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CHASE HOME FINANCE, LLC v. SCROGGIN—DISSENT
BEAR, J., dissenting. The defendant, Daniel Scroggin
also known as Daniel J. Scroggin also known as Daniel
F. Scroggin, appeals from the judgment of strict foreclo-
sure1 rendered against him by the trial court on April
18, 2016, in favor of the substitute plaintiff, AJX Mort-
gage Trust 1, a Delaware Trust, Wilmington Savings
Fund Society, F.S.B., Trustee.2 On appeal, the defendant
argues that the court erred in rendering the judgment
of strict foreclosure (1) based on a default for failure
to plead, because Chase Home Finance, LLC (Chase),
significantly amended the pleadings after the default
entered, and he was, therefore, entitled to answer prior
to the hearing on the motion for judgment of strict
foreclosure, and (2) in violation of General Statutes
§ 52-121 (a).3 The majority agrees with the defendant
as to his first claim and concludes that the court abused
its discretion in rendering the judgment of strict foreclo-
sure. I respectfully disagree with the majority’s disposi-
tion of the defendant’s first claim, and I disagree with
the defendant’s second claim, which the majority does
not reach in light of its disposition of the first claim.
Accordingly, I would affirm the judgment of the trial
court.
I
The defendant first argues that the court erred in
rendering the judgment of strict foreclosure based on
the entry of the June 16, 2010 default for failure to
plead. Specifically, the defendant asserts that Chase
significantly amended the pleadings after the default
entered, which extinguished the default, and he, there-
fore, was entitled to answer the first count, inter alia,
prior to the hearing on the motion for judgment of
strict foreclosure. Despite the additional facts and legal
theories set forth in the amended complaint, the first
count seeking strict foreclosure, the only count in the
original complaint, was not substantially changed in the
amended complaint to the point where such default
was deemed to be vacated.
The majority looks to the changes in and the additions
to the amended complaint as a whole in concluding
that those changes and additions effectively vacated
the default entered on the first count of the original
complaint.4 The focus of the inquiry in this appeal, how-
ever, should not be on the amended complaint as a
whole. Because the defendant has not appealed from
the judgment rendered against him on the fifth and
sixth counts of the amended complaint, alleging unjust
enrichment and fraud, and he had no legal interest in
the dispute between Chase and Bank of America as
alleged in the second, third, and fourth counts of the
amended complaint, the proper inquiry in this appeal is
whether the amended complaint substantially changed
the original count for strict foreclosure, the judgment
rendered on which is the sole basis for the defendant’s
appeal, to the point where it had the effect of extinguish-
ing the default entered thereon. The case law cited by
the majority readily supports my conclusion that the
court did not abuse its discretion in determining that
the amended complaint did not have the effect of extin-
guishing the default entered on the first count, so as
to permit the defendant to file an answer thereto prior
to or instead of filing a motion to open and vacate
that default.
As conceded in the majority opinion, the analyses of
this court in Willamette Management Associates, Inc.
v. Palczynski, 134 Conn. App. 58, 38 A.3d 1212 (2012),
and Spilke v. Wicklow, 138 Conn. App. 251, 53 A.3d 245
(2012), cert. denied, 307 Conn. 945, 60 A.3d 737 (2013),
are pertinent to and instructive in this case. ‘‘[I]n both
cases the question primarily was whether the filing of
an amended complaint after a finding of default extin-
guished the default and allowed the defendant to plead
in response.’’ Spilke v. Wicklow, supra, 270.
In Willamette Management Associates, Inc., follow-
ing a default against the defendant for failure to plead,
the plaintiff filed an amended complaint to correct a
scrivener’s error. Willamette Management Associates,
Inc. v. Palczynski, supra, 134 Conn. App. 63. The trial
court declined to give effect to the defendant’s answer
filed in response to the amended complaint because
‘‘[n]othing changed in the substantive pleadings and
[the defendant had] been defaulted.’’ (Internal quotation
marks omitted.) Id., 64. On appeal, this court concluded
that the trial court did not abuse its discretion in prohib-
iting the defendant from filing an answer because ‘‘[n]o
change of any kind, and thus certainly not a substantial
change, was made to the cause of action’’; (emphasis
added) id., 69; and thus it was not inequitable for the
court to have exercised its discretion in the manner
that it did. Id., 68–69.
In Spilke, ‘‘the plaintiff filed four amended complaints
after the defendants were defaulted. . . . Although the
complaints differed in some respects from the original
complaint, the substantive allegations remained the
same.’’ Spilke v. Wicklow, supra, 138 Conn. App. 270.
The defendants filed a motion to strike the case from
the hearing in damages list, ‘‘arguing that the plaintiff
had amended her complaint numerous times since the
entry of default against the defendants, which, in turn,
extinguished the default.’’ Id., 266. The trial court denied
the defendant’s motion. Id. On appeal, this court con-
cluded that the court did not abuse its discretion in
denying the motion to strike because ‘‘[a]s in Willamette
Management Associates, Inc. . . . the amendments
worked no substantial change in the cause of action
and . . . the defendants have not demonstrated any
prejudice suffered.’’ (Emphasis added.) Id., 270.
Our Supreme Court stated in Mazulis v. Zeldner,
which is cited in Willamette Management Associates,
Inc., that ‘‘[i]f the effect of an amendment of a complaint
. . . is to substantially change the cause of action origi-
nally stated, the defendant is entitled to file new or
amended pleadings and present further evidence.’’
(Emphasis added.) Mazulis v. Zeldner, 116 Conn. 314,
317, 164 A. 713 (1933). Therefore, the focus of our
inquiry should be whether the amendment substantially
changed the cause of action, i.e., in this appeal, the first
count for strict foreclosure.
Here, the cause of action for strict foreclosure in the
original complaint was not substantially changed in the
amended complaint. Although, unlike in Willamette
Management Associates, Inc., the amended complaint
in the present case did contain more than a scrivener’s
error, since it added new causes of action and an addi-
tional party, the defendant has not appealed from the
judgment with respect to those new causes of action
against him. The only portion of the judgment appealed
from—that of strict foreclosure—was not rendered on
a substantially changed original complaint, although,
as the majority sets forth in its opinion, there was an
equitable subrogation reference added in the amended
complaint to the language of the original cause of
action.5 The additional language in the first count of the
amended complaint, however, merely reflects Chase’s
change in position from second mortgagee to first mort-
gagee, as a result of paying off Bank of America’s mort-
gage.6 The additional language does not change the
substance of the cause of action for strict foreclosure
against the defendant.
In summary, despite the additional counts added
against the defendant in the amended complaint, both
the first, and only, count of the original complaint and
the first count of the amended complaint sought a judg-
ment of strict foreclosure against the defendant on the
basis of essentially the same allegations. Because the
amended complaint did not substantially alter the cause
of action that is the subject of this appeal, pursuant
to Willamette and Spilke the default in the original
complaint was not deemed to be vacated by the filing
of the amended complaint despite the addition of two
causes of action against the defendant and three causes
of action against Bank of America.7
Because I conclude that the defendant’s first claim
should be rejected, I must consider the defendant’s
second claim.
II
The defendant argues in his second claim that, by
operation of § 52-121 (a), he was entitled to file an
operative answer prior to the hearing on the motion
for judgment of strict foreclosure filed on June 7, 2010.
action may be filed after the expiration of the time fixed
by statute or by any rule of court until the court has
heard any motion for judgment by default or nonsuit
for failure to plead which has been filed in writing with
the clerk of the court in which the action is pending.’’
A court, in the exercise of its discretion, may refuse to
consider a pleading, although it is filed prior to judg-
ment on the default, but doing so is ‘‘plain error if, prior
to rendering a judgment upon default, the court fails
to accept for filing a defaulted party’s pleading solely
on the ground that the pleading is untimely.’’ (Internal
quotation marks omitted.) Deutsche Bank National
Trust Co. v. Cornelius, 170 Conn. App. 104, 117, 154
A.3d 79, cert. denied, 325 Conn. 922, 159 A.3d 1171
(2017); see also Deutsche Bank National Trust Co. v.
Bertrand, 140 Conn. App. 646, 662, 59 A.3d 864, appeal
dismissed, 309 Conn. 905, 68 A.3d 661 (2013). Thus, the
question is whether the court in the present case found
§ 52-121 (a) inapplicable for any reason other than time-
liness.8
This court has previously rejected an argument that
the trial court violated § 52-121 (a) in refusing to accept
the defaulted party’s answer solely on the basis of time-
liness when there was another reason pursuant to which
the court decided not to allow an answer to be filed.
In Deutsche Bank National Trust Co. v. Bertrand,
supra, 140 Conn. App. 662, this court noted: ‘‘We
acknowledge that there is support for the proposition
that a court commits plain error if, prior to rendering
a judgment upon default, the court fails to accept for
filing a defaulted party’s pleading solely on the ground
that the pleading is untimely. . . . Our review of the
hearing transcript reveals, however, that the plaintiff
objected to the court accepting the answer not only
because of the extensive history of delay but also
because the pleading had not been electronically filed.
We again note that the record before us does not contain
a precise statement by the court for its ruling; however,
the court suggests two possible reasons for rejecting
the defendant’s request to file his answer and special
defenses. In refusing to accept the pleading for filing,
the court stated both that ‘it’s too late for that’ and
‘you’re going to have to e-file it.’ Because it is not clear
from the record that the court rejected the defendant’s
pleading solely on the basis that it was untimely, and
the defendant has not addressed the electronic filing
issue on appeal, we must reject the defendant’s claim
that § 52-121 provides a basis for concluding that the
court abused its discretion in refusing to accept his
answer when it was offered for filing at the hearing.’’
(Citation omitted; footnote omitted.) Id.
Similarly here, it is not clear from the record that the
court rejected the defendant’s answer solely on the
basis that it was untimely. At the hearing on the motion
for judgment of strict foreclosure, the defendant’s coun-
sel asserted that § 52-121 (a) ‘‘is controlling, as it indi-
cates that notwithstanding any other statute or court
rule, a pleading may be filed until the court has heard
any motion for judgment by default.’’ In response, the
plaintiff’s counsel stated that ‘‘[t]his really comes down
to timeliness, and the defendant not [repleading] and
not moving to open the default.’’ The court concluded:
‘‘Well, in my view, [the defendant] should have moved
to open a default. [The defendant] didn’t. I’ll allow [the
plaintiff] to go forward with [its] foreclosure.’’ At the
end of the hearing, the defendant’s counsel again
inquired ‘‘as to the court’s position on the applicability
of § 52-121 (a).’’ The court then explained its reasons
for declining to consider the answer and rendering the
judgment of foreclosure:
‘‘The Court: You didn’t move to [open], waiting five
years. And you just can’t file an answer once a motion
for judgment has been filed.
‘‘[The Defendant’s Counsel]: Notwithstanding the
statute?
‘‘The Court: I’m entering a foreclosure.
‘‘[The Defendant’s Counsel]: Very well, Your Honor.
‘‘The Court: I think your actions were solely for the
purpose of delay.’’
The court thus had before it multiple grounds it could
consider in deciding whether to render the judgment
of foreclosure, including: (1) the timeliness of the
answer; (2) that the defendant never moved to open
the default; and (3) that the defendant’s actions were
solely for the purpose of delay. Similarly to the court
in Bertrand, where the court considered that the
answer was not e-filed in addition to considering the
timeliness of the answer, the court here did not
expressly reject the pleading solely because it was not
filed on time, but also, inter alia, because the defendant
had not filed a motion to open the default prior to the
filing of the answer. See Deutsche Bank National Trust
Co. v. Bertrand, supra, 140 Conn. App. 662.
The court’s ruling, based in part on its consideration
of the defendant’s failure to move to open, is supported
by this court’s conclusion in Deutsche Bank National
Trust Co. v. Cornelius, supra, 170 Conn. App. 117, in
which this court recently rejected a defendant’s argu-
ment that ‘‘§ 52-121 requires a trial court to consider
the merits of a motion to strike even after a default
has been entered so long as no judgment has been
rendered.’’ This court quoted Bertrand, stating: ‘‘We
acknowledge that there is support for the proposition
that a court commits plain error if, prior to rendering
a judgment upon default, the court fails to accept for
filing a defaulted party’s pleading solely on the ground
that the pleading is untimely.’’ (Internal quotation marks
omitted.) Id. However, this court found that ‘‘the court
did not deny the defendant’s motion to strike because
it was untimely’’; id., 117; but that it ‘‘correctly con-
cluded that it could not consider the defendant’s motion
to strike until the default was set aside.’’ Id., 117–18.
As discussed in part I of this dissenting opinion, the
first count for strict foreclosure in the amended com-
plaint was not sufficiently different from the count in
the original complaint so as to result in the setting aside
or extinguishing of the default. The plaintiff’s motion
for judgment on the first count was filed on June 7,
2010, the default for failure to plead was entered on
June 16, 2010, and, although no motion to open and
vacate the default had been filed, the defendant’s
answer to the first count was filed on November 2, 2015,
while the plaintiff’s motion for judgment was pending.
During the approximately five year period between the
default and the hearing on the motion for judgment,
the defendant did not move to open the default. Instead,
the defendant waited approximately five years after the
filing of the amended complaint to file an answer to
a cause of action on which he had previously been
defaulted, without moving to open and set aside the
default prior to filing his answer.9 As the court stated,
the defendant ‘‘didn’t move to [open], waiting five years.
And you just can’t file an answer once a motion for
judgment has been filed.’’ The court thus reasonably
understood that ‘‘ ‘[t]he effect of a default is to preclude
the defendant from making any further defense in the
case so far as liability is concerned . . . .’ Practice
Book § 17-33 (b)’’; Bank of New York Mellon v. Talbot,
174 Conn. App. 377, 383, 165 A.3d 1253 (2017); unless
it granted the motion to open and vacated the default.
‘‘Practice Book § 17-33 (b) provides that when a party
is in default for failure to plead, ‘the judicial authority,
at or after the time it renders the default . . . may
also render judgment in foreclosure cases . . . .’ If the
defaulted party has filed an answer before judgment is
rendered, however, the default is automatically set
aside by operation of law. Practice Book § 17-32 (b). If
a motion for judgment already has been filed by the
adverse party at the time the defaulted party files his
answer, however, ‘the default may be set aside only
by the judicial authority.’ Practice Book § 17-32 (b).’’
(Emphasis added.) Bank of New York Mellon v. Talbot,
supra, 383. Similarly to the court in Cornelius, once
the court here determined that the default was not set
aside or vacated sub silentio by the amended first count,
it had the discretion to decide that it would not consider
the defendant’s answer while the default on the first
count for strict foreclosure remained in effect, and the
court did not violate § 52-121 (a) in doing so. See
Deutsche Bank National Trust Co. v. Cornelius, supra,
170 Conn. App. 117.
To summarize, making every reasonable presumption
in favor of the trial court’s decision, as we are required
to do; see Webster Bank v. Zak, 71 Conn. App. 550,
556–57, 802 A.2d 916, cert. denied, 261 Conn. 938, 808
A.2d 1135 (2002); the court did not err in deciding that
the amended complaint did not extinguish the default,
and it was not plain error, but instead was within the
court’s discretion, for it to decline to consider the defen-
dant’s answer to the first count of the amended com-
plaint because the defendant had not filed a motion to
open and set aside the default, which default precluded
the defendant from making any further defense in the
case as to his liability. The court, therefore, did not
violate § 52-121 (a) by declining to consider the defen-
dant’s answer to the first count and by rendering a
judgment of strict foreclosure against him.
Accordingly, I would affirm the judgment of the court.
1
The defendant has not appealed from the judgment rendered against
him on the counts alleging unjust enrichment and fraud.
2
As the majority explains in footnote 1 of its opinion, Chase Home Finance,
LLC, commenced this action in 2009; following the grant of three motions to
substitute the plaintiff, the court rendered judgment in favor of the substitute
plaintiff, AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund
Society, F.S.B. For purposes of clarity, in this dissenting opinion, I refer to
AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund Society,
F.S.B., Trustee as the plaintiff and to Chase Home Finance, LLC (Chase),
by name.
3
General Statutes § 52-121 (a) provides: ‘‘Any pleading in any civil action
may be filed after the expiration of the time fixed by statute or by any rule
of court until the court has heard any motion for judgment by default or
nonsuit for failure to plead which has been filed in writing with the clerk
of the court in which the action is pending.’’
4
As the majority notes in its opinion, a ‘‘comparison of the original and
amended complaints readily reveals that the amended complaint filed follow-
ing the default interjected material new issues in the case, thereby substan-
tially changing the pleadings. . . . [I]n contrast to the original, one-count
complaint brought against the defendant by Chase, the amended, six-count
complaint . . . contained new counts in which the plaintiff sought equitably
to subordinate the interest of Bank of America to its mortgage interest, and
two new counts directed at the defendant . . . and interjected new material
factual allegations and new legal theories . . . .’’
5
The first count in the amended complaint included the additional lan-
guage that: ‘‘On the aforementioned piece of property, the following interests
are claimed which are subsequent to [Chase’s] said mortgage: A mortgage
in favor of Bank of America, N.A., in the original principal amount of
$100,000, dated 18, 2007 and recorded February 7, 2007 in Volume 662, Page
195 of the Portland land records.’’ In contrast, the first count in the original
complaint stated: ‘‘On the aforementioned piece of property, the following
interests are claimed which are subsequent to [Chase’s] said mortgage:
None.’’
6
At the time that the complaint was filed, Bank of America maintained
first mortgagee status. The amended complaint requested that Chase be
subrogated to Bank of America’s position as first mortgagee. The reason
for the request for subrogation is in the new count two of the amended
complaint against Bank of America: ‘‘[Chase] paid off, as proceeds of its
mortgage set forth herein, a mortgage prior in right to that of the Defendant
Bank of America intending to then obtain a first mortgage upon the property
herein being foreclosed, and, therefore, should be equitably subrogated to
the position of that prior mortgage.’’
7
Our law concerning the effect of a default is that ‘‘[t]he entry of a default
constitutes an admission by the [defaulted party] of the truth of the facts
alleged in the complaint. . . . Practice Book § 17-33 (b) provides in relevant
part that the effect of a default is to preclude the defendant from making
any further defense in the case so far as liability is concerned . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) TD Banknorth, N.A. v.
White Water Mountain Resorts of Connecticut, Inc., 133 Conn. App. 536,
545–46, 37 A.3d 766 (2012). Thus, the entry of the default on the first count
of the original complaint had the effect of an admission by the defendant
of the material facts alleged in that count. Because the first count of the
amended complaint did not substantially change the first count of the original
complaint, the defendant’s admission of the facts of that count remained
binding on him. Accordingly, the defendant has not demonstrated any preju-
dice suffered by him from the amended complaint insofar as it relates to
the count for strict foreclosure. Cf. Spilke v. Wicklow, supra, 138 Conn.
App. 270.
8
The defendant did not appeal the judgment rendered against him on the
counts alleging unjust enrichment and fraud; therefore, it is not necessary
to address whether he was entitled to file a pleading pursuant to § 52-121
(a) to answer or specially defend against those new counts.
9
Practice Book § 17-42 provides in relevant part: ‘‘A motion to set aside
a default where no judgment has been rendered may be granted by the
judicial authority for good cause shown upon such terms as it may impose.
. . .’’ It is well established that ‘‘[the] determination of whether to set aside
[a] default is within the discretion of the trial court . . . and [such a determi-
nation] will not be disturbed unless that discretion has been abused or
where injustice will result. In the exercise of its discretion, the trial court
may consider not only the presence of mistake, accident, inadvertence,
misfortune or other reasonable cause . . . [and] factors such as [t]he seri-
ousness of the default, its duration, the reasons for it and the degree of
contumacy involved . . . but also, the totality of the circumstances, includ-
ing whether the delay has caused prejudice to the nondefaulting party.’’
(Citations omitted; emphasis added; internal quotation marks omitted.) Hig-
gins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998); see also Chevy Chase
Bank, F.S.B. v. Avidon, 161 Conn. App. 822, 833, 129 A.3d 757 (2015). In
Spilke, this court considered the time that the default was in effect, stating
that the defendants did not file a pleading, which they denominated a motion
to strike, for more than three years after the entry of a default against each
of them. Spilke v. Wicklow, supra, 138 Conn. App. 270. This court took that
duration into consideration in its determination that the court did not abuse
its discretion in denying that motion to strike the matter from the hearing
in damages list. Id. In the present case, more than five years had elapsed
before the defendant filed his answer and special defenses while the default
was still in effect.