Docket Number: FBT-CV-00-0378565-S THE BANK OF NEW YORK, Trustee, plaintiff, v. Diane L. ROMAN, et al., defendants.

State of Connecticut Superior Court Judicial District of Fairfield at Bridgeport June 20, 2011

MOTION TO DISMISS AND EVIDENTARY HEARING REQURIED Pursuant to PB 10-31(a) & 10-33, the defendant, Diane L. Roman, moves this Court to dismiss this action for lack of subject matter jurisdiction. In support of her motion, the defendant represents as follows: 1) In October 2000, the plaintiff, The Bank of New York, trustee under the Pooling and

Servicing Agreement Series 1997 C at 101 Barclay Street, New York, NY 10286 Corp. Trust MBS (BoNY), brought this action to foreclose a mortgage granted to Northeast Mortgage Corporation, LLC by the plaintiff, Ms. Roman, which encumbered her property located at 631 Fairview Avenue in Bridgeport. 2) BoNY alleges in its complaint that it owns the mortgage by virtue of an assignment from

the original mortgagee, Northeast Mortgage Corporation, LLC. 3) Northeast Mortgage Corporation, LLC assigned the mortgage to INMC Mortgage

Holdings, Inc. on the same day that the plaintiff granted that mortgage to Northeast Mortgage Corporation, LLC. That assignment was recorded in the Bridgeport Land Records on December 1, 1998.

ORAL ARGUMENT REQUESTED TESTIMONY REQUIRED

4)

Subsequently, Northeast Mortgage Corporation, LLC executed an instrument purporting to

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be an assignment of the same mortgage to the plaintiff, BoNY. That instrument was recorded in the Bridgeport Land Records on November 8, 1999. 5) Because Northeast Mortgage Corporation, LLC had previously assigned the mortgage to

INMC Mortgage Holdings, Inc., the assignment of that mortgage to BoNY was ineffective and invalid. 6) Because BoNY did not own the mortgage when it commenced this action, which was returnable on December 7, 2000, BoNY lacked standing to bring this action. 7) Because the Note Portion of the Mortgage was Discharged in a 2004 Chapter 7, case number 04-54749 the Defendant has no personal liability and as such the note is uncollectable. 8) Because the Notary Public Erica Herrera who notarized the documents in this case was not a Notary in the State of California as her Notary Pubic license was revoked on February 20, 2001 and she notarized the documents for this case on September 24, 2001, eight (8) months after her revocation. 9) Because Rosa Salgado, the Signor of the Affidavit and Mortgage Assignment (as Assistant Vice President of IndyMac Bankcorp, Inc) was not an officer of IndyMac Bankcorp, Inc., the only recorded owner of the Mortgage and Note was never employed by IndyMacBankcorp, in effect a Robo Signor. IndyMac is the only party known to have paid for the Mortgage and Note who provided an affidavit stating that their records clearly show that the Mortgage and Note was never sold or Assigned to BoNY. 10) Because the plaintiff lacks standing to bring this action, this Court does not have subject matter jurisdiction and this action must be dismissed. 11) The Plaintiff did not own or have any equity interest in this mortgage and note when it
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commenced this foreclosure action and has never provided proof to support their actions. STANDARD OF REVIEW A Motion to Dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be found by the court. (emphasis in original) Gurliacci v. Mayer, 218 Conn 531, 544, 590 A.2d 914 (1991). A Motion to Dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. Upson v. State, 1990 Conn. 622, 624, 461 A.2d 991(1983)., (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. St. George v. Gordon, 264 Conn.538, 545, 825 A.2d 90(2003). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favorclearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294, Conn.206, 213-14, 982 A.2d 1053 (2009). [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009). Additionally, a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, Conn. App. 201, 205, 9 A.3d 379 (2010), cert. granted in part, Conn.
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936,__A.3d__(2011). When the issue of standing is raised by a mortgagee against a foreclosing mortgagor, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. (Internal quotation marks omitted.) Id. A party that does not own the note secured by the mortgage lacks standing to foreclose on the mortgage. Fleet National Bank v. Nazareth, 75 Conn. App. 791-794-95, 8181 A.2d 69 (2003). Any defendant, wishing to contest the courts jurisdiction, may do so even after having entered a general appearance, [t]he motion to dismiss shall assert (1) lack of jurisdiction over the subject matter. In U.S. Bank v Kenneth Coley, CV 07 600 14 26, the Hon. Michael J. Hartmere ruled that the Court concludes that the Plaintiff has not submitted sufficient evidence to demonstrate that it had physical possession of the note and mortgage at the time it commenced the present action. The Plaintiff bears the burden of proving its standing. See, e.g. Park National Bank v. 3333 Main, LLC, 127 Conn App. 774, 779, 15 A.3d 1150 (2011). In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party] ha[s] to prove by a preponderance of the evidence that it was the owner of the note and mortgage and the [the mortgagee] had defaulted on the note. (internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262, Conn. 937, 815 A.2d 136 (2003).

Wherefore, the defendant prays that this Court to dismiss this action.
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Dated: June 20, 2011 at Bridgeport, Connecticut:

By_____________________ Diane L. Roman, Pro Se 631 Fairview Ave. Bridgeport, CT 06606 Phone: 407-615-0286 Fax: 203-583-8346 Email: lroman007@optonline.net

By__________________________ Louis Roman, Pro Se 631 Fairview Ave. Bridgeport, CT 06606

ORDER
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The defendants Motion to Dismiss having been heard by the Court, IT IS HEREBY ORDERED: GRANTED / DENIED.

_________________________________ By: the court/Judge

CERTIFICATION
I hereby certify that a copy was sent by certified mail to the deponent and mailed/delivered via hand/fax and email to all counsel and pro se parties of record on June 20, 2011:
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Andrew P. Barsom Esq.

Hunt Leibert Jacobson PC Glacier International Depository Bank 50 Weston Street 665 Cleveland Avenue Hartford , Connecticut 06120 Bridgeport, Connecticut 06604 Richard Sheiman, Esq. Committee 1062 Barnes Road 572 White Plains Road Suite 304 Trumbull, Connecticut 06611 Ralph Flamini 15 Crystal Lane Shelton, Connecticut 06484

15 Crystal Lane Shelton, CT 06484 860-548-0006 (fax)

By_____________________ Diane L. Roman, Pro Se 631 Fairview Ave. Bridgeport, CT 06606 Phone: 407-615-0286 Fax: 203-583-8346 Email: lroman007@optonline.net

By__________________________ Louis Roman, Pro Se 631 Fairview Ave. Bridgeport, CT 06606