KEYBANK, N.A. v. EMRE YAZAR, et al., SC 20648 

Judicial District of Stamford-Norwalk

 

     Foreclosure; Whether Appellate Court Correctly Concluded Mortgagee's Failure to Comply with EMAP Notice Requirement Deprives Trial Court of Subject Matter Jurisdiction; Whether Appellate Court Correctly Concluded EMAP Notice Sent in Prior Dismissed Foreclosure Action Did Not Satisfy EMAP Notice Requirement in Second Foreclosure Action Based on Same Default and Mortgage. In August, 2016, pursuant to General Statutes § 8-265ee (a), First Niagara Bank, N.A. (First Niagara), sent Emergency Mortgage Assistance Program (EMAP) notices to the defendants, Emre and Ozlem Yazar, due to their failure to make payments on a promissory note executed in favor of First Niagara.  The plaintiff, KeyBank, N.A., subsequently acquired First Niagara and took possession of the note.  In January, 2017, the plaintiff commended a foreclosure action against the defendants (prior foreclosure action).  The prior foreclosure action was dismissed by the trial court for failure to send a mediation notice by a date certain.  In August, 2017, the plaintiff commenced the present foreclosure action against the same defendants, based on the same underlying payment default.  In September, 2018, the plaintiff filed a motion for summary judgment as to liability and claimed that it had complied with the EMAP notice requirement.  The plaintiff was relying on the August, 2016 EMAP notices sent by First Niagara in advance of the commencement of the prior foreclosure action in support of its position.  Defendant Ozlem Yazar objected to the summary judgment and argued that the plaintiff had not complied with the EMAP notice requirement because she had not received any EMAP notices with respect to the present action.  On November 21, 2018, the trial court held that the mortgage note was in default and that the plaintiff had complied with its EMAP notice obligations and granted the motion for summary judgment.  On April 1, 2019, the court rendered a judgment of strict foreclosure, from which defendant Ozlem Yazar appealed.  On appeal, the defendant claimed that the plaintiff's failure to comply with the EMAP notice requirement in the present foreclosure action deprived the trial court of subject matter jurisdiction.  The Appellate Court (206 Conn. App. 625) held that the plaintiff had failed to comply with the jurisdictional condition precedent of the notice requirement of § 8-265ee (a) when it failed to mail the EMAP notice to the defendant in the present action, thereby depriving the trial court of subject matter jurisdiction.  The Appellate Court further held that the plaintiff's reliance on the EMAP notice sent in the prior foreclosure action, which had been dismissed, did not satisfy the notice requirement of § 8-265ee (a) for the present foreclosure action.  The plaintiff was granted certification to appeal, and the Supreme Court will consider the following issues: (1) Did the Appellate Court correctly conclude that a mortgagee's failure to comply with the EMAP notice requirements set forth in General Statutes § 8-265ee (a) deprives the trial court of subject matter jurisdiction over the foreclosure action?  (2) Did the Appellate Court correctly conclude that an EMAP notice that had been sent by the mortgagee in the first foreclosure action, which was later dismissed, did not satisfy the notice requirements of General Statutes § 8-265ee (a) in connection with a second foreclosure action subsequently commenced against the mortgagor based on the same default under the same mortgage?