By Adam Avallone, Esq.

Bendett & McHugh, PC*

USFN Member (CT, ME, MA, NH, RI, VT)

In JPMorgan Chase Bank v. Essaghof 217 Conn.App. 93 (2022), the Connecticut Appellate Court recently held that a current challenge to Connecticut’s Emergency Mortgage Assistance Program (“EMAP”) was an impermissible collateral attack on a judgment of strict foreclosure rendered in 2015.

The plaintiff commenced its foreclosure action in March of 2009. Following a bench trial in 2015, the trial court entered a judgment of strict foreclosure in favor of the plaintiff. Following an appeal on unrelated grounds, which ultimately led to a decision by Connecticut’s Supreme Court, and in accordance with the Supreme Court’s remand, the plaintiff moved to reset the law days[1] on August 13, 2021. In response to the plaintiff’s motion, defendants filed an objection as well as Motion to Dismiss alleging that the Court lacked subject matter jurisdiction for an alleged failure to comply with the statutory notice requirements of EMAP.[2] The trial court held argument and concluded inter alia, “it is entirely inappropriate to collaterally attack a judgment when the issue raised today was raised at the trial [in 2015] and not preserved for appeal. This motion to dismiss is a procedurally impermissible substitute for failing to appeal on this issue.” Id at 104. 

The appellate court agreed and affirmed the judgment of the trial court. The appellate court, citing Connecticut Supreme Court authority, recognized that although a challenge to subject matter jurisdiction may generally be raised at any time, it is well settled that final judgments are generally presumptively valid, and collateral attacks on their validity are disfavored.

Defendants raised two purported deficiencies with the 2009 EMAP notice, which was introduced at trial in 2015. First, defendants claimed that a search of the U.S. Postal Service’s tracking information indicated, “Label created, not yet in system.” The appellate court quickly disposed of this claim because the trial court had already rejected that claim after taking judicial notice of the fact that the Postal Service only stores certified information for a period of two years.

Second, the defendants claimed that the notice bore the name of Washington Mutual, plaintiff’s predecessor in interest. In reviewing this claim, the appellate court looked to the transcript and post-trial briefs and concluded that this very issue was disputed by the defendants and apparently rejected by virtue of the trial court’s granting of judgment of strict foreclosure. The appellate court held that it was incumbent on the defendants to raise any claim of error in the first appeal. Since the defendants failed to preserve the issue on their first appeal, a subsequent motion to dismiss with the trial court is an impermissible substitute. “In such circumstances, a second bite at the proverbial apple is unwarranted.” Id at 105.

The appellate court’s recognition of impermissible collateral attacks is a welcome sign given the often frivolous nature of challenges to subject matter jurisdiction. Nevertheless, loan servicers would be wise to ensure that all notices and, where applicable, the corresponding U.S. Postal Service tracking information is properly maintained and provided to foreclosure counsel. In circumstances different from this case, the court may allow jurisdiction to be challenged based on an invalid EMAP notice, even after the foreclosure has been concluded.