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THE BANK OF NEW YORK MELLON, TRUSTEE v.
SEBASTIAN MANGIAFICO ET AL.
(AC 42560)
Lavine, Moll and Devlin, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant M, following M’s failure to make any payment
on the note for a period of more than eight years. The trial court granted
the plaintiff’s motion for summary judgment as to liability only and
rendered a judgment of strict foreclosure, from which M appealed. On
appeal, M claimed that the trial court erred in granting the plaintiff’s
motion for summary judgment because the action was time barred by
statute (§ 42a-3-188) and the court failed to consider his special defense
that the plaintiff engaged in inequitable conduct. Held:
1. M’s claim that the limitation period in § 42a-3-118 barred the foreclosure
action was unavailing; the statute, which required that any action to
enforce the underlying debt represented by a note must be initiated
within six years after the accelerated due date in the note, applies only
to the enforcement of a note and did not bar a mortgage foreclosure
action on the same debt, and this court declined to overrule precedential
case law defining the note and the mortgage as separate instruments
and actions for foreclosure of the mortgage and upon the note as distinct
causes of action.
2. The trial court properly rejected the viability of M’s special defense that
the plaintiff engaged in inequitable conduct: M failed to sufficiently
allege a valid defense or otherwise meet his burden of proving the facts
alleged in his special defense, as his support of his defense consisted
only of an affidavit providing merely conclusory statements that did not
go to the making, validity or enforcement of the mortgage, and the court
properly refused to consider M’s testimony at the summary judgment
hearing; moreover, M’s attempted reliance on appeal on findings in the
foreclosure mediator’s final report was unavailing, as neither party had
submitted the report to the trial court for its consideration in the sum-
mary judgment context and, thus, this court did not consider that
evidence.
Submitted on briefs March 2—officially released July 7, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the defendant Stuart Hecht et al. were
defaulted for failure to appear; thereafter, the court,
Dubay, J., granted the plaintiff’s motion for summary
judgment as to liability only; subsequently, the court
granted the plaintiff’s motion for judgment of strict
foreclosure and rendered judgment thereon, from
which the named defendant appealed to this court.
Affirmed.
Paul G. Ryan, filed a brief for the appellant
(named defendant).
Adam D. Lewis, filed a brief for the appellee
(plaintiff).
Opinion
PER CURIAM. The defendant Sebastian Mangiafico1
appeals from the judgment of strict foreclosure ren-
dered in favor of the plaintiff, The Bank of New York
Mellon, formerly known as The Bank of New York, as
Trustee (CWALT 2007-14T2).2 On appeal, the defendant
claims that the trial court erred in granting the plaintiff’s
motion for summary judgment as to liability only
because (1) the action is time barred by the statute of
limitations set forth in General Statutes § 42a-3-118, and
(2) the court failed to consider the defendant’s fifth
special defense, namely, that the plaintiff engaged in
inequitable conduct.3 We affirm the judgment of the
trial court.
The record reveals the following facts and procedural
history. On February 17, 2007, the defendant executed
a promissory note (note) payable to Ascella Mortgage,
LLC, in the principal amount of $672,000. To secure the
note, the defendant executed an open-end mortgage
deed (mortgage) in favor of Mortgage Electronic Regis-
tration Systems, Inc., as nominee for Ascella Mortgage,
LLC, on real property located at 35 Sullivan Farm Road
in Broad Brook (property). Beginning in February, 2008,
and each and every month thereafter, the defendant
failed to make any payment on the note. The plaintiff
is the present holder of the note, and the mortgage was
assigned to the plaintiff on August 11, 2016.
On August 19, 2016, the plaintiff commenced this
mortgage foreclosure action by way of a one count
foreclosure complaint. After receiving the summons
and complaint, the defendant filed a foreclosure media-
tion certificate. On September 21, 2016, this case was
assigned to the foreclosure mediation program. There-
after, the plaintiff and the defendant participated in
several mediation sessions; however, those sessions
proved unsuccessful and, as a result, terminated on
February 7, 2018.
On February 28, 2018, the defendant filed an answer
and special defenses. Specifically, the defendant alleged
the following as special defenses: (1) he did not believe
that the amount of the debt stated was accurate; (2)
he did not believe that the plaintiff was the proper
holder of the note and the mortgage; (3) he did not
know if the mortgage was properly recorded; (4) the
plaintiff and its predecessors had acted in bad faith by
not communicating with the defendant and refusing to
make payment arrangements with him; (5) the plaintiff
violated the mediator’s instructions and did not partici-
pate in foreclosure mediation in good faith; (6) the
plaintiff failed to bring this action within six years from
the defendant’s last payment; (7) the plaintiff knew that
the defendant had asserted defenses to the enforcement
of the loan in a previous foreclosure action that was
‘‘dismissed’’;4 and (8) it was unfair for the plaintiff to
prosecute this foreclosure action after a previous fore-
closure action was ‘‘dismissed.’’ On October 10, 2018,
the plaintiff filed a motion for summary judgment as
to liability only, a memorandum of law in support of
the motion, an affidavit of Keli Smith, and appended
exhibits. The defendant filed an objection to the motion
‘‘under oath.’’ Following a hearing on December 10,
2018, the court granted summary judgment with respect
to liability only in favor of the plaintiff. The defendant’s
motion to reargue that decision was denied.
On January 28, 2019, the court rendered a judgment
of strict foreclosure in favor of the plaintiff. This appeal
followed. The court subsequently granted in part a
motion for articulation filed by the defendant and sum-
marized the court’s reasoning for granting summary
judgment, essentially adopting the analysis of the plain-
tiff as set forth in its moving papers. The court further
stated: ‘‘To the extent that [the] defendant’s purported
special defenses are able to be construed as even consti-
tuting special defenses, none [goes] to the making, valid-
ity or enforcement of [the] note and/or [the] mortgage.
The ‘affidavit’ of the defendant provides zero evidence,
rather conclusory statements, at best. The defendant
proudly asserts that he has been in default of his obliga-
tions for eight years. Foreclosure is an equitable pro-
ceeding.’’ Additional facts will be set forth as necessary.
We begin by setting forth the relevant standard of
review and legal principles. ‘‘In seeking summary judg-
ment, it is the movant who has the burden of showing
the nonexistence of any issue of fact. . . . Although
the party seeking summary judgment has the burden
of showing the nonexistence of any material fact . . .
a party opposing summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . A material fact
is one that makes a difference in the outcome of a
case. . . .
‘‘Summary judgment shall be granted if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . The trial court must view the evidence in the light
most favorable to the nonmoving party. . . .
‘‘Appellate review of the trial court’s decision to grant
summary judgment is plenary. . . . [W]e must [there-
fore] decide whether [the trial court’s] conclusions are
legally and logically correct and find support in the
facts that appear in the record. . . .
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant summary judgment as to liability in a foreclosure
action if the complaint and supporting affidavits estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense. . . .
‘‘[A] holder of a note is presumed to be the owner
of the debt, and unless the presumption is rebutted,
may foreclose the mortgage under [General Statutes
§ 49-17]. . . . It [is] for the defendant to set up and
prove the facts which limit or change the plaintiff’s
rights. . . .
‘‘[T]he party raising a special defense has the burden
of proving the facts alleged therein. . . . If the plaintiff
in a foreclosure action has shown that it is entitled to
foreclose, then the burden is on the defendant to pro-
duce evidence supporting its special defenses in order
to create a genuine issue of material fact . . . . Legally
sufficient special defenses alone do not meet the defen-
dant’s burden. The purpose of a special defense is to
plead facts that are consistent with the allegations of
the complaint but demonstrate, nonetheless, that the
plaintiff has no cause of action. . . . Further . . .
[t]he applicable rule regarding the material facts to be
considered on a motion for summary judgment is that
the facts at issue are those alleged in the pleadings.
. . . [B]ecause any valid special defense raised by the
defendant ultimately would prevent the court from ren-
dering judgment for the plaintiff, a motion for summary
judgment should be denied when any [special] defense
presents significant fact issues that should be tried.’’
(Citations omitted; internal quotation marks omitted.)
U.S. Bank National Assn. v. Eichten, 184 Conn. App.
727, 743–45, 196 A.3d 328 (2018).
I
The defendant claims that this foreclosure action is
barred by the statute of limitations set forth in § 42a-
3-118 and, therefore, the trial court improperly rendered
summary judgment on the issue of liability in favor of
the plaintiff.5 Specifically, he argues that any action to
enforce the underlying debt represented by the note
must have been initiated within six years after the accel-
erated due date, and that the plaintiff had accelerated
the debt in early 2008.6 The plaintiff contends that the
statute of limitations set forth in § 42a-3-118 applies
only to the enforcement of a note and does not bar a
mortgage foreclosure action on the same debt. We agree
with the plaintiff.
‘‘Whether a particular action is barred by the statute
of limitations is a question of law to which we apply a
plenary standard of review.’’ Federal Deposit Ins. Corp.
v. Owen, 88 Conn. App. 806, 814, 873 A.2d 1003, cert.
denied, 275 Conn. 902, 882 A.2d 670 (2005). ‘‘[T]he rule
in Connecticut, as far back as the early nineteenth cen-
tury, is that a statute of limitations does not bar a mort-
gage foreclosure. . . . Repeatedly reaffirmed and gen-
erally known, it has taken on the aspect of a rule of
property and in all probability many mortgages in this
[s]tate are now held, after any action upon the debt
secured has been barred, in reliance upon it. . . . The
rule is in harmony with the accepted principle that the
statute of limitations does not destroy the debt but
merely bars the remedy.’’ (Citation omitted; internal
quotation marks omitted.) Id., 815.
Furthermore, in New Milford Savings Bank, our
Supreme Court held that ‘‘upon the default of the mort-
gagor, the mortgagee has multiple remedies against
both the mortgagor and the mortgaged property. The
plaintiff is entitled to pursue its remedy at law on the
notes, or to pursue its remedy in equity upon the mort-
gage, or to pursue both. A note and a mortgage given
to secure it are separate instruments, executed for dif-
ferent purposes and, in this [s]tate, action for foreclo-
sure of the mortgage and upon the note are regarded
and treated, in practice, as separate and distinct causes
of action, although both may be pursued in a foreclo-
sure suit.’’ (Emphasis added; internal quotation marks
omitted.) New Milford Savings Bank v. Jajer, 244 Conn.
251, 266–67, 708 A.2d 1378 (1998).
On appeal, the defendant argues that ‘‘[t]he note evi-
dencing the underlying debt and the mortgage that
secures the note are inextricably linked. The mortgage
only secures the note—[it is] not a debt unto itself. It
is only the note, not the mortgage, that can be acceler-
ated. . . . If the statute of limitations expires and the
note becomes unenforceable, the mortgage securing
that note also becomes unenforceable. The mortgage
simply does not exist . . . without the note which it
secures.’’ Simply put, the defendant’s argument directly
contradicts Connecticut law as set forth in Federal
Deposit Ins. Corp. v. Owen, supra, 88 Conn. App. 815,
in which this court held, among other things, that § 42a-
3-118 does not bar a mortgage foreclosure. Although
the defendant contends that we should overrule Federal
Deposit Ins. Corp. v. Owen, ’’[i]t is axiomatic that one
panel of this court cannot overrule the precedent estab-
lished by a previous panel’s holding. . . . As we often
have stated, this court’s policy dictates that one panel
should not, on its own, [overrule] the ruling of a previ-
ous panel. The [overruling] may be accomplished only if
the appeal is heard en banc.’’ (Internal quotation marks
omitted.) LM Ins. Corp. v. Connecticut Dismanteling,
LLC, 172 Conn. App. 622, 632–33, 161 A.3d 562 (2017).
Accordingly, the defendant’s claim fails.
II
Relying on U.S. Bank National Assn. v. Blowers, 332
Conn. 656, 212 A.3d 226 (2019), the defendant next
claims that the trial court should not have rendered
summary judgment as to liability only in favor of the
plaintiff because the trial court failed to consider his
fifth special defense.7 In support of his claim, the defen-
dant argues that ‘‘[t]he plaintiff’s bad behavior was iden-
tified by both [the defendant] and the foreclosure medi-
ator [in the mediator’s final report].’’ The plaintiff
contends that the defendant failed to sufficiently allege
or present evidence in support of his special defense.
We agree with the plaintiff.
By way of background, in his answer and special
defenses, the defendant alleged, relevant to this claim
on appeal, that ‘‘[the] plaintiff has violated the media-
tor’s instructions and has not participated in the media-
tion in good faith. The plaintiff was supposed to provide
me with an accurate appraisal and never gave me accu-
rate information.’’ In its motion for summary judgment,
the plaintiff argued, among other things, that the defen-
dant’s fifth special defense failed as a matter of law
because it neither was legally sufficient nor did it
address the making, validity, or enforcement of the
mortgage. In opposition to the plaintiff’s motion for
summary judgment, the defendant filed an objection
‘‘under oath,’’ in which he stated: ‘‘The [p]laintiff did
not participate in the mediation in ‘good faith.’ It did not
provide information about the appraisal [it] supposedly
obtained and [it] also made [a] ridiculous offer that
would have required me to make a lump sum payment
in the amount [of] hundreds of thousands of dollars.’’
The trial court rejected the viability of the defendant’s
fifth special defense, among others, stating that ‘‘[t]o the
extent that [the] defendant’s purported special defenses
are able to be construed as even constituting special
defenses, none [goes] to the making, validity or enforce-
ment of [the] note and/or [the] mortgage. The ‘affidavit’
of the defendant provides zero evidence, rather conclu-
sory statements, at best.’’
As an initial matter, on appeal, the defendant relies
on the mediator’s final report in support of his claim.
The record reveals, however, that neither party submit-
ted this report to the trial court.8 In this connection, it
is well settled that ‘‘[w]e . . . do not consider evidence
not presented to the trial court.’’ U.S. Bank National
Assn. v. Eichten, supra, 184 Conn. App. 756. In addition,
to the extent the defendant argues that the trial court
refused to consider his ‘‘testimony’’ at the summary
judgment hearing, we note that, even if the defendant’s
statements to the trial court had been under oath, they
would not have properly been considered by the trial
court as a part of the defendant’s evidentiary submis-
sion. See Wells Fargo Bank, N.A. v. Ferraro, 194 Conn.
App. 467, 470, 221 A.3d 520 (2019) (reversing summary
judgment on basis that ‘‘the trial court improperly per-
mitted, considered and relied on live testimony from
witnesses at an evidentiary hearing on the plaintiff’s
motion for summary judgment’’); Magee Avenue, LLC
v. Lima Ceramic Tile, LLC, 183 Conn. App. 575, 585–86,
193 A.3d 700 (2018) (concluding that trial court improp-
erly permitted and considered defendant’s live testi-
mony during hearing on motion for summary
judgment).
Simply put, the defendant’s allegations and eviden-
tiary submission were insufficient to fall within our
Supreme Court’s clarification of the making, validity,
or enforcement test, as set forth in U.S. Bank National
Assn. v. Blowers, supra, 332 Conn. 675, namely, that
‘‘allegations that the mortgagee has engaged in conduct
that wrongly and substantially increased the mortgag-
or’s overall indebtedness, caused the mortgagor to incur
costs that impeded the mortgagor from curing the
default, or reneged upon modifications are the types
of misconduct that are directly and inseparably con-
nected . . . to enforcement of the note and mortgage.’’
(Citation omitted; internal quotation marks omitted.)
Therefore, because the defendant did not sufficiently
allege a valid defense or otherwise meet his burden of
proving the facts alleged in his special defense; see U.S.
Bank National Assn. v. Eichten, supra, 184 Conn. App.
745; his claim fails.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
1
The complaint also named several other parties as defendants: Stuart
Hecht; Janice Hecht; Synchrony Bank, Successor in Interest to GE Capital
Retail Bank, formerly known as GE Money Bank; Saint Francis Hospital
and Medical Center; Mohawk Factoring, Inc.; and Masland Carpets & Rugs.
These parties were defaulted for failing to appear and are not participating in
this appeal. Accordingly, we refer to Sebastian Mangiafico as the defendant.
2
Neither the defendant nor his counsel appeared for oral argument and,
therefore, this court considered the appeal on the briefs submitted by the
parties. See State v. Cotto, 111 Conn. App. 818, 819 n.1, 960 A.2d 1113 (2008).
3
The defendant also claims that the trial court erred in granting the
plaintiff’s motion for summary judgment as to liability only when issues of
fact exist as to the date the debt was initially accelerated. Because that
claim is inadequately briefed, we decline to review it. See State v. Fowler,
178 Conn. App. 332, 345, 175 A.3d 76 (2017) (‘‘We are not required to review
issues that have been improperly presented to this court through an inade-
quate brief. . . . Analysis, 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.)), cert. denied, 327 Conn. 999, 176 A.3d
556 (2018).
Additionally, the defendant argues for the first time on appeal that the
foreclosure action is barred by the doctrine of laches. The defense of laches
was neither pleaded nor raised in the trial court. Accordingly, we decline
to review this particular claim. See Peckheiser v. Tarone, 186 Conn. 53, 61,
438 A.2d 1192 (1982).
4
In 2008, a prior foreclosure action was commenced against the defendant
with regard to the property. See Bank of New York v. Mangiafico, Superior
Court, judicial district of Hartford, CV-XX-XXXXXXX-S. That action was with-
drawn on May 9, 2013.
5
General Statutes § 42a-3-118 provides in relevant part: ‘‘[A]n action to
enforce the obligation of a party to pay a note payable at a definite time
must be commenced within six years after the due date or dates stated in
the note or, if a due date is accelerated, within six years after the accelerated
due date. . . .’’
6
The defendant alleges that the plaintiff accelerated the debt and brought
a timely foreclosure action in early 2008, and that the case was subsequently
‘‘dismissed.’’ See footnote 4 of this opinion.
7
Because this allegation is the only language in the defendant’s answer
and special defenses to which the defendant refers in his appellate brief in
connection with this claim on appeal, we limit our analysis accordingly.
8
Because the mediator’s final report was not submitted to the court for
its consideration in the summary judgment context, we need not address
the admissibility of such a document.