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CARMINE CENATIEMPO ET AL. v. BANK
OF AMERICA, N.A.
(SC 20150)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiffs, who had defaulted on a residential mortgage for which the
defendant financial institution was the loan servicer, sought to recover
damages for the defendant’s alleged violation of the Connecticut Unfair
Trade Practices Act (CUTPA) (§ 42-110a et seq.) and for negligence in
connection with conduct that had occurred during postdefault negotia-
tions. After the plaintiffs defaulted on their mortgage, the defendant
instituted a foreclosure action. In an effort to avoid foreclosure, the
plaintiffs made repeated, unsuccessful attempts, over the course of two
and one-half years, to obtain a loan modification from the defendant
pursuant to a federal loan modification program known as HAMP. The
defendant then withdrew the foreclosure action without explanation.
The plaintiffs continued to seek a loan modification, but the defendant
instituted a second foreclosure action. The defendant continued to mis-
handle the loan modification process for approximately three additional
years before it finally provided the plaintiffs with a permanent loan
modification. The terms of the modification increased the principal
amount that the plaintiffs owed by including attorney’s fees for media-
tion, default fees, fees for commencing the second foreclosure action,
and accrued interest in excess of what the plaintiffs would have paid
if their initial loan modification application had been timely and properly
evaluated. The plaintiffs alleged in count one of their complaint that,
during the course of seeking a loan modification, the defendant commit-
ted unfair or deceptive acts in the conduct of trade or commerce with
the intent of preventing them from receiving a loan modification in that
the defendant failed to exercise reasonable diligence in reviewing and
processing completed loan modification applications, repeatedly
requested duplicative and unnecessary updates to financial information,
erroneously denied applications on the basis of purported failures to
provide requested documentation, misrepresented the status of the
plaintiffs’ loan modification applications, erroneously denied applica-
tions on the basis of investor restrictions that did not apply, and repeat-
edly changed the personnel responsible for communicating with the
plaintiffs. The plaintiffs also alleged that the defendant had failed to
engage productively in approximately eighteen mediation sessions con-
ducted pursuant to Connecticut’s foreclosure mediation program. The
plaintiffs claimed that the defendant’s conduct offended the public policy
reflected in HAMP, the federal Real Estate Settlement Procedures Act
of 1974 (RESPA) (12 U.S.C. § 2601 et seq. [2012]), a 2011 consent order
that the defendant had entered into with the Office of the Comptroller
of the Currency, a national mortgage settlement to which the defendant
was a party, and this state’s foreclosure mediation statutes (§§ 49-31k
through 49-31o), and caused them to suffer substantial financial and
emotional injuries. In addition, the plaintiffs claimed that the defendant
had a corporate culture of intentional conduct designed to prevent
mortgagors from receiving HAMP modifications. With respect to the
negligence count of the complaint, the plaintiffs asserted that the defen-
dant owed them a duty of care arising out of the servicing standards
imposed by the same federal and state statutes, consent order and
mortgage settlement agreement, and that the defendant breached that
duty. The defendant moved to strike both counts of the complaint,
claiming, inter alia, that the allegations pertaining to the manner in
which a lender or loan servicer reviews a loan modification application
are insufficient to state a cognizable CUTPA claim and that no duty of
care exists between a lender or loan servicer and a borrower to support
a negligence claim. The trial court granted the motion to strike the
complaint, reasoning that the alleged conduct focuses on negotiation
of relief from existing contractual obligations and that the parties are
adversarial given the pendency of the foreclosure action. The trial court
further reasoned that allowing such actions could discourage mortgage
companies from negotiating loan modifications, lead to increased litiga-
tion, and subject mortgage companies to liability, even in the absence
of material misrepresentation or malfeasance. The trial court finally
noted that other remedies, such as sanctions for misconduct during the
course of mediation, were available. On appeal from the trial court’s
judgment in the defendant’s favor, held:
1. The plaintiffs’ allegations having been sufficient to support a claim under
CUTPA, this court reversed the judgment of the trial court insofar as
that court struck the plaintiffs’ CUTPA claim: the defendant’s conduct
in connection with its loan modification activities occurred in the con-
duct of trade or commerce; moreover, the plaintiffs’ allegations included
conduct and actions by the defendant that involved a conscious, system-
atic departure from known, standard business norms, and described
practices that fell within the penumbra of some established concept of
unfairness, as the alleged conduct was contrary to the public policies
embodied in HAMP, RESPA, the consent order, the national mortgage
settlement, and this state’s foreclosure mediation statutes; furthermore,
the defendant’s allegedly improper practices, if proven at trial, could
be found to be immoral, unethical, oppressive or unscrupulous and the
cause of substantial injury to the plaintiffs, an injury that was not one
that the plaintiffs or other consumers could have reasonably avoided
and that was not outweighed by any countervailing benefits to loan
servicers in escaping liability for such actions or to consumers or compe-
tition.
2. This court concluded that the defendant did not owe a common-law duty
of care to the plaintiffs, and, accordingly, the trial court properly granted
the defendant’s motion to strike the plaintiffs’ negligence count of the
complaint: assessing the relationship between the plaintiffs and the
defendant under the totality of the circumstances, this court determined
that, although the defendant should reasonably have been expected to
review loan modification applications in a timely and accurate manner
and to follow the loan servicing industry standards and rules regarding
the loan modification process imposed by federal and state statutes,
the consent order, and the national mortgage settlement, the law does
not impose a duty on lenders to use reasonable care in commercial
transactions with borrowers because the relationship between lenders
and borrowers is contractual and loan transactions are conducted at
arm’s length, and to impose a duty of care on loan servicers, such as the
defendant, could inhibit participation in the loan modification process,
increase litigation, and have far-reaching consequences that extend
beyond anything implicated under CUTPA; moreover, the consent order
and the national mortgage settlement, to which the defendant was a
party, did not create a special relationship between lenders and borrow-
ers that would give rise to a legal duty, the plaintiffs, as incidental third-
party beneficiaries of that order and settlement, did not have standing
to sue to protect the benefits that the order and settlement confer,
loan servicers already are subject to liability for violations of RESPA’s
implementing regulations and civil penalties for violations of the national
mortgage settlement, making it unlikely that imposing a new duty on
loan servicers would provide them with further incentive to carry out
their review of loan modification applications with more due care, and
numerous jurisdictions have concluded that neither the provisions of
HAMP nor the relationship between a borrower and a lender or a loan
servicer result in the imposition of any duty of care in the present
context; furthermore, this court declined to consider the plaintiffs’ claim
that their negligence count could be construed to extend to a theory of
negligence per se on the basis of the allegations in their complaint that
the defendant breached a duty imposed by federal regulations and state
statutes and that such breach caused their injuries, the plaintiffs having
failed to raise this claim distinctly before the trial court, as they did not
specifically allege negligence per se in their complaint, did not identify
the particular legal provisions that the defendant allegedly violated or
that established the standard of care, did not seek an articulation from
the trial court, and did not mention such a theory in their motion to
reargue.
Argued November 9, 2018—officially released November 26, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged violation of the Connecticut Unfair Trade
Practices Act, and for other relief, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk,
where the court, Povodator, J., granted the defendant’s
motion to strike and rendered judgment thereon, from
which the plaintiffs appealed. Reversed in part; fur-
ther proceedings.
Jeffrey Gentes, with whom, on the brief, was David
Lavery, for the appellants (plaintiffs).
Pierre-Yves Kolakowski, with whom was Zachary
Bennett Grendi, for the appellee (defendant).
Opinion
McDONALD, J. This appeal requires us to determine
whether allegations that a residential loan servicer
engaged in systematic misrepresentations, delays and
evasiveness over several years of postdefault loan modi-
fication negotiations with the mortgagors can suffice
to state a claim for a violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., and a claim for negligence. The plaintiffs,
mortgagors Sandra Cenatiempo and Carmine Cena-
tiempo, appeal from the judgment of the trial court,
which granted the motion of the defendant loan ser-
vicer, Bank of America, N.A.,1 to strike the plaintiffs’
complaint. The plaintiffs’ principal contention is that
their allegations were legally sufficient to support their
CUTPA and negligence claims because the defendant’s
pattern of misconduct violated clearly defined stan-
dards and policies reflected in Connecticut, federal, and
national statutory and regulatory requirements2 aimed
at preventing foreclosure that were binding on the
defendant and that this conduct caused them substan-
tial financial and emotional injury. We agree with the
plaintiffs that the alleged facts could support a claim
under CUTPA. We disagree with the plaintiffs, however,
that the alleged facts would support a claim of negli-
gence. Accordingly, we reverse the judgment of the trial
court insofar as it struck the CUTPA claim.
I
The plaintiffs’ thirty-nine page complaint includes 179
paragraphs of allegations relating to the defendant’s
conduct, spanning approximately five years. Because
much of the alleged conduct repeats throughout this
time period, we recite the plaintiffs’ factual allegations
in a summary fashion and provide specific allegations
where necessary as part of our analysis. We construe
those facts in the manner most favorable to sustaining
the legal sufficiency of the complaint. See, e.g., Bohan
v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996).
In April, 2003, Carmine Cenatiempo executed a prom-
issory note in exchange for a loan in the original princi-
pal amount of $550,000 secured by a mortgage, given
by both plaintiffs, on property located in Weston. The
plaintiffs began experiencing financial hardship in 2008
and, subsequently, were declared in default on their
mortgage by the defendant. In October, 2009, the defen-
dant, as the servicer3 of the loan, instituted a foreclosure
action. The next two and one-half years were marked
by the plaintiffs’ repeated attempts to obtain a loan
modification from the defendant under a federal pro-
gram, discussed in part II of this opinion, known as
HAMP—Home Affordable Modification Program. In
response to the plaintiffs’ efforts, the defendant failed
to timely review completed applications, repeatedly
requested updated and new financial information, erro-
neously denied applications based on purported failures
to provide that requested documentation, erroneously
denied applications based on investor restrictions that
did not apply, and engaged in flawed evaluations of the
applications. Concurrent with this pattern of conduct,
the defendant failed to engage productively in the
approximately eighteen mediation sessions conducted
pursuant to the state’s foreclosure mediation program.
The defendant’s treatment of one such application is
emblematic of the way it handled many of the plaintiffs’
applications. In response to an April 17, 2010 letter
from the defendant soliciting the plaintiffs for a HAMP
modification, the plaintiffs submitted a modification
application. Two weeks later, the defendant notified
the plaintiffs that it did not have all of the documents
it needed to review the application but did not explain
what was missing. Rather, it listed all of the documents
required for a HAMP application and gave the plaintiffs
thirty days to respond. The plaintiffs sent additional
documents, and the defendant confirmed receipt in
August, 2010, and noted that its review could take forty-
five days. Rather than undertaking its review, however,
the defendant again requested additional documenta-
tion, which the plaintiffs provided. Thereafter, at the
mediation session held for the purpose of discussing if
the plaintiffs qualified for the HAMP modification in
light of the submissions, the defendant for the first time
claimed that the investor actually holding the loan did
not allow modifications. At the plaintiffs’ request, the
defendant asked the investor about the purported
restriction, and the investor indicated that no such
restriction existed. Nevertheless, the defendant refused
to substantively review the modification application,
again returning to the familiar request for a new applica-
tion. The plaintiffs submitted numerous applications
during this period with similar results. Then, in Febru-
ary, 2012, the defendant withdrew the foreclosure
action without explanation or apparent reason.
Despite withdrawing the action, the defendant
remained unresponsive to the plaintiffs’ continued
efforts to obtain a loan modification. The defendant
provided evasive or opaque answers to the plaintiffs’
inquiries about the status of their modification applica-
tions, failed to return the plaintiffs’ repeated phone
calls or to follow up with the plaintiffs as promised.
Moreover, when the plaintiffs were able to speak with
the designated representatives, they provided inconsis-
tent information concerning the plaintiffs’ eligibility for
a ‘‘settlement’’ and denied their applications without
explanation.
In October, 2012, the defendant instituted a second
foreclosure action. Following the plaintiffs’ election to
once again participate in the state’s mediation program,
the parties engaged in mediation. For the next three
years, including while the parties were purportedly
engaged in mediation, the defendant continued to mis-
handle the loan modification process in a fashion simi-
larly characterized by delay, repeated requests for
documents previously provided, opaque denials, and a
general evasiveness and nonresponsiveness.
In 2015, the defendant finally provided the plaintiffs
with a trial period modification plan under HAMP,
which became a permanent loan modification when
that period was successfully completed. The terms of
the permanent modification, however, increased the
principal owed by including the defendant’s attorney’s
fees for mediation sessions, default fees, fees for com-
mencing the second foreclosure action, and accrued
interest in excess of what the plaintiffs would have paid
if their initial loan modification application had been
timely and properly evaluated.
Over the course of this five year odyssey leading to
the permanent loan modification, the plaintiffs submit-
ted at least nine separate workout applications. Several
applications never resulted in decisions by the defen-
dant, and some applications were pending before the
defendant for hundreds of days—specifically, 263 days,
110 days, and 333 days. During the review process of
one application, the defendant ignored thirteen of the
plaintiffs’ phone calls. Two applications were denied
based on erroneous claims of investor restrictions, and
one was also denied based on an incorrect net present
value calculation for the property.4 These two applica-
tions were pending before the defendant for a combined
352 days. Two other applications were denied based
on a feigned lack of documentation after thirty-seven
and sixteen days. While one application was pending,
the plaintiffs provided updated documentation seven
times, and the defendant refused to speak with the
plaintiffs’ counsel and discouraged participation in
mediation.
In June, 2016, the plaintiffs commenced the present
action against the defendant, alleging, in count one,
violations of CUTPA and, in count two, negligence. In
count one, the plaintiffs alleged that the defendant com-
mitted unfair or deceptive acts in the conduct of trade
or commerce by failing to exercise reasonable diligence
in reviewing and processing the plaintiffs’ loan modifi-
cation applications, repeatedly requesting duplicative,
unnecessary updates to documentation, causing an
undue delay of at least four years in offering the plain-
tiffs a trial and permanent loan modification, repeatedly
changing the personnel responsible for communicating
with the plaintiffs, repeatedly sending the plaintiffs
vague, confusing and contradictory letters, misrepre-
senting the applicability of investor restrictions, misrep-
resenting its ability to proceed with conducting a
foreclosure sale, misrepresenting the status of the plain-
tiffs’ loan modification applications, and discouraging
the plaintiffs from participating in foreclosure media-
tion. The plaintiffs alleged that this conduct offended
the public policy reflected in HAMP, the federal Real
Estate Settlement Procedures Act of 1974 (RESPA); see
12 U.S.C. § 2601 et seq. (2012); a 2011 federal consent
order; see In re Bank of America, N.A., Charlotte, NC,
Enforcement Action No. 2011-48, Docket No. AA-EC-
11-12, 2011 WL 6941540 (OCC April 13, 2011) (consent
order between federal Office of the Comptroller of the
Currency and Bank of America, N.A., Charlotte, NC);
a national mortgage settlement to which the defendant
was a party; United States v. Bank of America Corp.,
United States District Court, Docket No. 1:12-cv-00361
(RMC) (D.D.C. April 4, 2012); and this state’s foreclo-
sure mediation statutes. See General Statutes §§ 49-31k
through 49-31o. The plaintiffs further alleged that the
defendant’s conduct caused them substantial injury
because it led to a considerably higher principal balance
resulting in a higher monthly payment and a lost oppor-
tunity to earn $5000 in borrower incentive payments
under HAMP, which severely impacted their emotional
and financial well-being. The plaintiffs alleged that they
reasonably could not have avoided these injuries
because they were in a ‘‘relatively powerless bargaining
position,’’ their refusal to comply with the defendant’s
demands would have put them ‘‘at grave risk of losing
their home,’’ and the injuries caused to homeowners,
like the plaintiffs, are not outweighed by any counter-
vailing benefits. The plaintiffs also alleged that the
defendant profited from the plaintiffs’ financial injury
through increased interest rates, default fees and attor-
ney’s fees, and that its conduct in failing to adequately
train its employees about loss mitigation and in failing
to provide sufficient staff to handle modifications in a
timely and ethical manner saved it money and increased
its profits.
The plaintiffs also alleged that the defendant’s
improper conduct extended beyond their case. Specifi-
cally, they alleged that the defendant had a corporate
culture of intentional conduct designed to prevent
homeowners from receiving HAMP modifications. Such
common conduct included requiring customers to
return documents on short notice and then waiting
months before reviewing such documents, training
employees to falsely tell homeowners that it had not
received their documents, allowing employees to
remove documents from homeowners’ files in order to
make the accounts appear ineligible for modification,
training employees to perform a ‘‘ ‘blitz’ ’’ twice a
month, during which the defendant would order case
managers and underwriters to deny any HAMP applica-
tions in which the financial documents were more than
sixty days old, and failing to adequately train and staff
the departments responsible for processing HAMP mod-
ifications.5
The second count of the complaint, sounding in negli-
gence, alleged that the defendant owed the plaintiffs a
duty of care arising out of servicing standards imposed
by RESPA, the 2011 federal consent order, the national
mortgage settlement, and the Connecticut foreclosure
mediation statutes.6 The plaintiffs further alleged that
the defendant breached its duty based on the foregoing
conduct, which caused the plaintiffs to suffer significant
financial and emotional injury.
The defendant moved to strike both counts of the
complaint. It asserted that the allegations pertaining to
the manner in which a lender reviews a loan modifica-
tion application are insufficient to state a cognizable
CUTPA claim and that no duty of care exists between
a lender and a borrower, including in processing mort-
gage loan modifications, to support a negligence claim.
The defendant also moved to strike the complaint on the
grounds that the plaintiffs lacked standing to enforce
alleged violations of agreements to which they are not
parties or third-party beneficiaries, and that their claims
are improperly based on settlement negotiations.
The trial court granted the defendant’s motion to
strike. The trial court reasoned that the conduct in
question ‘‘focuses on negotiation of relief from existing
contractual obligations, a situation that the plaintiffs
concede does not require any specific outcome, and in
which the parties are adversarial given the pendency
of litigation. . . . The court does not believe it to be
appropriate or productive to adopt a requirement of
‘just right’ pacing of foreclosure mediation and negotia-
tions, where too fast or too slow (including inefficiency
and perhaps some level of incompetence) might result
in negligence or CUTPA based liability.’’ The trial court
also expressed the concern that allowing such actions
could discourage mortgage companies from negotiating
loan workouts, lead to increased litigation, and subject
mortgage companies to liability, even in the absence
of material misrepresentations or malfeasance.7 Finally,
the court noted the availability of other remedies,
namely, court imposed sanctions for misconduct during
the course of mediation under General Statutes § 49-
31n (c) (2). The trial court ultimately held that, ‘‘based
on the available authorities and policy considerations,
the court can only conclude that, however sympathetic
the plaintiffs’ situation may be, it cannot support the
negligence and CUTPA claims articulated in the plain-
tiffs’ operative complaint.’’
The plaintiffs filed a motion to reargue and recon-
sider. They claimed, among other things, that there are
already fixed timetables for servicer decision making,
that public policy regarding loan modifications favors
the plaintiffs’ cause of action, and that sanctions are
imposed too rarely to be an effective remedy or deter-
rent. The trial court granted reconsideration but denied
the plaintiffs any relief. The trial court subsequently
rendered judgment for the defendant on the plaintiffs’
claims. The plaintiffs appealed from the trial court’s
judgment to the Appellate Court, and, pursuant to Gen-
eral Statutes § 51-199 (c) and Practice Book § 65-2, we
transferred the appeal to this court.
The essence of the plaintiffs’ argument on appeal is
that the trial court improperly struck their complaint
‘‘largely because [the trial court] reached the wrong
conclusions with respect to the public policy implica-
tions of allowing them to proceed.’’ It is the plaintiffs’
position that HAMP, RESPA, the 2011 federal consent
order, the national mortgage settlement, and this state’s
foreclosure mediation statutes form a comprehensive
policy framework that supports the imposition of liabil-
ity under CUTPA and under a negligence claim. More
specifically, the plaintiffs contend that the foregoing
programs and policies prescribe the defendant’s obliga-
tions, including the speed and accuracy with which
mortgage servicers must evaluate customer loan work-
out applications. The defendant’s conduct in contraven-
tion of those obligations, the plaintiffs contend, was
immoral, unethical, oppressive, and unscrupulous, and,
as such, violated CUTPA. Additionally, the plaintiffs
assert that the totality of the circumstances weigh in
favor of allowing them to proceed on their negligence
claim. Finally, the plaintiffs assert that the trial court
did not consider the negligence per se aspects of their
negligence claim and contend that the negligence count
also should not have been stricken on the basis of
that theory.
We reverse the judgment of the trial court insofar as
it granted the defendant’s motion to strike the CUTPA
count but affirm insofar as it struck the negligence
count of the complaint.
II
Because the plaintiffs’ appeal rests largely on the
requirements of various federal, national, and state obli-
gations and the policies that undergird them, it is useful
to begin with an overview of these obligations, all of
which were imposed in response to a national foreclo-
sure crisis prompted by the Great Recession.8
A primary federal response to the foreclosure crisis
was HAMP, which was established in 2009 by the United
States Department of the Treasury and was designed to
encourage loan servicers to modify loans for qualified
borrowers. See U.S. Dept. of the Treasury, Making Home
Affordable, (last updated January 30, 2017), available at
https://www.treasury.gov/initiatives/financial-stability/
TARP-Programs/housing/mha/Pages/hamp.aspx (last
visited November 18, 2019); see also Spaulding v. Wells
Fargo Bank, N.A., 714 F.3d 769, 772 (4th Cir. 2013);
U.S. Bank National Assn. v. Eichten, 184 Conn. App.
727, 733, 196 A.3d 328 (2018). ‘‘HAMP was a national
home mortgage modification program aimed at helping
[at risk] homeowners who were in default or at immi-
nent risk of default by reducing monthly payments to
sustainable levels through the restructuring of their
mortgages without discharging any of the underlying
debt. . . . It was designed to create a uniform loan
modification process governed by federal standards
that could be used by any loan servicer that chose
to participate.’’ (Citation omitted.) U.S. Bank National
Assn. v. Eichten, supra, 733. Because many servic-
ing agreements between loan servicers and investors
in residential mortgage backed securities predated
the creation of HAMP, servicers that agreed to partici-
pate in the program were required to use reasonable
efforts to get investors to waive any restrictions on
HAMP loan modifications that existed in the agree-
ments. See United States Dept. of the Treasury, HAMP
Supplemental Directive 09-01: Introduction of the
Home Affordable Modification Program (April 6, 2009)
p. 1 (HAMP Supplemental Directive 09-01), available
at https://www.hmpadmin.com/portal/programs/docs/
hamp_servicer/sd0901.pdf (last visited November 18,
2019). The defendant, through a servicer participation
agreement,9 voluntarily elected to participate in HAMP.
It thereby became contractually obligated to review
and process HAMP applications according to a uniform
process. See id., pp. 12, 13–14.
The HAMP application process consists of several
components. Relevant to the present case, a borrower
first completes a HAMP application to which the bor-
rower must append certain financial documents, such
as income verification. Id., pp. 7–8, 13. Financial infor-
mation must be obtained from the borrower less than
ninety days from the date of the eligibility determina-
tion. Id., p. 5. HAMP provides specific timetables for
each stage of the application process, which helps to
ensure that an application is not denied simply because
the financial information is no longer current. For exam-
ple, the servicer must acknowledge receipt of a com-
pleted application within ten business days and must
notify the borrower of its eligibility determination
within thirty calendar days. See United States Dept.
of the Treasury, HAMP Supplemental Directive 09-07:
Home Affordable Modification Program—Streamlined
Borrower Evaluation Process (October 8, 2009) p. 7
(HAMP Supplemental Directive 09-07), available at
https://www.hmpadmin.com/portal/programs/docs/
hamp_servicer/sd0907.pdf (last visited November 18,
2019). The content of such notices are prescribed by
HAMP. See Dept. of the Treasury, HAMP Supplemental
Directive 09-08: Home Affordable Modification Pro-
gram—Borrower Notices (November 3, 2009) pp. 2–4
(HAMP Supplemental Directive 09-08), available at
https://www.hmpadmin.com/portal/programs/docs/
hamp_servicer/sd0908.pdf (last visited November 18,
2019).
As part of its eligibility determination, the servicer
must conduct a net present value test, which is a ‘‘for-
mula that determines whether it would be more profit-
able for servicers and the loan’s investors to approve
a modification or to foreclose on the property.’’ A. Sara-
pinian, ‘‘Fighting Foreclosure: Using Contract Law To
Enforce the Home Affordable Modification Program
(HAMP),’’ 64 Hastings L.J. 905, 918 (2013); see HAMP
Supplemental Directive 09-01, supra, pp. 4–5 (describ-
ing test). If the test result favors modification, ‘‘the
servicer MUST offer the modification,’’ provided all
other requirements are met. HAMP Supplemental Direc-
tive 09-01, supra, p. 4. If the borrower meets those
requirements, they are offered a trial period plan. Id.,
pp. 14–15. Borrowers who satisfy all of the requirements
for the trial period, which is typically three months,
must be offered a permanent modification. Id., pp.
17–18.
It quickly became apparent that servicers were not
executing HAMP modification reviews with the ‘‘high
standard of care’’ required by the program. See HAMP
Supplemental Directive 09-08, supra, p. 1. Common
problems included loss of borrower paperwork, failure
to follow program standards, and unnecessary delays
that harmed borrowers while financially benefiting ser-
vicers. See A. Sarapinian, supra, 64 Hastings L.J. 914.
Consequently, the Office of the Comptroller of the Cur-
rency, an independent bureau of the United States
Department of the Treasury, examined the mortgage
foreclosure processes of numerous servicers, including
the defendant. An examination of the defendant’s mort-
gage foreclosure processes found, among other defi-
ciencies, that the defendant ‘‘failed to devote sufficient
financial, staffing and managerial resources to ensure
proper administration of its foreclosure processes’’ and
‘‘failed to devote to its foreclosure processes adequate
oversight, internal controls, policies, and procedures,
compliance risk management, internal audit, [third-
party] management, and training . . . .’’10 In re Bank
of America, N.A., Charlotte, NC, supra, 2011 WL
6941540, *2. As a result of the Comptroller’s investiga-
tion, in April, 2011, the defendant consented to an order
that obligated it to remediate what the Comptroller had
termed ‘‘unsafe or unsound’’ foreclosure practices.11 Id.,
*1. The consent order required the defendant to imple-
ment procedures to ensure compliance with the time-
lines in HAMP, and the defendant reaffirmed its
obligation to comply with HAMP. Id., *3.
Approximately one year later, in April, 2012, in
a national mortgage settlement, the defendant and
several other mortgage servicers entered into a consent
judgment with the United States and the attorneys
general of forty-nine states and the District of Colum-
bia related to complaints alleging various foreclo-
sure abuses. See United States v. Bank of America
Corp., supra, United States District Court, Docket
No. 1:12-cv-00361 (RMC); see also P. Lehman, ‘‘Exec-
utive Summary of Multistate/Federal Settlement
of Foreclosure Misconduct Claims,’’ available at
http://www.nationalmortgagesettlement.com/files/
NMS_Executive_Summary-7-23-2012.pdf (last visited
November 18, 2019). The national mortgage settlement
was brought in part under the ‘‘[u]nfair and [d]eceptive
[a]cts and [p]ractices laws of the [p]laintiff [s]tates
. . . .’’ United States v. Bank of America Corp., supra,
United States District Court, Docket No. 1:12-cv-00361
(RMC). Relevant to the present case, the national mort-
gage settlement, as a ‘‘comprehensive reform of mort-
gage servicing practices,’’ was intended to prevent the
defendant from continuing to engage in ‘‘improper fore-
closure practices’’ by imposing numerous controls and
standards on the servicing of its loans. P. Lehman,
supra, p. 3. For example, the settlement required the
defendant to designate a continuing single point of con-
tact for borrowers and provide detailed reasons for the
denial of a modification. Id.
Despite these efforts, ‘‘pervasive problems with ser-
vicers’ performance of loss mitigation activity in con-
nection with the financial crisis’’ continued to be of
widespread concern. See Mortgage Servicing Rules
Under the Real Estate Settlement Procedures Act (Reg-
ulation X), 78 Fed. Reg. 10,696, 10,814 (February 14,
2013), codified at 12 C.F.R. § 1024 et seq. (2014). Of
particular concern were lost documents, nonresponsive
servicers, and an unwillingness to work with borrowers
to reach an agreement on loss mitigation options. Id.
As a result, the federal Consumer Financial Protection
Bureau amended the implementing regulation for
RESPA, a consumer protection statute governing the
settlement process for residential real estate; see Regu-
lation X, 12 C.F.R. § 1024 et seq. (2014); and created
national mortgage servicing standards. See 78 Fed. Reg.
10,696, 10,815 (February 14, 2013). The RESPA amend-
ment adopted much of the timing and staffing require-
ments of HAMP, the 2011 consent order, and the
national mortgage settlement. See id., 10,814, 10,815.
Loan servicers that participate in HAMP are required to
comply with RESPA. See HAMP Supplemental Directive
09-01, supra, p. 12.
RESPA’s Regulation X requires a loan servicer to
evaluate a complete loss-mitigation application within
thirty days of receipt of the application. See 12 C.F.R.
§ 1024.41 (c) (1) (2014); see also Urdaneta v. Wells
Fargo Bank, N.A., 734 Fed. Appx. 701, 704–705 (11th
Cir. 2018). If an application is not complete, servicers
must use reasonable diligence to obtain documents and
information to complete the application. See 12 C.F.R.
§ 1024.41 (b) (1) (2014); see also Urdaneta v. Wells
Fargo Bank, N.A., supra, 705. Regulation X also requires
that loan servicers maintain policies and procedures to
ensure, for example, that they can provide borrowers
with timely and accurate information in response to
requests for information concerning a borrower’s mort-
gage loan; 12 C.F.R. § 1024.38 (a) and (b) (2014); loss
mitigation options; 12 C.F.R. § 1024.40 (b) (1) (i) (2014);
and the status of a loss mitigation application. 12 C.F.R.
§ 1024.40 (b) (1) (iii) (2014).
In addition to the federal response to the foreclosure
crisis, many states took their own action to address the
problem. Connecticut enacted a statutory scheme that
established a court administered and supervised fore-
closure mediation program. See General Statutes §§ 49-
31k through 49-31o. Under the mediation program, neu-
tral mediators assist eligible homeowners facing fore-
closure and their lenders or mortgage servicers to
achieve a mutually agreeable resolution to a foreclosure
action. See General Statutes §§ 49-31k through 49-31o.
Mediation shall ‘‘address all issues of foreclosure,’’
including, but not limited to, modification of the loan
and restructuring of the mortgage debt. General Stat-
utes § 49-31m. Although a servicer is not required to
modify the mortgage or change the payment terms if
a mortgagor elects to participate in the program; see
General Statutes § 49-31o (a); the mortgagee is obli-
gated to engage in some form of loss mitigation review
with the mortgagor before foreclosure proceedings can
proceed. See General Statutes §§ 49-31l and 49-31n.
III
With this background in mind, we turn to the merits
of the plaintiffs’ challenge to the trial court’s decision
to strike their complaint. Our review of a trial court’s
decision to grant a motion to strike is plenary. See, e.g.,
Doe v. Hartford Roman Catholic Diocesan Corp., 317
Conn. 357, 398, 119 A.3d 462 (2015). This is because a
‘‘motion to strike challenges the legal sufficiency of a
pleading, and, consequently, requires no factual find-
ings by the trial court. . . . We take the facts to be
those alleged in the complaint that has been stricken
and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.’’
(Citations omitted; internal quotation marks omitted.)
Suffield Development Associates Ltd. Partnership v.
National Loan Investors, L.P., 260 Conn. 766, 771–72,
802 A.2d 44 (2002).
A
CUTPA
We begin with the plaintiffs’ claim that the defen-
dant’s alleged misconduct during the course of the loan
modification negotiations violated CUTPA. The basic
contours of a CUTPA claim are well settled. ‘‘CUTPA
is, on its face, a remedial statute that broadly prohibits
unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or com-
merce. . . . To give effect to its provisions, [General
Statutes] § 42-110g (a) of [CUTPA] establishes a private
cause of action, available to [a]ny person who suffers
any ascertainable loss of money or property, real or
personal, as a result of the use or employment of a
method, act or practice prohibited by [General Statutes
§] 42-110b . . . .’’ (Internal quotation marks omitted.)
Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317
Conn. 602, 623, 119 A.3d 1139 (2015). When interpreting
CUTPA, § 42-110b (b) directs us to consider the inter-
pretations given by the Federal Trade Commission and
the federal courts to the Federal Trade Commission Act,
15 U.S.C. § 45 (a) (1), ‘‘as from time to time amended.’’
To successfully state a claim for a CUTPA violation,
the plaintiffs must allege that the defendant’s acts
occurred in the conduct of trade or commerce.12 See
Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287
Conn. 208, 217, 947 A.2d 320 (2008). On the record
before us, this requirement undoubtedly has been met.
It is well settled that CUTPA applies to banks and bank-
ing activities. See, e.g., Normand Josef Enterprises,
Inc. v. Connecticut National Bank, 230 Conn. 486, 521,
646 A.2d 1289 (1994); Smithfield Associates, LLC v.
Tolland Bank, 86 Conn. App. 14, 27, 860 A.2d 738 (2004),
cert. denied, 273 Conn. 901, 867 A.2d 839 (2005). Federal
courts have specifically held that a bank’s ‘‘lending and
loan modification activities involve the ‘conduct of any
trade or commerce.’ ’’ Compton v. Countrywide Finan-
cial Corp., 761 F.3d 1046, 1056 (9th Cir. 2014); see
Tanasi v. CitiMortgage, Inc., 257 F. Supp. 3d 232, 275
(D. Conn. 2017) (‘‘Connecticut courts have held that
CUTPA applies to unfair or deceptive conduct by mort-
gage companies and other holders of mortgage notes’’
[internal quotation marks omitted]).13
The plaintiffs also must establish that the alleged acts
or practices are unfair or deceptive. ‘‘[W]e have adopted
[certain] criteria set out in the cigarette rule by the
[F]ederal [T]rade [C]ommission for determining when
a practice is unfair: (1) [W]hether the practice, without
necessarily having been previously considered unlaw-
ful, offends public policy as it has been established
by statutes, the common law, or otherwise—in other
words, it is within at least the penumbra of some [com-
mon-law], statutory, or other established concept of
unfairness; (2) whether it is immoral, unethical, oppres-
sive, or unscrupulous; (3) whether it causes substantial
injury to consumers [competitors or other businessper-
sons]. . . . All three criteria do not need to be satisfied
to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of
the criteria or because to a lesser extent it meets all
three.14 . . . Thus a violation of CUTPA may be estab-
lished by showing either an actual deceptive practice
. . . or a practice amounting to a violation of public
policy.’’ (Footnote added; internal quotation marks
omitted.) Ulbrich v. Groth, 310 Conn. 375, 409, 78 A.3d
76 (2013).
We are mindful that our legislature ‘‘deliberately
chose not to define the scope of unfair or deceptive
acts proscribed by CUTPA so that courts might develop
a body of law responsive to the marketplace practices
that actually generate such complaints. . . . Predict-
ably, [therefore] CUTPA has come to embrace a much
broader range of business conduct than does the [com-
mon-law] tort action. . . . Moreover, [b]ecause
CUTPA is a self-avowed remedial measure . . . § 42-
110b (d), it is construed liberally in an effort to effectu-
ate its public policy goals. . . . Indeed, there is no . . .
unfair method of competition, or unfair [or] deceptive
act or practice that cannot be reached [under CUTPA].’’
(Citations omitted; internal quotation marks omitted.)
Associated Investment Co. Ltd. Partnership v. Wil-
liams Associates IV, 230 Conn. 148, 157–58, 645 A.2d
505 (1994). Thus, it has been held that a violation of
CUTPA does not ‘‘necessarily have to be based on an
underlying actionable wrong . . . .’’ Hartford Electric
Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 369,
736 A.2d 824 (1999). Nonetheless, ‘‘[u]nder CUTPA, only
intentional, reckless, unethical or unscrupulous con-
duct can form the basis for a claim.’’ Ulbrich v. Groth,
supra, 310 Conn. 410 n.31.
The plaintiffs’ CUTPA claim is grounded in the theory
that the business of loan servicing is regulated by cer-
tain industry standards imposed by statutes, regula-
tions, and court orders that form a comprehensive
policy framework. The plaintiffs contend that the defen-
dant made a conscious decision to depart from these
standards and deliberately engage in a pattern of con-
duct intended to prevent homeowners, like the plain-
tiffs, from receiving HAMP modifications, which in turn
drives up borrower debt.15 Taken as a whole, and viewed
in the light most favorable to sustaining the complaint’s
legal sufficiency, we agree with the plaintiffs’ character-
ization of their complaint and conclude that these alle-
gations describe conduct that was not merely a
technical violation of these provisions or negligent or
incompetent, but involved a conscious, systematic
departure from known, standard business norms. The
plaintiffs’ allegations describe practices that are cer-
tainly within the ‘‘ ‘penumbra of some . . . established
concept of unfairness . . . .’ ’’ Artie’s Auto Body, Inc.
v. Hartford Fire Ins. Co., supra, 317 Conn. 609 n.9.
1
Turning to the first criterion of the cigarette rule,
we must consider whether the alleged practices offend
public policy expressed in statutes, the common law,
or elsewhere, that establishes a benchmark of fairness.
See Ulbrich v. Groth, supra, 310 Conn. 409. ‘‘Connecti-
cut courts have held that . . . federal . . . lending
statutes can demonstrate a ‘public policy’ as required
by [CUTPA].’’ Tanasi v. CitiMortgage, Inc., supra, 257
F. Supp. 3d 275; see also CitiMortgage, Inc. v. Rey, 150
Conn. App. 595, 609, 92 A.3d 278 (‘‘there are reasons
well grounded in public policy . . . to find that a mort-
gagee who enters into a forbearance agreement during
foreclosure litigation . . . should not be permitted to
pursue the remedy of foreclosure when the borrower
has fully complied with its terms’’), cert. denied, 314
Conn. 905, 99 A.3d 635 (2014). We agree with the plain-
tiffs that the defendant’s alleged violations of HAMP,
RESPA, the 2011 consent order, the national mortgage
settlement, and this state’s foreclosure mediation stat-
utes offend the public policies embodied in these pro-
visions.
HAMP was ‘‘aimed at helping 3 to 4 million [at risk]
homeowners—both those who are in default and those
who are at imminent risk of default—by reducing
monthly payments to sustainable levels.’’16 HAMP Sup-
plemental Directive 09-01, supra, p. 1. In support of this
policy, RESPA’s implementing regulation, Regulation
X, establishes obligations for how a loan servicer must
handle a borrower’s loss mitigation application under
HAMP.17 See 12 U.S.C. § 2601 (2012); 12 C.F.R. § 1024
(2014). Regulation X requires servicers to timely evalu-
ate loss mitigation applications; 12 C.F.R. § 1024.41 (c)
(1) (2014); use reasonable diligence to obtain docu-
ments if an application is not complete; 12 C.F.R.
§ 1024.41 (b) (1) (2014); and maintain policies and pro-
cedures to ensure that they can provide borrowers with
timely and accurate information. See 12 C.F.R.
§§ 1024.38 and 1024.40 (b) (1) (i) and (iii) (2014). At
least one federal district court has held that allegations
of a loan servicer’s ‘‘confusing and deceptive communi-
cations with vulnerable borrowers violated an
important public policy’’ embedded in HAMP and
RESPA. Tanasi v. CitiMortgage, Inc., supra, 257 F.
Supp. 3d 275.
With respect to the national mortgage settlement, the
intent of the new servicing standards it imposed was, in
part, to ‘‘increase the transparency of the loss mitigation
process, impose time lines to respond to borrowers,
and restrict the unfair practice of ‘dual tracking,’ where
foreclosure is initiated despite the borrower’s engage-
ment in a loss mitigation process.’’ P. Lehman, supra,
p. 3. In pursuit of these goals, banks and servicers
agreed to adopt numerous controls and standards in
the servicing of loans, including maintaining adequate
documentation of borrower account information and
designating a continuing single point of contact to coor-
dinate document submissions and inform borrowers
of the status of their loss mitigation applications. Id.
Likewise, through the 2011 consent order, the defendant
agreed to substantially similar requirements, including
compliance with all applicable federal laws such as
HAMP. See In re Bank of America, N.A., Charlotte,
NC, supra, 2011 WL 6941540, *3. Mortgage practices in
contravention of the terms of the national mortgage
settlement and the 2011 consent order have been held
to offend public policy for purposes of state consumer
protection laws. See Saccameno v. Ocwen Loan Servic-
ing, LLC, 372 F. Supp. 3d 609, 630 (N.D. Ill. 2019) (‘‘stan-
dards of conduct imposed by consent decrees and
settlement agreements’’ sufficiently reflect public pol-
icy), appeal filed sub nom. Saccameno v. U.S. Bank
National Assn., United States Court of Appeals, Docket
No. 19-1569 (7th Cir. March 29, 2019); id., 630–31 (loan
servicer’s conduct offended public policy embodied in
national mortgage settlement for purposes of Illinois’
consumer protection act); Lowry v. Wells Fargo Bank,
N.A., United States District Court, Docket No. 15-C-
4433 (N.D. Ill. September 2, 2016) (mortgage practices in
contravention of terms of national mortgage settlement
and 2011 consent decree offended public policy); see
also Morris v. BAC Home Loans Servicing, L.P., 775
F. Supp. 2d 255, 262 (D. Mass. 2011) (concluding that
recovery under state’s consumer protection law similar
to CUTPA is consistent with HAMP).
This state’s foreclosure mediation statutes were simi-
larly designed to help homeowners remain in their
homes by avoiding foreclosure. See 51 S. Proc., Pt.
17, 2008 Sess., p. 5061, remarks of Senator Bob Duff
(‘‘[Foreclosure mediation] . . . will help our consum-
ers in the state very much. And I think it will also help
the banks quite a bit too because . . . no bank likes
to foreclose on a loan.’’); id., p. 5085, remarks of Senator
Robert J. Kane (‘‘[t]he mediation process, although not
perfect, is very good because it will get people to maybe
stay in their homes a bit longer’’). Foreclosure media-
tion was intended to ‘‘address all issues of foreclosure,’’
including modification of the loan and restructuring
of the mortgage debt. General Statutes § 49-31m. Our
statutes governing the foreclosure mediation program
are a source of public policy. See, e.g., Bloomfield
Health Care Center of Connecticut, LLC v. Doyon, 185
Conn. App. 340, 359, 197 A.3d 415 (2018) (‘‘our statutes
themselves are a source of public policy’’).
The plaintiffs have alleged conduct by the defendant
that is contrary to the policies of HAMP, RESPA, the
national mortgage settlement, the 2011 consent order,
and this state’s foreclosure mediation statutes. They
alleged that the defendant failed to timely review com-
pleted applications, erroneously issued denials based
on failures to provide requested documentation that had
previously been supplied, erroneously issued denials
based on investor restrictions that did not exist, and
conducted flawed evaluations of applications. They also
alleged that, throughout the loan modification process,
the defendant was often nonresponsive, failing to return
the plaintiffs’ phone calls or follow up with the plaintiffs
as promised. When the plaintiffs did receive a communi-
cation from the defendant regarding the status of their
modification applications, it was often evasive or incon-
sistent, or it was in the form of a denial without explana-
tion. In contravention of the national mortgage
settlement’s requirement that the plaintiffs must have
a single point of contact for their applications, the
defendant designated a number of different employees
to respond to the plaintiffs’ inquiries in seriatim. The
plaintiffs further alleged that, contrary to the policies
in this state’s foreclosure mediation statutes, the defen-
dant charged them attorney’s fees despite its failure to
comply with its duties under the mediation statutes.
These allegations, if proven at trial, are sufficient to
establish the defendant’s violations of the public poli-
cies embodied in the aforementioned sources of legal
obligations because the defendant’s alleged actions
made it much more difficult for the plaintiffs to reduce
the amount of their mortgage payments to sustainable
levels in order to avoid foreclosure. Accordingly, we
conclude that the plaintiffs have alleged violations of
public policy sufficient to satisfy the first criterion of
the cigarette rule.
2
Turning to the second criterion of the cigarette rule,
we must consider whether the defendant’s allegedly
improper practices are ‘‘ ‘immoral, unethical, oppres-
sive, or unscrupulous . . . .’ ’’ Ulbrich v. Groth, supra,
310 Conn. 409. The plaintiffs allege that the defendant’s
misrepresentations in violation of HAMP, RESPA, the
2011 consent order, the national mortgage settlement,
and this state’s foreclosure mediation statutes satisfy
this criterion. Specifically, they allege that, by ‘‘capitaliz-
ing inflated past due interest along with attorney’s fees
and costs, the defendant ultimately profits from the
excessive delay at the cost of the consumer through
servicing fees.’’ It is well settled that a ‘‘trade practice
that is undertaken to maximize the defendant’s profit
at the expense of the plaintiff’s rights comes under the
second prong of the cigarette rule.’’ Votto v. American
Car Rental, Inc., 273 Conn. 478, 485, 871 A.2d 981
(2005); see Johnson Electric Co. v. Salce Contracting
Associates, Inc., 72 Conn. App. 342, 357, 805 A.2d 735
(defendant general contractor was held liable for
CUTPA violation under second prong of cigarette rule
after listing plaintiff subcontractor as successful bidder
but failing to honor contract), cert. denied, 262 Conn.
922, 812 A.2d 864 (2002).
We are mindful that ‘‘not every technical violation of
HAMP’’ should expose a servicer to liability under a
state’s consumer protection laws. See Morris v. BAC
Home Loans Servicing, L.P., supra, 775 F. Supp. 2d
263. Plaintiffs that have sufficiently alleged unfair or
deceptive actions based on HAMP violations ‘‘have
alleged a pattern of misrepresentations, failure to cor-
rect detrimental errors, and/or dilatory conduct on the
part of the servicer and/or bank . . . .’’ (Internal quota-
tion marks omitted.) Ayoub v. CitiMortgage, Inc.,
United States District Court, Docket No. 15-cv-13218
(ADB), 2018 WL 1318919, *4 (D. Mass. March 14, 2018);
see Hanrahran v. Specialized Loan Servicing, LLC,
54 F. Supp. 3d 149, 155 (D. Mass. 2014) (‘‘a pattern or
course of conduct involving misrepresentations, delay,
and evasiveness in evaluating a HAMP application’’ suf-
ficiently alleges unfair conduct); Hanrahran v. Special-
ized Loan Servicing, LLC, supra, 155 (citing cases
discussing such pattern or course of conduct). ‘‘[T]he
relevant conduct is the entirety of [the defendant’s]
actions, not each action viewed in isolation.’’ (Internal
quotation marks omitted.) Hanrahran v. Specialized
Loan Servicing, LLC, supra, 156.
We agree with the plaintiffs that the defendant’s
alleged violations of HAMP, RESPA, the 2011 consent
order, the national mortgage settlement, and this state’s
foreclosure mediation statutes, if proven at trial, could
be found to be immoral, unethical, oppressive, or
unscrupulous. As discussed, the plaintiffs alleged that
the defendant repeatedly switched their primary point
of contact and they were often unable to get the
assigned point of contact on the phone. When the plain-
tiffs did speak with an individual, that person often
made inaccurate statements or could not locate any-
thing the plaintiffs had previously submitted. The defen-
dant also repeatedly required resubmission of
documents previously provided. With respect to the
defendant’s evaluation of the plaintiffs’ modification
applications, the defendant repeatedly provided ambig-
uous explanations for denying their modifications or
denied modifications on the pretext of an inability to
contact the plaintiffs, nonexistent investor restrictions,
and an inaccurate net present value calculation based
on an inflated property value. The defendant also
repeatedly failed to provide the plaintiffs with a
response to a complete loss mitigation application
within the proscribed time frame, often resulting in
applications pending for hundreds of days. These alle-
gations go beyond mere negligence and amount to a
conscious departure from known, standard business
norms.18 See, e.g., Ulbrich v. Groth, supra, 310 Conn.
435–37 (jury reasonably could have found bank’s failure
to inform potential buyers that some items of property
did not belong to debtors was ‘‘not merely negligent or
incompetent, but involved a conscious departure from
known, standard business norms and was therefore
unscrupulous, ‘within at least the penumbra of some
. . . statutory, or other established concept of
unfairness’ ’’); id., 435 (bank’s actions were ‘‘the result
of a conscious decision not to perform a known obli-
gation’’).
We note that other courts have concluded that allega-
tions of improper handling of loan modification applica-
tions are sufficient to state a claim under state
consumer protection laws. See, e.g., Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 574–75 (7th Cir. 2012)
(ineffectual implementation of HAMP was sufficient to
state claim under Illinois consumer protection act);
Tanasi v. CitiMortgage, Inc., supra, 257 F. Supp. 3d
275 (allegations that bank deceptively solicited modifi-
cation agreements and that bank’s communications
were confusing and deceptive was sufficient to state
CUTPA claim); Walker v. Deutsche Bank National Trust
Co., United States District Court, Docket No. 3:16-cv-
697 (AWT) (D. Conn. March 24, 2017) (allegations that
bank repeatedly asked for documents over six year
period, bad faith use of mediation program and
breached modification agreements was sufficient to
state CUTPA claim); Ayoub v. CitiMortgage, Inc., supra,
2018 WL 1318919, *5 (allegations of repeated ‘‘ambigu-
ous and opaque explanations’’ for denying loan modifi-
cation applications was sufficient to state
Massachusetts consumer protection act claim); Kirtz
v. Wells Fargo Bank, N.A., United States District Court,
Docket No. 12-10690 (DJC) (D. Mass. November 29,
2012) (allegations that bank’s history of requiring bor-
rower to resubmit same documents to support HAMP
loan modification coupled with repeatedly changing
bank officials in charge of requested modification and
closing file on pretext of inability to contact borrower
was sufficient to state claim under Massachusetts con-
sumer protection act).
In addition to their allegations that the defendant
improperly had handled loan modification applications,
the plaintiffs alleged that the defendant had discouraged
them from participating in the state’s foreclosure media-
tion program by misrepresenting the program’s utility.
The defendant allegedly sent the plaintiffs a letter claim-
ing that it is a ‘‘ ‘common misconception’ ’’ that a bor-
rower will receive a better resolution in mediation and
encouraging the plaintiffs to work outside of court so
as ‘‘ ‘to avoid the inconvenience of holding a hearing.’ ’’
The defendant allegedly engaged in a statewide practice
of sending similar letters to borrowers in an attempt
to reduce the extent of supervision the court could
exercise over the defendant’s loan modification review
process. Viewed in the light most favorable to the plain-
tiffs, this claim alleges that the defendant used an
unscrupulous and deceptive practice to induce the
plaintiffs, and other borrowers, into forgoing their right
to elect to participate in the state’s foreclosure media-
tion program. See, e.g., Caldor, Inc. v. Heslin, 215 Conn.
590, 597, 577 A.2d 1009 (1990) (‘‘[A]n act or practice is
deceptive if three requirements are met. ‘First, there
must be a representation, omission, or other practice
likely to mislead consumers. Second, the consumers
must interpret the message reasonably under the cir-
cumstances. Third, the misleading representation,
omission, or practice must be material—that is, likely
to affect consumer decisions or conduct.’ ’’ [Footnote
omitted.]), cert. denied, 498 U.S. 1088, 111 S. Ct. 966,
112 L. Ed. 2d 1053 (1991).
With regard to the effect of these violations, the plain-
tiffs allege that the permanent HAMP loan modification
agreement provided to them by the defendant included
‘‘tens, if not hundreds, of thousands of [dollars in] new
principal consisting of improper and illicit charges such
as attorney’s fees . . . other default fees that should
never have been [in]curred, commencing a second fore-
closure action for no reason, and accrued interest . . .
far [in] excess of what [the plaintiffs] would pay had
[the defendant] timely and properly evaluated their ini-
tial loan modification application.’’ These allegations
provide additional support for the conclusion that the
defendant’s conduct was immoral, unethical, oppres-
sive, or unscrupulous. See, e.g., Votto v. American Car
Rental, Inc., supra, 273 Conn. 485; see also Monetary
Funding Group, Inc. v. Pluchino, 87 Conn. App. 401,
413, 867 A.2d 841 (2005) (mortgagee’s intentional mis-
conduct with respect to transaction in order to obtain
excessive fees and costs satisfied second cigarette
rule criterion).
The plaintiffs further allege that the defendant’s con-
duct was a result of a widespread policy that prevented
borrowers from receiving HAMP modifications. This
allegation is based on affidavits from employees of the
defendant taken in connection with a motion for class
certification in a federal action filed against the defen-
dant. See Sheely v. Bank of America, N.A., 36 F. Supp.
3d 1364, 1372 (2014); see also In re Bank of America
Home Affordable Modification Program (HAMP) Con-
tract Litigation, Docket No. M.D.L. 10-2193 (RWZ),
2013 WL 4759649 (D. Mass. September 4, 2013). Specifi-
cally, the plaintiffs alleged that the defendant had a
corporate culture of intentional and wrongful conduct.
Such conduct included requiring customers to return
documents on short notice but waiting months before
reviewing such documents, training employees to
falsely tell homeowners that it had not received their
documents, allowing employees to remove documents
from homeowners’ files in order to make the accounts
appear ineligible for modification, training employees
to perform a ‘‘blitz’’ twice a month, during which the
defendant would order case managers and underwriters
to deny any HAMP applications in which the financial
documents were more than sixty days old, and failing
to adequately train and staff the departments responsi-
ble for processing HAMP modifications. Such an allega-
tion further supports a determination that the
defendant’s conduct was immoral, unethical, oppres-
sive, or unscrupulous. Cf. Jacobs v. Healey Ford-
Subaru, Inc., 231 Conn. 707, 729, 652 A.2d 496 (1995)
(statutory noncompliance was not unfair, deceptive or
oppressive when it was ‘‘isolated instance of misinter-
pretation by the defendant of its obligations due to the
unique circumstances of this particular case as distin-
guished from unfair or deceptive acts or practices in
the defendant’s trade or business’’); see Nickerson-Reti
v. Bank of America, N.A., Docket No. 13-12316 (FDS),
2018 WL 2271013, *17 (D. Mass. May 17, 2018) (‘‘sworn
statements from Bank of America employees made in
connection with a different Massachusetts lawsuit’’ that
employees were instructed to delay action on applica-
tions, offer more expensive in-house options, and deny
applications in which financial documents were more
than thirty or sixty days old constituted sufficient evi-
dence from which fact finder could conclude that bank
engaged in unfair and deceptive practices). As such,
viewed in the light most favorable to sustaining the
complaint’s legal sufficiency, we conclude that the
plaintiffs have sufficiently alleged immoral, unethical,
oppressive, or unscrupulous actions that satisfy the sec-
ond criterion of the cigarette rule.
3
Finally, we turn to the third criterion, which requires
us to consider whether the alleged conduct caused sub-
stantial injury to the plaintiffs. See Ulbrich v. Groth,
supra, 310 Conn. 409. In evaluating whether the third
criterion is satisfied, we have explained that ‘‘not . . .
every consumer injury is legally unfair . . . . To justify
a finding of unfairness the injury must satisfy three
tests. It must be substantial; it must not be outweighed
by any countervailing benefits to consumers or competi-
tion that the practice produces; and it must be an injury
that consumers themselves could not reasonably have
avoided.’’ (Internal quotation marks omitted.) McLaug-
hlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569–70,
473 A.2d 1185 (1984).
The plaintiffs have sufficiently alleged that they suf-
fered substantial injury from the defendant’s conduct.
They alleged that the permanent HAMP loan modifica-
tion agreement ‘‘called for a balance that included tens,
if not hundreds, of thousands of [dollars in] new princi-
pal . . . .’’ Specifically, the plaintiffs alleged that they
incurred an accumulation of interest, default fees, sig-
nificant arrearages, attorney’s fees, and a much higher
monthly mortgage payment, lost the opportunity to earn
$5000 in borrower incentive payments under HAMP,
and suffered emotional distress. Further, the plaintiffs
alleged systematic defects with the defendant’s loan
servicing practices, which had the potential to injure a
large number of other consumers. See Stephens v. Capi-
tal One, N.A., Docket No. 15-cv-9702, 2016 WL 4697986,
*6 (N.D. Ill. September 7, 2016) (‘‘[d]efendant’s expan-
sive consumer base . . . allows the [c]ourt to reason-
ably infer that a large consumer base may be at risk
for similar conduct that has been alleged to qualify as
‘unfair’ under the [state’s consumer protection act]’’).
There is also a sufficient basis to infer that the defen-
dant’s practices are not outweighed by countervailing
benefits to consumers or competitors, as the legal
requirements prescribed under HAMP, RESPA and the
other obligations have already been weighed in that
balance. The defendant has identified no benefit that
inures to the consumer by allowing it to provide
untimely, incomplete, and inaccurate information. Inso-
far as the defendant asserts that requiring servicers to
timely and appropriately process HAMP modification
applications will deter such entities from engaging in
the modification process, that might be the case if we
were concluding that minor, infrequent, unintentional
delays and/or errors in processing applications provide
a basis for a CUTPA claim. We plainly are not.19 The
defendant’s alleged practices could hardly be character-
ized as simply a ‘‘technical violation’’ of a statute; Nor-
mand Josef Enterprises, Inc. v. Connecticut National
Bank, supra, 230 Conn. 524; an inadvertent violation of
a statute; Gaynor v. Union Trust Co., 216 Conn. 458,
483, 582 A.2d 190 (1990); or an isolated incident of a
good faith mistake. Jacobs v. Healey Ford-Subaru, Inc.,
supra, 231 Conn. 728–29.20 There continues to be a finan-
cial incentive for investors to have their loan servicers
modify loans rather than undertake foreclosure in
appropriate cases. See, e.g., A. Levitin, ‘‘Resolving the
Foreclosure Crisis: Modification of Mortgages in Bank-
ruptcy,’’ 2009 Wis. L. Rev. 565, 568 (2009) (‘‘lenders
are estimated to lose from 40 to 50 percent of their
investment in a foreclosure situation’’). Indeed, that is
the purpose of HAMP’s net present value test. See J.
Chiles & M. Mitchell, ‘‘HAMP: An Overview of the Pro-
gram and Recent Litigation Trends,’’ 65 Consumer Fin.
L. Q. Rep. 194, 196 (2011) (‘‘[net present value] test is
a mathematical formula used to determine whether the
mortgage investor would make more money by approv-
ing a modification or by allowing the subject property
to go into foreclosure’’); A. Sarapinian, supra, 64 Has-
tings L.J. 918 (net present value test ‘‘is a formula that
determines whether it would be more profitable for
servicers and the loan’s investors to approve a modifica-
tion or to foreclose on the property’’). Permitting recov-
ery based on allegations that a servicer made
continuous and systematic departures from known
standards is not outweighed by any benefits to loan
servicers in escaping liability for such actions.
Undoubtedly, the plaintiffs could have avoided their
injuries had they not defaulted on their mortgage. But
that is the case in every situation involving a modifica-
tion process for a financially troubled borrower. Bor-
rowers, however, generally do not choose their loan
servicer, and, consequently, any injuries sustained as a
result of the improper handling of a loan modification
process are not ones that consumers could have reason-
ably avoided. Thus, we conclude that, on balance, the
plaintiffs have alleged conduct that caused them sub-
stantial injury.
Mindful that CUTPA is a broad remedial statute, and
given the degree to which the defendant’s alleged con-
duct, viewed in the light most favorable to sustaining
the legal sufficiency of the complaint, violates each
cigarette rule criterion, we conclude that the plaintiffs
have alleged a CUTPA violation sufficient to survive a
motion to strike. Accordingly, we reverse the judgment
of the trial court insofar as that court struck the CUTPA
count of the plaintiffs’ complaint.
B
Negligence
We now turn to the plaintiffs’ claim that the defen-
dant’s alleged misconduct during the course of the loan
modification negotiations was negligent. Although it is
not clear from the complaint, the plaintiffs, on appeal,
contend that they have alleged two theories of negli-
gence: (1) they were owed a common-law duty of care
arising out of HAMP, RESPA, the state’s foreclosure
mediation statutes, the 2011 consent order, and the
national mortgage settlement; and (2) the requirements
imposed by RESPA and this state’s foreclosure media-
tion statutes establish a duty of care, the violations of
which constitute negligence per se.
We begin with the plaintiffs’ common-law theory.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . Duty is a legal con-
clusion about relationships between individuals, made
after the fact, and [is] imperative to a negligence cause
of action. . . . Thus, [t]here can be no actionable negli-
gence . . . unless there exists a cognizable duty of
care.’’ (Internal quotation marks omitted.) Mazurek v.
Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d
682 (2007). A duty of care ‘‘may arise from a contract,
from a statute, or from circumstances under which a
reasonable person, knowing what he knew or should
have known, would anticipate that harm of the general
nature of that suffered was likely to result from his act
or failure to act.’’ Coburn v. Lenox Homes, Inc., 186
Conn. 370, 375, 441 A.2d 620 (1982). ‘‘[T]he test for
the existence of a legal duty [of care] entails (1) a
determination of whether an ordinary person in the
defendant’s position, knowing what the defendant knew
or should have known, would anticipate that harm of
the general nature of that suffered was likely to result,
and (2) a determination, on the basis of a public policy
analysis, of whether the defendant’s responsibility for
its negligent conduct should extend to the particular
consequences or particular plaintiff in this case.’’ (Inter-
nal quotation marks omitted.) Ruiz v. Victory Proper-
ties, LLC, 315 Conn. 320, 328–29, 107 A.3d 381 (2015).
The plaintiffs contend that we should recognize a
common-law duty requiring a loan servicer to use rea-
sonable care in the review and processing of a mortgag-
or’s loan modification applications. We decline to do so.
We agree with the plaintiffs that, based on the defen-
dant’s extensive experience servicing defaulted mort-
gages, it was foreseeable that, if the defendant failed
to timely and efficiently review their loan modification
applications, the plaintiffs would suffer financial harm
as a result. Foreseeability that harm may result if a duty
of care is not exercised does not mean ‘‘that one charged
with negligence must be found actually to have foreseen
the probability of harm or that the particular injury
which resulted was foreseeable, but the test is, would
the ordinary [person] in the defendant’s position, know-
ing what he knew or should have known, anticipate
that harm of the general nature of that suffered was
likely to result . . . .’’ (Internal quotation marks omit-
ted.) Jarmie v. Troncale, 306 Conn. 578, 590, 50 A.3d 802
(2012). A sophisticated loan servicer, like the defendant,
should reasonably foresee that an unnecessarily pro-
longed period of default caused by the negligent han-
dling of loan modification applications would cause a
borrower to suffer financial injury, such as attorney’s
fees and additional interest and default fees. In fact, as
we explained in part III A of this opinion, this effect is
alleged to have been the defendant’s objective.
‘‘[A] simple conclusion that the harm to the plaintiff
was foreseeable . . . cannot by itself mandate a deter-
mination that a legal duty exists. Many harms are quite
literally foreseeable, yet for pragmatic reasons, no
recovery is allowed. . . . A further inquiry must be
made, for we recognize that duty is not sacrosanct in
itself . . . but is only an expression of the sum total
of those considerations of policy [that] lead the law to
say that the plaintiff is entitled to protection. . . . The
final step in the duty inquiry, then, is to make a determi-
nation of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend
to such results.’’ (Internal quotation marks omitted.)
Munn v. Hotchkiss School, 326 Conn. 540, 549–50, 165
A.3d 1167 (2017).
‘‘[I]n considering whether public policy suggests the
imposition of a duty, we . . . consider the following
four factors: (1) the normal expectations of the partici-
pants in the activity under review; (2) the public policy
of encouraging participation in the activity, while
weighing the safety of the participants; (3) the avoid-
ance of increased litigation; and (4) the decisions of
other jurisdictions. . . . [This] totality of the circum-
stances rule . . . is most consistent with the public
policy goals of our legal system, as well as the general
tenor of our [tort] jurisprudence.’’ (Citation omitted;
internal quotation marks omitted.) Ruiz v. Victory
Properties, LLC, supra, 315 Conn. 337. The second and
third factors are analytically related and considered
together. See Lawrence v. O & G Industries, Inc., 319
Conn. 641, 658, 126 A.3d 569 (2015). ‘‘[I]n considering
these two factors, [we] at times [have] employed a bal-
ancing test to determine whether, in the event that a
duty of care is recognized by the court, the advantages
of encouraging participation in the activity under review
outweigh the disadvantages of the potential increase in
litigation.’’ Bloomfield Health Care Center of Connecti-
cut, LLC v. Doyon, supra, 185 Conn. App. 371. ‘‘We
acknowledge that as in any case that involves the ques-
tion of whether our public policy, as a matter of com-
mon law, should recognize a new cause of action, the
ultimate decision comes down to a matter of judgment
in balancing the competing interests involved.’’ Men-
dillo v. Board of Education, 246 Conn. 456, 495, 717
A.2d 1177 (1998), overruled in part on other grounds
by Campos v. Coleman, 319 Conn. 36, 37–38, 123 A.3d
854 (2015).
As a general matter, the law does not impose a duty
on lenders to use reasonable care in its commercial
transactions with borrowers because the relationship
between lenders and borrowers is contractual and loan
transactions are conducted at arm’s length. See Saint
Bernard School of Montville, Inc. v. Bank of America,
312 Conn. 811, 836, 95 A.3d 1063 (2014) (‘‘[g]enerally
there exists no fiduciary relationship merely by virtue
of a borrower-lender relationship between a bank and
its customer’’ [internal quotation marks omitted]);
Southbridge Associates, LLC v. Garofalo, 53 Conn. App.
11, 19, 728 A.2d 1114 (‘‘[a] lender has the right to further
its own interest in a mortgage transaction and is not
under a duty to represent the customer’s interest’’),
cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). The
question, therefore, is whether to treat a relationship
between an investor’s loan servicer and a mortgagor
differently in the context of the former’s review and
processing of a loan modification application.
With respect to the normal expectations of the partici-
pants in the activity, the plaintiffs argue that they ‘‘rea-
sonably expected that the defendant, a large national
institution with dozens of retail banking branches in
their own state, would review their loan workout appli-
cations in a timely and accurate manner’’ and that the
defendant ‘‘should reasonably expect that it will need
to follow the rules to which it is subject.’’ We agree.
This factor, however, is just one in the totality of the
circumstances assessment.
As to the second and third factors, we agree with the
defendant that imposing a duty of care could inhibit
participation in the loan modification process and
increase litigation. Recognizing a duty of care and, con-
sequently, a negligence cause of action, would have far-
reaching consequences that extend beyond anything
implicated under CUTPA.21 In part III A of this opinion,
we concluded that the plaintiffs’ allegations, if credited,
would allow a jury to conclude that the defendant
engaged in numerous, systematic abuses that prevented
homeowners from receiving HAMP modifications and,
as such, were sufficiently unfair and deceptive to state
a claim under CUTPA. If the court were to recognize
a common-law duty of care, however, it could result in
loan servicer liability for isolated violations or far less
consequential violations of the loan modification pro-
cess, which would hinder servicer participation in the
modification process. Indeed, several courts have
explained that recognizing a private right of action
under HAMP for mere negligence ‘‘would likely chill
servicer participation based on fear of exposure to liti-
gation.’’ Miller v. Chase Home Finance, LLC, 677 F.3d
1113, 1116 (11th Cir. 2012); see Zoher v. Chase Home
Financing, Docket No. 10-14135-CIV, 2010 WL 4064708,
*4 (S.D. Fla. October 15, 2010) (no implied private right
of action because servicers would be discouraged ‘‘from
participating in the program because they would be
exposed to significant litigation expenses’’). ‘‘[B]y creat-
ing a compliance vehicle through [the Federal Home
Loan Mortgage Corporation, known as] Freddie Mac
and by including reporting requirements, the HAMP
[g]uidelines already designated a scheme to correct
. . . any mortgagee wrongdoing.’’ (Internal quotation
marks omitted.) Zoher v. Chase Home Financing,
supra, *4.
With respect to the national mortgage settlement and
the 2011 consent order, although the defendant agreed
to comply with the more stringent servicing standards
when it entered into these settlements, they do not
create a special relationship between lenders and bor-
rowers that would give rise to a legal duty. See Miller
v. Bank of New York Mellon, 379 P.3d 342, 348 (Colo.
App. 2016) (‘‘courts across the country have held that
the [national mortgage settlement] did not create a spe-
cial relationship between lenders and borrowers’’); id.
(citing cases holding that no such relationship was cre-
ated). Furthermore, as incidental third-party beneficiar-
ies of the national mortgage settlement and the 2011
consent order, individual borrowers do not have stand-
ing to sue to protect the benefits that they confer. See
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723,
750, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975) (consent
decree is ‘‘not enforceable directly or in collateral pro-
ceedings by those who are not parties to it even though
they were intended to be benefited by it’’); Securities &
Exchange Commission v. Prudential Securities, Inc.,
136 F.3d 153, 159 (D.C. Cir. 1998) (‘‘[w]hen a consent
decree or contract explicitly provides that a third party
is not to have enforcement rights, that third party is
considered an incidental beneficiary even if the parties
to the decree or contract intended to confer a direct
benefit upon that party’’). Indeed, courts have rejected
claims by individual borrowers under the national mort-
gage settlement. See, e.g., Ghaffari v. Wells Fargo Bank,
N.A., 6 F. Supp. 3d 24, 30 (D.D.C. 2013) (‘‘claims by
individual borrowers . . . are excluded from the
[national mortgage settlement]’’); Miller v. Bank of New
York Mellon, supra, 347 (‘‘numerous federal and state
courts . . . have unanimously rejected homeowner
claims against their lenders premised on the [national
mortgage settlement], holding that homeowners lack
standing to enforce it’’). If we were to find that the
national mortgage settlement or the 2011 consent order
gives rise to a duty owed to incidental beneficiaries, it
would discourage parties from resolving issues in this
manner and run afoul of our strong public policy in
favor of the voluntary settlement of civil suits. See All-
state Ins. Co. v. Mottolese, 261 Conn. 521, 531, 803 A.2d
311 (2002).
Moreover, loan servicers are already exposed to lia-
bility for violations of RESPA’s implementing regula-
tion, Regulation X; see 12 U.S.C. § 2605 (f) (2012); 12
C.F.R. § 1024.41 (a) (2014); and civil penalties for viola-
tions of the national mortgage settlement; see P. Leh-
man, supra, p. 3; and 2011 consent order; see In re
Bank of America, N.A., Charlotte, NC, supra, 2011 WL
6941540, *16. This state’s foreclosure mediation statutes
similarly allow for the use of sanctions to deter and
punish inappropriate conduct during the course of
mediation. See General Statutes § 49-31n (c) (2). As
such, it is not likely that imposing a new duty on loan
servicers will further incentivize them to carry out their
review of loan modification applications with any more
due care, but it will increase litigation. See, e.g., Law-
rence v. O & G Industries, Inc., supra, 319 Conn. 659
(‘‘[W]e observe that expanding the defendants’ liability
in this industrial accident context to include the purely
economic damages suffered by other workers on site
appears likely to increase the pool of potential claim-
ants greatly. At the same time, the recognition of such a
duty fails to provide a corresponding increase in safety,
given that companies like the defendants are subject
to extensive state and federal regulation, and already
may be held civilly liable to a wide variety of parties
who may suffer personal injury or property damage as
a result of their negligence in the industrial or construc-
tion context.’’ [Footnote omitted.]). Thus, we agree with
the defendant that, under the second and third factors,
imposing a duty on a loan servicer would frustrate the
loan modification process and lead to increased liti-
gation.
Finally, the plaintiffs concede that the fourth factor,
the decisions of other jurisdictions, does not cut in
either party’s favor. See Blanco v. Bank of America,
N.A., Superior Court, judicial district of Hartford,
Docket No. CV-XX-XXXXXXX-S (April 20, 2016)
(‘‘[a]lthough this court’s own independent research
reveals that some jurisdictions have imposed a duty of
care on entities in the defendant’s position, it is appar-
ent that no clear consensus exists’’). We note, however,
that numerous courts have concluded that neither
HAMP nor the relationship between a borrower and
servicer/lender imposes any duty of care owed by lend-
ing banks and servicers to borrowers. See, e.g., Mac-
Kenzie v. Flagstar Bank, FSB, 738 F.3d 486, 495–96
(1st Cir. 2013) (relationship between borrower and
lender does not give rise to duty of care, and failure
to abide by servicer participation agreement or HAMP
when processing loan modifications does not give rise
to negligence claim); Legore v. OneWest Bank, FSB, 898
F. Supp. 2d 912, 918 (D. Md. 2012) (plaintiff could not
rely on alleged violation of HAMP guidelines as sole
basis for negligence claim because Congress did not
intend to create private right of action); Thomas v.
JPMorgan Chase & Co., 811 F. Supp. 2d 781, 800
(S.D.N.Y. 2011) (servicer participation agreement and
HAMP did not impose duty on financial institutions
with respect to borrowers, and banks do not owe duty
of care to borrowers); Brown v. Bank of America Corp.,
United States District Court, Docket No. 10-11085 (D.
Mass. March 31, 2011) (HAMP guidelines do not create
duty of care); U.S. Bank, N.A. v. Phillips, 318 Ga. App.
819, 826, 734 S.E.2d 799 (2012) (‘‘[t]he provisions of
HAMP do not plainly impose a legal duty intended to
benefit homeowners, so as to authorize a private negli-
gence cause of action’’); Santos v. U.S. Bank National
Assn., 89 Mass. App. 687, 699, 54 N.E.3d 548 (‘‘[i]t is
now [well established] that, as a matter of law, HAMP
does not create a duty of care owed by mortgagees to
mortgagors’’), review denied, 476 Mass. 1103, 63 N.E.3d
387 (2016).
As we have observed, ‘‘[c]ourts operating in the quint-
essential common-law context—that is, when they are
asked to recognize a new common-law cause of
action—function best, and command the most respect,
when their decisions can be defended on grounds of
reason and principle.’’ Mendillo v. Board of Education,
supra, 246 Conn. 486. Thus, we ‘‘should demand a very
strong showing of policy reasons before doing so.’’ Id.,
487. In our view, on balance, that showing does not exist
here. Thus, because we conclude that the defendant
did not owe a common-law duty of care to the plaintiffs,
the trial court properly struck the plaintiffs’ common-
law negligence count.22
The plaintiffs contend, however, that their negligence
count also may be construed to extend to a theory of
negligence per se. The defendant contends that this
claim is not properly before us. It points out that the
plaintiffs did not allege negligence per se in their com-
plaint and did not allege the violation of any specific
statute by the defendant that would support a negli-
gence per se claim. The plaintiffs also did not raise the
issue of negligence per se in their motion to reargue,
seek an articulation from the trial court on this pur-
ported claim, or seek to plead it in a revised complaint.
In response, the plaintiffs contend that they ade-
quately pleaded negligence per se in paragraph 174 of
their complaint, wherein they alleged that the defendant
‘‘breached a duty imposed by federal regulations and
state statutes,’’ and in paragraph 177 of their complaint,
wherein they alleged that ‘‘such breach caused their
injury.’’ The plaintiffs also contend that they defended
their negligence per se claim in their opposition to the
defendant’s motion to strike.
To state a claim of negligence per se, the plaintiffs
must satisfy a two-pronged test: (1) they are within the
class of persons intended to be protected by the statute;
and (2) their injury is the type of harm that the statute
was intended to prevent. See, e.g., Gore v. People’s Sav-
ings Bank, 235 Conn. 360, 375–76, 665 A.2d 1341 (1995).
‘‘The doctrine of negligence per se serves to superim-
pose a legislatively prescribed standard of care on the
general standard of care.’’ Staudinger v. Barrett, 208
Conn. 94, 101, 544 A.2d 164 (1988).
Nowhere in the complaint do the plaintiffs specifi-
cally allege negligence per se. Nor do they identify par-
ticular legal provisions that the defendant violated.
Even in their opposition to the defendant’s motion to
strike, on which the plaintiffs rely, they did not identify
which statutory provisions established the standard of
care that the defendant violated.23 The plaintiffs were
required to plead their claim of negligence per se with
greater specificity. See, e.g., White v. Mazda Motor of
America, Inc., 313 Conn. 610, 631, 99 A.3d 1079 (2014)
(‘‘an issue must be ‘distinctly raised’ before the trial
court, not just ‘briefly suggested’ ’’). As the plaintiffs
acknowledge in their brief, the violation of a statute may
constitute negligence per se, or create a presumption
of negligence, or make out a prima facie case of negli-
gence, or constitute evidence of negligence. See, e.g.,
Ward v. Greene, 267 Conn. 539, 548, 839 A.2d 1259
(2004); see also Vermont Mutual Ins. Co. v. Fern, 165
Conn. App. 665, 672 n.7, 140 A.3d 278 (2016). The plain-
tiffs’ simple assertion in their opposition to the defen-
dant’s motion to strike that the defendant violated
RESPA and this state’s foreclosure mediation statutes
was not sufficient to put the defendant and the trial
court on notice that they were advancing a theory of
negligence per se. This lack of notice is reflected in the
trial court’s failure to address negligence per se in its
decision granting the motion to strike. The plaintiffs
could have but failed to seek an articulation and made
no mention of negligence per se in their motion to
reargue. We conclude that the plaintiffs did not raise
this claim distinctly before the trial court. ‘‘The require-
ment that [a] claim be raised distinctly [before the trial
court] means that it must be so stated as to bring to
the attention of the court the precise matter on which its
decision is being asked.’’ (Emphasis in original; internal
quotation marks omitted.) Remillard v. Remillard, 297
Conn. 345, 351, 999 A.2d 713 (2010). Accordingly, it
would not be appropriate for this court to consider this
claim as a basis to reverse the trial court’s decision
granting the motion to strike the negligence count.
The judgment is reversed with respect to the claim
alleging violations of CUTPA and the case is remanded
with direction to deny the defendant’s motion to strike
that claim and for further proceedings according to law;
the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
1
At the time of the plaintiffs’ default, their loan was serviced by Wilshire
Credit Corporation, a predecessor of the defendant. Wilshire merged with
and into BAC Home Loans Servicing, LP (BACHLS), effective March 1, 2010,
and the defendant is the successor to BACHLS as a result of a July 1, 2011
de jure merger with BACHLS. Because the defendant does not contest that
it assumed BACHLS’ liabilities as a matter of law, we reference all of the
conduct alleged to be that of the defendant.
2
The plaintiffs claim that federal and national statutory and regulatory
requirements and this state’s foreclosure mediation statutes form a compre-
hensive policy framework that supports the imposition of liability under
CUTPA and a claim for negligence. We refer to these requirements as federal
and national because certain of the requirements are federal statutes and
policies, whereas the national mortgage settlement was a joint settlement
between the United States and the attorneys general of forty-nine states
and the District of Columbia and several loan servicers. These statutes and
agreements will be discussed in greater detail in part II of this opinion.
3
‘‘A servicer is neither a lender nor investor but is often a third-party
financial institution that is hired by investors to manage and account for
the loan. In other words, a servicer is tasked with interacting with borrowers
and collecting and managing the borrower’s monthly mortgage payments.
Servicers primarily profit from a monthly servicing fee, which is a fixed
percentage of the outstanding principal balance, but when a loan becomes
delinquent, the amount and nature of servicing changes. . . . [I]t is the
servicer that decides whether to foreclose or modify a loan. In some cases,
a servicer can make a greater profit from initiating foreclosure than from
granting a permanent loan modification.’’ (Footnotes omitted.) A. Sarapinian,
‘‘Fighting Foreclosure: Using Contract Law To Enforce the Home Affordable
Modification Program (HAMP),’’ 64 Hastings L.J. 905, 913 (2013).
4
‘‘A borrower who requests a loan modification under HAMP is entitled
to a net present value calculation—that is, a determination of whether
modifying the loan is worth more to the lender than proceeding to foreclo-
sure. If modification is worth more, the [net present value] is positive and
the lender is required to modify the loan, but if foreclosure is worth more,
the [net present value] is negative and the lender may decline to modify.’’
Neil v. Wells Fargo Bank, N.A., 686 Fed. Appx. 213, 215 n.3 (4th Cir. 2017).
The defendant initially estimated the net present value of the plaintiffs’
property at $677,467. The plaintiffs’ appraiser valued it at $585,000. There-
after, the defendant ordered its own appraisal and concluded it was worth
even less than the plaintiffs claimed, valuing it at $525,000. The defendant
refused to change its analysis to reflect the accurate valuation.
5
These allegations are based on affidavits from employees of the defen-
dant and its controlled subsidiaries taken in connection with a motion for
class certification in an action filed in federal court against the defendant.
See Sheely v. Bank of America, N.A., 36 F. Supp. 3d 1364, 1372 (2014); see also
In re Bank of America Home Affordable Modification Program (HAMP)
Contract Litigation, Docket No. M.D.L. 102193 (RWZ), 2013 WL 4759649
(D. Mass. September 4, 2013).
6
The plaintiffs also alleged that the defendant ‘‘assumed a duty to diligently
review [their] loan modification applications when it solicited and invited
them to apply for such assistance.’’ The plaintiffs’ brief does not address a
theory of assumed duty, and, thus, we deem any argument based on this
allegation to be waived. Cf. MacDermid, Inc. v. Leonetti, 328 Conn. 726,
748, 183 A.3d 611 (2018) (‘‘[a]nalysis, rather than mere abstract assertion,
is required in order to avoid abandoning an issue by failure to brief the
issue properly’’ [internal quotation marks omitted]).
7
Although not raised in the defendant’s pleadings, the trial court injected a
concern that allowing such actions could interfere with a mortgage servicer’s
relationship with the loan investor. The defendant similarly does not advance
that argument to this court, and, consequently, we decline to address it.
8
‘‘The Great Recession began in December 2007 and ended in June 2009,
which makes it the longest recession since World War II. Beyond its duration,
the Great Recession was notably severe in several respects. . . . Home
prices fell approximately 30 percent, on average, from their mid-2006 peak
to mid-2009, while the S&P 500 index fell 57 percent from its October 2007
peak to its trough in March 2009.’’ R. Rich, The Great Recession, available
at https://www.federalreservehistory.org/essays/great_recession_of_200709
(last visited November 18, 2019). Foreclosure actions soared during this
time period. See generally Equity One, Inc. v. Shivers, 310 Conn. 119,
145 n.7, 74 A.3d 1225 (2013) (McDonald, J., dissenting) (noting mortgage
foreclosure crisis during this period). Nationwide, between 2007 and 2011,
foreclosures were initiated on 11 million properties. See A. Sarapinian,
‘‘Fighting Foreclosure: Using Contract Law To Enforce the Home Affordable
Modification Program (HAMP),’’ 64 Hastings L.J. 905, 906–907 (2013).
9
‘‘Mortgage lenders approved by [the Federal National Mortgage Associa-
tion, known as] Fannie Mae must participate in HAMP. . . . Lenders servic-
ing mortgages not owned or guaranteed by Fannie Mae or [the Federal
Home Loan Mortgage Corporation, known as] Freddie Mac may elect to
participate in HAMP by executing a [s]ervicer [p]articipation [a]greement
with Fannie Mae in its capacity as financial agent for the United States.’’
(Citations omitted; footnote omitted.) Markle v. HSBC Mortgage Corp.
(USA), 844 F. Supp. 2d 172, 176–77 (D. Mass. 2011).
10
The defendant neither admitted nor denied the Comptroller’s findings.
See In re Bank of America, N.A. Charlotte, NC, supra, 2011 WL 6941540, *1.
11
Enforcement actions concerning other servicers were also resolved
in April, 2011. See Office of the Comptroller of the Currency, Correcting
Foreclosure Practices (last modified January 31, 2017), available at https://
www.occ.gov/topics/consumers-and-communities/consumer-protection/fore-
closure-prevention/correcting-foreclosure-practices.html (last visited
November 18, 2019).
12
‘‘ ‘Trade’ and ‘commerce’ means the advertising, the sale or rent or lease,
the offering for sale or rent or lease, or the distribution of any services and
any property, tangible or intangible, real, personal or mixed, and any other
article, commodity, or thing of value in this state.’’ General Statutes § 42-
110a (4). The parties do not dispute that the plaintiffs, as loan borrowers, are
consumers within the meaning of CUTPA. See, e.g., Compton v. Countrywide
Financial Corp., 761 F.3d 1046, 1053 (9th Cir. 2014) (loan borrowers are
consumers within meaning of Hawaii’s consumer protection statute).
13
The defendant contends that the plaintiffs’ CUTPA claim relies on settle-
ment negotiations and that such interactions do not fall within CUTPA’s trade
or commerce requirement. The defendant provides no relevant authority to
support this proposition, and it appears to be directly in conflict with the
authority previously cited, as well as authority discussed later in this opinion.
The defendant also appears to make a more sweeping argument that
‘‘settlement negotiations’’ cannot provide the basis for a CUTPA claim
because Connecticut law generally does not permit evidence of such negotia-
tions to be admitted at trial. See, e.g., Tomasso Bros., Inc. v. October Twenty-
Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992) (‘‘[t]he general rule
that evidence of settlement negotiations is not admissible at trial is based
upon the public policy of promoting the settlement of disputes’’ [internal
quotation marks omitted]). If the defendant were right, this argument would
preclude any theory of liability, not simply under CUTPA, and would permit
the defendant to engage in conduct manifestly in conflict with its obligations
under federal and state law. We need not concern ourselves with this out-
come, however, because there is no authority that supports construing this
evidentiary rule regarding settlement negotiations to apply to the plaintiffs’
allegations. The plaintiffs plainly are not relying on the substantive terms
of any modification offer made or any concessions made by the defendant
to resolve the default issue. Rather, they are relying on the defendant’s lack
of compliance with procedural requirements.
14
The trial court did not specify which prong or prongs of the cigarette
rule served as the basis for its decision. As such, we evaluate each prong.
15
Indeed, the plaintiffs’ complaint alleges that ‘‘[t]he foregoing conduct
of [the defendant] demonstrates wilful, knowing, calculated, deceitful, and
unfair conduct, and reckless indifference to [the plaintiffs’] rights.’’
16
We note that, although a borrower does not have a private right of
action under HAMP; Condel v. Bank of America, N.A., United States District
Court, Docket No. 3:12CV212 (HEH) (E.D. Va. July 5, 2012); a plaintiff
may predicate a CUTPA claim on violations of statutes or regulations that
themselves do not allow for private enforcement. See Eder Bros., Inc. v.
Wine Merchants of Connecticut, Inc., 275 Conn. 363, 381–82, 880 A.2d 138
(2005). Recovery under CUTPA for violations of HAMP is compatible with
the objectives of HAMP, which is to help homeowners avoid foreclosure
by obtaining a loan modification. See, e.g., Wigod v. Wells Fargo Bank,
N.A., 673 F.3d 547, 579–86 (7th Cir. 2012) (action under Illinois consumer
protection act is consistent with HAMP); Morris v. BAC Home Loans Servic-
ing, L.P., 775 F. Supp. 2d 255, 261 (D. Mass. 2011) (recovery under Massachu-
setts consumer protection act is consistent with HAMP). Indeed, ‘‘the
[s]ervicer [p]articipation [a]greement between servicers and the government
provides that participating servicers must covenant to act consistent with
state consumer protection laws.’’ Morris v. BAC Home Loans Servicing,
L.P., supra, 261.
17
Permitting recovery under CUTPA for violations of RESPA is compatible
with RESPA’s objectives and enforcement mechanisms. RESPA is a con-
sumer protection statute; 12 U.S.C. § 2601 (2012) (Congressional findings);
which, by way of Regulation X, establishes obligations concerning how a
loan servicer must handle a borrower’s loss mitigation application. See 12
C.F.R. § 1024 et seq. (2014). By providing a private right of action pursuant
to 12 U.S.C. § 2605 (f), it is the intent of RESPA that borrowers have the
ability to enforce compliance. There is nothing about recovery under CUTPA
that actively conflicts with this enforcement scheme.
18
We are mindful that Regulation X did not come into effect until January
10, 2014. As such, the plaintiffs’ reliance on conduct in violation of RESPA
must be limited to actions that occurred on or after that effective date.
See Campbell v. Nationstar Mortgage, 611 Fed. Appx. 288, 297 (6th Cir.)
(Regulation X’s effective date reflects intent not to apply it to conduct
occurring prior to that date), cert. denied, U.S. , 136 S. Ct. 272, 193 L.
Ed. 2d 137 (2015).
19
As previously discussed, the plaintiffs alleged that the defendant had
engaged in numerous, systematic abuses of the mortgage modification pro-
cess. The defendant not only violated the public policies embodied in HAMP
and RESPA but also the 2011 consent order and the national mortgage
settlement, to which it was a party. Indeed, the 2011 consent order and the
national mortgage settlement were the result of findings that the defendant
had not been executing HAMP modification reviews with the ‘‘high standard
of care’’ required by the program. See United States v. Bank of America
Corp., supra, United States District Court, Docket No. 1:12-cv-00361 (RMC);
In re Bank of America, N.A., Charlotte, NC, supra, 2011 WL 6941540, *2;
HAMP Supplemental Directive 09-08, supra, p. 1. We do not have occasion
to address whether a servicer would be liable if any of these aggravating
factors were not present.
20
The trial court’s concern that it is not ‘‘appropriate or productive to
adopt a requirement of ‘just right’ pacing of foreclosure mediation and
negotiations, where too fast or too slow (including inefficiency and perhaps
some level of incompetence) might result in . . . CUTPA based liability’’
is therefore misplaced.
21
As we discuss in greater detail in part III A 1 of this opinion, the policy
considerations implicated in our CUTPA analysis are different from those
implicated in the negligence context. Loan servicer misconduct is more
appropriately addressed by a statute targeted at business practices, like
CUTPA, rather than a generic common-law principle, like negligence.
22
We note that the plaintiffs concede in their brief that, if we determine
an increase in litigation is likely and decline to find a common-law duty of
care, ‘‘the solution would be to strike the common-law aspects of the negli-
gence claim . . . .’’
23
Similarly, in their brief before this court, the plaintiffs broadly argue that
the defendant ‘‘routinely flouted the statutory objectives of the mediation
program’’ and ‘‘did not comply with [Regulation X’s] requirements to provide
accurate information about loss mitigation options, exercise reasonable
diligence in reviewing the [plaintiffs’] loss mitigation applications, or comply
with the appeal requirements of the regulation.’’