by Victoria Forcella, Esq.
McCalla Raymer Leibert Pierce, LLP
USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY, OR, TX, WA)

In the world of Connecticut mortgage foreclosures, compliance with Connecticut General Statutes §§8-265ee et seq ., otherwise known as the EMAP statute, has been a “hot topic” over the last five years. Plaintiffs in foreclosure actions had long been required to attest to compliance with the relevant statute prior to the entry of judgment. However, recently, a decision in People’s Bank v. Wright^[1], may have forever changed the role the EMAP statute would play in foreclosures.  People’s Bank v. Wright ^[2] found that the statute went to subject matter jurisdiction and that proof of delivery of the notice, commonly referred to as an EMAP Notice, was required in order to establish compliance. The Connecticut Appellate Court weighed in on the issue in 2018 with Aurora Loan Services, LLC v. Condron^[3] . The Condron court, in deviation from the decision in Wright, held that the EMAP statute did not require proof of delivery of the notice to mortgagors and that evidence of mailing alone was sufficient to meet the plaintiff’s burden of establishing compliance with the statute.

What constitutes proof of mailing under the statute was further explored in the recent decision in the matter of FST-CV14-6021030-S Wells Fargo Bank, NA v. Yorfino. The trial court (Tierney, JTR), weighing in on the issue, held that a plaintiff and/or its agent may rely on the existence of a bulk mailing contract with the United States Postal Service to satisfy the requirement that notice under the EMAP statute must be sent out by registered, or certified mail, postage prepaid. The Yorfino court, having been presented with a copy of the EMAP notice, a mailing log from the servicer which sent the EMAP notice, and a return receipt containing information regarding the servicer’s G-10 bulk mailing permit, found that “it is illogical that the United States Postal Service would accept mail into its system, and then process that mail throughout the entire delivery service, assign a tracking number, code in the tracking number, prepare a delivery receipt as set forth on the first page of [the return receipt entered into evidence], and obtain the signature of some unknown individual thereby completing the mail process, all of which was done without any payment being made to the United States Postal Service.”

The Yorfino court cut through one of the remaining arguments available to defense counsel following the Condron decision. The issue raised was whether an EMAP notice on a mailing log without supporting proof of payment established that it had been mailed by registered, or certified mail, postage prepaid. This had been a lingering issue raised by defense counsel in claiming that plaintiffs had failed to comply with Connecticut General Statutes §§8-265ee et seq. While not binding, the decision in Yorfino effectively shuts down that argument as illogical. With the Yorfino decision now available to refute claims a plaintiff failed to satisfy the postage prepaid requirement under the EMAP statute, foreclosing plaintiffs may do well to include reference to their G-10 bulk mailing permit in their mailing records for EMAP notices.

[1]  2015 Conn. Super Lexis 694

[2]  2015 Conn. Super Lexis 694

[3]  181 Conn. App. 248 (2018)

October 2020 e-Update