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JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION v. ROBERT
J. VIRGULAK ET AL.
(SC 20403)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff bank, J Co., sought to foreclose a mortgage on certain real
property owned by the defendant T. T’s husband, R, had executed and
delivered to J Co. a promissory note for a loan on December 11, 2006.
T was not a signatory on the note. On the same date, T signed a mortgage
deed for her property, which recited that it was given to secure a note
dated December 11, 2006, that was signed by T as the borrower. The
mortgage deed did not reference R. J Co. commenced its foreclosure
action after the note went into default. J Co. subsequently withdrew
the foreclosure action as to R, as he had been granted an unconditional
discharge of the debt associated with the note in a separate bankruptcy
proceeding. Thereafter, another bank, M Co., was substituted as the
plaintiff, and it filed an amended complaint in which it sought, inter
alia, a judgment of foreclosure and equitable reformation. The trial court
rendered judgment for T on M Co.’s foreclosure and reformation claims,
concluding that M Co. did not sustain its burden of proving, by clear
and convincing evidence, that it was entitled to the equitable remedy
of reformation of the mortgage deed. M Co. appealed to the Appellate
Court, which affirmed the trial court’s judgment. On the granting of
certification, M Co. appealed to this court. Held:
1. The Appellate Court properly upheld the trial court’s decision declining
M Co.’s request to reform the mortgage deed executed by T to reference
the fact that it was given to secure a note executed by R, as this court
could not conclude that the absence of a finding by the trial court that
the parties intended the mortgage deed signed by T to secure R’s note was
clearly erroneous: the language of the mortgage deed, the circumstances
surrounding the negotiation of the mortgage, and the conduct of the
parties in relation to the mortgage deed and the note did not necessarily
support M Co.’s claim that the parties intended the mortgage deed to
secure the note signed by R, as the language of the mortgage deed did
not mention R or any note executed by him, there was no evidence that
M Co. or its predecessors in interest ever spoke with T prior to her
execution of the mortgage deed or required her to secure the note as
a condition of R’s receipt of the net loan proceeds from the note, T did
not attend the closing, and R used most of the proceeds he received to
pay off credit cards that were his exclusive responsibility; moreover,
although the mortgage deed referenced a note with the same date and
in the same amount as the note that R signed, which M Co. claimed
must be the note T agreed to secure, the evidence presented with respect
to this issue fell short of the very high burden required to demonstrate
mutual mistake, as M Co.’s immediate predecessor in interest acknowl-
edged that T did not borrow any money from it or J Co., M Co. conceded
that the mortgage deed was not intended to secure any note signed by
T, and M Co. failed to present any testimony regarding whether J Co.
intended T’s signature on the mortgage deed to secure the note signed
by R.
2. The Appellate Court properly upheld the trial court’s determination that
M Co. was not entitled to foreclose the mortgage executed by T because
T was not a borrower on the note; there was no merit to M Co.’s claim
that foreclosure was the proper equitable relief on the grounds that it
was undisputed that T entered into a mortgage transaction and common
sense dictated that she intended her property interest to serve as security
for the note contemporaneously executed by R, as the mortgage deed,
as executed, was a nullity because it secured a nonexistent debt, and,
accordingly, this court could not conclude that M Co. was entitled to
foreclose a mortgage for a debt for which T was not responsible and
that was not referenced in the mortgage deed.
Argued October 22, 2020—officially released January 11, 2022*
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant Theresa Virgulak, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the plaintiff with-
drew the action as to the named defendant; thereafter,
Manufacturers and Traders Trust Company was substi-
tuted as the plaintiff; subsequently, the case was tried
to the court, Hon. David R. Tobin, judge trial referee,
who, exercising the powers of the Superior Court, ren-
dered judgment in part for the defendant Theresa Virgu-
lak, from which the substitute plaintiff appealed to the
Appellate Court, Sheldon and Keller, Js., with Bear, J.,
dissenting, which affirmed the trial court’s judgment,
and the substitute plaintiff, on the granting of certifica-
tion, appealed to this court. Affirmed.
Brian D. Rich, with whom, on the brief, was Laura
Pascale Zaino, for the appellant (substitute plaintiff).
Alexander H. Schwartz, for the appellee (defendant
Theresa Virgulak).
Jeffrey Gentes and J.L. Pottenger, Jr., and Chaarus-
hena Deb, Sophie Laing, Zaria Noble, Stefanie Ostrow-
ski and Emily Coady, law student interns, filed a brief
for the Housing Clinic of the Jerome N. Frank Legal
Services Organization as amicus curiae.
Opinion
MULLINS, J. The plaintiff, Manufacturers and Traders
Trust Company (M&T Bank),1 appeals from the judg-
ment of the Appellate Court in favor of the defendant
Theresa Virgulak.2 On appeal, the plaintiff claims that
the Appellate Court improperly affirmed the judgment
of the trial court because (1) the trial court improperly
declined the plaintiff’s request to reform a mortgage
deed to reference that the mortgage deed executed by
the defendant was given to secure a note executed by
her husband, Robert J. Virgulak (Robert), and (2) even
if the trial court properly denied the request to reform
the mortgage deed, it incorrectly determined that the
plaintiff was not entitled to foreclose the mortgage exe-
cuted by the defendant because the defendant was not
a borrower on the note. We disagree with the plaintiff
and affirm the judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘On or
about December 11, 2006, Robert . . . executed and
delivered to JPMorgan Chase Bank, National Associa-
tion (JPMorgan Chase), a note for a loan in the principal
amount of $533,000 (note). The defendant was not a
signatory on the note. On the same date, the defendant
signed a document titled ‘Open-End Mortgage Deed’
(mortgage [deed]) for residential property she owns at
14 Bayne Court in Norwalk (property). The mortgage
[deed] recited that it was given to secure a note dated
December 11, 2006, and recited that the note was signed
by the defendant as [the] ‘[b]orrower’ in the amount
of $533,000. The term ‘[b]orrower’ is defined in the
mortgage deed as ‘[Theresa Virgulak, married].’ The
mortgage [deed] did not reference Robert. The defen-
dant did not sign any guarantee.
‘‘On or about February 1, 2010, after JPMorgan Chase
failed to receive payments in accordance with the terms
of the note, the note went into default and JPMorgan
Chase elected to accelerate the balance due. On January
3, 2011, notices of default were sent to both the defen-
dant and Robert, and, in February, 2013, JPMorgan
Chase commenced this foreclosure action against the
couple. The action sought to foreclose the mortgage
that JPMorgan Chase claimed to have on the property.
In September, 2014, JPMorgan Chase withdrew the fore-
closure action against Robert, as he had filed for bank-
ruptcy and been granted an unconditional discharge of
the debt.
‘‘Thereafter, JPMorgan Chase filed a motion to substi-
tute party plaintiff, stating that it had assigned the sub-
ject mortgage deed and note to Hudson City Savings
Bank (Hudson). This motion was granted by the [trial]
court on August 18, 2015.
‘‘On September 25, 2015, the defendant filed a motion
for summary judgment, arguing that Hudson was pre-
cluded from foreclosing the mortgage. In particular, she
argued that she had not defaulted under the terms of
the note because she was never a party to a promissory
note with [Hudson] or any of its predecessors in inter-
est. The motion was denied by the court on January
14, 2016, on the basis of the court’s determination that
an issue of material fact remained with respect to
whether the mortgage deed provided reasonable notice
to third parties that the defendant was securing Robert’s
obligation.’’ JPMorgan Chase Bank, National Assn. v.
Virgulak, 192 Conn. App. 688, 692–93, 218 A.3d 596
(2019).
‘‘On August 9, 2016, the plaintiff, M&T Bank, into
which Hudson had merged, filed a motion to substitute
itself as the party plaintiff and requested leave to amend
the complaint in order to add two additional causes of
action. The court granted the motion on August 15,
2016. In the first count of the plaintiff’s three count
amended complaint, the plaintiff sought a judgment of
foreclosure against the [defendant]. In the second
count, it sought equitable reformation of the note in
order to include the defendant as a borrower on the
note. In the third count, the plaintiff pleaded that the
defendant had been unjustly enriched because (1) the
proceeds of the note were used to pay off loans [that]
she was obligated to pay and (2) she had free use of
the subject property without satisfying the terms of the
mortgage [deed], which she had executed.
‘‘On December 1, 2016, the defendant filed an
amended answer denying the essential allegations of
the amended complaint regarding her liability for the
debt and the claim of unjust enrichment. She also set
forth eight special defenses.’’ (Footnote omitted.) Id.,
693–94.
‘‘The parties tried the case before the court on Decem-
ber 6, 2016. The plaintiff presented three witnesses,
including Wilkin Rodriguez, a mortgage banking research
officer at JPMorgan Chase, the defendant, and Robert.
After the plaintiff rested, the defendant did not present
additional evidence; she relied instead on the testimony
and exhibits introduced during cross-examination of
the witnesses called by the plaintiff.’’ Id., 694. The trial
court ordered the parties to submit posttrial briefs.
‘‘On April 12, 2017, the court issued its memorandum
of decision. The court found in favor of the defendant
on the foreclosure and reformation counts of the com-
plaint. In particular, the court stated, among other
things, that ‘[t]he court finds that the plaintiff has not
sustained its burden of proving, by clear and convincing
evidence, that it [was] entitled to the equitable remedy
of reformation of the mortgage deed3 . . . . Accord-
ingly, the court finds the issues on the second count
for [the defendant] and against the plaintiff. [Because]
the plaintiff failed to present any authority to the court
[that] would allow the plaintiff to prevail on the first
count [foreclosure claim] in the absence of reformation
of the mortgage deed, the court [also] finds the issues
on the first count for [the defendant] and against the
plaintiff.’
‘‘The court then proceeded to address the plaintiff’s
unjust enrichment claim, noting that the defendant had
been benefited in several respects as a result of the loan
that Robert had obtained . . . . The court ultimately
determined that [Hudson’s] responses to the requests
for admissions precluded any recovery on [the plain-
tiff’s] unjust enrichment claim, except for the property
tax payments that the defendant conceded that she
owed to the plaintiff.’’4 (Footnote added; footnote omit-
ted.) Id., 695–97. Thereafter, the plaintiff appealed from
the judgment of the trial court to the Appellate Court.
On appeal to the Appellate Court, the plaintiff
claimed, inter alia, that the trial court (1) improperly
failed to exercise its discretion to consider the plaintiff’s
foreclosure claim as independent from its other claims
and failed to grant the plaintiff the equitable remedy
of foreclosure, (2) improperly declined to reform the
mortgage deed, and (3) incorrectly concluded that Hud-
son’s admissions limited the plaintiff’s recovery under
its unjust enrichment count. See id., 691–92. The Appel-
late Court affirmed the judgment of the trial court. Id.,
722. It concluded, inter alia, that the trial court (1)
‘‘did not ignore the plaintiff’s claim for foreclosure’’;
id., 700–701; (2) properly ‘‘declined to grant foreclosure
of the mortgage without reformation because it deter-
mined that the mortgage [deed], as executed, was a
nullity because it secured a nonexistent debt’’; id., 703;
see id., 705; (3) did not abuse its discretion by declining
to reform the mortgage deed because the plaintiff did
not meet its burden of proving by clear and convincing
evidence that the mortgage deed did not conform to
the parties’ agreement; see id., 706; and (4) ‘‘did not
abuse its discretion in limiting the award under the
unjust enrichment count to the property taxes owed to
the plaintiff.’’ Id., 721.
We granted the plaintiff’s petition for certification to
appeal, limited to the following issues: (1) ‘‘Did the
Appellate Court properly uphold the trial court’s deci-
sion declining the plaintiff’s request to reform the mort-
gage deed to reference the fact that the mortgage [deed]
executed by the defendant was given to secure a note
executed by [Robert]?’’ And (2) ‘‘[i]f the answer to the
first certified question is ‘yes,’ did the Appellate Court
properly uphold the trial court’s determination that the
plaintiff was not entitled to foreclose the mortgage
executed by the defendant because the defendant is
not a borrower on the note?’’ JPMorgan Chase Bank,
National Assn. v. Virgulak, 333 Conn. 945, 219 A.3d 375
(2019). Additional facts will be set forth as necessary.
I
We first consider whether the Appellate Court prop-
erly affirmed the judgment of the trial court declining
to grant reformation of the mortgage deed. The plaintiff
asserts that the trial court improperly did not find that
the parties intended for the mortgage deed signed by
the defendant to secure the note signed by Robert.
Therefore, the plaintiff contends, the mortgage deed
should be reformed to reflect the parties’ true agree-
ment. The defendant counters that the trial court prop-
erly refused to reform the mortgage deed on the basis
of the court’s factual findings. We agree with the defen-
dant.
‘‘Reformation is appropriate only when the [contract]
executed by the parties does not reflect the agreement
the parties actually intended. . . . Reformation is not
granted for the purpose of alleviating a hard or oppres-
sive bargain, but rather to restate the intended terms
of an agreement when the writing that memorializes
that agreement is at variance with the intent of both
parties . . . .’’ (Internal quotation marks omitted.) ARS
Investors II 2012-1 HVB, LLC v. Crystal, LLC, 324
Conn. 680, 692–93, 154 A.3d 518 (2017).
‘‘A cause of action for reformation of a contract rests
on the equitable theory that the instrument sought to
be reformed does not conform to the real contract
agreed [on] and does not express the intention of the
parties and that it was executed as the result of mutual
mistake, or mistake of one party coupled with actual
or constructive fraud, or inequitable conduct on the
part of the other. . . . Equity evolved the doctrine
because an action at law afforded no relief against an
instrument secured by fraud or as a result of mutual
mistake. . . . The remedy of reformation is appro-
priate in cases of mutual mistake—that is where, in
reducing to writing an agreement made or transaction
entered into as intended by the parties thereto, through
mistake, common to both parties, the written instru-
ment fails to express the real agreement or transaction.
. . . In short, the mistake, being common to both par-
ties, effects a result [that] neither intended.’’ (Citations
omitted; internal quotation marks omitted.) Lopinto v.
Haines, 185 Conn. 527, 531–32, 441 A.2d 151 (1981).
Additionally, ‘‘[w]here fraud is absent, it must be estab-
lished that both parties agreed to something different
from what is expressed in writing, and the proof on
this point should be clear so as to leave no room for
doubt.’’ (Emphasis omitted; internal quotation marks
omitted.) Id., 535. There is no allegation of fraud in
this case.
‘‘We have stated the standard of proof for reformation
in different ways but all with the same substantive
thrust: evidence should be clear, substantial and con-
vincing.’’ (Internal quotation marks omitted.) Id., 534.
‘‘This is the quality of the evidence required in cases
of this type.’’ Id., 535. ‘‘The burden of proof on the issue
of reformation is [on] the party seeking it.’’ Id.
Here, the plaintiff had to establish the parties’ clear
agreement that the defendant’s mortgage deed was
intended to secure the note executed by Robert. As this
court has recognized, ‘‘the trier is the judge of credibility
and, specifically . . . what the terms of the agreement
were [is] a question of fact for the trier. . . . This court
is limited to corrections of errors of law . . . .’’ (Cita-
tions omitted; footnote omitted.) Id., 536. The question
of whether, on the facts found, the court has held the
plaintiff, who had the burden of proof on the reforma-
tion issue, to the correct standard becomes one of law
and is reviewable. See id.
In the present case, the plaintiff does not assert that
the trial court improperly required it to prove the par-
ties’ agreement by clear and convincing evidence.
Instead, on appeal, the plaintiff challenges the trial
court’s determination regarding the terms of the agree-
ment between the parties, which is a factual determina-
tion subject to the clearly erroneous standard of review.
See id.
The trial court noted that the parties stipulated to
the following facts: ‘‘On or about December 11, 2006,
Robert executed and delivered to [JPMorgan] Chase a
note in the principal amount of $533,000 . . . . [The
defendant] did not sign the note. The note was not
timely paid, [it] went into default on or about February
1, 2010, and [JPMorgan Chase] elected to accelerate
the balance due on the note. The present foreclosure
action was commenced by [JPMorgan] Chase in Febru-
ary, 2013, at which time it held the note executed by
Robert. . . .
‘‘On January 24, 2011, Robert filed for protection
under chapter 7 of the [United States] Bankruptcy Code,
listing the note as an unsecured debt. The filing listed
no real property owned by Robert. . . . [O]n April 26,
2011, Robert was granted an unconditional discharge
from the bankruptcy court for his obligations under
the note.
‘‘[The defendant] signed [the mortgage deed] on
December 11, 2006, which recited that it was given to
secure a note dated December 11, 2006, signed by [the
defendant] as the ‘[b]orrower,’ in the amount of
$533,000. The term ‘[b]orrower’ is defined in the mort-
gage deed as ‘Theresa Virgulak, married.’ . . . [The
defendant] has never signed a [guarantee] of Robert’s
obligations under the note.’’ (Footnote omitted.)
The trial court heard evidence from the parties over
the course of a one day trial. The plaintiff introduced
into evidence a copy of the note and mortgage deed.
The trial court made the following findings.
The trial court found that the note was signed only
by Robert, above a signature line labeled ‘‘Robert J.
Virgulak,’’ and that the note does not contain a signature
line with the defendant’s name. The trial court further
found that ‘‘[t]he note . . . recites the obligations of
the ‘[b]orrower’ and does not otherwise define that
term. However, page 3 of the note bears the signature
of ‘Robert J. Virgulak—[b]orrower.’ The note does not
bear [the defendant’s] signature, nor does it indicate in
any way that any person, other than Robert, is obligated
under the terms of the note.’’ (Citation omitted.)
The trial court explained that Rodriguez admitted
that JPMorgan Chase’s files did not include any originals
or copies of any note signed by the defendant. Rodri-
guez did authenticate a United States Department of
Housing and Urban Development Settlement Statement
(HUD-1A form), a Transfer of Servicing Disclosure
Statement, a Truth in Lending Statement, and a Notice
of Right To Cancel, which were all signed by the defen-
dant. None of these mortgage documents references
the note executed by Robert.
The trial court also relied on the defendant’s testi-
mony.5 At trial, the defendant testified that she had lived
at the property for thirty-four years and had owned it
for the last thirty years. The defendant further testified
that she signed the mortgage deed at Robert’s request.
She admitted that she signed the HUD-1A form, the
Transfer of Servicing Disclosure Statement, the Truth
in Lending Statement, and the Notice of Right To Can-
cel, but testified that she had not read the documents
before signing them and that she signed them in
Robert’s presence only. The plaintiff presented no evi-
dence to dispute this testimony.
The trial court explained that the defendant further
testified that she had agreed that the proceeds of the
subject note would be used to pay off a prior mortgage
on the property but that she did not receive any portion
of the $155,236.22 shown as paid to the ‘‘[b]orrower.’’
The defendant explained that Robert managed the fami-
ly’s bills and paid all real estate taxes. The defendant
further testified that she and Robert did not file joint
tax returns or have credit cards in their names. The
defendant also denied that she had signed any guaran-
tees of Robert’s debts.
The trial court also relied on Robert’s testimony at
trial.6 He testified that, in his loan application, he
included the value of the property, even though he knew
that the property was solely in the defendant’s name.
Robert also testified that he had considered both he
and the defendant jointly responsible for the prior mort-
gages on the property. Robert further testified that he
had received the entire $155,236.22 in funds disbursed
to the borrower at the closing. Robert explained that
he used some of those funds to improve the kitchen
and bathroom at the property. Robert testified that he
paid the obligations under the note, real estate taxes
and property insurance up until the time he filed for
bankruptcy in 2010. Robert further testified that, since
that time, he has not made any payments under the note
or for real estate taxes but did reinstate the property
insurance. According to Robert, the defendant has occu-
pied the property since 2006 but has not made mortgage
payments or paid property taxes.
During cross-examination, Robert testified that the
majority of the documents relating to the mortgage were
given to him, not the defendant. He further testified
that the defendant was not present at the closing held
at the attorney’s office. Robert explained that all com-
munications regarding the mortgage were sent to him,
not the defendant. Robert also explained that he used
$109,070.48 of the proceeds of the note to pay off credit
cards that were his exclusive responsibility and that
approximately $35,000 of it was used to improve the
kitchen and bathroom at the property. Robert also testi-
fied that JPMorgan Chase ‘‘required that the prior mort-
gages be paid off as a condition of granting the loan.’’
The trial court ultimately found: ‘‘The documents in
evidence and the testimony of the witnesses leave many
gaps in the factual record. It is not clear [whether]
Robert spoke with any individual representing [JPMor-
gan] Chase prior to applying for the mortgage. There
was no mortgage commitment listing the terms under
which [JPMorgan] Chase was prepared to close the loan
and what role, if any, [it] intended [the defendant] to
play in the transaction. The [HUD-1A form] lists only
one disbursement to a law firm—the $525 paid to
Bove & Milici. Although Robert testified that the closing
took place in John Milici’s office, he did not testify as
to whether Milici was representing him, [JPMorgan]
Chase, or both. There was no testimony as to who
prepared or reviewed the closing documents. Both
Robert and [the defendant] testified that [the defendant]
did not attend the closing and that she signed the mort-
gage deed and four related documents at the family
home. However, there was no explanation of how the
mortgage [deed] came to bear the signatures of two
witnesses, one of whom, [Milici], also purported to take
[the defendant’s] acknowledgement.
‘‘The records authenticated by . . . Rodriguez are
silent as to any understanding [that JPMorgan] Chase
may have had with [the defendant] regarding her
responsibility for the loan being made to Robert. Those
records did not include a mortgage commitment letter
or closing instructions, both of which typically would
describe the transaction in detail and contain a checklist
of documents required to be executed prior to disburse-
ment of the proceeds of the loan.’’
On the basis of the foregoing, the trial court con-
cluded: ‘‘The court finds that the plaintiff has not sus-
tained its burden of proving, by clear and convincing
evidence, that it is entitled to the equitable remedy of
reformation of the mortgage deed . . . . Accordingly,
the court finds the issues on the second count for [the
defendant] and against the plaintiff.’’ (Citation omitted.)
In a well reasoned opinion, the Appellate Court
affirmed the judgment of the trial court, explaining that,
‘‘[a]s the [trial] court correctly noted, even with the
various documents admitted into evidence at trial and
the testimony of the witnesses, many gaps were left in
the factual record.’’ JPMorgan Chase Bank, National
Assn. v. Virgulak, supra, 192 Conn. App. 714. We agree.
Principal among those gaps is that the mortgage deed
identifies a ‘‘[n]ote’’ but does not explicitly identify the
note signed by Robert. In other words, the plaintiff
failed to produce clear and convincing evidence of the
particular debt obligation that was being secured by
the mortgage deed executed by the defendant. Indeed,
in its posttrial brief, the plaintiff conceded that the
parties never intended the mortgage deed to secure a
note signed by the defendant.7 There was no evidence
produced or elicited by the plaintiff that required the
trial court to find that the defendant intended the mort-
gage as security for Robert’s loan.
On appeal to this court, the plaintiff does not assert
that any of the trial court’s findings of fact are clearly
erroneous or that the trial court incorrectly required
that mutual mistake be shown by clear and convincing
evidence. Instead, we understand the plaintiff’s claim
on appeal to be that the Appellate Court improperly
affirmed the judgment of the trial court because the
trial court failed to find, but should have found, that
the parties—and the defendant in particular—intended
the mortgage deed to secure Robert’s note.
It is well established that ‘‘[a] contract is to be con-
strued according to what may be assumed to have been
the understanding and intention of the parties. . . .
The intention of the parties is a question of fact to
be determined from the language of the contract, the
circumstances attending its negotiation, and the con-
duct of the parties in relation thereto. . . . The trial
court’s finding of fact with respect to intent is reversible
on appeal only if the court’s finding was clearly errone-
ous.’’ (Citations omitted; internal quotation marks omit-
ted.) Voll v. Lafayette Bank & Trust Co., 223 Conn. 419,
426, 613 A.2d 266 (1992). We cannot conclude that the
absence of a finding by the trial court that the parties
intended the mortgage deed signed by the defendant
to secure Robert’s note was clearly erroneous.
In the present case, the language of the contract does
not support the plaintiff’s claim that the defendant’s
mortgage deed was intended to secure the note exe-
cuted by Robert. Indeed, the language of the mortgage
deed does not mention Robert or any note executed
by him.
The circumstances attending the negotiation of the
mortgage also do not necessarily support the plaintiff’s
claim that the parties intended the defendant’s mort-
gage deed to secure Robert’s note. There is no evidence
that the plaintiff or its predecessors in interest ever
spoke with the defendant prior to her execution of the
mortgage deed, or required her to secure the note as
a condition of Robert’s receiving the funds. The trial
court also pointed to the undisputed fact that the defen-
dant did not attend the closing and to the lack of evi-
dence as to whether JPMorgan Chase, or its representa-
tive, was present.
Furthermore, the conduct of the parties in relation
to the mortgage deed and the note also does not neces-
sarily support the plaintiff’s claim that the defendant
and JPMorgan Chase intended the defendant’s signature
on the mortgage deed to secure the note signed by
Robert. The trial court found that Robert received all
of the net loan proceeds from the note and used most
of those funds to pay off credit cards that were his
exclusive responsibility. The plaintiff failed to introduce
any evidence of communications with the defendant
regarding the note and mortgage deed.
The trial court was not persuaded that the parties to
the mortgage deed intended it to secure the note signed
by Robert. As we have explained, this is a factual finding
left to the trial court that can be overturned only if it
is clearly erroneous. On the basis of the evidence in
the present case, we cannot conclude that the Appellate
Court improperly affirmed the judgment of the trial
court.
On appeal to this court, the plaintiff does not chal-
lenge the absence of a finding by the trial court that
the parties intended the mortgage deed signed by the
defendant to secure Robert’s note as clearly erroneous
or assert that the trial court applied the wrong standard
in making its factual finding. Instead, the plaintiff
asserts that, because the defendant signed a mortgage
deed that referenced a note with the same date and in
the same amount as the note that Robert signed, the
trial court incorrectly determined that the plaintiff did
not meet its high burden of showing that the defendant
intended the mortgage deed to secure the note executed
by Robert. The plaintiff essentially asserts that common
sense dictates that the defendant intended to sign the
mortgage deed to secure a note and that there is no
other reason to sign a mortgage deed. From there, the
plaintiff argues that the note Robert executed on the
same day that the defendant signed the mortgage deed
must be the note the defendant agreed to secure.
The question before this court, however, is not
whether a fact finder could reasonably have concluded
that the defendant intended the mortgage deed to
secure a note signed by Robert but, rather, whether the
trial court’s conclusion that it could not make such a
finding was clearly erroneous. We conclude that it was
not because, as the trial court correctly noted, the evi-
dence presented on that specific question fell short of
the very high burden required to demonstrate mutual
mistake. Indeed, Hudson, the plaintiff’s predecessor in
interest, admitted that the defendant did not borrow
any money from Hudson or JPMorgan Chase, and the
plaintiff conceded that the mortgage deed was not
intended to secure any note signed by the defendant.
Further, the plaintiff failed to present any testimony
regarding whether JPMorgan Chase itself intended the
defendant’s signature on the mortgage deed to secure
the note signed by Robert. Because of this lack of evi-
dence, we cannot conclude that the trial court’s inability
to find that the parties intended the mortgage deed
signed by the defendant to secure Robert’s note was
clearly erroneous.
This court repeatedly has warned that the power of
courts to reform written instruments is one that should
be exercised cautiously. See, e.g., Lopinto v. Haines,
supra, 185 Conn. 539 (‘‘[t]his standard of proof should
operate as a weighty caution upon the minds of all
judges, and it forbids relief whenever the evidence is
loose, equivocal or contradictory’’ (internal quotation
marks omitted)); see also, e.g., Philippine Sugar Estates
Development Co., Ltd. v. Philippine Islands, 247 U.S.
385, 391, 38 S. Ct. 513, 62 L. Ed. 1177 (1918) (stating
that reformation will not be granted ‘‘unless the proof of
mutual mistake [is] of the clearest and most satisfactory
character’’ (internal quotation marks omitted)); cf. 1
Restatement (Second), Contracts § 155, comment (c),
p. 410 (1981) (‘‘[b]ecause experience teaches that mis-
takes are the exception and not the rule . . . [c]are is
all the more necessary when the asserted mistake
relates to a writing, because the law of contracts . . .
attaches great weight to the written expression of an
agreement’’).
In the present case, it is undisputed that Robert
received an unconditional discharge of his obligations
under the note through the bankruptcy proceeding in
2011. The defendant was not obligated under the terms
of that note, and the plaintiff is not seeking reformation
of that note. Moreover, the parties stipulated, and the
trial court specifically found, that the defendant was
not a guarantor of the note executed by Robert. Instead,
the plaintiff is effectively attempting to make the defen-
dant a surety responsible for Robert’s debt in the event
of default. See, e.g., Bernd v. Lynes, 71 Conn. 733, 736,
43 A. 189 (1899) (‘‘the contract of a surety is a collateral
engagement for another, as distinguished from an origi-
nal and direct agreement for the party’s own act’’ (inter-
nal quotation marks omitted)). We cannot conclude that
the trial court’s refusal to use its equitable power to
reform the mortgage deed was improper under these
circumstances.
To be sure, identifying the obligation secured by a
mortgage deed is not a technical or scrivener’s error.
Reforming the mortgage deed in the manner sought by
the plaintiff without establishing that the change effects
the original intention of the parties changes the defen-
dant’s obligations and creates a new contract between
her and the plaintiff. This court has cautioned that ‘‘[a]n
obstacle to reformation [that] we find insurmountable
arises from the fundamental principle that there can be
no reformation unless there is an antecedent agreement
upon which the minds of the parties have met. The
relief afforded in reforming an instrument is to make
it conform to the previous agreement of the parties.’’
Hoffman v. Fidelity & Casualty Co. of New York, 125
Conn. 440, 443, 6 A.2d 357 (1939). Consequently, ‘‘a
definite agreement on which the minds of the parties
have met must have [preexisted] the instrument in ques-
tion.’’ Id. It is axiomatic that a ‘‘court cannot supply an
agreement [that] was never made, for it is [a court’s]
province to enforce contracts, not to make or alter
them.’’ Id. The issue here is whether it was clearly
erroneous for the trial court not to find that a prior
agreement existed between JPMorgan Chase and the
defendant that the defendant would execute the mort-
gage deed in order to secure Robert’s debt.
We recognize that the fact the mortgage deed and
note have matching dates and refer to matching amounts
could have allowed the trial court to infer that the
transactions are related. However, based on the other
evidence presented, which suggests that the defendant
did not intend to secure Robert’s debt, and the absence
of any direct evidence that either party did intend the
mortgage deed to secure a note executed by Robert,
we cannot conclude that the absence of a finding by
the trial court that JPMorgan Chase and the defendant
intended for the defendant to execute the mortgage
deed in order to secure Robert’s note was clearly erro-
neous.
In its brief, the plaintiff posits the rhetorical question,
what other reason would the defendant have to sign
the mortgage deed if not to secure Robert’s note? This
question and the speculative answer it may yield, how-
ever, do not provide anything like dispositive evidence
of the parties’ respective intentions here. The defendant
had no burden to demonstrate what other purpose or
intent motivated her to sign the mortgage deed. It is
the plaintiff, as the party seeking reformation, that must
prove the preexisting agreement that it seeks to effectu-
ate, and it must do so by clear and convincing evidence.
It did not do so to the satisfaction of the trial court,
and we cannot conclude that the trial court’s findings
in this regard were clearly erroneous.
We cannot conclude, on the basis of the evidence
before the trial court, that the absence of a finding by
the court that the parties intended the mortgage deed
signed by the defendant to secure the note signed by
Robert was clearly erroneous. Thus, we conclude that
the Appellate Court properly upheld the trial court’s
decision to decline to reform the mortgage deed.
II
We next consider whether the Appellate Court prop-
erly affirmed the judgment of the trial court determining
that the plaintiff was not entitled to foreclose the mort-
gage executed by the defendant because the defendant
is not a borrower on the note. On appeal, the plaintiff
contends that, even if this court concludes that the
Appellate Court properly upheld the trial court’s denial
of the request for reformation, the plaintiff is neverthe-
less entitled to foreclose. The plaintiff argues that this
is so because it is undisputed that the defendant entered
into a mortgage transaction and common sense dictates
that she intended her property interest to be security
for the note contemporaneously executed by Robert.
The plaintiff contends that, therefore, foreclosure is the
proper equitable relief. The defendant counters that the
plaintiff cannot foreclose the mortgage without refor-
mation. We agree with the defendant.
As we noted previously, ‘‘[a] foreclosure action is an
equitable proceeding. . . . The determination of what
equity requires is a matter for the discretion of the trial
court.’’ (Internal quotation marks omitted.) Deutsche
Bank National Trust Co. v. Angle, 284 Conn. 322, 326,
933 A.2d 1143 (2007). Thus, on appeal, we employ the
abuse of discretion standard. See, e.g., id.
‘‘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.’’ GMAC Mortgage, LLC v. Ford, 144
Conn. App. 165, 176, 73 A.3d 742 (2013), citing Franklin
Credit Management Corp. v. Nicholas, 73 Conn. App.
830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn.
937, 815 A.2d 136 (2003).
In the present case, it is undisputed that the defendant
did not sign the promissory note. Instead, the defendant
signed only the mortgage deed, and the mortgage deed
does not indicate that it was entered into to secure the
note executed by Robert. The mortgage deed mentions
only a nonexistent promissory note for which the defen-
dant alone is the borrower. Hudson, the plaintiff’s pre-
decessor in interest, conceded that the defendant was
not a borrower on any note.
We find the Appellate Court’s reasoning persuasive
in resolving this claim. The Appellate Court reasoned:
‘‘In reviewing the [trial] court’s memorandum of deci-
sion and subsequent rulings on the plaintiff’s motions,
it is clear that it declined to grant foreclosure of the
mortgage without reformation because it determined
that the mortgage [deed], as executed, was a nullity
because it secured a nonexistent debt.’’ JPMorgan Chase
Bank, National Assn. v. Virgulak, supra, 192 Conn.
App. 703. Accordingly, like the Appellate Court major-
ity, we cannot conclude that the plaintiff was entitled
to foreclose a mortgage for a debt for which the defen-
dant was not responsible and that was not referenced
in the mortgage deed.
On the basis of the foregoing, we conclude that the
Appellate Court correctly concluded that the trial court
did not abuse its discretion and properly affirmed the
judgment of the trial court.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* January 11, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
‘‘The named plaintiff, JPMorgan Chase Bank, National Association . . .
is no longer a party in this matter . . . [after filing] a motion to substitute
Hudson City Savings Bank as the plaintiff, which the [trial] court granted
on August 18, 2015. On August 9, 2016, M&T Bank filed a motion to substitute
itself as the plaintiff, noting that it was the successor by merger to Hudson
City Savings Bank. That motion was granted on August 15, 2016.’’ JPMorgan
Chase Bank, National Assn. v. Virgulak, 192 Conn. App. 688, 691 n.1, 218
A.3d 596 (2019). For convenience, we refer to M&T Bank as the plaintiff in
this opinion.
2
The original summons and complaint also listed the named defendant,
Robert J. Virgulak, and the Department of Revenue Services as defendants.
Subsequently, the named plaintiff, JPMorgan Chase Bank, National Associa-
tion, withdrew the action against Robert J. Virgulak. Additionally, the Depart-
ment of Revenue Services was defaulted for failure to plead. Therefore, in
the interest of simplicity, we refer to Theresa Virgulak as the defendant.
3
The trial court explained the following in its memorandum of decision:
‘‘[I]n the second count of its complaint, the plaintiff seeks reformation of
the [note] but not the mortgage deed. However, on page 7 of its posttrial
brief . . . the plaintiff concedes: ‘Quite simply, there is . . . no support
for any notion that the mortgage [deed] was ever intended to secure a note
executed by [the defendant].’ According to the [posttrial] brief, it is now
the plaintiff’s position that the mortgage deed should be reformed ‘to refer-
ence the fact that the mortgage [deed] executed by [the defendant] was to
secure the note executed by Robert.’ ’’ (Citation omitted; footnote omitted.)
In its posttrial brief, the plaintiff asserted that the trial court should
consider its new position that the mortgage deed, rather than the note,
should be reformed because, ‘‘in an equitable proceeding such as a mortgage
foreclosure, the trial court may consider equitable principles, even though
they may not have been specifically pleaded, and may consider all relevant
circumstances to [e]nsure that complete justice is done.’’ (Internal quotation
marks omitted.)
Even though the plaintiff did not plead in its complaint that it was entitled
to reformation of the mortgage deed, the trial court considered that claim
and ultimately concluded that ‘‘the plaintiff has not sustained its burden of
proving, by clear and convincing evidence, that it is entitled to the equitable
remedy of reformation of the mortgage deed . . . .’’ (Citation omitted.) The
defendant does not assert that it was improper for the trial court or the
Appellate Court to consider reforming the mortgage deed instead of the
note, so we also consider that claim.
4
In its response to the defendant’s request for admissions, Hudson, the
plaintiff’s predecessor in interest, admitted, inter alia, that the defendant
did not borrow any money from Hudson or JPMorgan Chase and did not
owe them any money. See JPMorgan Chase Bank, National Assn. v. Virgu-
lak, supra, 192 Conn. App. 715–16. Approximately two weeks after trial, the
plaintiff filed a motion seeking to withdraw and amend the responses to
the defendant’s request for admissions, which the court ultimately denied.
See id., 695–96.
5
The trial court elucidated that ‘‘[it] has . . . consider[ed] all of the testi-
mony given by Robert and [the defendant] to the extent that their credibility
is at issue.’’
6
See footnote 5 of this opinion.
7
In its response to the defendant’s request for admissions, Hudson also
conceded that the defendant never borrowed any money from Hudson or
JPMorgan Chase. See footnote 4 of this opinion.