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U.S. Bank National Assn., Trustee v. Blowers—DISSENT
PRESCOTT, J., dissenting. In my view, in striking the
counterclaims and special defenses filed by the defen-
dants Robin Blowers and Mitchell Piper,1 the trial court
failed to construe the pleadings in a light most favorable
to upholding their legal sufficiency and too narrowly
construed and applied the making, validity, or enforce-
ment of the note test. Moreover, I believe that the pre-
sent case is distinguishable from, and thus not
controlled by, this court’s decision in U.S. Bank
National Assn. v. Sorrentino, 158 Conn. App. 84, 118
A.3d 607, cert. denied, 319 Conn. 951, 125 A.3d 530
(2015). Unlike the majority, I would conclude that the
court improperly granted the motion to strike filed by
the plaintiff, U.S. Bank National Association, as Trustee
for the Holders of the First Franklin Mortgage Loan
Trust Mortgage Pass Through Certificates, Series 2005-
FF10, and would vacate the judgment of foreclosure and
remand the case for further proceedings.2 Accordingly,
I respectfully dissent.3
I begin by setting forth the relevant facts, accepting
as admitted those facts alleged in the special defenses
and counterclaims, and procedural history. The defen-
dants executed the promissory note and mortgage at
issue in 2005. Later that year, the mortgage was assigned
to the plaintiff. The defendants first began to fall behind
on their mortgage payments in January, 2010. At that
time, a loan servicing agent for the plaintiff reached
out to the defendants and offered them a plan to reduce
their monthly payments. The defendants made pay-
ments in accordance with that plan for several months,
but the plaintiff rescinded the plan because it deter-
mined that the new payments were no longer sufficient.
Over the next few years, the plaintiff offered several
other payment plans or trial modifications, each of
which the plaintiff later rescinded despite the defen-
dants’ compliance as to the requested payments. In one
instance, the plaintiff rescinded a payment plan after
the defendants were one day late in filing requested
paperwork. In late 2013, the plaintiff’s servicer errone-
ously informed the defendants’ homeowners insurer
that they were no longer living at the property, which
resulted in the defendants’ insurance premiums rising
from $900 to over $4000 a year, exacerbating the defen-
dants’ already challenging financial circumstances. Ulti-
mately, none of the plaintiff’s offered payment plans or
trial modifications resulted in a permanent and binding
modification of the defendants’ mortgage or their obli-
gations under the note. Rather than continue to work
with the defendants, the plaintiff instead notified the
defendants that they were in default under the terms
of the note, accelerated the debt, and declared the note
due in full.
The plaintiff commenced the present foreclosure
action in February, 2014. The parties participated in the
court-sponsored foreclosure mediation program, but
were unable to reach any resolution. After the media-
tion period terminated, the defendants filed their
answer to the foreclosure complaint on April 17, 2015,
which included three special defenses and three coun-
terclaims.
The counterclaims alleged causes of action against
the plaintiff sounding in negligence; a violation of the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq.; and unjust enrichment.
The special defenses alleged equitable estoppel, unjust
enrichment, and unclean hands.4 According to the
defendants, during negotiations with the plaintiff,
including those that had occurred prior to the com-
mencement of the foreclosure action, the plaintiff and
its servicing agent failed to act in a fair, equitable, and
honest manner, and their actions hindered the defen-
dants’ ability to obtain a binding loan modification.5
Consequently, the defendants argued, the total amount
of the debt owed in connection with the mortgage
default unnecessarily increased.
The plaintiff moved to strike the defendants’ counter-
claims and special defenses, and the defendants
opposed the motion. Following a hearing, on December
28, 2015, the court, Dubay, J., issued a memorandum
of decision granting the motion to strike.
With respect to the counterclaims at issue on appeal,
the court summarized the defendants’ factual allega-
tions as follows: ‘‘The defendants allege that the plaintiff
was negligent in some of the following ways: (1) the
plaintiff’s servicer erroneously informed the defen-
dants’ insurance company that they were not living in
the house which led to the cancellation of their insur-
ance policy, (2) during mediation, the plaintiff’s repre-
sentative often showed up late, (3) in mediation
sessions, the defendants were routinely provided with
conflicting information by the plaintiff’s representative,
and (4) through a combination of duplicative, exhaus-
tive, and ever-changing requests, the plaintiff took years
to evaluate the defendants for a loan modification. The
defendants allege that the plaintiff violated CUTPA in
some of the following ways: (1) by repeatedly
requesting duplicative, unnecessary documentation
updates to documentation during the modification pro-
cess, (2) by communicating false information to the
defendants’ insurance carrier, and (3) making material
misrepresentations, including, but not limited to, mis-
representing to the defendants the availability of princi-
pal forgiveness.’’ According to the court, however, the
defendants failed to assert any factual allegations in
their counterclaims that had any reasonable nexus to
the making, validity, or enforcement of the note or
mortgage. The court reasoned that the counterclaims
must be stricken because ‘‘[a]ll of the conduct alleged
in the defendants’ counterclaims relate to activities that
took place during the foreclosure mediation program
and, therefore, subsequent to the execution of the note
or mortgage.’’ The court further suggested that the
defendants’ claims would be viable only if the defen-
dants had reached an agreement to replace or modify
the terms of the note or mortgage and the plaintiff
sought foreclosure in contravention of that modified
agreement.
With respect to the defendants’ special defenses, the
court reasoned that they also were legally insufficient.
The court first acknowledged that the defendants’ alle-
gations were sufficient to support their equitable estop-
pel counterclaim because, if viewed in a light most
favorable to the defendants, they established that the
plaintiff’s servicer had engaged in conduct ‘‘calculated
to induce the defendants to believe that they were going
to get a loan modification . . . .’’ The court neverthe-
less stated that the facts alleged did not directly address
the making, validity, or enforcement of the note or
mortgage at issue because there was no allegation that
the plaintiff’s actions in any way invalidated or rendered
unenforceable the original loan documents or affected
the plaintiff’s authority to foreclose under the existing
note and mortgage. The court stated: ‘‘In the present
case, it seems that at one point the parties entered into
a modification, however, the allegations lead the court
to believe that it was not a permanent modification and
the defendants defaulted under the modified
agreement, and, therefore, the plaintiff was able to seek
the equitable relief of foreclosure.’’ Similarly, the court
found that the defendants had alleged sufficient facts
to support a special defense of unclean hands, which
included the preforeclosure actions of the plaintiff’s
servicer in negotiating a loan modification agreement.
The court concluded, however, that the allegations did
not relate to the plaintiff’s ability to enforce the existing
note and mortgage or to affect their validity.
On February 5, 2016, the court, Peck, J., granted a
motion filed by the plaintiff seeking summary judgment
as to liability only on the foreclosure complaint. On
April 11, 2016, the court, Wahla, J., rendered a judgment
of strict foreclosure in favor of the plaintiff. At that
time, the court also rendered judgment in favor of the
plaintiff on the stricken counterclaims. Piper thereafter
filed the present appeal.6
I next set forth the applicable legal principles govern-
ing our review of the court’s decision to grant the
motion to strike. A motion to strike is the proper vehicle
for challenging the legal sufficiency of all or part of
a complaint, counterclaim, or answer, including any
special defenses asserted. See GMAC Mortgage, LLC
v. Ford, 144 Conn. App. 165, 180, 73 A.3d 742 (2013).
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading . . . and, consequently, requires
no factual findings by the trial court, our review of
the court’s ruling [on a motion to strike] is plenary.’’
(Internal quotation marks omitted.) Kumah v. Brown,
307 Conn. 620, 626, 58 A.3d 247 (2013). I am mindful
that, in reviewing the court’s decision to strike portions
of a defendant’s counterclaim or special defenses, we
must take the facts alleged in the challenged pleading
as admitted and view them in a light most favorable to
upholding the sufficiency of the pleadings, including
those facts necessarily implied from the allegations
expressly asserted. See Connecticut National Bank v.
Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992); JP
Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.
App. 125, 128–29, 952 A.2d 56 (2008). ‘‘In an appeal from
the granting of a motion to strike, we must read the
allegations of the [challenged pleading] generously to
sustain its viability, if possible . . . .’’ (Internal quota-
tion marks omitted.) Sherwood v. Danbury Hospital,
252 Conn. 193, 212, 746 A.2d 730 (2000).
‘‘The purpose of a special defense is to plead facts
that are consistent with the allegations of the complaint
but demonstrate, nonetheless, that the plaintiff has no
cause of action.’’ (Internal quotation marks omitted.)
TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn. App.
322, 326, 71 A.3d 541 (2013). Our courts have recognized
a distinction between equitable defenses and defenses
at law. ‘‘Historically, defenses [at law] to a foreclosure
action have been limited to payment, discharge, release
or satisfaction . . . or, if there had never been a valid
lien. . . . A valid special defense at law to a foreclo-
sure proceeding must be legally sufficient and address
the making, validity or enforcement of the mortgage,
the note, or both. . . . Where the plaintiff’s conduct is
inequitable, a court may withhold foreclosure on equita-
ble considerations and principles. . . . [O]ur courts
have permitted several equitable defenses to a foreclo-
sure action. [I]f the mortgagor is prevented by accident,
mistake or fraud, from fulfilling a condition of the mort-
gage, foreclosure cannot be had . . . . Other equitable
defenses that our Supreme Court has recognized in
foreclosure actions include unconscionability . . .
abandonment of security . . . and usury.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) LaSalle National Bank v. Freshfield Mead-
ows, LLC, 69 Conn. App. 824, 833, 798 A.2d 445 (2002).
With regard to counterclaims, a court may grant a
party’s motion to strike a counterclaim on the ground
that it is improperly joined with the plaintiff’s primary
action in contravention of Practice Book §10-10. See
U.S. Bank National Assn. v. Sorrentino, supra, 158
Conn. App. 95; JP Morgan Chase Bank, Trustee v.
Rodrigues, supra, 109 Conn. App. 132–33 (affirming
motion to strike defendants’ counterclaim because it
did not arise from same transaction). Practice Book
§ 10-10 provides in relevant part that ‘‘[i]n any action
for legal or equitable relief, any defendant may file coun-
terclaims 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 . . . .’’ Practice Book § 10-10 ‘‘is
a common-sense rule designed to permit the joinder of
closely related claims where such joinder is in the best
interests of judicial economy. . . . The transaction test
is one of practicality, and the trial court’s determination
as to whether that test has been met ought not be
disturbed except for an abuse of discretion.’’ (Citation
omitted; internal quotation marks omitted.) JP Morgan
Chase Bank, Trustee v. Rodrigues, supra, 131–32.
It is generally well accepted in our foreclosure juris-
prudence that a court may utilize the making, validity,
or enforcement test in assessing not only the viability
of special defenses, but also in applying the transaction
test in Practice Book § 10-10 to determine whether
counterclaims asserted by a foreclosure defendant are
sufficiently related to consider them properly joined.
CitiMortgage, Inc. v. Rey, 150 Conn. App. 595, 603, 92
A.3d 278, cert. denied, 314 Conn. 905, 99 A.3d 635 (2014).
Although courts require that a viable legal special
defense directly attack the ‘‘making, validity or enforce-
ment’’ of the mortgage, in assessing counterclaims, our
courts generally have applied a more relaxed standard,
requiring only that the subject of the counterclaims
have a ‘‘sufficient connection’’ or ‘‘nexus’’ to the making,
validity, or enforcement of the note and mortgage to
pass the transaction test. Id. Accordingly, although in
a foreclosure action a proper application of the transac-
tion test set forth in Practice Book § 10-10 ‘‘may require
an assessment of whether the counterclaim in question
relates to the making, validity or enforcement of the
subject note and mortgage, there can be such a nexus
even though the counterclaim may not directly attack
the making, validity or enforcement of the mortgage
and note which form the basis of the foreclosure com-
plaint.’’ Id., 606. With these principles in mind, I turn
to whether, in the present case, the defendants’ special
defenses and counterclaims were properly stricken by
the court.
I
I first consider whether either of the defendants’ spe-
cial defenses directly related to the making, validity, or
enforcement of the note or mortgage. The trial court
and the majority answer this question in the negative,
concluding that the allegations giving rise to the special
defenses took place during loan modification negotia-
tions or foreclosure mediation, both of which came
after the execution of the note and mortgage and the
latter of which came after the foreclosure action was
commenced. I conclude, however, that the special
defenses are legally sufficient and, thus, were improp-
erly stricken.
The trial court, in granting the motion to strike, rea-
soned that because no formal modification ever was
agreed to by the parties, none of the special defenses
raised by the defendants directly relates to the making,
validity, or enforcement of the note or mortgage. Having
carefully reviewed the relevant pleadings, however, I
am not persuaded that the trial court construed the
allegations in the special defenses in a light most favor-
able to upholding their legal sufficiency, particularly
with respect to the whether the allegations related to
the enforcement of the note and mortgage.
For example, at one point in its analysis, the court
states that ‘‘it seems that at one point the parties entered
into a [loan] modification.’’ The court is referring to the
following factual allegation, which was incorporated
into both the special defenses and the counterclaims:
‘‘In April, 2012, [the] defendants contacted the state
banking commission, which intervened on [the] defen-
dants’ behalf, resulting in an immediate modification
being received.’’ (Emphasis added.) Rather than
accepting the defendants’ allegation as true for pur-
poses of evaluating the legal sufficiency of the defen-
dants’ pleading, the court did the opposite, construing
the allegation in such a way as to ‘‘leave the court to
believe that it was not a permanent modification and
the defendants defaulted under the modified
agreement, and, therefore, the plaintiff was able to seek
the equitable relief of foreclosure.’’ Thus, the court
apparently attempts to resolve a factual dispute as to
whether a modification had occurred, and did so in
favor of the plaintiff.
Furthermore, the court, like the majority, relied in
large part on U.S. Bank National Assn. v. Sorrentino,
supra, 158 Conn. App. 97, for the proposition that allega-
tions of improper conduct occurring during mediation
and modification negotiations lacks any reasonable
nexus to the making, validity, or enforcement of the
note or mortgage. This interpretation of our holding in
U.S. Bank National Assn. is, in my view, overly broad.
Unlike in the present case, the court in U.S. Bank
National Assn. was faced only with allegations of
wrongdoing or misconduct by the foreclosing bank that
occurred during the court-sponsored foreclosure medi-
ation process, which occurred well after the action to
foreclose the mortgage already had commenced. By
contrast, the defendants in the present case have
alleged that the plaintiff engaged in dishonest and
deceptive practices prior to its having initiated the fore-
closure action, including the possibility that the plaintiff
failed to honor the terms of a loan modification
agreement. Accordingly, unlike in U.S. Bank National
Assn., the allegations of preforeclosure conduct by the
plaintiff in the present case had a far more obvious
and direct connection to the enforcement of the note
or mortgage.7
Moreover, the majority’s suggestion that the defen-
dants’ special defenses could be viable only if the defen-
dants actually had reached a modification agreement
would unnecessarily shield mortgagees or their agents
from judicial scrutiny of potentially unscrupulous
behavior that may have directly resulted in the foreclo-
sure action. Courts have not always strictly applied the
making, validity, or enforcement requirement in evalu-
ating the sufficiency of equitable special defenses such
as those raised here, particularly if a strict application
would offend traditional notions of equity. For example,
in Thompson v. Orcutt, 257 Conn. 301, 313, 777 A.2d 670
(2001), our Supreme Court clarified that an equitable
defense of unclean hands need not strictly relate to
the making, validity, or enforcement of the note or
mortgage provided the allegations set forth were
‘‘ ‘directly and inseparably connected’ ’’ to the foreclo-
sure action. In reversing this court’s decision, which
narrowly focused upon the making, validity, or enforce-
ment test, the Supreme Court observed ‘‘[b]ecause the
doctrine of unclean hands exists to safeguard the integ-
rity of the court . . . [w]here a plaintiff’s claim grows
out of or depends upon or is inseparably connected
with his own prior fraud, a court of equity will, in gen-
eral, deny him any relief, and will leave him to whatever
remedies and defenses at law he may have.’’ (Citations
omitted; internal quotation marks omitted.) Id., 310.
Finally, I do not share the concern expressed by the
majority that allowing special defenses or counter-
claims related to the preforeclosure actions of mortgag-
ees would significantly impact judicial economy or
unnecessarily open the floodgates to convoluted claims
that will unduly delay foreclosure actions. I am confi-
dent that our courts will be able to discern efficiently
between claims that are well pleaded and supported by
specific factual allegations and those that are merely
frivolous and intended only to create unneeded delay.
Further, courts readily can differentiate between allega-
tions involving inequitable practices that may have
occurred prior to the commencement of the foreclosure
action and that implicate enforcement, such as in the
present case, and more attenuated allegations related
solely to mediation occurring after the commencement
of litigation. See U.S. Bank National Assn. v. Sorren-
tino, supra, 158 Conn. App. 95–97.
Here, the court found that the allegations in the plead-
ings were wholly sufficient to support the special
defenses of estoppel and unclean hands, but only failed
because they did not directly relate to the making, valid-
ity, or enforcement of the note or mortgage. I would
conclude, however, that the allegations of deceitful and
unfair practices leading to the filing of the foreclosure
action were sufficiently related to the enforcement of
the note and mortgage, and they were directly and
inseparably connected to the foreclosure action.
Accordingly, I would reverse the court’s decision to
strike both special defenses.
II
Finally, I address Piper’s claim that the trial court
improperly granted the motion to strike as to the defen-
dants’ counterclaims. The court concluded that the
defendants failed to assert in their counterclaims fac-
tual allegations that demonstrated some reasonable
nexus between those allegations and the making, valid-
ity, or enforcement of the mortgage or note. I disagree,
and, therefore, would also reverse the court’s judgment
on the counterclaims.
‘‘[T]his court has clarified that a proper application of
Practice Book § 10-10 in a foreclosure context requires
consideration of whether a counterclaim has some rea-
sonable nexus to, rather than directly attacks, the mak-
ing, validity or enforcement of the mortgage or note.’’
Id., 96. ‘‘[R]elevant considerations in determining
whether the transaction test has been met include
whether the same issues of fact and law are presented
by the complaint and the [counter]claim and whether
separate trials on each of the respective claims would
involve a substantial duplication of effort by the parties
and the courts.’’ (Internal quotation marks omitted.)
CitiMortgage, Inc. v. Rey, supra, 150 Conn. App. 606.
I believe that proper application of the transaction test
demonstrates that both of the defendants’ counter-
claims were properly joined.
The counterclaims asserted by the defendants
sounded in negligence and a violation of CUTPA based
upon the conduct of plaintiff’s servicing agent during
mediation and modification negotiations that culmi-
nated in the present foreclosure action. In support of
their negligence claim, the defendants alleged, inter alia,
that the plaintiff erroneously informed the defendants’
homeowners insurance company of false information
that resulted in the cancellation of their policy and an
increase in premiums, and the plaintiff unnecessarily
delayed the defendants’ request for a loan modification
by making duplicative and changing requests for infor-
mation. In support of their CUTPA claim, the defendants
alleged, inter alia, that throughout modification negotia-
tions, the plaintiff repeatedly requested duplicative and
unnecessary documentation updates and made material
misrepresentations, including communicating false
information to the defendants’ insurance carrier.
The court did not strike the counterclaims because
they failed to state cognizable causes of action, but,
rather, because they did not have a proper nexus either
to the making, validity, or enforcement of the note and
mortgage. For the same reasons that I articulated with
respect to the special defenses, however, I believe that
the factual underpinnings set forth in the defendants’
counterclaims directly relate to the plaintiff’s prefore-
closure efforts to enforce its rights under the existing
note and mortgage. Accordingly, the counterclaims
were properly joined and should have survived the
plaintiff’s motion to strike.
In sum, I would reverse the judgment of the trial
court granting the motion to strike and, accordingly,
would reverse the judgment of strict foreclosure and
remand the case for further proceedings.
1
A number of subsequent encumbrancers with respect to the subject
property in this foreclosure action also were named as defendants. For
convenience, I refer in this opinion to Blowers and Piper as the defendants
and to Piper, the sole appellant, individually by name where appropriate.
2
My conclusion should not be construed as a comment on the relative
factual strength of the counterclaims or special defenses, or whether they
could withstand a motion for summary judgment.
3
Because I conclude that the trial court misapplied the making, validity,
or enforcement test to the counterclaims and special defenses, and would
reverse the judgment on that basis, I do not reach the Piper’s additional
claim, which asks us to abandon our existing jurisprudence in favor of what
he describes as a more ‘‘straightforward version of the transaction test.’’
4
Prior to the court’s ruling on the motion to strike, the defendants with-
drew their special defense and counterclaim sounding in unjust enrichment.
Accordingly, I limit my discussion to the remaining defenses and counter-
claims.
5
The defendants acknowledged in their opposition to the motion to strike
that the same basic facts and alleged misconduct underlie each of their
special defenses and counterclaims. They summarized those facts as follows:
‘‘Prior to commencing the instant foreclosure, and over a period of several
years, the conduct the plaintiff engaged in included the following: entering
into a trial modification which it later refused to convert to a permanent
modification despite full compliance by the defendants with the terms of
the trial modification; offering and then refusing to accept a modification for
a pretextual reason . . . offering, accepting, and then unilaterally altering
modifications in material respects without prior discussion or agreement
of the defendants; refusing to accept a lump sum payment of an escrow
shortfall which resulted from the plaintiff’s servicer miscalculation; and
erroneously informing the defendants’ insurance carrier that they were not
living in the house, resulting in a cancellation thereof and force-placed
coverage.’’ The defendants also made a number of allegations with respect
to the plaintiff’s conduct during court-sponsored mediation.
6
Piper indicated on his appeal form that he intended to challenge the
court’s rulings on the motion to strike and the motion for summary judgment,
as well as the judgment of strict foreclosure. The claims actually raised on
appeal, however, as reflected in Piper’s statement of issues, are limited to
the court’s decision to grant the motion to strike the defendants’ special
defenses and counterclaims.
7
I recognize that our jurisprudence is somewhat opaque with regard to
the meaning of enforcement in this context and that there can be reasonable
and differing views about how to interpret that term in the foreclosure
context. For example, enforcement could be construed narrowly to refer
only to the ability of a mortgagee to enforce the note or mortgage or, more
broadly, to include a mortgagee’s actions related to such enforcement. In
the absence of needed clarification by our Supreme Court, and given the
equitable nature of foreclosure proceedings, I believe that a broader interpre-
tation is appropriate.