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CHELSEA GROTON BANK v. BELLTOWN
SPORTS, LLC, ET AL.
(AC 42709)
Alvord, Elgo and Beach, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendants. The defendants had obtained a loan from the
plaintiff, secured by the mortgage, to build a sports facility but, due to
construction delays, the facility had a late opening and did not generate
enough revenue for the defendants to meet their mortgage obligations.
As part of the mortgage transaction, the defendants agreed to obtain a
small business loan, which would thereafter be used to pay down the
mortgage debt. In order to receive the small business loan, the plaintiff
certified that there was no significant changes in the defendants’ finan-
cial status, despite its knowledge that the defendants had no working
capital to be profitable. The defendants received the small business
loan; however, they had already defaulted on the mortgage payments
and the plaintiff commenced the foreclosure proceedings. The trial court
thereafter rendered a judgment of foreclosure by sale, from which the
defendants appealed, claiming that the plaintiff’s certification of the
defendants’ financial status for the small business loan, when it knew
that the defendants had no ability to make mortgage payments, consti-
tuted misconduct relating to the mortgage, and that the trial court
improperly found that the defendants’ claims of inequitable conduct did
not relate to the mortgage. Held that the defendants could not meet
their burden of proving an evidentiary basis to establish the existence
of a genuine issue of material fact regarding their unclean hands special
defense and, therefore, the trial court properly determined that the
plaintiff’s alleged misconduct failed to sufficiently relate to the making,
validity, or enforcement of the mortgage; the defendants failed to allege
any conduct by the plaintiff that would have challenged the plaintiff’s
legal authority to bring the foreclosure action, the defendants conceded
that the plaintiff had the right to commence foreclosure on the ground
that the defendants defaulted on their mortgage debt, the requirement
that the defendants obtain a small business loan to pay down the mort-
gage debt had been contemplated and agreed to in the original loan
documents, and the plaintiff’s alleged actions pertaining to the small
business loan were not directly and inseparably connected to the foreclo-
sure action, as the small business loan was separate and distinct from
the mortgage.
Argued March 3—officially released July 28, 2020
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendants et al., and for other relief,
brought to the Superior Court in the judicial district of
Middlesex where the court, Domnarski, J., granted the
plaintiff’s motion for judgment of foreclosure by sale
and rendered judgment thereon, from which the named
defendants et al. appealed to this court. Affirmed.
Patrick W. Boatman, with whom, on the brief, was
Jenna N. Sternberg, for the appellants (named defen-
dants et al).
Brian D. Rich, with whom was Anthony E. Loney,
for the appellee (plaintiff).
Opinion
ELGO, J. The defendants Belltown Sports, LLC (Bell-
town Sports), Sports on 66, LLC (Sports on 66), and
Brian Cutler appeal from the judgment of foreclosure by
sale rendered by the trial court in favor of the plaintiff,
Chelsea Groton Bank.1 On appeal, the defendants claim
that the court improperly (1) rendered summary judg-
ment as to liability in favor of the plaintiff and (2)
concluded that the priority of a Small Business Adminis-
tration (SBA) loan does not bar the plaintiff’s right to
foreclose on its mortgage.2 We disagree and affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On April 15, 2015,
Belltown Sports executed a promissory note (note) pay-
able to the plaintiff in the principal amount of
$3,000,000. In order to secure the note, Belltown Sports
executed an open-end mortgage deed (mortgage) in
favor of the plaintiff on real property located at 265
West High Street in East Hampton (property). Contem-
poraneous with the execution of both the note and the
mortgage, Sports on 66 and Brian Cutler executed a
guarantee in which they agreed to pay the debt secured
by the note and the mortgage. The loan proceeds were
used to construct a 42,000 square foot sports facility
(facility) on the property. The facility contains indoor
turf fields, floating wood basketball courts, batting
cages, and a party room.
The defendants also had signed a commitment letter
with the plaintiff, which included, among other things,
a requirement that, within forty-five to sixty days upon
the issuance of a certificate of occupancy, the defen-
dants obtain a loan in the amount of $1,118,150 from
the Community Investment Corporation, a lender who
provides assistance to Connecticut businesses and is
backed by the SBA (SBA loan). The proceeds of the
SBA loan were to be paid to the plaintiff in order to
reduce the mortgage debt to $1,881,850.
Pursuant to the building loan agreement (agreement)
signed by the plaintiff and the defendants on April 15,
2015, the facility was scheduled to be completed by
April 1, 2016. Due to several issues that arose during
construction, however, the facility was completed
approximately eight months late and the grand opening
took place on December 17, 2016. Following the grand
opening, the plaintiff reminded the defendants of their
obligation to obtain the SBA loan. To do so, the defen-
dants were required by the SBA to satisfy any liens and
other financial obligations associated with the property,
except for the mortgage. To that end, on April 14, 2017,
the plaintiff completed an interim lender certification
form, wherein it stated that it had ‘‘no knowledge of
any unremedied substantial adverse change in the con-
dition of [the] [b]orrower and [the o]perating [c]ompany
(if any) since the date of [the] loan application to [the]
[i]nterim [l]ender. [The] [b]orrower is current on its
payments to [the] [i]nterim [l]ender and not otherwise
in default on the [i]nterim [l]oan.’’ Because the plaintiff
completed the certification and the defendants satisfied
all financial obligations associated with the property,
the funds of the SBA loan were released to the plaintiff
on May 22, 2017. Prior to that release, however, the
defendants had defaulted on their obligation to pay the
note, mortgage, and guarantee.
The plaintiff commenced this mortgage foreclosure
action on September 26, 2017. The defendants filed
their answer and special defenses on December 1, 2017.
Specifically, the defendants alleged as special defenses:
(1) foreclosure of the plaintiff’s mortgage could only
be in the amount of $360,000, the total funds advanced
by the plaintiff at the closing of the mortgage and (2)
the plaintiff acted with unclean hands in its representa-
tions to the SBA that there had been no material adverse
change in the defendants’ financial status and in its
representations to the defendants that it would provide
a line of credit.
On June 11, 2018, the plaintiff filed a motion for
summary judgment as to liability, which was accompa-
nied by a memorandum of law in support of the motion,
an affidavit, and appended exhibits, including the mort-
gage and the note. The defendants filed a memorandum
of law in opposition to the plaintiff’s motion for sum-
mary judgment and an affidavit of Brian Cutler on
August 8, 2018. Shortly thereafter, the plaintiff filed a
reply to the defendants’ opposition to the motion for
summary judgment on August 23, 2018. The hearing on
the plaintiff’s motion took place on August 27, 2018.
Following that hearing, this court decided U.S. Bank
National Assn. v. Eichten, 184 Conn. App. 727, 196
A.3d 328 (2018). In light of that decision, the trial court
ordered, sua sponte, the parties to file supplemental
briefs on its impact on the pending motion for summary
judgment. Only the defendants filed a supplemental
brief.
Subsequently, on November 16, 2018, the court
granted the plaintiff’s motion for summary judgment as
to liability. On February 26, 2019, the court rendered a
judgment of foreclosure by sale. This appeal followed.
Additional facts will be set forth as necessary.
The defendants claim that (1) their special defense
of unclean hands ‘‘properly raise[d] a genuine issue of
material fact sufficient to deny summary judgment,’’
and (2) the court improperly concluded that the special
defense ‘‘failed to relate to the mortgage being fore-
closed.’’ We disagree.
We begin by setting forth the relevant standard of
review and applicable legal principles. ‘‘In seeking sum-
mary judgment, 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 evi-
dence disclosing 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.
. . .
‘‘Because an action to foreclose a mortgage is an
equitable proceeding, the doctrine of unclean hands
may be applicable. It is a fundamental principle of equity
jurisprudence that for a complainant to show that he
is entitled to the benefit of equity he must establish
that he comes into court with clean hands. . . . The
clean hands doctrine is applied not for the protection
of the parties but for the protection of the court. . . .
It is applied not by way of punishment but on considera-
tions that make for the advancement of right and justice.
. . . The doctrine of unclean hands expresses the prin-
ciple that where a plaintiff seeks equitable relief, he
must show that his conduct has been fair, equitable
and honest as to the particular controversy in issue.
. . . Unless the plaintiff’s conduct is of such a character
as to be condemned and pronounced wrongful by hon-
est and fair-minded people, the doctrine of unclean
hands does not apply. . . . The party seeking to invoke
the clean hands doctrine to bar equitable relief must
show that his opponent engaged in wilful misconduct
with regard to the matter in litigation. . . . The trial
court enjoys broad discretion in determining whether
the promotion of public policy and the preservation of
the courts’ integrity dictate that the clean hands doc-
trine be invoked.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) U.S. Bank National
Assn. v. Eichten, supra, 184 Conn. App. 743–47.
‘‘In mortgage foreclosure cases, courts require that
a viable legal defense directly attack the making, valid-
ity or enforcement [of the note and mortgage]. . . .
[S]pecial defenses which are not limited to the making,
validity or enforcement of the note or mortgage fail to
assert any connection with the subject matter of the
foreclosure action and as such do not arise out of the
same transaction as the foreclosure action.’’ (Citation
omitted; internal quotation marks omitted.) Id., 750–51.
‘‘[A]n equitable defense of unclean hands [however]
need not strictly relate to the making, validity, or
enforcement of the note or mortgage, provided the alle-
gations set forth were directly and inseparably con-
nected to the foreclosure action.’’ (Emphasis added;
internal quotation marks omitted.) Id., 753.
As previously noted, the defendants filed a memoran-
dum of law in opposition to the plaintiff’s motion for
summary judgment and an affidavit of Brian Cutler
attached thereto. Therein, they claimed that three spe-
cific acts by the plaintiff support the special defense
of unclean hands: (1) before agreeing to lend the defen-
dants $3,000,000, the plaintiff required that Cutler invest
into the project all personal funds available to him from
any source; (2) the plaintiff certified to the SBA that
there was no material adverse change in the defendants’
financial status; and (3) the plaintiff represented that
it would provide Cutler with additional financing
through a $50,000 line of credit. The defendants did not
argue, however, either that they were not in default or
that the plaintiff did not have the right to foreclose
the mortgage—to the contrary, the defendants admitted
that they did not have the funds necessary to satisfy
their mortgage obligations.
In its memorandum of decision, the court held that
‘‘the defendants’ claims of inequitable conduct do not
relate to the mortgage being foreclosed . . . . The
essence of the defendants’ claims is that, but for the
inequitable conduct of the plaintiff, the defendants
would not have proceeded with the transaction with
SBA.’’ The court continued: ‘‘It is not disputed that
the . . . mortgage transaction contemplated that the
defendants would enter into the . . . transaction with
the SBA. The defendants’ claim of unclean hands might
be viable if the actions of the plaintiff prevented the
defendants from entering into the contemplated SBA
transaction, which, incidentally, substantially reduced
their obligation to the plaintiff. The defendants have
failed to establish a genuine issue of material fact as
to how the foreclosure of the subject . . . mortgage
could have been avoided if the [SBA] transaction did
not go forward.’’ (Emphasis in original.)
The following additional facts are relevant to our
resolution of this claim. As previously noted, when the
plaintiff agreed to loan the defendants $3,000,000 to
fund the construction of the facility, the defendants
agreed to obtain a loan from the SBA, in the amount
of $1,118,150, which would be used to pay down the
mortgage, pursuant to the mortgage document and the
commitment letter. In order to obtain the SBA loan,
however, the defendants were required to satisfy all
liens and financial obligations associated with the prop-
erty, including a mechanic’s lien and vendor payments
totaling $81,935.54. After the defendants satisfied their
financial obligations with respect to the property, both
the plaintiff and the defendants certified to the SBA
that there had been no material adverse change in the
defendants’ financial status since the application for
the original loan secured by the mortgage.
At the time of that certification, however, the defen-
dants had no ability to pay the mortgage and had not
provided complete financial information to the plaintiff
as required by the loan documents. Additionally, the
loan documents required the defendants to hire The
Sports Facilities Advisory (SFA), a Florida based com-
pany that would develop a business plan for and manage
the facility, including hiring a director. SFA, however,
quit overseeing the project prior to its completion due
to nonpayment. Last, because the facility opened behind
schedule—eight months after the intended opening
date—the defendants’ revenue was substantially less
than was expected. Failure to (1) pay the mortgage, (2)
provide complete financial information to the plaintiff,
(3) employ SFA to oversee the facility, and (4) complete
the construction of the facility by the due date all consti-
tute default events as set forth in the loan documents,
including the mortgage document. Furthermore, the
mortgage provides that the failure to obtain the SBA
loan, in and of itself, constitutes a default event on
which the plaintiff may foreclose. Following the plain-
tiff’s and the defendants’ certification, the SBA provided
the loan to the defendants, who advanced the proceeds
from the SBA loan to the plaintiff. Shortly thereafter,
the defendants made their June 1, 2017 payment on
the SBA loan; however, the defendants failed to make
payments toward the mortgage.
On appeal, the defendants argue that the plaintiff’s
misconduct is related to the mortgage because the
‘‘enforcement of a mortgage can include certain post-
origination misconduct.’’ To that end, the defendants
rely on TD Bank, National Assn. v. M.J. Holdings, LLC,
143 Conn. App. 322, 71 A.3d 541 (2013), U.S. Bank
National Assn. v. Eichten, supra, 184 Conn. App. 727,
and U.S. Bank National Assn. v. Blowers, 332 Conn.
656, 212 A.3d 656 (2019). That reliance is misplaced.
We address each decision in turn.
In M.J. Holdings, LLC, the defendants executed a
promissory note that was secured by a mortgage on
the defendants’ interest in several properties. TD Bank,
National Assn. v. M.J. Holdings, LLC, supra, 143 Conn.
App. 324. Six years later, the plaintiff commenced fore-
closure proceedings following the defendants’ default
on their loan. Id., 325. In response, the defendants raised
several special defenses, including equitable estoppel
and breach of a loan modification agreement. Id., 329.
The defendants claimed that they had agreed to sell
their property based on the promise by the plaintiff
that, if the sale occurred and the plaintiff was provided
with the net proceeds of the sale, it would modify the
defendants’ loans, including those subject to the fore-
closure, which would have reduced the monthly debt
and allowed the defendants to remain current on their
obligations. Id., 325–26. The sale was completed and
the full amount of the sale proceeds were forwarded
to the plaintiff; however, the plaintiff refused to modify
the loans and, instead, commenced foreclosure. Id., 326.
On appeal, this court’s analysis focused on the deci-
sion of our Supreme Court in Thompson v. Orcutt, 257
Conn. 301, 311–14, 777 A.2d 670 (2001), stating: ‘‘In
Thompson, our Supreme Court considered actions by
the plaintiff subsequent to the execution of the note
and mortgage—in particular, fraudulent conduct in a
bankruptcy proceeding—to be ‘directly and inseparably
connected’ to the foreclosure action to support the
defendants’ equitable defense of unclean hands. . . .
In doing so, our Supreme Court found that [t]he original
transaction creating the . . . mortgage was not tainted
with fraud, but the plaintiff’s ability to foreclose on the
defendants’ property . . . depended upon his fraudu-
lent conduct in the bankruptcy proceeding. If the . . .
mortgage had been administered as an asset of the
bankruptcy estate, the plaintiff would have had no
means of bringing this foreclosure action. . . . The
plaintiff perpetrated the fraud in the bankruptcy court
in order to retain title to the . . . mortgage; he would
have had no cause to foreclose on the . . . mortgage
without the fraud. . . . Thus, although the actions con-
stituting unclean hands occurred after the execution
of the original loan documents, those actions directly
impacted the enforceability of those loan documents.’’
(Citations omitted.) TD Bank, National Assn. v. M.J.
Holdings, LLC, supra, 143 Conn. App. 328–29. In light
of that precedent, this court observed that, despite the
fact that it was transacted after the execution of the
original loan documents, the loan modification agree-
ment would have allowed the defendants to remain
current on their loan obligations. We concluded that
‘‘[the] allegations attack[ed] the validity or enforcement
of the note and mortgage, which impact[ed] the plain-
tiff’s ability to foreclose thereon, because the defen-
dants alleged that the loan modification agreement
would have allowed them to remain current on all their
loan obligations.’’ Id., 335.
In the present case, the defendants claim that there
was an agreement with the plaintiff that, if the defen-
dants obtained the SBA loan, then the plaintiff would
provide them with a $50,000 line of credit ‘‘as a bridge
loan to run [the] business.’’ To the extent that such a
promise was made, unlike in M.J. Holdings, LLC, the
plaintiff’s failure to follow through with that promise
did not implicate or impact its ability to foreclose on
the mortgage because the promise to extend credit to
run the business is dissimilar to a promise to modify a
loan. In other words, whether the plaintiff extended
that credit would not have altered the defendants’ obli-
gations pursuant to the mortgage. Furthermore, the
notion of extending a line of credit to the defendants
only serves to increase their debt owed to the plaintiff,
rather than to bring them current, as would have
occurred in M.J. Holdings, LLC, had the agreed upon
loan modification been effectuated. Additionally,
obtaining the SBA loan and giving the proceeds of that
loan to the plaintiff as required by the original loan
documents, did not, in and of itself, substantially alter
the financial status of the defendants—at the end of
the transaction, they still owed $3,000,000.
Equally misplaced is the defendants’ reliance on U.S.
Bank National Assn. v. Eichten, supra, 184 Conn. App.
727. The defendants contend that this court in Eichten
concluded that a defense of unclean hands did not have
to relate to the making, validity, or enforcement of the
loan at issue. Although the defendants’ argument is
correct, it is incomplete.
In Eichten, the defendant raised several special
defenses, including that ‘‘the plaintiff is guilty of unclean
hands because, although she qualified for a [Home
Affordable Modification Program] loan modification
upon completion of her trial period payments, the plain-
tiff did not offer her a loan modification, but instead,
placed her in a forbearance program without her con-
sent.’’ Id., 734. The defendant thus argued that there
was a genuine dispute of material fact as to whether
the plaintiffs had acted with unclean hands. This court
agreed and concluded that ‘‘[t]he plaintiff’s failure to
establish that it adhered to the Treasury Department’s
directives, which appear to encourage that final deter-
minations on whether to offer the borrower a loan modi-
fication be made before the end of the [trial period plan],
and the plaintiff’s failure to provide an explanation as
to its apparent internal approval of the loan modifica-
tion in March, 2011, which was not communicated to
the defendant, create[d] a genuine issue of material fact
as to whether the defendant can prevail on her special
defense of unclean hands. When viewing the evidence
in the light most favorable to the defendant, the unex-
plained length of time it took the plaintiff to deny the
defendant an offer of a permanent modification, almost
twenty months, commencing with the date it told her
that the only way to explore modification of her loan
was to stop paying in November, 2009, and ending with
the date it denied her a modification, July 15, 2011,
raise[d] the question of whether the plaintiff treated
the defendant in a fair, equitable, and honest manner
knowing that prolonged delay would place the defen-
dant in an untenable financial situation, such that she
could not possibly extricate herself to prevent foreclo-
sure.’’ Id., 749–50.
The plaintiff in Eichten, however, argued that the
special defense was invalid because it did not relate to
the making, validity, or enforcement of the note and
mortgage. Id., 750. As in M.J. Holdings, LLC, this court’s
analysis was guided by our Supreme Court’s decision
in Thompson v. Orcutt, supra, 257 Conn. 301:
‘‘[B]ecause the doctrine of unclean hands exists to safe-
guard the integrity of the court . . . [w]here a plain-
tiff’s claim grows out of or depends upon or is insepara-
bly connected with his own prior fraud, a court of equity
will, in general, deny him any relief, and will leave him
to whatever remedies and defenses at law he may have.
. . . [A]n equitable defense of unclean hands need not
strictly relate to the making, validity, or enforcement
of the note or mortgage, provided the allegations set
forth were directly and inseparably connected to the
foreclosure action.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) U.S. Bank National
Assn. v. Eichten, supra, 184 Conn. App. 753.
The court in Eichten thus concluded that it was ‘‘not
persuaded . . . that the defendant’s unclean hands
defense is invalid because it does not relate to the
making, validity, or enforcement of the note. First, the
defense of unclean hands . . . does not necessarily
need to relate to the making, enforcement, or validity of
the loan. Second, if the plaintiff did engage in fraudulent
conduct by deliberately failing to communicate its inter-
nal approval of the loan modification, then that raises
questions as to whether, but for this conduct, the plain-
tiff would have had the legal authority to bring [the
foreclosure] action.’’ Id.
Unlike in Eichten, the defendants allege no conduct
on the part of the plaintiff that would have challenged
the plaintiff’s legal authority to bring this foreclosure
action. On the contrary, as the defendants conceded
during oral argument before this court, the plaintiff had
the right to commence foreclosure on the grounds that
the defendants defaulted on their mortgage. Moreover,
the steps taken by the parties were contemplated and
agreed to in the original loan documents—namely, that
the plaintiff would loan the defendant $3,000,000 to
construct the facility, that the defendants would make
monthly payments on the mortgage, and that the defen-
dants would obtain a loan from the SBA in order to
help pay down the mortgage.
Last, the defendants rely on U.S. Bank National Assn.
v. Blowers, supra, 332 Conn. 656, for the proposition
that the trial court wrongly rejected their unclean hands
special defense. Specifically, they argue that the trial
court improperly focused ‘‘on the SBA mortgage and
not the [plaintiff’s] loan. The standard articulated by
[Blowers] makes clear that the focus is on the alleged
misconduct of the mortgagee. As the definition of
‘enforcement’ includes allegations of certain harm
resulting from a mortgagee’s wrongful postorigination
conduct, the fact that the alleged misconduct involved
the creation of a second loan obligation should not be
determinative.’’ We disagree.
In Blowers, after the mortgagee had commenced fore-
closure on the mortgage, the mortgagor filed several
special defenses, including unclean hands. U.S. Bank
National Assn. v. Blowers, supra, 332 Conn. 659. In
support thereof, the mortgagor alleged that the mort-
gagee committed various acts, which occurred either
after the mortgagor’s default on the note or after the
mortgagee had commenced the foreclosure action,
which hindered his ability to obtain a loan modification
and increased the debt amount. Id., 661. The mortgagee
moved to strike the mortgagor’s special defenses, claim-
ing that they were unrelated to the making, validity, or
enforcement of the note. Id., 662. The trial court granted
that motion, concluding that the alleged misconduct
had occurred following execution of the note and, there-
fore, the special defenses did not relate to the making,
validity, or enforcement thereof. Id., 662–63. The mort-
gagor appealed to this court, which affirmed the judg-
ment of the trial court. See U.S. Bank National Assn.
v. Blowers, 177 Conn. App. 622, 172 A.3d 837 (2017),
rev’d, 332 Conn. 656, 212 A.3d 226 (2019).
On appeal to our Supreme Court, the mortgagor chal-
lenged, among other things, the propriety of the making,
validity, or enforcement test and the proper scope of
the enforcement test thereunder. U.S. Bank National
Assn. v. Blowers, supra, 332 Conn. 664. Our Supreme
Court clarified that the making, validity, or enforcement
test is ‘‘nothing more than a practical application of the
standard rules of practice that apply to all civil actions
to the specific context of foreclosure actions.’’ Id., 667.
The court agreed with the mortgagor that ‘‘a proper
construction of ‘enforcement’ includes allegations of
harm resulting from a mortgagee’s wrongful postorigi-
nation conduct in negotiating loan modifications, when
such conduct is alleged to have materially added to the
debt and substantially prevented the mortgagor from
curing the default.’’ Id. The court observed that ‘‘appel-
late case law recognizes that conduct occurring after
the origination of the loan, after default, and even after
the initiation of the foreclosure action may form a
proper basis for defenses in a foreclosure action.’’ Id.,
672. The court continued: ‘‘These equitable and practi-
cal considerations inexorably lead to the conclusion
that allegations that the mortgagee has engaged in con-
duct that wrongly and substantially increased the mort-
gagor’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 . . . . Such allegations,
therefore, provide a legally sufficient basis for special
defenses in the foreclosure action.’’ (Citation omitted;
internal quotation marks omitted.) Id., 675–76. On these
grounds, the judgment was reversed and the case was
remanded for further proceedings. Id., 678.
In the present case, the defendants outline in their
brief the specific conduct of the plaintiff that they con-
tend falls under the clarified test in Blowers. Specifi-
cally, they argue that the plaintiff falsely certified to
the SBA that there were no significant changes in the
defendants’ financial status; the plaintiff was aware that
the defendants did not yet have the necessary working
capital to be profitable and needed additional financing;
the plaintiff required that the defendants use all of their
assets to obtain funding, to the point where there were
no other assets available for the defendants to fall back
on; and that the defendants only agreed to move for-
ward with the SBA loan at the plaintiff’s urging, pro-
vided that the defendants receive a line of credit. As a
result of the plaintiff’s conduct, the defendants argue
that they incurred substantial additional costs to close
the SBA loan, ‘‘which was used only to benefit’’ the
plaintiff and that, had the plaintiff represented the
defendants’ actual financial condition, the SBA would
not have closed the loan. We are not persuaded.
First, as previously noted, the defendants also certi-
fied to the SBA that there were no significant changes in
their financial status. Second, the defendants’ argument
that they were required by the plaintiff to use all of
their assets prior to obtaining the subject loan and,
then, were urged by the plaintiff to obtain the SBA loan
only to pay down the mortgage are the terms that the
defendants agreed to at the outset in the original loan
documents. Third, to the extent that the defendants
incurred substantial additional costs in order to close
the SBA loan, there is no evidence connecting those
costs with the plaintiff’s conduct; in fact, those costs
stem from the terms agreed to between the defendants
and the SBA. Fourth, the defendants argue that, had
the plaintiff represented to the SBA the actual financial
status of the defendants, the SBA would not have closed
the loan. That argument, even if true, is mere specula-
tion. Moreover, had the plaintiff represented the defen-
dants’ true financial status, and had that representation
precluded the issuance of the SBA loan, the defendants
still would have remained in default, according to the
terms of the mortgage, for nonpayment. Under either
scenario, the plaintiff would have been well within its
right to pursue foreclosure. Lastly, the plaintiff’s alleged
actions pertaining to the SBA loan are not directly and
inseparably connected to the foreclosure action, as the
SBA loan is separate and distinct from the mortgage.
Accordingly, the defendant’s allegations were insuffi-
cient 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 mort-
gagee has engaged in conduct that wrongly and substan-
tially increased the mortgagor’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 connected . . . to enforce-
ment of the note and mortgage.’’ (Citation omitted;
internal quotation marks omitted.) Because the defen-
dants did not otherwise meet their burden of providing
an evidentiary basis to establish the existence of a genu-
ine issue of material fact regarding the unclean hands
special defense; see U.S. Bank National Assn. v. Eich-
ten, supra, 184 Conn. App. 745; their claim fails.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
Although the United States Small Business Administration and the Con-
necticut Department of Economic and Community Development also were
named as defendants in this matter, they have not participated in this appeal.
We, therefore, refer to Belltown Sports, Sports on 66, and Brian Cutler as
the defendants throughout this opinion.
Belltown Sports is the owner of the property, Sports on 66 is the sole
tenant and manager of the property, and Cutler is the sole member of
Belltown Sports and Sports on 66.
2
Because we conclude that the defendants did not meet their burden of
providing an evidentiary basis to establish the existence of a genuine issue
of material fact regarding the unclean hands special defense, which the
defendants acknowledge is ‘‘part and parcel’’ of their theory that the SBA
mortgage should take priority over the plaintiff’s right to foreclose on the
mortgage, we decline to address the merits of their second claim.