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U.S. BANK NATIONAL ASSOCIATION, TRUSTEE v.
GLYNNIS SORRENTINO ET AL.
(AC 36462)
Alvord, Prescott and Pellegrino, Js.
Argued February 11—officially released June 23, 2015
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Hugh D. Hughes, with whom, on the brief, was John
J. Carta, Jr., for the appellants (defendants).
Geraldine A. Cheverko, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this mortgage foreclosure action,
the defendants, Glynnis Sorrentino and Gallery at 85
Main, LLC, appeal from the summary judgment on their
counterclaims rendered in favor of the plaintiff, U.S.
Bank National Association, as Trustee for J.P. Morgan
Mortgage Acquisition Trust 2006-CH1, Asset Backed
Pass-Through Certificates, Series 2006-CH1.1 The defen-
dants claim that the court improperly granted the plain-
tiff’s motion for summary judgment with respect to four
of their five counterclaims because the affidavit and
other evidence submitted in support of the motion for
summary judgment failed to address the factual allega-
tions underlying those counterclaims and, thus, did not
demonstrate a lack of a genuine issue of material fact.2
The plaintiff argues on appeal, however, that the factual
allegations in the counterclaims relate to activities that
postdate the origination of the loan, the defendant’s
default and the plaintiff’s commencement of this fore-
closure action, and that, because they do not relate to
the making, validity or enforcement of the mortgage,
they fail as a matter of law. We agree with the plaintiff
and, accordingly, affirm the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. In February, 2006, Sorrentino
executed a note in favor of Chase Bank USA, N.A., in
the principle amount of $380,000. At the same time, to
secure that note, Sorrentino executed a mortgage in
favor of Chase Bank USA, N.A., on property located at
85 Main Street in Essex. In April, 2007, Sorrentino, by
way of a quit claim deed, transferred her interest in the
85 Main Street property to Gallery at 85 Main, LLC, a
limited liability company with Sorrentino as its sole
member.
In June, 2009, the plaintiff filed the present action,
alleging that the note was in default and seeking to
foreclose the mortgage.3 On October 12, 2010, the court
referred the parties to the foreclosure mediation pro-
gram. See General Statutes §§ 49-31l through 49-31o.
On May 3, 2012, the foreclosure mediator issued a final
report indicating that the parties were unable to reach
any agreement and referring the matter back to the
court. The defendants filed an answer to the foreclosure
complaint on May 28, 2013, which included eleven spe-
cial defenses and five counterclaims.
Counterclaims one, two, four, and five, which
sounded respectively in equitable estoppel, breach of
the covenant of good faith and fair dealing, unclean
hands, and fraud, were all premised on a common set
of factual allegations that alleged improper conduct by
the plaintiff during the foreclosure mediation proceed-
ings. Specifically, each of those four counterclaims
incorporated by reference the following eight para-
graphs:
‘‘1. Subsequent to the filing of the instant action,
plaintiff and defendants engaged in a court annexed
mediation program.
‘‘2. Pursuant to the mediation process, defendants
provided to plaintiff, on a regular basis, each and every
document requested by plaintiff.
‘‘3. The plaintiff conducted the mediation process in a
manner calculated effectively to ensure that the subject
loan would not qualify for modification. During this
process, plaintiff continually requested documents
which had already been provided; regularly claimed to
have lost or misplaced documents; professed to not
understand the sources and amounts of income despite
repeated, good faith, efforts on the part of defendants
to provide this information to plaintiff. Plaintiff, on a
regular basis, assured defendants that . . . they would
qualify for a modification, and that ‘we want you to
stay in your home and keep your home’ when, in fact,
plaintiff knew that the chances for a modification
were negligible.
‘‘4. Plaintiff, either intentionally or negligently,
delayed the mediation process, which resulted in the
defendants accruing an exorbitant reinstatement
arrearage, which made it impossible for defendants to
even consider reinstating the loan with a lump sum
payment.
‘‘5. Plaintiff either negligently or intentionally strung
this process along for over one year thereby rendering
the possibilities of a modification nonexistent and the
entire process a sham.
‘‘6. Plaintiff explicitly and/or implicitly made certain
representations to defendants upon which defendants
relied; plaintiff knew or should have known that it was
not prepared to offer a loan modification, but, neverthe-
less, continued to string defendants along, either
expressly or impliedly representing that defendants
would be eligible for a loan modification.
‘‘7. At no point during the loan mediation process
[were] defendant[s] advised that [they] would not qual-
ify for a modification until [they were] so advised at
the last mediation session.
‘‘8. The undersigned was repeatedly assured by repre-
sentatives of the plaintiff that all the documents were
appropriately submitted and, in [their] opinion, this loan
was eligible for modification; this occurred repeatedly
during the mediation process leading defendants to
believe that a loan modification was imminent.’’
Counterclaim three, which, as previously discussed
in footnote 2 of this opinion, alleged a violation of the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq., relied on an entirely
distinct set of factual allegations. Rather than incorpo-
rating the previously quoted paragraphs, the CUTPA
counterclaim alleged as follows: ‘‘The plaintiff failed to
provide the defendants with a copy of their mortgage
and loan in this transaction. The plaintiff failed to pro-
vide a HUD-1 or HUD-1 like statement for the disburse-
ment of the loan funds. The failure to provide such
statement handicapped the defendants from exercising
their statutory right of rescission within three days and
other deadlines. The failure to provide such a statement
also kept them in a state of poor understanding of the
obligations they had undertaken, resulting in their great
distress, injury, and possible loss of hearth and home.’’
The defendants also alleged that the plaintiff had
‘‘engaged in a continuing course of conduct from the
date of the closing [up] to and including the institution
of this action.’’
The plaintiff never moved to strike any of the counter-
claims. On October 10, 2013, however, the plaintiff filed
a motion for summary judgment and a memorandum
of law in support of that motion. The plaintiff also
submitted documentary evidence and an affidavit in
support of its motion. With respect to the foreclosure
complaint, the plaintiff sought an order granting sum-
mary judgment as to liability only. The plaintiff also
challenged the propriety of the defendants’ counter-
claims and special defenses.
The defendants filed a memorandum in opposition
to the motion for summary judgment as well as a supple-
mental memorandum, each of which focused almost
exclusively on the issue of whether the plaintiff had
standing to bring the foreclosure action and whether
it had provided evidence supporting standing. The mem-
oranda in opposition did not address the substance of
the plaintiff’s arguments regarding the legal sufficiency
of the various counterclaims. The defendants filed no
affidavits or any other evidence in support of their oppo-
sition to summary judgment.
On December 6, 2013, the court, Aurigemma, J.,
issued a memorandum of decision granting the plain-
tiff’s motion for summary judgment on the foreclosure
complaint as to liability only, and also rendering sum-
mary judgment for the plaintiff on the defendants’ coun-
terclaims.4 With respect to the judgment rendered on
the counterclaims, the court reasoned as follows: ‘‘The
defendants’ initial objection to the summary judgment
does not address [their] special defenses or [their] coun-
terclaims. [Their] supplemental objection mentions sev-
eral Superior Court cases where special defenses
similar to those [they have] alleged were not stricken.
However, the court is not considering a motion to strike.
In opposition to a motion for summary judgment, the
defendants must present some concrete evidence to
support [their] defenses and counterclaims. . . . [They
have] failed to do so. . . . The defendants [have] pre-
sented no evidence to support any of [their] argu-
ments.’’ (Emphasis in original.) This appeal followed.
The defendants claim on appeal that the court
improperly granted the plaintiff’s motion for summary
judgment with respect to their counterclaims. The
defendants argue that the affidavit and other documen-
tary evidence submitted by the plaintiff in support of
its motion for summary judgment were unresponsive
to the factual allegations that they raised in their coun-
terclaims, and that ‘‘the plaintiff only argued that the
counterclaims were improperly joined because they did
not relate to the making, validity or enforcement of the
mortgage note or deed.’’ According to the defendants,
the plaintiff failed to meet its initial burden of showing
a lack of a genuine issue of material fact and that it
was entitled to judgment as a matter of law, and, thus,
contrary to the trial court’s decision, they were not
obligated to provide any evidentiary support with their
opposition in order to avoid summary judgment.
It is important to clarify from the outset that, although
the defendants’ arguments in their brief on appeal are
directed at all five of their counterclaims, the analysis
in the brief is limited to the plaintiff’s alleged failure to
submit evidence in support of summary judgment with
respect to the plaintiff’s conduct during the foreclosure
mediation program only. We therefore view the claim
on appeal to be limited to a challenge to the court’s
decision on the four counterclaims alleging improper
conduct in the mediation program.5 The CUTPA coun-
terclaim did not rely on any facts arising from the media-
tion program, and the defendants do not include any
additional analysis pertaining to the distinct allegations
supporting their CUTPA counterclaim. Accordingly,
even if the defendants intended to bring this claim to
challenge the propriety of the summary judgment deci-
sion with respect to all of the counterclaims, the briefing
is inadequate with respect to the CUTPA counterclaim,
and, thus, we deem it abandoned. See footnote 2 of
this opinion.
For the reasons that follow, we conclude that,
because there were no disputed issues of material facts
relative to whether the defendants’ mediation counter-
claims were legally insufficient—an issue that the
defendants clearly understood as having been raised
by the plaintiff in its memorandum in support of the
motion for summary judgment, but which they wholly
failed to address in their opposition to the motion—
and because the defendants could not have benefitted
from an opportunity to replead their counterclaims, the
court properly granted summary judgment in favor of
the plaintiff.
Practice Book § 17-49 provides that summary judg-
ment ‘‘shall be rendered forthwith if the pleadings, affi-
davits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’’
The rules governing summary judgment are equally
applicable to counterclaims. Practice Book § 17-44.6 ‘‘In
deciding a motion for summary judgment, the trial court
must view the evidence in the light most favorable to
the nonmoving party. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under appli-
cable principles of substantive law, entitle him to a
judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue
of material fact. . . . [I]ssue-finding, rather than issue-
determination, is the key to the procedure. . . . [T]he
trial court does not sit as the trier of fact when ruling
on a motion for summary judgment. . . . [Its] function
is not to decide issues of material fact, but rather to
determine whether any such issues exist. . . . Our
review of the decision to grant a motion for summary
judgment is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Himmelstein v. Windsor, 116
Conn. App. 28, 42–43, 974 A.2d 820 (2009), aff’d, 304
Conn. 298, 39 A.3d 1065 (2012).
Although, ordinarily, a challenge to the legal suffi-
ciency of a pleading should be raised by way of a motion
to strike; see Practice Book § 10-39 (a); our Supreme
Court has held that a motion for summary judgment also
may be used to challenge a pleading’s legal sufficiency
provided that the party seeking summary judgment can
establish as a matter of law both that the cause of action
alleged is legally insufficient and, more importantly,
that any defect in the pleading could not be cured by
repleading, which the nonmoving party would have had
an opportunity to do if the alleged insufficiency had
been raised by way of a motion to strike.7 See Larobina
v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005);
see also Practice Book § 10-44. If both prongs are met,
the court may properly grant summary judgment as a
matter of law. The court in Larobina further explained
that ‘‘we will not reverse the trial court’s ruling on a
motion for summary judgment that was used to chal-
lenge the legal sufficiency of [a pleading] when it is
clear that the motion was being used for that purpose
and the nonmoving party, by failing to object to the
procedure before the trial court, cannot demonstrate
prejudice.’’ Larobina v. McDonald, supra, 402.
A counterclaim that has been filed in contravention
of our rules of practice is legally insufficient. Section
10-10 of the Practice Book provides in relevant part
that ‘‘[i]n any action for legal or equitable relief, any
defendant may file counterclaims against any plaintiff
. . . provided that each such counterclaim . . . arises
out of the transaction or one of the transactions which
is the subject of the plaintiff’s complaint . . . .’’ This
court previously has held that, ‘‘[i]n a foreclosure action,
a counterclaim must relate to the making, validity or
enforcement of the mortgage note in order properly to
be joined with the complaint.’’ JP Morgan Chase Bank,
Trustee v. Rodrigues, 109 Conn. App. 125, 133, 952 A.2d
56 (2008); see also New Haven Savings Bank v. LaPlace,
66 Conn. App. 1, 9–11, 783 A.2d 1174 (affirming sum-
mary judgment for plaintiff on counterclaims not
related to making, validity or enforcement of mortgage
note), cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).
Thus, ‘‘[c]onduct on the part of the [foreclosing party]
that occurred after the loan documents were executed
and not necessarily directly related solely to enforce-
ment of the note . . . properly has been found not to
arise out of the same transaction as the complaint.’’
JP Morgan Chase Bank, Trustee v. Rodrigues, supra,
134–35, citing Southbridge Associates, LLC v. Garofalo,
53 Conn. App. 11, 16–21, 728 A.2d 1114, cert. denied,
249 Conn. 919, 733 A.2d 229 (1999). In CitiMortgage,
Inc. v. Rey, 150 Conn. App. 595, 605–606, 92 A.3d 278,
cert. denied, 314 Conn. 905, 99 A.3d 635 (2014), this
court clarified that a proper application of Practice
Book § 10-10 in a foreclosure context requires consider-
ation of whether a counterclaim has some reasonable
nexus to, rather than directly attacks, the making, valid-
ity or enforcement of the mortgage and note. With these
principles in mind, we turn to the present case.
In its memorandum in support of summary judgment,
the plaintiff argued to the court that each of the defen-
dants’ mediation counterclaims was based on the same
set of supporting facts; that those supporting facts
involved matters that were unrelated to the making,
validity and enforcement of the mortgage or note, but
instead involved activities ‘‘which are postloan origina-
tion, postdefault and postcommencement of the fore-
closure action’’; and that, as a result, the counterclaims
were not part of the same transaction that is the subject
of the foreclosure complaint and were improper. We
view those arguments as directly challenging whether
the counterclaims were properly joined pursuant to the
transaction test set forth in Practice Book § 10-10 and,
thus, their legal sufficiency. As the trial court stated,
the defendants failed to address the substance of the
plaintiff’s legal challenges to their counterclaims in
either their opposition to the motion for summary judg-
ment or their supplemental opposition. The defendants
never argued that it was improper for the court to con-
sider the plaintiff’s insufficiency arguments in adjudi-
cating the motion for summary judgment or that the
plaintiff had waived its right to challenge the joinder
of the counterclaims by failing to file a motion to strike.
Accordingly, none of those issues is before us on appeal.
The subject matter of the underlying complaint is the
foreclosure of a mortgage on property located at 85
Main Street in Essex. The relevant transactions for pur-
poses of Practice Book § 10-10 are, therefore, the execu-
tion of the note and mortgage, and the subsequent
default. See JP Morgan Chase Bank, Trustee v.
Rodrigues, supra, 109 Conn. App. 132. Our review of
the allegations underlying the defendants’ mediation
counterclaims shows that, even when viewed in a light
most favorable to the defendants as the nonmoving
party, all the allegations underlying those counterclaims
are addressed to the plaintiff’s improper conduct during
the foreclosure mediation program. That program did
not begin until after the execution of the note and mort-
gage, and after the foreclosure action was commenced,
and, thus, does not reasonably relate to the making,
validity or enforcement of the note or mortgage.
Moreover, the defendants have not posited how the
factual allegations underlying the counterclaims have
any reasonable nexus to the making, validity or enforce-
ment of the mortgage or note, nor can we discern one.
See CitiMortgage, Inc. v. Rey, supra, 150 Conn. App.
605–606. Even if the defendants were provided with an
opportunity to replead, we conclude as a matter of law
that no permissible corrections could transform the
counterclaims so that they comply with the transaction
test set forth in Practice Book § 10-10. See footnote 7
of this opinion.
Finally, we reject the defendants’ contention that the
trial court should have denied the motion for summary
judgment because the affidavit and other evidence sub-
mitted by the plaintiff were unresponsive to the factual
allegations in its counterclaims. In arguing that the
mediation counterclaims were legally insufficient, the
plaintiff was not factually disputing any of the specific
allegations raised in those counterclaims; rather, the
plaintiff was asserting that, even assuming the truth of
all facts alleged, the counterclaims were improperly
joined and it was entitled to summary judgment on the
counterclaims as a matter of law. Because the plaintiff’s
arguments in support of summary judgment were purely
legal in nature or relied on undisputed facts, it was
unnecessary for it to submit evidence directly
responding to the factual allegations of the counter-
claims in order to prevail on its motion for summary
judgment.
We agree with the defendants’ assertion that ‘‘[w]hen
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue’’; Allstate Ins. Co. v. Barron, 269 Conn.
394, 405, 848 A.2d 1165 (2004); see also Harvey v. Boeh-
ringer Ingelheim Corp., 52 Conn. App. 1, 8–9, 724 A.2d
1143 (1999); and we do not approve of any statement
by the trial court in its memorandum of decision that
could be viewed as setting forth a contrary standard.
The fatal problem regarding the defendants’ opposition
to summary judgment was not a lack of factual support,
but their complete failure to address the legal insuffi-
ciency of their counterclaims. Under established case
law, counterclaims one, two, four and five were not
properly joined with the foreclosure complaint, an
opportunity to replead would have been futile, and,
therefore, summary judgment properly was rendered
by the court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court also granted summary judgment as to liability only with respect
to the foreclosure complaint, and the defendants appealed from that aspect
of the court’s decision as well. We later granted a motion to dismiss that
portion of the appeal for lack of subject matter jurisdiction, however,
because the granting of summary judgment as to liability only is not a final
judgment. See Danbury v. Hovi, 34 Conn. App. 121, 122–23, 640 A.2d 609
(1994). Nevertheless, because the court’s decision disposed of all counter-
claims brought by the defendants against the plaintiff, that aspect of the
court’s decision constituted a final judgment for purposes of filing an appeal.
See Practice Book § 61-2.
2
The defendants also raise a separate claim on appeal with respect to
counterclaim three, which alleged a violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Specifically,
the defendants claim that the court improperly granted summary judgment
on that counterclaim because, in their view, the plaintiff provided no evi-
dence in support of its motion establishing ‘‘that the loan was part of the
purchase of the property rather than a refinance’’ or that ‘‘the note and
mortgage were provided to the defendants at any time prior to summary
judgment, let alone at or near the time of closing.’’ The defendants fail to
state the legal significance of those assertions and provide no legal analysis
regarding the court’s decision to grant summary judgment with respect to
their CUTPA counterclaim. We, therefore, decline to review this additional
claim because it is inadequately briefed. See Carmichael v. Stonkus, 133
Conn. App. 302, 307, 34 A.3d 1026 (‘‘[W]e are not required to review claims
that are inadequately briefed. . . . We consistently have held that [a]nalysis,
rather than mere abstract assertion, is required in order to avoid abandoning
an issue by failure to brief the issue properly.’’ [Internal quotation marks
omitted.]), cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).
3
The defendants moved to dismiss the foreclosure action for lack of
standing, arguing that, despite the allegations to the contrary in the foreclo-
sure complaint, the plaintiff was not the holder of either the note or mortgage
at the time the action was commenced. The trial court denied that motion
without comment. Attached to the plaintiff’s objection to the motion to
dismiss was an affidavit from an officer of the mortgage servicing company
stating that the plaintiff was the holder of the note at the time the foreclosure
action was commenced. The defendants continued to raise the issue of
standing in their opposition to summary judgment. That issue, which relates
to the ongoing foreclosure action and not to the defendants’ counterclaims,
is not properly before us as a part of the present appeal. See footnote 1 of
this opinion.
4
We note that the motion for summary judgment and the memorandum
of law in support of the motion for summary judgment did not expressly
request that the court render judgment on the counterclaims. Nevertheless,
in its memorandum in support of the motion, the plaintiff provided legal
analysis attacking the validity of the counterclaims, following which the
plaintiff asserted that the counterclaims were ‘‘legally wrong, inapplicable
or insufficiently pleaded’’ and that there were ‘‘no issues of material fact’’
with respect to them. The defendants acknowledged the plaintiff’s challenges
to their counterclaims in their supplemental memorandum in opposition to
summary judgment, although they did not respond to the merits of the
plaintiff’s arguments. After summary judgment was granted, the defendants
filed a motion for reconsideration of the decision. The defendants did not
argue in their motion for reconsideration that the trial court improperly
exceeded the relief sought in the motion for summary judgment. In other
words, they did not claim that summary judgment on the counterclaims
was improper because the motion, on its face, was directed only at liability
with respect to the foreclosure complaint. The defendants also have not
raised that argument as a claim of error on appeal. Accordingly, whether
the court correctly construed the motion for summary judgment as having
been directed at the counterclaims as well as the complaint is not an issue
that is properly before us on appeal.
5
The fact that the defendants raised a separate claim of error directed
solely at the judgment on the CUTPA counterclaim; see footnote 2 of this
opinion; supports our conclusion that the claim that the plaintiff failed to
respond factually to the counterclaims pertains only to the other four coun-
terclaims.
6
Practice Book § 17-44 provides in relevant part that our rules regarding
summary judgment ‘‘shall be applicable to counterclaims and cross com-
plaints, so that any party may move for summary judgment upon any counter-
claim or cross complaint as if it were an independent action.’’
7
‘‘The right afforded by Practice Book § 10-44 to file a new pleading
following the granting of a motion to strike, however, is limited to making
those corrections needed to render the claims set forth in the original
pleading legally sufficient. It is not an opportunity to file wholly amended
pleadings that assert new legal claims or rely on a wholly unrelated set of
facts, permission for which ordinarily could be obtained only in accordance
with the provisions of Practice Book § 10-60.’’ GMAC Mortgage, LLC v. Ford,
144 Conn. App. 165, 180–81, 73 A.3d 742 (2013).