by Geoffrey Milne, Esq.

McCalla Raymer Leibert Pierce, LLC *

USFN Member (CT, FL, GA, IL, AL, CA, KY, MS, NV, NJ, NY, OH, OR, TX, WA)

Servicers know that Connecticut’s statutory pre-suit notice requirement under the Emergency Mortgage Assistance Act (“EMAP”) implicates subject matter jurisdiction after two Appellate Court decisions¹. In 2021, the Connecticut Supreme Court granted certification in KeyBank v. Yazar, 340 Conn. 901, limited to two issues: (1) does the statutory pre-suit EMAP notice requirement implicate subject matter jurisdiction and (2) whether a second EMAP notice is required after a case has been dismissed on procedural grounds, when the same monetary default remains.

On July 25, 2023, the Connecticut Supreme Court issued its long-awaited opinion on these two issues. On the issue of subject matter jurisdiction, the Court held that a mortgage foreclosure is indeed a common law cause of action in Connecticut and accordingly, held that EMAP does not implicate subject matter jurisdiction. This holding reversed two Appellate Court opinions (Hammons  and Yazar), which had held that the notice requirement was a jurisdictional requirement.

On the second question of whether a second EMAP notice is required after a prior case is dismissed and the same default remains, the Court squarely held that each consumer mortgage foreclosure has to allege in the complaint that the statutory EMAP requirement has been satisfied. Each case stands on its own notice, even if it’s the same monetary default. The Court looked to the legislative history of the statute because its text was ambiguous. As the statute is remedial in nature, the Court held that a consumer foreclosure is not ripe without the notice having been sent prior to the service of each Complaint.

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USFN e-Update - August