by William R. Dziedzic, Esq.
Bendett & McHugh, P.C.
USFN Member (CT, MA, ME, NH, RI, VT)

The Connecticut Appellate Court in Bank of New York Mellon v. Achyut Tope Et al, 202 Conn. App. 540 (2021), affirmed a judgment of foreclosure where the appellant sought to open and vacate a judgment based on a lack of subject matter jurisdiction. In Connecticut, the rules of practice allow for an attack on subject matter jurisdiction at any time.  The trial court denied the motion.  In affirming the judgment, the appellate court reasoned that Defendant’s post judgment motion constituted an impermissible collateral attack on the foreclosure judgment.

According to the record, the defendant filed a motion to open and vacate the foreclosure judgment on the grounds that the plaintiff did not have standing. In denying the motion, the trial court reasoned that the court will not continue to revisit issues that have been previously decided and that constitute the law of the case. The trial court had previously ruled on the issue of standing in granting summary judgment and ruling on a similar motion to open the judgment.

On appeal, the defendant claimed the trial court erred in denying his motion. The appellate court disagreed and reasoned that the defendant was afforded multiple opportunities to present his arguments in full to the trial court. And absent facts and circumstances that constitute the exceptional case in which the lack of jurisdiction was so manifest as to warrant review it declined to consider the collateral attack to the subject matter jurisdiction of the court.

This decision by the Connecticut Appellate Court puts a limitation on a foreclosure defendant’s ability to continue to challenge subject matter jurisdiction vis-`a-vis lack of standing. Absent facts or circumstances showing that the trial court’s lack of subject matter jurisdiction is obvious it will be considered an impermissible collateral attack on the foreclosure judgment.

There was a dissenting opinion. The dissent reasoned that because the challenge to standing implicated the court’s subject matter jurisdiction, it would reverse the judgment and remand the case for a determination on the jurisdictional issue. With this split decision it is possible the Connecticut Supreme Court will examine the issue in the future.

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Spring 2021 USFN Report