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JPMORGAN CHASE BANK, NATIONAL ASSN. v. ROBERT J.
VIRGULAK—DISSENT
BEAR, J., dissenting. The plaintiff, Manufacturers and
Traders Trust Company, also known as M&T Bank (M&
T Bank),1 successor in interest to the named plaintiff
JPMorgan Chase Bank, National Association (JPMor-
gan Chase), appeals from the judgment of the trial court
rendered in favor of the defendant Theresa Virgulak.2
On appeal, the plaintiff claims that the trial court abused
its discretion by (1) failing to consider the plaintiff’s
foreclosure claim against the defendant as a stand-alone
claim independent from its other causes of action and,
thus, failing to grant the plaintiff the equitable remedy
of foreclosure to which it was entitled on the facts
of this case, (2) declining to reform the note and/or
mortgage deed at issue in this case, (3) denying its
motion to amend its responses to the defendant’s
requests for admission, (4) concluding that the plain-
tiff’s admissions limited its recovery under its unjust
enrichment count, and (5) denying the plaintiff’s motion
for reargument. The majority disagrees with the plaintiff
as to all of its claims and concludes that the court did
not abuse its discretion in refusing to consider those
claims. I respectfully disagree with the majority’s dispo-
sition of this case and, rather, would reverse the judg-
ment of the court on the ground that the court both
abused its discretion and erred in failing to properly
consider the plaintiff’s stand-alone foreclosure claim.
The court should have allowed the plaintiff to proceed
with its foreclosure claim.
The plaintiff argues that the court abused its discre-
tion in failing to consider its foreclosure claim and,
therefore, erred in failing to exercise its equitable pow-
ers to render a judgment of foreclosure against the
defendant. Specifically, plaintiff asserts that, even with-
out reformation of the note or mortgage, the court had
discretion to consider its foreclosure claim and, in light
of the evidence presented at trial, abused that discre-
tion. The plaintiff also argues that it is entitled to pro-
ceed with the foreclosure complaint as a matter of law.
The following facts are evident from the record and
are undisputed. The defendant and her husband, Robert
J. Virgulak (Robert), on this and prior occasions, had
a practice of borrowing money from banks whereby
Robert would execute a note for the amount to be
borrowed, and the defendant would execute a mortgage
as security for the note. In this case, there is no dispute
that Robert, on December 11, 2006, executed a note to
JPMorgan Chase in the amount of $533,000 and that he
received and expended that $533,000 for the benefit of
himself and the defendant. There is also no dispute that
on December 11, 2006, the defendant signed an open-
end mortgage deed to JPMorgan Chase for the defen-
dant’s real property known as 14 Bayne Court, Norwalk
(real property), and that she initialed each page of that
fifteen page form mortgage document, which was
recorded on the Norwalk land records. The defendant
was listed in the form mortgage document as the ‘‘Bor-
rower . . . THERESA VIRGULAK, MARRIED,’’ a refer-
ence to her marriage to Robert, the maker of the note.
The note, however, incorrectly was described in the
mortgage document as being signed by the defendant,
instead of Robert. Consistently with the note signed by
Robert, the mortgage referred to a note dated December
11, 2006, in the amount of $533,000.
On December 11, 2016, the defendant also signed a
U.S. Department of Housing and Urban Development
form, RESPA HUD1A (HUD-1), that included the follow-
ing disbursements to pay off encumbrances on the
defendant’s real property: (1) to M&T Mortgage Corpo-
ration in the amount of $14,889.38; (2) to Wachovia
Bank, N. A., in the amount of $240,993.18; (3) to The
Greater Norwalk Area Credit Union, Inc., in the amount
of $18,285.47; (4) to Bank of America in the amount of
$27,921.82; (5) to Wachovia in the amount of $27,647.94;
(6) to Chase in the amount of $16,950.47; (7) to the
Norwalk Tax Collector in the amount of $4640; and (8)
to James P. Murphy & Assoc. in the amount of $1274
for an unpaid insurance premium. The encumbrances
on the defendant’s real property that were paid off for
her benefit at the closing thus totaled approximately
$370,000.
In rejecting the plaintiff’s foreclosure claim, the
majority looks to the trial court’s memorandum of deci-
sion and the plaintiff’s pleadings filed thereafter and
concludes that the court properly exercised its discre-
tion in determining that the plaintiff’s claim was inade-
quately briefed and ‘‘without merit.’’ Moreover, the
majority, relying on our well established mortgage fore-
closure case law that ‘‘the plaintiff must prove by a
preponderance of the evidence that it is the owner of
the note and mortgage, that the defendant mortgagor
has defaulted on the note and that the conditions prece-
dent to foreclosure . . . have been satisfied;’’ Bank of
America, N.A. v. Gonzalez, 187 Conn. App. 511, 514,
202 A.3d 1092 (2019); concludes that because the defen-
dant did not sign the promissory note and the mortgage
did not refer to any obligation for which the defendant
was legally responsible, ‘‘the subject mortgage, as exe-
cuted, was a nullity because it purported to secure
a nonexistent debt.’’ I respectfully disagree with the
majority’s conclusion.
When the essence of a transaction is clear, as it is in
this case, a court must look to its substance, instead
of relying upon errors of form, to determine its enforce-
ability against a party to it. As our Supreme Court
observed, ‘‘[e]quity always looks to the substance of a
transaction and not to mere form . . . and seeks to
prevent injustice.’’ (Citation omitted; internal quotation
marks omitted.) Natural Harmony, Inc. v. Normand,
211 Conn. 145, 149, 558 A.2d 231 (1989). Accordingly,
‘‘[t]he governing motive of equity in the administration
of its remedial system is to grant full relief, and to adjust
in the one suit the rights and duties of all the parties,
which really grow out of or are connected with the
subject-matter of that suit.’’ (Internal quotation marks
omitted.) Maruca v. Phillips, 139 Conn. 79, 82–83, 90
A.2d 159 (1952). ‘‘In an equitable proceeding, the trial
court may examine all relevant factors to ensure that
complete justice is done. . . . The determination of
what equity requires in a particular case, the balancing
of the equities, is a matter for the discretion of the trial
court. . . . In determining whether the trial court
abused its discretion, this court must make every rea-
sonable presumption in favor of its action.’’ (Citation
omitted; internal quotation marks omitted.) AvalonBay
Communities, Inc. v. Sewer Commission, 270 Conn.
409, 417, 853 A.2d 497 (2004); see also Connecticut
National Bank v. Chapman, 153 Conn. 393, 216 A.2d
814 (1966).
‘‘[F]oreclosure is peculiarly an equitable action, and
the court may entertain such questions as are necessary
to be determined in order that complete justice may
be done.’’ (Internal quotation marks omitted.) Federal
Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn.
153, 170–71, 659 A.2d 138 (1995). ‘‘[T]he determination
of what equity requires in a particular case, the balanc-
ing of the equities, is a matter for the discretion of the
trial court. . . . Discretion means a legal discretion, to
be exercised in conformity with the spirit of the law
and in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . For that reason,
equitable remedies are not bound by formula but are
molded to the needs of justice.’’ (Citations omitted;
internal quotation marks omitted.) McKeever v. Fiore,
78 Conn. App. 783, 788–89, 829 A.2d 846 (2003) (con-
cluding ‘‘that in light of the [trial] court’s inherent equita-
ble powers in a foreclosure action, the court did not
improperly consider the equitable doctrine of unclean
hands without it being specifically pleaded’’).
‘‘While it is normally true that this court will refrain
from interfering with a trial court’s exercise of discre-
tion . . . this presupposes that the trial court did in
fact exercise its discretion. . . . Where . . . the trial
court is properly called upon to exercise its discretion,
its failure to do so is error.’’ (Citation omitted; emphasis
altered; internal quotation marks omitted.) Higgins v.
Karp, 243 Conn. 495, 504, 706 A.2d 1 (1998); State v.
Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986).
Additionally, a court must apply common sense in
analyzing and interpreting all relevant documents and
the entire transaction. See Gazo v. Stamford, 255 Conn.
245, 266, 765 A.2d 505 (2001) (‘‘[c]ommon sense also
informs us that the plaintiff’s contract claim is in reality
his negligence claim cloaked in contract garb’’); see
also State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68
(1985) (‘‘[i]t is an abiding principle of jurisprudence
that common sense does not take flight when one enters
a courtroom’’); Lawson v. Whitey’s Frame Shop, 241
Conn. 678, 697 A.2d 1137 (1997) (‘‘[e]ven if we were to
assume, without deciding, that the contract’s failure to
refer to subsection (g) meant that the entire statute
applies, the Appellate Court’s conclusion that the defen-
dant could not dispose of vehicles that were not specifi-
cally designated by [General Statutes] § 14-150 is con-
trary to common sense and to a plain reading of the
contract as a whole’’); Gino’s Pizza of East Hartford,
Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984)
(contract must be given common sense interpretation,
and in construing contract, court must view written
document as expression of parties’ intent).
In the present case, the first count of the plaintiff’s
amended complaint unambiguously sets forth a claim
for foreclosure of a valid mortgage, independent of any
claim for reformation. In connection with the defen-
dant’s motion for summary judgment, the court, Hon.
Kevin Tierney, judge trial referee, in its memorandum
of decision denying that motion, framed the issue as
whether a foreclosure action could be maintained ‘‘by
a lender who has a mortgage deed executed by a named
defendant, the sole property owner who has not exe-
cuted the note.’’ At trial, the plaintiff’s counsel and the
court, Tobin, J., further discussed this issue:
‘‘[The Plaintiff’s Counsel]: [T]his is a three count
complaint for foreclosure, equitable reformation of the
note and unjust enrichment. We have essentially stipu-
lated by virtue of our stipulation of facts that all the
prerequisites to foreclosure have been satisfied, but
there is a legal issue raised by the defendants that
remains. . . . The defendant’s contention is that the
foreclosure action is not valid by virtue of the fact that
the note does not secure the mortgage because two
different parties executed those documents . . .
***
‘‘The Court: Okay. Now, I can understand how you
might prevail if you’re—you’ve got your equitable rem-
edy in the form of reformation of the note, and I under-
stand what you’re seeking is to have the [defendant]
added as a maker of the note, and that would make the
recitations of the mortgage deed accurate. . . . But
it—it strikes me that the manner in which you intro-
duced your case you suggested that you believe the
plaintiff can prevail in this case even if it is not suc-
cessful in demonstrating the requisites to have the
note reformed?’’
‘‘[The Plaintiff’s Counsel]: That’s correct, Your Honor.
We are proceeding out of three different [bases] essen-
tially. We believe that foreclosure itself is appropriate.
Now we have added the other causes of action, but we
believe that we can foreclose under these circumstances
regardless of those causes of action to answer Your
Honor’s question.’’ (Emphasis added.)
The plaintiff asserted, as well, in its posttrial brief
‘‘that, under both the law and equitably, it is entitled
to foreclosure of the mortgage in issue and equitable
relief.’’ In support of its claim for foreclosure, the plain-
tiff argued that it had established a prima facie case
for foreclosure, and that ‘‘the only issue remaining in
this matter results from a technical reading of the mort-
gage, which, based on a literal reading of its terms,
describes [the defendant] as the ‘Borrower.’ ’’ The plain-
tiff concluded by requesting that the trial court enter
‘‘an order of judgment of foreclosure in its favor or, in
the alternative, order appropriate equitable relief.’’
It is thus clear that the plaintiff adequately articulated
to the court the merits of his claim for foreclosure.
Rather than substantively addressing this claim, how-
ever, the court summarily rejected it on the basis that
‘‘the plaintiff does not argue that the law would permit
the plaintiff to foreclose a mortgage . . . without first
obtaining equitable reformation of the mortgage note
and/or deed.’’ In reaching this conclusion, the court
erred both as a matter of law and as a matter of equity.
It did not consider the plaintiff’s adequately argued
and briefed foreclosure claim, including whether the
plaintiff was entitled to any remedies upon the default
of the obligor on the underlying debt. The majority’s
conclusion that the court did exercise its discretion by
explaining that ‘‘the plaintiff’s claim was inadequately
briefed and was unsupported by any citation to support
its contention’’ compounds this error and runs counter
to the inherently equitable nature of foreclosure
actions. This conclusion is also inconsistent with our
law that requires a court to be guided by the substance
of the transaction, in the present case the note and the
mortgage, which although signed separately, consti-
tuted one unified transaction through the joint and con-
certed actions, with full knowledge of the conse-
quences, of the defendant and Robert, and resulted in
them obtaining $533,000 from JPMorgan Chase while
also providing security for repayment of the loan.3 Any
limitation or defect in the mortgage form that did not
correctly describe the defendant or the maker of the
note is in the nature of a technical defect, or a scriven-
er’s or otherwise harmless error; see, e. g., Boisvert v.
Gavis, 332 Conn. 115, 122 n.4, 210 A.3d 1 (2019); Do v.
Commissioner of Motor Vehicles, 330 Conn. 651, 665,
200 A.3d 681 (2019); and as a matter of law cannot bar
the enforcement of the valid mortgage, the terms of
which were known and agreed to by both parties to
the document; see, e.g., Wiley v. London & Lancashire
Fire Ins. Co., 89 Conn. 35, 43, 92 A. 678 (1914); where
JPMorgan Chase’s disbursement of $533,000 to or for
the benefit of the defendant and Robert is far more
than sufficient consideration for Robert’s execution of
the note and the defendant’s agreement to and execu-
tion of the mortgage document.
In the context of this case, therefore, I respectfully
disagree with the majority’s conclusion that, absent a
reformation of the mortgage or note, the court is pre-
cluded from foreclosing on the mortgage. Under the
particular circumstances of this case, the defendant’s
failure to sign the promissory note executed by Robert
did not protect her from a foreclosure of the valid secu-
rity interest she had granted to JPMorgan Chase in the
real property. The trial court and the majority errone-
ously have concluded that the mortgage fails to
expressly refer to any obligation for which the defen-
dant is legally responsible. The appropriate approach
in this case is to view the note and mortgage as elements
of one transaction; see, e. g., Wiley v. London & Lanca-
shire Fire Ins. Co., supra, 89 Conn. 43–44; or alterna-
tively, to view the mortgage from the defendant to
JPMorgan Chase as a grant of security, in the nature
of a guarantee, for the repayment of Robert’s note to
JPMorgan Chase.
There are certain fundamental principles underlying
both the right of a party to initiate and prosecute a
foreclosure action and an action on a guarantee,
whether it is secured or unsecured: ‘‘Upon a mortgag-
or’s default on an underlying obligation, the mortgagee
is entitled to pursue various remedies against the mort-
gagor including its remedy at law for the amount due
on the note, its remedy in equity to foreclose on the
mortgage, or both remedies in one consolidated cause
of action. . . . To understand who are proper parties
when a mortgagee pursues the remedy of foreclosure,
one must recognize that Connecticut follows the title
theory of mortgages, which provides that on the execu-
tion of a mortgage on real property, the mortgagee holds
legal title and the mortgagor holds equitable title to the
property. . . . As the holder of equitable title, also
called the equity of redemption, the mortgagor . . .
has the right to redeem the legal title on the perfor-
mance of certain conditions contained within the mort-
gage instrument. . . . The purpose of the foreclosure
is to extinguish the mortgagor’s equitable right of
redemption that he retained when he granted legal title
to his property to the mortgagee following the execution
of the mortgage. . . .
‘‘Unlike the equitable nature and aims of foreclosure,
a claim on the note at law is grounded in contract, and
is enforceable as between the parties to that contract—
the debtor and the creditor . . . . Thus, any deficiency
judgment sought in connection with the foreclosure
arises from the contractual relationship between the
parties to the promissory note.
‘‘When payment of a promissory note secured by a
mortgage is further protected by a separate guarantee,
in addition to the aforementioned potential remedies
against the mortgagor, the mortgagee may pursue a
claim against the guarantors to recover any of the
unpaid debt of the mortgagor. . . . A guarantee is a
promise to answer for another’s debt, default or failure
to perform a contractual obligation. . . . As a contrac-
tual obligation separate from the contractual agreement
between the lender and borrower, a guarantee imports
the existence of two different obligations: the obligation
of the borrower and the obligation of the guarantor.’’
(Citations omitted; internal quotation marks omitted.)
JP Morgan Chase Bank, N.A. v. Winthrop Properties,
LLC, 312 Conn. 662, 675, 94 A.3d 622 (2014).
It is well established that ‘‘a contract of guarant[ee]
creates a secondary liability’’ and, therefore, ‘‘a guaran-
tor is not bound to do what the principal has contracted
to do but only to answer for the consequences of the
default of the principal.’’ (Footnote omitted.) 23 S. Wil-
liston, Contracts (4th Ed. 2019) § 61:2; see also JP Mor-
gan Chase Bank, N.A. v. Winthrop Properties, LLC,
supra, 312 Conn. 676 (‘‘a guarantor’s liability does not
arise from the debt or other obligation secured by the
mortgage; rather, it flows from the separate and distinct
obligation incurred under the guarantee contract’’);
Carpenter v. Thompson, 66 Conn. 457, 464, 34 A. 105
(1895) (‘‘[t]he contract of the guarantor is his own sepa-
rate undertaking in which the principal does not join’’
[internal quotation marks omitted]). As such, it has been
‘‘recognized that, in the absence of a statute expressly
pertaining to guarantors, such secondary obligors are
not proper parties to a claim seeking the foreclosure
of a mortgage and their obligations are not limited by
the extinguishment of the mortgagor’s rights and obliga-
tions.’’ JP Morgan Chase Bank, N.A. v. Winthrop Prop-
erties, supra, 677. In JP Morgan Chase Bank, N.A. v.
Winthrop Properties, supra, 682–83, our Supreme Court
reversed the judgment of this court and concluded that
the judgment of strict foreclosure that had been ren-
dered against the mortgagor had no effect on the plain-
tiff’s ability to recover damages from the guarantors
for the remaining unpaid debt. Although our Supreme
Court determined that the plaintiff mortgagee could not
properly make the guarantors parties to the foreclosure
claim because they were not parties to the mortgage
or the note, it concluded that the guarantors’ obligation
that separately arose under the guarantee could still be
enforced. Id. In the present case, the defendant pro-
vided security in connection with, but only to the extent
of, her equity in the real property.
The principle that a guarantor may be held liable for
an unpaid debt on a promissory note applies to the
particular factual circumstances of the present case.
The mortgage document signed by the defendant makes
specific reference to the terms of the underlying note,
demonstrating her intent that the mortgage operate as
her promise to pay in the event of a default by Robert
on the terms of the note.4 Specifically, the document
transfers the ‘‘Borrower’s’’ rights in the real property
to JPMorgan Chase, and its successors in interest. More-
over, the mortgage describes JPMorgan Chase as the
‘‘lender’’ and ‘‘mortgagee,’’ which it was at the initiation
of the mortgage from the defendant, and sets forth the
exact amount of the note obligation. Not only is the
mortgage dated the same date as the note, but it also
defines itself as the ‘‘Security Instrument.’’ Further evi-
dence that the mortgage was intended to provide the
plaintiff with a security interest in the defendant’s prop-
erty in the event Robert failed to make payments on
the note is contained in the following documents signed
by the defendant: (1) the HUD-1 form; (2) the Transfer
of Servicing Disclosure Statement where she confirmed
that her acknowledgement of that document was part
of the mortgage loan application; (3) the Federal Truth
in Lending Statement containing details of the loan
including that ‘‘[you] are giving a security interest in
certain real property located at 14 Bayne Court, Nor-
walk;’’ and (4) the Notice of Right to Cancel, that set
forth, inter alia: ‘‘You are entering into a transaction
that will result in a mortgage/security interest in your
home. . . . If you cancel the transaction, the mortgage/
security interest is also cancelled.’’
The present case is distinguishable from JP Morgan
Chase Bank, N.A. v. Winthrop Properties, supra, 312
Conn. 662, in that the defendant is the mortgagor of
the real property, as well as the guarantor of Robert’s
note. Nevertheless, this distinction, in addition to the
references in the mortgage, the note, and the ancillary
documents that demonstrate that the note and mort-
gage, although signed separately by each party, were
designed to be part of the same transaction, supports
the position that the defendant, as mortgagor and guar-
antor, is the proper party defendant in the underlying
foreclosure action.
The majority relies on the defendant’s failure to sign
the promissory note executed by her husband and the
mortgage’s identification of her as the borrower on the
note for the conclusion that without reformation,5 the
mortgage secured a nonexistent debt and, thus, as exe-
cuted, was a nullity. I disagree and, instead, note that
strict compliance with a specific form, statutory or oth-
erwise, is not necessary for the execution of a valid
mortgage between parties to a transaction. See New
Orleans National Banking Assn. v. Adams, 109 U.S.
211, 214, 3 S. Ct. 161, 27 L. Ed. 910 (1883) (‘‘no precise
form of words is necessary to constitute a mortgage’’);
Harding v. Trenor, 157 F. Supp. 350, 356 (D.N.D. 1957)
(standard form for mortgage prescribed by statute ‘‘nei-
ther mandatory nor exclusive’’); Wolf v. Schumacher,
477 N.W.2d 827, 828 (N.D. 1991) (compliance with stan-
dard form for mortgage ‘‘not necessary to create a valid
mortgage between the parties to a transaction’’). Rather,
the validity of a mortgage rests on (1) whether there
is some evidence that the transaction was intended as
a mortgage in consideration for some debt; see New
Orleans National Banking Assn. v. Adams, supra, 214
(to constitute mortgage, ‘‘there must be a present pur-
pose of the mortgagor to pledge his land for the payment
of a sum of money, or the performance of some other
act’’), and Wolf v. Schumacher, supra, 829 (documentary
evidence and testimony established that transaction
between parties was intended as mortgage and could
be enforced as such); and (2) whether the mortgage
‘‘provides reasonable notice to third parties of the obli-
gation that is secured.’’ (Internal quotation marks omit-
ted.) Connecticut National Bank v. Esposito, 210 Conn.
221, 227, 554 A.2d 735 (1989).
Furthermore, a mortgage that is not properly exe-
cuted or contains technical defects may be enforced
through equity. See Ketchum v. St. Louis, 101 U.S. 306,
317, 25 L. Ed. 999 (1879) (‘‘It is well stated that a party
may, by express agreement, create a charge or claim
in the nature of a lien on real as well as on personal
property of which he is the owner or in possession,
and that equity will establish and enforce such charge
or claim . . . . In addition to these formal instruments
which are properly entitled to the designation of mort-
gages, deeds, and contracts, which are wanting in one
or both of these characteristics of a common-law mort-
gage, are often used by parties for the purpose of pledg-
ing real property, or some interest in it, as security for
a debt or obligation, and with the intention that they
shall have effect as mortgages. Equity comes to the aid
of the parties in such cases, and gives effect to their
intentions.’’ [Citation omitted; internal quotation marks
omitted.]); Union Planters Bank, N.A. v. New York, 988
So. 2d 1007, 1011 (Ala. 2008) (‘‘[w]hen a mortgage is
invalid due to a technical defect, equity will give effect
to the intent of the parties according to the substance
of the transaction’’ [internal quotation marks omitted]).
It is also well established that ‘‘[e]rrors and omissions
in the recorded mortgage that would not mislead a title
searcher as to the true nature of the secured obligation
do not affect the validity of the mortgage against third
parties.’’ (Internal quotation marks omitted.) PNC
Bank, N.A. v. Kelepecz, 289 Conn. 692, 702, 960 A.2d
563 (2008); Dart & Bogue Co. v. Slosberg, 202 Conn.
566, 581, 522 A.2d 763 (1987) (‘‘[F]ailure to state the
maximum term of a promissory note . . . does not, of
itself, render a mortgage invalid. . . . [A] mortgage
need not set forth all of the terms of the underlying
obligation provided that it gives notice of the nature
and amount of the obligation, so that subsequent lien
creditors are not misled.’’ [Citations omitted.]).
In the present case, there is no dispute that the mort-
gage was properly recorded in the land records,
although as between the parties, that is not necessary
to its validity. Wiley v. London & Lancashire Fire Ins.
Co., supra, 89 Conn. 45 (‘‘[t]he deed, when delivered
and accepted, is good between the parties, irrespective
of the date of its record, and when the title of the grantee
is in issue, and the rights of no one are prejudiced by
the failure to record, that title is to be determined for
all purposes by the fact of title, and not by the record
evidence of it’’). Thus, although the mortgage contained
an inaccuracy by describing the defendant as the ‘‘Bor-
rower’’ and as the maker of the note, this did not under-
mine the validity of the mortgage between the parties.
In this case, the mortgage also provided reasonable
notice6 to any third party that it secured a debt for the
amount listed. Moreover, as previously discussed, the
references in the mortgage and note to each other dem-
onstrate that they were designed to be part of the same
transaction. When read together, the mortgage and the
note clearly establish that the consideration for the
mortgage was the amount of $533,000 made available
by JPMorgan Chase to Robert, approximately $370,000
of which was used to pay off and release encumbrances
on the defendant’s real property, and the rest for making
improvements to the defendant’s real property or for
Robert’s personal use. Accordingly, I conclude that the
trial court erred as a matter of law in failing to view
the mortgage on the defendant’s real property as a valid
mortgage, or, more generally, as the defendant’s guaran-
tee to answer for any default by Robert pursuant to the
terms of the note.
I also conclude that, to the extent it is necessary to
consider the equities of this matter, they clearly favor
the plaintiff, the successor to JPMorgan Chase. The
defendant and Robert clearly benefitted from the
$533,000 they received from JPMorgan Chase, and there
is nothing in the record to provide the defendant with
any equitable or legal defense to the plaintiff’s foreclo-
sure of the mortgage.7
For the foregoing reasons, I would reverse the judg-
ment and remand the case to the trial court with direc-
tion to proceed on the first count of the plaintiff’s com-
plaint for foreclosure of the mortgage on the
defendant’s real property.
1
As the majority notes in footnote 1 of its opinion, JPMorgan Chase Bank,
National Association, is no longer a party in this matter, and M&T Bank
filed a motion to substitute itself as the plaintiff.
2
As noted in footnote 2 of the majority opinion, this action was withdrawn
against Robert J. Virgulak, and the state of Connecticut, Department of
Revenue Services, was defaulted for failure to plead.
3
Both the defendant and Robert signed two documents at the closing:
(1) the Transfer of Servicing Disclosure Statement, in which both stated
that they understood that their acknowledgements were a ‘‘required part of
the mortgage loan application;’’ and (2) the Federal Truth in Lending State-
ment, which contained the following statement: ‘‘You are giving a security
interest in certain real property located at 14 Bayne Court, Norwalk, CT,
06851.’’
4
‘‘Construction of a mortgage deed is governed by the same rules of
interpretation that apply to written instruments or contracts generally, and
to deeds particularly. The primary rule of construction is to ascertain the
intention of the parties. This is done not only from the face of the instrument,
but also from the situation of the parties and the nature and object of their
transactions. . . . A promissory note and a mortgage deed are deemed
parts of one transaction and must be construed together as such.’’ (Internal
quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 547, 830
A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d
244 (2004); Sunset Mortgage v. Agolio, 109 Conn. App. 198, 202, 952 A.2d
65 (2008).
5
As the majority states, ‘‘[a] cause of action for reformation of a contract
rests on the equitable theory that the instrument sought to be reformed
does not conform to the real contract agreed upon and does not express
the intention of the parties and that it was executed as the result of mutual
mistake, or mistake of one party coupled with actual or constructive fraud,
or inequitable conduct on the part of the other.’’ (Internal quotation marks
omitted.) Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981). ‘‘Refor-
mation is not granted for the purpose of alleviating a hard or oppressive
bargain, but rather to restate the intended terms of an agreement when the
writing that memorializes that agreement is at variance with the intent of
both parties.’’ (Internal quotation marks omitted.) Kaplan v. Scheer, 182
Conn. App. 488, 502, 190 A.3d 31, cert. denied, 330 Conn. 913, 193 A.3d
49 (2018),
6
‘‘Reasonable notice’’ is defined as ‘‘notice of the nature and amount of
the encumbrance which the mortgagor intends to place upon the land.’’
(Internal quotation marks omitted.) Connecticut National Bank v. Esposito,
supra, 210 Conn. 228.
7
Reformation of a document is ordinarily the appropriate equitable rem-
edy in circumstances such as an unknown mutual mistake. See Lopinto v.
Haines, supra, 185 Conn. 532 (‘‘The remedy of reformation is appropriate
in cases of mutual mistake—that is where, in reducing to writing an agree-
ment made or transaction entered into as intended by the parties thereto,
through mistake, common to both parties, the written instrument fails to
express the real agreement or transaction. . . . In short, the mistake, being
common to both parties, effects a result which neither intended.’’ [Citations
omitted; internal quotation marks omitted.]); Deutsche Bank National Trust
Co. v. Perez, 146 Conn. App. 833, 839, 80 A.3d 910 (2013) (‘‘[t]he relief
afforded in reforming an instrument is to make it conform to the previous
agreement of the parties’’), appeal dismissed, 315 Conn. 542, 109 A.3d 452
(2015). I do not write separately on the ground of reformation, however,
because the particular factual circumstances of this case do not require
reformation of the note or mortgage, given the substance of the transaction
created by the defendant and Robert, upon which the plaintiff relied. Simply
put, the defendant was aware of the nature and consequences of her transac-
tion with JPMorgan Chase, and an unnecessarily strict adherence to the
concept of documentary perfection should not shield her from her resulting
obligation to JPMorgan Chase and its successors, into which she knowingly
and voluntarily entered.