By Geoffrey Milne, Senior Partner, Northeast Litigation
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. McCalla Raymer was appellate counsel for the lender in this case, through their Northeast Litigation Team.
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-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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About McCalla Raymer Leibert Pierce, LLC (MRLP) McCalla Raymer Leibert Pierce, LLC (MRLP) is a leading provider of legal services to the mortgage default industry in the states of Alabama, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Texas and Washington
1 MTGLQ Investors, L.P. v. Hammons, 196 Conn. App. 636 (2020).
Key Bank, N.A. v. Yazar, 206 Conn. App. 625 (2021).