the legislature intended the EMAP provisions to
impose jurisdictional limitations. We agree with the
amicus that our state foreclosure system is a combina-
tion of both statutory laws and common law; however,
we disagree that the legislature has abrogated the com-
mon law or that the common-law process is now domi-
nated by statute. The statutes enacted in this area
merely supplement the common law and add require-
ments to carry out important public policies of the
state as they relate to foreclosure; the statutes do not
supplant the common-law cause of action itself. Mort-
gage foreclosure, especially, is a category of foreclosure
actions that originated in and has remained a creature
of the common law. See, e.g., Neighborhood Assn., Inc.
v. Limberger, supra, 321 Conn. 48 (distinguishing strict
foreclosure of mortgage, which is common-law right,
from right to foreclosure on common charges liens,
which is ‘‘more properly characterized as a statutory
right of action’’); Society for Savings v. Chestnut Estates,
Inc., supra, 176 Conn. 568 (noting that, although strict
foreclosure of mortgage is no longer separate proceed-
ing in equity, it remains ‘‘common-law, nonstatutory pro-
cess’’).
The amicus also argues that a determination that the
EMAP notice is not jurisdictional frustrates the legisla-
tive intent of the 2008 EMAP amendments. We disagree.
Our holding that the EMAP notice is a mandatory condi-
tion precedent does nothing to dilute or impair the legisla-
tive intent or public policy underlying the 2008 amend-
ments. The mortgagee is still mandated to provide the
homeowner with the EMAP notice. Therefore, the pub-
lic policy underlying the notice requirement—informing
homeowners of their rights and the resources available
to them to assist in avoiding foreclosure—is fulfilled.
A foreclosure action may not proceed unless the EMAP
notice requirement is carried out. If the plaintiff does
not satisfy that condition, it has failed to allege a claim
on which relief can be granted.
In summary, we conclude that § 8-265ee requires that
a mortgagee plaintiff notify the homeowner of EMAP
and the resources available under that program prior
to initiating a foreclosure action against the home-
owner. This requirement, although not jurisdictional, is
a mandatory condition precedent that must be fulfilled
for the plaintiff to have a proper cause of action on
which relief can be granted. Therefore, compliance with
the requirement must be affirmatively pleaded by the
plaintiff. See General Statutes § 8-265ee (b).
II
Finally, we turn to the plaintiff’s contention that, in
the present case, the EMAP notice sent prior to the
initiation of the first foreclosure action by the plaintiff’s
predecessor satisfied the plaintiff’s EMAP notice obliga-
tion for the present action. The plaintiff contends that
the Appellate Court incorrectly concluded that the par-
ticular mortgagee foreclosing on the mortgage must be
the entity that sent the EMAP notice and that each action,
even if based on the same default, requires a new notice.
See KeyBank, N.A. v. Yazar, supra, 206 Conn. App.
632–34. The plaintiff disagrees with the Appellate Court’s
conclusion that the EMAP notice sent by First Niagara
in 2016 did not satisfy the plaintiff’s obligation in this
present action. It bases its argument both on the princi-
ples of merger—that First Niagara merged with and
into the plaintiff and, therefore, the plaintiff held the
same rights as First Niagara—as well as the fact that
both foreclosure actions related to the same default,
and therefore only one EMAP notice was needed. The
defendant contends that the prior notice did not satisfy
the plaintiff’s EMAP notice obligation under § 8-265ee
because the present action is a new and wholly separate
action. The defendant argues that § 8-265ee requires
that an EMAP notice be sent before the commencement
of any foreclosure action—even subsequent actions
based on the same default—and, therefore, a new notice
must be mailed for each foreclosure action. We agree
with the defendant and conclude that the EMAP notice
sent in August, 2016, prior to the commencement of the
initial foreclosure action, did not satisfy the plaintiff’s
notice obligation under § 8-265ee for the present action
because that statute requires that a notice be sent prior
to the commencement of each foreclosure action.
Whether § 8-265ee requires that an EMAP notice be
sent prior to the initiation of each foreclosure action
is a question of statutory interpretation, over which our
review is plenary. See, e.g., Day v. Seblatnigg, supra,
341 Conn. 826. We again review § 8-265ee in accordance
with § 1-2z and our familiar principles of statutory con-
struction. See, e.g., Sena v. American Medical Response
of Connecticut, Inc., 333 Conn. 30, 45–46, 213 A.3d 1110
(2019). As previously discussed, § 8-265ee (a) provides
in relevant part: ‘‘[A] mortgagee who desires to fore-
close upon a mortgage which satisfies the standards
contained in subdivisions (1), (9), (10) and (11) of sub-
section (e) of section 8-265ff, shall give notice to each
homeowner who is a mortgagor by registered, or certi-
fied 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. . . .’’ As we explained, the statute
requires a mortgagee to send an EMAP notice prior to
commencing a foreclosure action. It is unclear from the
plain text of the statute, however, whether, in situations
such as this, in which multiple foreclosure actions were
commenced based on the same default, multiple EMAP
notices must be sent. As such, we conclude that § 8-265ee
is ambiguous as to whether a separate EMAP notice
must be sent prior to the initiation of each subsequent
foreclosure action. Therefore, we ‘‘look for interpretive
guidance to the legislative history and circumstances sur-
rounding [the statute’s] enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and [common-law] principles
governing the same general subject matter . . . .’’ (Inter-
nal quotation marks omitted.) Hernandez v. Apple Auto
Wholesalers of Waterbury, LLC, 338 Conn. 803, 815, 259
A.3d 1157 (2021).
EMAP was enacted in 1993 to ‘‘assist homeowners in
avoiding foreclosure by providing a mechanism whereby
the mortgage could be reinstated over a period of up to
[thirty-six] months.’’ 1 D. Caron & G. Milne, Connecticut
Foreclosures (11th Ed. 2021) § 17-2:4, pp. 1091–92. As
we explained, the original program was at the lender’s
option, and the legislature stopped funding the program
two years after its enactment. See id., p. 1092. In 2008,
when the need for foreclosure relief became evident,
No. 08-176, §§ 5 through 10, of the 2008 Public Acts
revised the original EMAP legislation to expand its
scope and to enhance its availability for Connecticut
homeowners. See id. It also removed the voluntary nature
of the program. Id., § 17-2:4.1, p. 1094. Compliance with
EMAP therefore became mandatory for all lenders of
any qualifying mortgages. Id. The requirements of EMAP
extended to both the original mortgagee as well as its
successors and assigns. Id.
The legislature emphasized the remedial nature of
the legislation during Senate discussions of the 2008
amendments. Specifically, Senator Eric D. Coleman stated:
‘‘[T]he bill, to me, is a very important piece of remedial
legislation, at a time when real economic crisis for
homeowners is occurring. It is my hope that the judges
who hear foreclosure cases will apply this bill in a way
that allows this remedial purpose to be carried out.’’
(Emphasis added.) 51 S. Proc., Pt. 17, 2008 Sess., p. 5071.
It is a well established principle of statutory interpre-
tation that ‘‘remedial statutes should be construed liber-
ally in favor of those whom the law is intended to
protect . . . .’’ (Internal quotation marks omitted.)
Hernandez v. Apple Auto Wholesalers of Waterbury,
LLC, supra, 338 Conn. 815. The legislative history sur-
rounding the enactment of EMAP in this state makes
clear that protections for homeowners was the impetus
behind providing more stringent requirements on lend-
ers under EMAP. The program provides assistance to
eligible homeowners in bringing their mortgages cur-
rent and retaining rights to their homes and properties.
The EMAP notice is a crucial step in this process and
serves to inform homeowners of the resources available
to them to assist in avoiding foreclosure and what rights
they have in accessing those resources. After all, if a
homeowner does not know of the existence of EMAP,
then the important protections afforded to homeowners
through the program would be rendered meaningless.
A homeowner’s right to access EMAP does not end
after a first action is dismissed or withdrawn. Further-
more, the homeowners protected by EMAP are not nec-
essarily individuals with particularized legal knowledge
as to the mechanics of foreclosures, and the dismissal
of a foreclosure action does not foretell that another
action will always be filed in its place. The ability to
access EMAP continues, and, therefore, a defendant
homeowner must receive notice that the resources are
still available in subsequent actions because it would
be unreasonable to expect lay homeowners to know
that they continue to have access to this specialized
program, especially after they already had participated
to some extent in EMAP during the pendency of the
first foreclosure. Without a new notice being sent prior
to the commencement of a subsequent foreclosure, it
would be just as reasonable for homeowners to think
that their prior participation in EMAP was their only
opportunity to benefit from its objectives. Accordingly,
we conclude that § 8-265ee requires mortgagees to pro-
vide a new EMAP notice upon initiation of any foreclo-
sure action, including a successive foreclosure action
predicated on the same default. This requirement is
likely to have a remedial benefit for homeowners and
their awareness of EMAP, while imparting a very mini-
mal, if any, burden on mortgagees.
Although, as we previously acknowledged, the text
of § 8-265ee does not itself provide this answer, it does
provide support for our conclusion. For example, the
sending of the EMAP notice prompts the beginning of
a timeline for receiving EMAP aid. See General Statutes
§ 8-265ee. Once the notice is sent, the statute provides
requisite deadlines for applying for assistance, meeting
with the mortgagee, and ultimately proceeding with the
foreclosure, each of which is based on a specified length
of time from sending the notice. See General Statutes
§ 8-265ee. If a new notice is not required, and therefore
a new timeline is not set, the remedies would appear
to be ‘‘expired’’ based on the notice of a previously
withdrawn or dismissed case, which is not how EMAP
functions. The remedies remain available under each
foreclosure; as such, the notice and accompanying time-
line are reset at the initiation of each new foreclosure.
The particular facts of this case highlight the need
for an EMAP notice prior to the commencement of any
subsequent foreclosure action. First Niagara sent Emre
and the defendant EMAP notices in August, 2016, prior
to the initiation of the first foreclosure action. The
record reflects that the defendant never received her
EMAP notice. The initial foreclosure action was there-
after dismissed for disciplinary reasons related to the
plaintiff. The defendant, who was not a signatory to the
note, may not have been aware of whether the note
was still in default, or whether a resolution had been
reached between Emre and the plaintiff. The defendant
was aware only that the foreclosure action had been
dismissed. When the plaintiff initiated the second fore-
closure action, it did so in a separate and distinct pro-
ceeding and in a different judicial district, where the
action was assigned a different docket number. Had
the defendant received a second EMAP notice, she
would have been aware that a second foreclosure action
was imminent and that EMAP was still available to her
as a homeowner. The EMAP notice would have made
the defendant aware that there were resources and
means by which she may be able to retain her interest
in the property. The plaintiff’s failure to mail such a
notice prior to the commencement of the second action
impaired the defendant’s ability to take advantage of
these resources. Particularly concerning is that, in this
case, the plaintiff knew or should have known that the
defendant never received her initial EMAP notice but
still failed to send a notice prior to initiating the second
foreclosure action. The only EMAP notice the plaintiff
introduced as proof of compliance was a notice, enve-
lope, and certified mail receipt that was marked ‘‘not
deliverable’’ and ‘‘return to sender.’’ We need not decide
whether § 8-265ee (a) requires proof of delivery of the
EMAP notice given that, in this case, there is no dispute
that the plaintiff failed to send a subsequent notice prior
to initiating the second foreclosure action.
Finally, we disagree with the Appellate Court to the
extent that it suggested that it is legally significant that
different entities were required to send the notices. See
KeyBank, N.A. v. Yazar, supra, 206 Conn. App. 634.
Shortly after First Niagara sent the August, 2016 EMAP
notice, the plaintiff acquired First Niagara. The plaintiff,
as the successor to First Niagara, operated as the same
‘‘mortgagee’’ for the purposes of the EMAP statutes.
See General Statutes § 8-265cc (4). Section 8-265cc (4)
defines ‘‘[m]ortgagee’’ as ‘‘the original lender under a
mortgage, or its agents, successors, or assigns . . . .’’
(Emphasis added.) There is no substantive difference
for purposes of the EMAP statutory scheme between
First Niagara and the plaintiff. Our analysis does not
turn on the particular entity that sent the EMAP notice;
rather, what is of consequence is ensuring that an EMAP
notice is sent prior to the initiation of any subsequent
foreclosure action, as each foreclosure action must
stand on its own EMAP notice.
CONCLUSION
The EMAP notice requirement in § 8-265ee is a nonju-
risdictional requirement but is nonetheless a mandatory
condition precedent that a plaintiff bears the burden
of satisfying before it commences any mortgage foreclo-
sure. Until the condition is satisfied, the plaintiff has
not alleged a cause of action on which relief can be
granted. The plaintiff, in the present case, could not rely
on the EMAP notice sent prior to the commencement
of the initial foreclosure action that was dismissed.
Accordingly, the plaintiff failed to satisfy its EMAP
notice obligation when it failed to mail the defendant an
EMAP notice before it initiated the present foreclosure
action. Unless an EMAP notice is sent prior to the initia-
tion of the foreclosure action, the plaintiff does not
have a claim to relief.
The judgment of the Appellate Court is reversed with
respect to its conclusion that the plaintiff’s failure to
comply with the EMAP notice requirement in § 8-265ee
deprived the trial court of subject matter jurisdiction
and the case is remanded to that court with direction
to reverse the judgment of the trial court and to remand
the case to the trial court with direction to render judg-
ment dismissing the action for failure to comply with
a mandatory condition precedent; the judgment of the
Appellate Court is affirmed in all other respects.
In this opinion the other justices concurred.
1
The official title of the program is the Emergency Mortgage Assistance
Payment Program; see General Statutes § 8-265dd; but, for convenience, we
refer to the program by its more common name and acronym.
2
Although §§ 8-265cc through 8-265kk were the subject of certain amend-
ments since the events underlying this appeal; see, e.g., Public Acts 2021,
No. 21-44, §§ 6 through 14; those amendments have no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of those statutes.
3
The plaintiff initiated this action against the named defendant, Emre
Yazar, and Ozlem Yazar. Emre Yazar was defaulted for failure to plead and
has since filed no pleadings in this action and has not participated in this
appeal. As such, all references to the defendant in this opinion are to
Ozlem Yazar.
4
The record indicates that the parties divorced pursuant to a Turkish
divorce decree. The decree and any related Connecticut proceedings are
not relevant to the issues on appeal.
5
It is unclear on this record how the plaintiff can maintain a foreclosure
action against the defendant when the defendant was not a borrower on
the note that gave rise to the loan default. Emre was the only borrower
listed on the note. Although both Emre and the defendant signed the mort-
gage deed, the record does not indicate what consideration, if any, the
defendant received—as opposed to the consideration Emre received in the
form of a $580,000 loan—from the plaintiff in exchange for the transfer of
her property interest as security to the plaintiff. The defendant asserted a
special defense in the trial court regarding her lack of obligation under the
note, but the trial court did not specifically address that defense in its
decision on the plaintiff’s motion for summary judgment. The defendant,
however, did not raise the issue on appeal. Therefore, it is not properly
before us, and we do not address it. Should that special defense be raised
in any subsequent foreclosure action, we would expect it to be specifically
addressed by the trial court.
6
Unless otherwise indicated, all subsequent references in this opinion to
the August 22, 2016 EMAP notice are to the notice that First Niagara sent
to the defendant.
7
The EMAP notice provided to the defendant before the commencement
of the first foreclosure action, which the plaintiff relies on and attached to
its motion for summary judgment in the present action, was marked as
‘‘return to sender.’’ The plaintiff was unable to provide any evidence that
an EMAP notice was ever successfully delivered to the defendant.
8
The plaintiff contends that, if the notice requirement in § 8-265ee (a) is
jurisdictional, then it conflicts with § 8-265dd (b). The plaintiff contends
that, under § 8-265dd (b), a court may exercise jurisdiction over a foreclosure
action, even if a notice is not sent, so long as it does not render a judgment
prior to issuance of the notice. We disagree that the two provisions conflict.
‘‘In reading these two statutes together, [w]e are . . . guided by the principle
that the legislature is always presumed to have created a harmonious and
consistent body of law . . . .’’ (Internal quotation marks omitted.) LaFrance
v. Lodmell, 322 Conn. 828, 837, 144 A.3d 373 (2016). Section 8-265dd (b)
requires that two conditions be satisfied prior to judgment being rendered:
(1) notice to the homeowner in accordance with § 8-265ee, and (2) the sixty
day time for response has expired. Notice to the homeowner in accordance
with § 8-265ee requires that the notice be sent prior to the commencement
of the foreclosure action. The two provisions are consistent with each other.
Section 8-265dd (b) merely clarifies that both the notice must be sent and the
time to respond must have expired prior to the court’s rendering judgment.
9
The failure to state a claim on which relief can be granted is typically
addressed through a motion to strike, and, if the motion is granted, the
plaintiff is allowed an opportunity to replead the stricken claim. See Practice
Book §§ 10-39 (a) (1) and 10-44. The failure to send an EMAP notice, however,
cannot be cured, as the plaintiff must send the EMAP notice prior to initiating
suit to have an actionable claim to relief. In these instances, we have stated
‘‘that the use of a motion for summary judgment to challenge the legal
sufficiency of a complaint is appropriate when the complaint fails to set
forth a cause of action and the defendant can establish that the defect could
not be cured by repleading.’’ (Internal quotation marks omitted.) Wilton
Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 832, 14 A.3d 982
(2011). As such, either a motion to strike or a motion for summary judgment
is an available procedural avenue to challenge the failure to send an
EMAP notice.
10
Pennsylvania passed the Homeowner’s Emergency Mortgage Act (Act
91), which established a program similar to Connecticut’s EMAP, called the
Homeowner’s Emergency Mortgage Assistance Program. See 35 Pa. Stat.
and Cons. Stat. Ann. § 1680.401c et seq. (West 2012). Our legislature under-
stood the similarities between these two programs when it enacted the
2008 amendments to EMAP. See Conn. Joint Standing Committee Hearings,
Banks, Pt. 1, 2008 Sess., pp. 123–24. In 2013, the Pennsylvania Supreme
Court addressed whether the notice requirement in that state’s program
was jurisdictional. Like we conclude in the present case, the Pennsylvania
high court concluded that, although the mortgagee’s notice requirement was
a mandatory condition precedent to the commencement of a foreclosure
action, it was not jurisdictional. Beneficial Consumer Discount Co. v. Vuk-
man, 621 Pa. 192, 202–203, 77 A.3d 547 (2013). The court explained: ‘‘The
failure to pay the mortgage according to its terms gave [the mortgagee] its
cause of action. To act on that cause of action, it was required to give notice
under Act 91. As the notice it gave did not meet the requirements of [Act
91], it was defective and the procedural requirements for enforcement were
not met; that defect, however, did not affect the jurisdiction of the court
to hear the matter.’’ Id.