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BAYVIEW LOAN SERVICING, LLC v. PARK CITY
SPORTS, LLC, ET AL.
(AC 38654)
Lavine, Bright and Pellegrino, Js.
Syllabus
The plaintiff loan servicing company sought to foreclose a mortgage on
certain real property owned by the defendant P Co., which, through its
manager, the defendant C, had executed a promissory note payable to
I Co. The note was secured by a mortgage on the subject property, and
C, in his individual capacity, executed a guarantee agreement for the
note in favor of I Co. Thereafter, I Co. assigned the mortgage to the
plaintiff, and, when P Co. failed to make its monthly payments pursuant
to the note, the plaintiff commenced this foreclosure action. After the
defendants filed an answer, the plaintiff filed a motion for summary
judgment as to liability and an affidavit in support thereof. In response,
the defendants filed an amended answer and special defenses and an
objection to the plaintiff’s motion. In their supporting memorandum of
law, the defendants challenged the plaintiff’s standing to bring the action
on the ground that it had failed to establish the chain of endorsements
of the original note payable to I Co. The defendants also submitted an
affidavit from C but did not submit any documentary evidence to support
C’s statements therein. Following a hearing, the plaintiff filed a supple-
mental affidavit and accompanying exhibits establishing the chain of
endorsements of the note. The defendants, in turn, filed a supplemental
memorandum of law in opposition to the motion for summary judgment
but did not submit any counteraffidavits or accompanying documenta-
tion. The trial court granted the motion for summary judgment, conclud-
ing that the plaintiff had established a prima facie case for its foreclosure
action and that the defendants had failed to establish that there were
any issues of material fact concerning their special defenses. The court
also determined that there was an issue of fact as to the accuracy of
the plaintiff’s federal loss affidavit but that the plaintiff could correct
the error prior to obtaining a judgment of strict foreclosure. The plaintiff
then filed a new federal loss affidavit that specifically asserted that the
loan was ineligible for any loss mitigation programs. Thereafter, the
plaintiff filed a motion for a judgment of strict foreclosure. The court
granted the motion and rendered a judgment of strict foreclosure, from
which the defendants appealed to this court. Held:
1. The defendants’ claim that the trial court lacked subject matter jurisdiction
over the foreclosure action because the plaintiff’s federal loss affidavit
failed to comply with a certain standing order of the Superior Court
was unavailing; even if the federal loss affidavit did not comply with
the subject standing order, the trial court did not lack subject matter
jurisdiction over the action, as standing orders are not constitutionally
or legislatively created, and, therefore, a failure to comply with them
does not implicate the court’s subject matter jurisdiction.
2. The defendants could not prevail on their claim that the trial court erred
in granting the plaintiff’s motion for summary judgment, as they failed
to meet their burden of presenting evidence that demonstrated the
existence of a genuine issue of material fact: the defendants failed to
recite specific facts or submit documentary evidence as to their claims
that there were issues of fact regarding the plaintiff’s alleged misapplica-
tion or miscalculation of certain payments related to the loan, when P
Co. defaulted on the loan, the propriety of the default notice and whether
the note was properly endorsed and assigned to the plaintiff, and any
issue of fact regarding the validity of the original federal loss affidavit
was immaterial because prior to filing its motion for a judgment of strict
foreclosure, the plaintiff filed a new federal loss affidavit asserting that
the loan was ineligible for any loss mitigation programs, and the court
accepted the new affidavit prior to rendering its judgment.
3. The trial court properly concluded that the defendants’ special defenses
that the loan was not in default and that the plaintiff’s conduct violated
the Connecticut Unfair Trade Practices Act (§ 42-110a et seq.) were
legally insufficient; the special defenses were dependent on the defen-
dants’ claim that the plaintiff had incorrectly applied certain escrow
payments or miscalculated the payments that were due pursuant to the
note, and the defendants failed to provide the trial court with any evi-
dence related to the plaintiff’s alleged misapplication or miscalculation
of their payments.
4. The record was inadequate to review the defendants’ claim that the trial
court abused its discretion in denying C’s petition to participate in the
foreclosure mediation program; the trial court summarily denied C’s
petition, and the defendants did not file a motion for articulation to
ascertain the basis of the court’s decision and failed to request a tran-
script of the hearing on the petition, and, therefore, any decision made
by this court concerning the claim would be entirely speculative.
Submitted on briefs January 9—officially released April 10, 2018
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the defendant William McCarthy et al.
were defaulted for failure to appear and the defendant
Fairfield County Bank was defaulted for failure to plead;
thereafter, the court, Bellis, J., denied the petition to
participate in the foreclosure mediation program filed
by the defendant Robert P. Carter; subsequently, the
court, Hon. Alfred J. Jennings, Jr., judge trial referee,
granted the plaintiff’s motion for summary judgment
as to liability; thereafter, the court, Hon. Richard P.
Gilardi, judge trial referee, granted the plaintiff’s
motion for a judgment of strict foreclosure and ren-
dered judgment thereon, from which the named defen-
dant et al. appealed to this court. Affirmed.
Charles C. Hallas, for the appellants (named defen-
dant et al.).
Benjamin T. Staskiewicz, for the appellee (plaintiff).
Opinion
BRIGHT, J. The defendants, Park City Sports, LLC
(Park City) and Robert P. Carter,1 appeal from the trial
court’s judgment of strict foreclosure rendered in favor
of the plaintiff, Bayview Loan Servicing, LLC. On appeal,
the defendants claim that the trial court (1) lacked
subject matter jurisdiction over the foreclosure action
due to the plaintiff’s failure to comply with a standing
order of the Superior Court, (2) improperly granted the
plaintiff’s motion for summary judgment as to liability,
(3) improperly determined that the defendants’ special
defenses were legally insufficient, and (4) improperly
denied Carter’s petition to participate in the foreclosure
mediation program. We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. On August 13, 2004, Park City,
through its manager, Carter, executed a promissory
note, pursuant to which it promised to pay to the order
of InterBay Funding, LLC (InterBay), the principal sum
of $390,000. The note was secured by a mortgage on
1382-1386 Park Avenue in Bridgeport in favor of
InterBay. There are four units in the building located
on the property: a four bedroom residential apartment
and three commercial storefronts. Carter, in his individ-
ual capacity, executed a guarantee agreement for the
note in favor of InterBay. Thereafter, InterBay assigned
the mortgage on the subject property, and endorsed
the note, to the plaintiff.
Beginning on December 1, 2012, and every month
thereafter, Park City failed to make monthly payments
due pursuant to the note. As a result, the plaintiff com-
menced this foreclosure action in November, 2013. The
defendants filed an answer in April, 2014. On January 21,
2015, the plaintiff filed the operative revised complaint
seeking foreclosure of the mortgage on the property.
On March 24, 2015, the plaintiff moved for summary
judgment as to liability only. Subsequently, on April
15, 2015, the defendants filed an amended answer and
special defenses, alleging, inter alia, that the plaintiff
had (1) failed to credit the defendants’ payments prop-
erly, (2) submitted an inaccurate affidavit regarding the
defendants’ eligibility for federal loss mitigation pro-
grams (federal loss affidavit), and (3) violated the Con-
necticut Unfair Trade Practices Act (CUTPA), General
Statutes § 42-110a et seq.2 On that same day, the defen-
dants filed an objection to the motion for summary
judgment and an accompanying memorandum of law.
In their memorandum of law in opposition to sum-
mary judgment, the defendants challenged whether the
plaintiff had standing to bring this action. The defen-
dants claimed that the plaintiff had failed to establish
the chain of endorsements of the note that was made
payable to the original lender, InterBay. In support of
their opposition, the defendants submitted Carter’s affi-
davit that essentially recited the allegations in their
special defenses, but they did not submit any documen-
tary evidence to support the conclusory statements in
Carter’s affidavit. The affidavit also stated that the sub-
ject property is Carter’s principal residence, which the
plaintiff, in its federal loss affidavit, had denied. Follow-
ing a hearing on April 20, 2015, the plaintiff filed a
supplemental affidavit and accompanying exhibits
establishing the chain of endorsements for the note. In
their supplemental memorandum of law in opposition
to summary judgment, the defendants asserted various
issues with regard to the plaintiff’s supplemental affida-
vit and accompanying exhibits, but they did not submit
any counteraffidavits or accompanying documentation
in support of their claims.
On September 23, 2015, the trial court, Hon. Alfred
J. Jennings, Jr., judge trial referee, granted the motion
for summary judgment. In its order, the court concluded
that the plaintiff had established a prima facie case for
its foreclosure action. Specifically, the court found that
the plaintiff’s affidavit and accompanying exhibits
established that the plaintiff was the owner of the note
and mortgage at the time that the action was com-
menced, that Park City had defaulted on the note begin-
ning on December 1, 2012, and that the plaintiff had
sent the required notice of default before commencing
the foreclosure action. The court further concluded that
the defendants failed to establish that there were any
issues of material fact concerning their special
defenses. Although the court determined that there was
an issue of fact as to the accuracy of the plaintiff’s
federal loss affidavit because the affidavit provided that
the subject property is not ‘‘owner-occupied,’’ the court
concluded that the plaintiff could correct this error
prior to obtaining a judgment of strict foreclosure.
Following the court’s order granting the motion for
summary judgment, the plaintiff filed a new federal loss
affidavit on September 30, 2015. On October 28, 2015,
the plaintiff filed a motion for a judgment of strict fore-
closure, which the court, Hon. Richard P. Gilardi,
judge trial referee, granted on November 16, 2015. The
court rendered a judgment of strict foreclosure with
the law days commencing on March 15, 2016. This
appeal followed.3
I
The defendants claim that the court lacked subject
matter jurisdiction over the plaintiff’s foreclosure
action due to the plaintiff’s alleged failure to comply
with the standing order of the Superior Court that
required that the plaintiff file a fully executed copy of
the Judicial Branch form entitled ‘‘AFFIDAVIT Federal
Loss Mitigation Programs,’’ form JD-CL-114, with its
foreclosure complaint.4 See Mortgage Foreclosure
Standing Order Federal Loss Mitigation Programs, form
JD-CV-117. We disagree.
‘‘Although the term is sometimes loosely used, ‘juris-
diction’ in proper usage is the power in a court to hear
and determine the cause of action presented to it. . . .
It is axiomatic that [a court’s] jurisdiction is derived
from the constitutional or statutory provisions by which
it is created, and can be acquired and exercised only
in the manner prescribed. Thus, the determination of
the existence and extent of [a court’s] jurisdiction
depends upon the terms of the statutory or constitu-
tional provisions in which it has its source.’’ (Citation
omitted; emphasis altered; internal quotation marks
omitted.) Deutsche Bank National Trust Co. v. Corne-
lius, 170 Conn. App. 104, 115, 154 A.3d 79, cert. denied,
325 Conn. 922, 159 A.3d 1171 (2017). ‘‘[B]ecause [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.’’
(Internal quotation marks omitted.) Housing Authority
v. Rodriguez, 178 Conn. App. 120, 126, 174 A.3d 844
(2017).
‘‘The last page of the Practice Book pertaining to
Superior Court Standing Orders explains: ‘Standing
Orders are provided on the Judicial Branch website for
the convenience of the bench and bar. They are not
adopted by the Superior Court judges and are not Prac-
tice Book rules.’ Additionally, at the top of the form
that sets forth the uniform standing orders, it is stated
in bold type: ‘Unless otherwise ordered by the Court,
these are the Standing Orders for Foreclosures by Sale.’
. . . One can infer from these published caveats that
the uniform standing orders do not carry the weight of
statutes or rules of practice, but, rather, that the court
may exercise discretion in applying them.’’ (Emphasis
omitted; internal quotation marks omitted.) Norwich v.
Norwich Harborview Corp., 156 Conn. App. 45, 52, 111
A.3d 956 (2015).
The defendants claim that the plaintiff incorrectly
indicated on the federal loss affidavit that the loan is
ineligible for review under the federal programs
because ‘‘[t]he property is not owner-occupied, is
vacant, is condemned, and/or has more than four units.’’
The plaintiff maintains that the owner of the subject
property is Park City, and, therefore, the fact that Carter
resides at the property does not mean that it is ‘‘owner-
occupied.’’ The plaintiff further argues that even if the
original federal loss affidavit was incorrect, a new affi-
davit was filed on September 30, 2015, prior to the
rendering of the judgment of strict foreclosure on Octo-
ber 28, 2015. Our resolution of the defendants’ claim
does not require us to consider whether the plaintiff’s
federal loss affidavit was accurate because, even assum-
ing that the plaintiff’s federal loss affidavit did not com-
ply with the standing order of the Superior Court, the
defendants’ jurisdictional claim fails.
First, the standing order specifically provides that if
the plaintiff fails to comply with the order, ‘‘a motion
for default or motion for judgment filed by the plaintiff
may not be granted until the affidavit is filed or upon
order of the court.’’ (Emphasis added.) As was noted
in Norwich v. Norwich Harborview Corp., supra, 156
Conn. App. 52, one can infer from the ‘‘caveats that the
uniform standing orders do not carry the weight of
statutes or rules of practice . . . .’’
Second, standing orders are not rules of practice,
and, even if they were, they would not create a condition
precedent to jurisdiction. See, e.g., Novak v. Levin, 287
Conn. 71, 79, 951 A.2d 514 (2008) (‘‘[w]e repeatedly have
held . . . that time periods prescribed by the rules of
practice are fixed by a rule of this court . . . [and are]
not a constitutionally or legislatively created condition
precedent to the jurisdiction of this court’’ [internal
quotation marks omitted]). Likewise, standing orders
are not constitutionally or legislatively created, and,
therefore, a failure to comply with them does not impli-
cate the court’s subject matter jurisdiction. See
Deutsche Bank National Trust Co. v. Cornelius, supra,
170 Conn. App. 115 (‘‘the determination of the existence
and extent of [a court’s] jurisdiction depends upon the
terms of the statutory or constitutional provisions in
which it has its source’’ [emphasis omitted; internal
quotation marks omitted]).
Accordingly, even if we assume that the plaintiff’s
federal loss affidavit did not comply with the standing
order of the Superior Court, the trial court did not lack
subject matter jurisdiction over this foreclosure action.
II
The defendants next claim that the trial court erred
in granting the plaintiff’s motion for summary judgment
because there were genuine issues of material fact con-
cerning: (1) payments sent to the plaintiff that were not
applied properly; (2) when Park City defaulted on the
loan and whether the plaintiff’s notice of default was
proper; (3) whether the note properly was assigned to
the plaintiff; and (4) the validity of the plaintiff’s federal
loss affidavit. We are not persuaded.
We begin by setting forth the applicable standard of
review and legal principles. ‘‘Appellate review of the
trial court’s decision to grant summary judgment is
plenary. . . . [W]e must [therefore] decide whether
[the trial court’s] conclusions are legally and logically
correct and find support in the facts that appear in
the record.’’ (Citation omitted; internal quotation marks
omitted.) McFarline v. Mickens, 177 Conn. App. 83, 90,
173 A.3d 417 (2017), cert. denied, 327 Conn. 997,
A.3d (2018).
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . A material fact has been defined adequately and
simply as a fact which will make a difference in the
result of the case. . . . The test is whether a party
would be entitled to a directed verdict on the same facts.
. . . Once the moving party has presented evidence
in support of the motion for summary judgment, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue
. . . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . The movant has
the burden of showing the nonexistence of such issues
but the evidence thus presented, if otherwise sufficient,
is not rebutted by the bald statement that an issue of
fact does exist. . . . To oppose a motion for summary
judgment successfully, the nonmovant must recite spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents.’’ (Internal quotation
marks omitted.) Diamond 67, LLC v. Oatis, 167 Conn.
App. 659, 675, 144 A.3d 1055, cert. denied, 323 Conn.
927, 150 A.3d 228 (2016).
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant summary judgment as to liability in a foreclosure
action if the complaint and supporting affidavits estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense.’’
(Internal quotation marks omitted.) 21st Mortgage
Corp. v. Schumacher, 171 Conn. App. 470, 484, 157 A.3d
714, cert. denied, 325 Conn. 923, 159 A.3d 1171 (2017).
In the present case, the plaintiff, through the submis-
sion of affidavits and supporting documentary evi-
dence, established that it is the holder of the note upon
which Park City defaulted and the plaintiff foreclosed,
and it submitted to the court an affidavit that included,
and incorporated by reference, copies of the note, mort-
gage and assignment of the mortgage. The plaintiff,
therefore, established its prima facie case. Accordingly,
the defendants then were required to present evidence
that demonstrated the existence of some disputed fac-
tual issue. We conclude, as did the trial court, that the
defendants failed to meet their burden. We address each
of the defendants’ claims seriatim.
A
First, the defendants’ claim that there are factual
issues concerning the plaintiff’s misapplication of pay-
ments is unsupported by the record. The defendants
failed to produce competent evidence that would sup-
port their vague allegation in Carter’s affidavit that ‘‘the
plaintiff has miscalculated and overcharged me escrow
amounts which were too high and which were paid by
the defendant borrowers thereby preventing them from
making the proper lower payments under this loan
which would have prevented default on the part of the
defendants . . . .’’ In particular, the defendants did not
submit documentary evidence of any payments, nor
did they specify how the ‘‘proper lower payments’’
should have been calculated. As a result, the defendants
failed to demonstrate the existence of any genuine issue
of material fact with regard to the miscalculation and/
or misapplication of payments by the plaintiff.
B
Second, the defendants’ claim that there are factual
issues concerning when Park City defaulted on the loan
and whether the plaintiff’s notice of default was proper
is also unsupported by the record. The defendants claim
that there are ‘‘issues concerning the precise date of
the alleged default by the defendants and whether the
plaintiff issued a proper notice of the default setting
forth the specific date of default and the amount of
default . . . .’’ Nevertheless, the defendants did not
address the propriety of the notice of default or the
accuracy of the specific date of default. In addition,
aside from the vague allegation in Carter’s affidavit
regarding the miscalculation of escrow payments, the
defendants did not address the accuracy of the amount
that was claimed to be in default in the default notice.
Simply put, there is nothing in the defendants’ memo-
randum of law in opposition to summary judgment to
demonstrate an issue of fact with regard to the propriety
of the plaintiff’s default notice.
C
Third, the defendants claim that there are ‘‘issues
concerning the limited power of attorney used to
endorse the mortgage note and assignment of the mort-
gage’’ to the plaintiff. Again, the defendants failed to
recite specific facts, or submit documentary evidence,
to demonstrate that there is an issue of fact with regard
to the endorsements of the note or the assignment of
the mortgage. Although the defendants made claims
regarding the limited power of attorney in their supple-
mental memorandum of law in opposition to summary
judgment, they did not attach any accompanying count-
eraffidavits that recited specific facts to rebut the plain-
tiff’s affidavit and documentary evidence regarding the
assignment of the note and mortgage. See GMAC Mort-
gage, LLC v. Ford, 144 Conn. App. 165, 178, 73 A.3d 742
(2013) (‘‘[i]t is axiomatic that in order to successfully
oppose a motion for summary judgment by raising a
genuine issue of material fact, the opposing party can-
not rely solely on allegations that contradict those
offered by the moving party, whether raised at oral
argument or in written pleadings; such allegations must
be supported by counteraffidavits or other documen-
tary submissions that controvert the evidence offered
in support of summary judgment’’). After concluding
that the plaintiff had ‘‘supplied evidence of the authority
for the signature in the form of a copy of the Limited
Power of Attorney and a Supporting Affidavit,’’ the
court stated that the defendants had ‘‘submitted no
contrary evidence.’’ Accordingly, the trial court prop-
erly concluded that there was no genuine issue of mate-
rial fact regarding the endorsement of the note or
assignment of the mortgage.
D
Finally, the defendants’ claim that there are ‘‘issues
concerning the validity of the [federal loss affidavit]
filed at the commencement of this action’’ is without
merit. The court concluded that any issue of fact with
regard to the plaintiff’s federal loss affidavit did not
need to be resolved prior to the granting of the motion
for summary judgment as to liability. We similarly con-
clude that any issue regarding the validity of that affida-
vit is not an issue of material fact. Prior to filing the
motion for a judgment of strict foreclosure, the plaintiff
filed a new federal loss affidavit asserting that the loan
was ineligible for any loss mitigation programs. The
court accepted the new federal loss affidavit prior to
rendering judgment. Therefore, whether the original
federal loss affidavit was deficient is immaterial.
For those reasons, we conclude that the court did
not err in granting the plaintiff’s motion for summary
judgment, after concluding that there was no genuine
issue of material fact.
III
The defendants next claim that the trial court erred
in determining that their special defenses were legally
insufficient. Specifically, the defendants claim that they
raised two legally sufficient special defenses: (1) that
the loan was not in default because of ‘‘the plaintiff’s
misapplication of escrow and other payments made by
[the defendants] in connection with this mortgage,’’ and
(2) that the plaintiff’s conduct violated CUTPA. We
disagree.
The defendants’ special defenses are dependent upon
their claim that the plaintiff incorrectly applied escrow
payments or miscalculated the payments that were due
pursuant to the note. The court concluded that the
defendants failed to establish that the plaintiff misap-
plied or miscalculated payments due under the loan,
and, therefore, their special defense related to a viola-
tion of CUTPA failed. Although we agree with the defen-
dants that a claim that the loan is not in default is a
valid special defense, we conclude that the court prop-
erly found that the defendants failed to establish a genu-
ine issue of material fact as to their special defenses.
As previously discussed in this opinion, the defendants
failed to provide the court with any evidence related
to the plaintiff’s alleged misapplication or miscalcula-
tion of their payments. The court, therefore, properly
concluded that the defendants had failed to establish
a genuine issue of material fact as to their special
defenses. Accordingly, the court properly rejected the
defendants’ special defenses.5
IV
The defendants’ final claim is that the court improp-
erly denied Carter’s petition to participate in the foreclo-
sure mediation program as an aggrieved person. We
conclude that the defendants’ claim is unreviewable.6
‘‘This court reviews mortgage foreclosure appeals
under the abuse of discretion standard. . . . A foreclo-
sure action is an equitable proceeding. . . . The deter-
mination of what equity requires is a matter for the
discretion of the trial court. . . . In determining
whether the trial court has abused its discretion, we
must make every reasonable presumption in favor of
the correctness of its action. . . . Our review of a trial
court’s exercise of the legal discretion vested in it is
limited to the questions of whether the trial court cor-
rectly applied the law and could reasonably have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) U.S. Bank, N.A. v. Morawska, 165
Conn. App. 421, 425, 139 A.3d 747 (2016).
‘‘It is well established that the appellant bears the
burden of providing an appellate court with an adequate
record for review. . . . It is, therefore, the responsibil-
ity of the appellant to move for an articulation or rectifi-
cation of the record where the trial court has failed to
state the basis of a decision . . . . Without an adequate
record, [w]e . . . are left to surmise or speculate as to
the existence of a factual predicate for the trial court’s
rulings. Our role is not to guess at possibilities, but
to review claims based on a complete factual record
developed by the trial court. . . . Without the neces-
sary factual and legal conclusions furnished by the trial
court, either on its own or in response to a proper
motion for articulation, any decision made by us . . .
would be entirely speculative.’’ (Internal quotation
marks omitted.) Jezierny v. Jezierny, 99 Conn. App.
158, 160–61, 912 A.2d 1127 (2007).
In the present case, the defendants argue that Carter
‘‘met all of the requirements set forth for mediation
qualification’’ and that he ‘‘could have explored several
loss mitigation programs’’ in mediation. Carter, who is
not the mortgagor or the borrower, filed his petition to
participate in mediation on April 15, 2014, approxi-
mately four months after the return date for the foreclo-
sure action, November 26, 2013. See General Statutes
§ 49-31l (b) (2) (‘‘a mortgagor may request foreclosure
mediation by submitting the foreclosure mediation
request form to the court and filing an appearance not
more than fifteen days after the return date for the
foreclosure action’’ [emphasis added]). The court,
Bellis, J., heard oral argument on May 13, 2014. The
court denied the petition, and the defendants did not
move to reargue that decision. The defendants also did
not file a motion for articulation to ascertain the basis
of the court’s decision, and they failed to request a
transcript of that hearing. Accordingly, the record is
inadequate for review and ‘‘any decision made by us
. . . would be entirely speculative.’’ (Internal quotation
marks omitted.) Jezierny v. Jezierny, supra, 99 Conn.
App. 160–61. Therefore, we decline to review the defen-
dants’ claim that the court abused its discretion when it
denied Carter’s petition for inclusion in the foreclosure
mediation program.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint also named as defendants The Lamar Companies, succes-
sor in interest to Murphy, Inc., Fairfield County Bank, Stuart Rosenberg,
William McCarthy, and Interbay Funding, LLC. In June, 2014, the trial court
clerk granted the plaintiff’s motion for default as to McCarthy and Interbay
Funding, LLC, for their failure to file an appearance and as to Fairfield
County Bank for its failure to plead. The Lamar Companies and Rosenberg
filed answers to the complaint but did not contest the plaintiff’s motions for
summary judgment and for a judgment of strict foreclosure. Any reference
to the defendants in this opinion is solely to Park City and Carter.
2
Additionally, the defendants alleged that the plaintiff had ‘‘failed to miti-
gate the damages of the defendants in connection with this action. . . .
Such damages have increased tremendously due to the negligent actions of
the plaintiff in not properly crediting all amounts paid by [the] defendants.’’
Although the defendants listed this allegation as a second special defense,
it appears to allege, for a second time, that the plaintiff failed to credit the
defendants’ payments properly.
3
On December 15, 2015, the plaintiff filed a motion to terminate the
appellate stay, which the trial court granted on May 23, 2016. The defendants
filed a motion for review of the trial court’s order terminating the appellate
stay, which this court granted but denied the relief requested therein. Approx-
imately one year later, the plaintiff filed a motion to open and reset the law
day on August 18, 2017, which the trial court granted on September 25,
2017, and it reset the law day to November 28, 2017, with all prior orders
regarding the judgment remaining in effect. On October 12, 2017, after briefs
had been submitted to this court, the defendants filed an amended appeal
to challenge the trial court’s September 25, 2017 order resetting the law
day. Neither the plaintiff nor the defendants filed a request for supplemental
briefing. Accordingly, the defendants’ claims related to the judgment ren-
dered on September 25, 2017, are deemed abandoned.
On October 13, 2017, the plaintiff filed a motion to dismiss the amended
appeal and a motion to terminate the appellate stay and any future appellate
stays. The trial court granted the plaintiff’s motion to terminate the stay on
November 7, 2017, thereby eliminating any future appellate stays, and the
defendants filed a motion for review of that decision on November 24, 2017.
On November 15, 2017, this court denied the plaintiff’s motion to dismiss
the amended appeal. On December 6, 2017, this court granted review, but
denied the relief requested in the defendants’ November 24, 2017 motion
for review. Accordingly, there is currently no appellate stay in effect, and,
therefore, there is no need for the resetting of the law day upon our resolution
of this appeal. As of April 4, 2018, the law day is set for April 24, 2018.
4
Judicial Branch form entitled Mortgage Foreclosure Standing Order Fed-
eral Loss Mitigation Programs, form JD-CV-117, provides in relevant part:
‘‘3. All mortgage foreclosure complaints filed in the Superior Court on and
after September 1, 2010, shall be accompanied by a fully executed AFFIDA-
VIT Federal Loss Mitigation Programs, form JD-CL-114. . . . 5. If the plain-
tiff does not comply with the requirement to file a fully executed AFFIDAVIT
Federal Loss Mitigation Programs . . . under this order, a motion for default
or motion for judgment filed by the plaintiff may not be granted until the
affidavit is filed or upon order of the court.’’ (Emphasis omitted.)
5
Additionally, subsequent to the trial court’s judgment in the present case,
this court held that a CUTPA violation may not be asserted as a special
defense in a foreclosure action. See Bank of America, N.A. v. Aubut, 167
Conn. App. 347, 374, 143 A.3d 638 (2016) (‘‘[A] special defense operates as
a shield, to defeat a cause of action, and not as a sword, to seek a judicial
remedy for a wrong. Against this backdrop, we readily conclude that a
CUTPA violation may not be asserted as a special defense. In reaching this
conclusion, we are mindful that, by its express terms, CUTPA provides a
cause of action for its violation, but it does not expressly provide a defense
by invalidating, or otherwise rendering unenforceable, agreements that are
the product of unfair trade practices.’’).
6
In the final paragraph of their appellate brief, the defendants argue that
Carter was ‘‘denied his due process rights to a hearing under the constitutions
of the United States and state of Connecticut, and that he should be granted
at the minimum a new trial on all aspects of this case, and a hearing on his
right to federal loss mitigation options.’’ To the extent that the defendants
have framed this claim as a constitutional claim, we conclude that it is
inadequately briefed.
‘‘It is well established that we are not required to review issues that have
been improperly presented to this court through an inadequate brief. . . .
Analysis, rather than mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue properly. . . . [When] a
claim is asserted in the statement of issues but thereafter receives only
cursory attention in the brief without substantive discussion or citation of
authorities, it is deemed to be abandoned.’’ (Internal quotation marks omit-
ted.) Darin v. Cais, 161 Conn. App. 475, 483, 129 A.3d 716 (2015).
The defendants have failed to address why this commercial loan would
qualify for a federal loss mitigation program, let alone why Carter, who is
neither the mortgagor nor the owner of the property, has a ‘‘right’’ to federal
loss mitigation programs. In fact, the defendants failed to cite even to the
state or federal constitution. Accordingly, we decline to review the defen-
dants’ due process claim.