20-404-cv Santander Bank, N.A. v. Harrison

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 1st day of June, two thousand twenty-one. 4 5 PRESENT: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 GUIDO CALABRESI, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________________ 12 13 Santander Bank, N.A., 14 15 Plaintiff-Appellee, 16 17 v. 20-404 18 19 Angela Harrison, 20 21 Defendant-Appellant. 22 ___________________________________________ 23 24 25 FOR PLAINTIFF-APPELLEE: GEOFFREY K. MILNE, 26 McCalla Raymer Leibert 27 Pierce LLC, Hartford, CT. 28 29 FOR DEFENDANT-APPELLANT: ANGELA HARRISON, pro se, 30 Norwalk, CT. 31 32 FOR AMICUS CURIAE: ADRIENNE B. KOCH, Katsky 33 Korins LLP, New York, NY. 1 Appeal from a judgment of the United States District Court for the District of Connecticut

2 (Covello, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN

5 PART, and the case is REMANDED for further proceedings consistent with this order.

6 Appellant Angela Harrison, proceeding pro se, appeals the district court’s judgment of

7 foreclosure in favor of Santander Bank, N.A. (“Santander”) on her home. Santander commenced

8 this diversity foreclosure action under Connecticut law in the district court in 2015, shortly after

9 voluntarily withdrawing a state-court foreclosure action against Harrison. Harrison challenges

10 the district court’s subject matter jurisdiction, its grant of summary judgment to Santander on the

11 issue of liability, its entry of a judgment of strict foreclosure, its denial of her recusal motions, and

12 its denial of her motion to reopen and vacate the judgment; Santander counters that the district

13 court lacked jurisdiction, and this Court lacks jurisdiction, to disturb the judgment of strict

14 foreclosure pursuant to state law. We assume the parties’ familiarity with the underlying facts,

15 the procedural history of the case, and the issues on appeal.

16 I. Subject-Matter Jurisdiction

17 As a preliminary matter, the trial court and the reviewing court “have an obligation to make

18 their own independent determination that subject matter jurisdiction exists.” Da Silva v. Kinsho

19 Int’l Corp.,

(2d Cir. 2000). A plaintiff bears the burden of proving subject

20 matter jurisdiction by a preponderance of the evidence. Cooke v. United States,

, 80

21 (2d Cir. 2019).

2 1 A. Harrison’s Jurisdictional Arguments

2 Harrison argues that the district court lacked subject matter jurisdiction in this case because

3 Santander failed to demonstrate compliance with statutory and contractual notice requirements.

4 We disagree.

5 State law governs the question whether state notice requirements are jurisdictional in a

6 diversity case. See Moodie v. Fed. Rsrv. Bank of N.Y.,

(2d Cir. 1995). The

7 argument that the plaintiff’s failure to comply with a notice requirement deprived the trial court of

8 subject matter jurisdiction cannot be waived, and it may be raised at any time during the

9 proceedings.

.

10 At the time Santander initiated this action, Connecticut law provided that no mortgagee

11 could “commence” a foreclosure action on certain mortgages “prior to mailing” (1) a notice related

12 to its Emergency Mortgage Assistance Program (the “EMAP notice”) pursuant to Conn. Gen. Stat.

13 (“C.G.S.”) § 8-265ee, and (2) a notice related to the possibility of pursuing a foreclosure by market

14 sale (the “Market Sale notice”) pursuant to C.G.S. § 49-24b(a) (repealed 2016). Assuming

15 arguendo that these requirements were jurisdictional, we conclude that Santander satisfied its

16 burden of demonstrating subject matter jurisdiction by a preponderance of the evidence. See

17 Wells Fargo Advisors, LLC v. Sappington,

, 396 n.2 (2d Cir. 2018) (noting that the

18 Court may affirm on any ground that finds support in the record). Santander presented copies of

19 the notice documents and mailing envelopes, and affidavits stating that they were mailed on

20 November 24, 2015; the record also includes a document containing tracking information

21 indicating that the EMAP notice was mailed. This evidence sufficed to show that Santander

22 mailed the notice documents before service of the complaint on Harrison, as required under

3 1 Connecticut law. See C.G.S. §§ 8-265ee, 49-24b(a) (repealed 2016); Converse v. Gen. Motors

2 Corp.,

, 515 (2d Cir. 1990) (holding that a federal court exercising diversity

3 jurisdiction applies state law regarding commencement of a case and observing that a case

4 commences under Connecticut law upon actual service of the complaint on defendant).

5 Harrison’s evidence to the contrary—a 2019 letter from the Norwalk Postmaster stating that a

6 search of “our database” did not reveal records of the notices’ mailing—is not in the form of an

7 affidavit, and it does not state that the absence of such records at the time of the search is proof

8 that the letters were not, in fact, mailed.

9 B. Santander’s Jurisdictional Arguments

10 We next address Santander’s argument that the district court lacked jurisdiction to disturb

11 the judgment of strict foreclosure—and this Court lacks jurisdiction to review it—pursuant to

12 C.G.S. § 49-15. That statute provides that “no such judgment [of strict foreclosure] shall be

13 opened after the title has become absolute in any encumbrancer,” with an exception not relevant

14 here. C.G.S. § 49-15(a)(1). Following the entry of the judgment of strict foreclosure, the law

15 day passed, Harrison did not redeem the property, and title became absolute in Santander pursuant

16 to the judgment in February 2018. The district court proceeded to deny Harrison’s August 2019

17 motion for relief from the judgment based on § 49–15.

18 A federal court exercising diversity jurisdiction should apply the Federal Rules of Civil

19 Procedure where the federal rule (1) “answers the same question” as a state law and (2) does not

20 violate the Rules Enabling Act. La Liberte v. Reid,

, 87 (2d Cir. 2020) (internal

21 quotation marks and alteration omitted). A rule is consistent with the Rules Enabling Act if it

22 “really regulates procedure,—the judicial process for enforcing rights and duties recognized by

4 1 substantive law and for justly administering remedy and redress for disregard or infraction of

2 them.”

at 88 (quoting Sibbach v. Wilson & Co.,

(1941)).

3 Although we affirm the district court’s denial of Harrison’s August 2019 motion for

4 different reasons, discussed below, we disagree with the district court’s conclusion that it lacked

5 jurisdiction to consider the motion pursuant to C.G.S. § 49-15. Harrison’s motion, which argued

6 that the judgment should be reopened and vacated because the district court lacked subject matter

7 jurisdiction to enter it, is best interpreted as arising under Rule 60 of the Federal Rules of Civil

8 Procedure, which authorizes district courts to relieve a party from a judgment if “the judgment is

9 void.” Fed. R. Civ. P. 60(b)(4). Rule 60 and C.G.S § 49-15 address the same issue: whether a

10 litigant is entitled to relief from a judgment. And they are in conflict, for C.G.S. § 49-15 provides

11 that the judgment was inalterable at the time that Harrison filed her motion, while Rule 60 permits

12 consideration of such arguments “within a reasonable time.” Fed. R. Civ. P. 60(c)(1). Santander

13 does not argue that Rule 60 violates the Rules Enabling Act. Consequently, Rule 60—rather than

14 C.G.S. § 49-15—governed the district court’s jurisdiction to hear Harrison’s motion.

15 For similar reasons, we do not find that C.G.S. § 49-15 limits our appellate jurisdiction.

16 Federal appellate jurisdiction is governed by

, which provides that “all final

17 decisions of the district courts” are appealable to the courts of appeals. See Budinich v. Becton

18 Dickinson & Co.,

, 198–99 (1988) (holding that § 1291, and not state law, determines

19 appellate jurisdiction in federal diversity cases). Harrison’s appeal is from the final judgment,

20 and thus encompasses the district court’s interlocutory orders and judgments. See City of N.Y. v.

21 Mickalis Pawn Shop, LLC,

, 141 n.25 (2d Cir. 2011) (noting that under the “merger

5 1 rule,” interlocutory orders merge with the final judgment, rendering them amenable to appellate

2 review).

3 * * *

4 We thus have jurisdiction to review the district court’s grant of summary judgment, its

5 entry of the judgment of strict foreclosure, and its denial of Harrison’s August 2019 motion to

6 vacate the judgment. Upon review of these decisions, we find no error.

7 II. Grant of Summary Judgment, Entry of Judgment of Strict Foreclosure, and Denial 8 of Motion to Reopen

9 We review de novo an order granting a motion for summary judgment. Sotomayor v. City

10 of New York,

(2d Cir. 2013). “Summary judgment is proper only when,

11 construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute

12 as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger v.

13 Niehoff,

(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We review de novo the

14 denial of a Rule 60(b)(4) motion. Burda Media, Inc. v. Viertel,

(2d Cir. 2005).

15 Under Connecticut law, “[i]n order to establish a prima facie case in a mortgage foreclosure

16 action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note

17 and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions

18 precedent to foreclosure, as established by the note and mortgage, have been satisfied.” GMAC

19 Mortg., LLC v. Ford,

(2013). Summary judgment as to liability is

20 proper if the plaintiff demonstrates “an undisputed prima facie case and the defendant fails to assert

21 any legally sufficient special defense.”

22 Santander’s evidence satisfied this standard: it presented undisputed evidence that it was

23 in physical possession of the original note and mortgage, that Harrison defaulted by failing to make 6 1 any payments after May 2010, and that Santander sent her the notices required by the note and

2 mortgage. Harrison’s arguments about Santander’s ownership of the note and unilateral

3 withdrawal of the state foreclosure action, as well as the district court’s denial of her requests for

4 discovery, are unavailing. First, Santander’s physical possession of a note endorsed in blank was

5 sufficient to confer standing to foreclose under Connecticut law. See U.S. Bank, Nat’l Ass’n v.

6 Fitzpatrick,

, 791–92 (2019). Second, Santander was entitled to unilaterally

7 withdraw its prior state-court foreclosure action because the withdrawal occurred “before the

8 commencement of a hearing on the merits.” C.G.S. § 52-80. Third, the district court did not

9 abuse its discretion in denying Harrison’s discovery requests because she did not make them until

10 after the district court’s deadline for opposing summary judgment had passed. See Wills v.

11 Amerada Hess Corp.,

(2d Cir. 2004) (discovery rulings are reviewed for abuse of

12 discretion); Grochowski v. Phoenix Constr.,

, 86 (2d Cir. 2003) (scheduling rulings are

13 reviewed for abuse of discretion).

14 We affirm the district court’s denial of Harrison’s August 2019 motion to vacate the

15 judgment because, while the district court had jurisdiction to consider that motion, the issue

16 Harrison sought to raise—the alleged notice defects discussed above—fails to survive summary

17 judgment.

18 III. Attorney’s Fees

19 Santander also argues that Harrison’s appeal is moot with respect to her challenge to the

20 award of attorney’s fees in the judgment of strict foreclosure. We agree, and we therefore vacate

21 the judgment to the extent that it awarded attorney’s fees and remand for entry of an amended

22 judgment. See Bragger v. Trinity Cap. Enter. Corp.,

, 17 (2d Cir. 1994) (“When a civil

7 1 case becomes moot while an appeal is pending, it is the general practice of an appellate court to

2 vacate the unreviewed judgment granted in the court below and remand the case to that court with

3 directions to dismiss it.”).

4 * * *

5 We have considered all of Harrison’s remaining arguments and find them to be without

6 merit. Accordingly, we AFFIRM IN PART and VACATE IN PART the judgment of the

7 district court, and REMAND for further proceedings consistent with this order. Santander’s

8 motion for judicial notice of state-court proceedings is GRANTED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk of Court

8