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U.S. BANK NATIONAL ASSOCIATION, TRUSTEE
v. LINDA BOOKER ET AL.
(AC 45473)
Bright, C. J., and Suarez and Seeley, Js.
Syllabus
W Co., the plaintiff’s predecessor in interest, sought to foreclose a mortgage
on certain real property owned by the defendants. The defendants had
executed a promissory note in the original principal amount of $231,920,
which was secured by the mortgage. Thereafter, the defendants signed
a loan modification agreement that they had negotiated with O Co., a
loan servicing company, the terms of which, inter alia, increased the
outstanding principal amount of the debt to $400,706.05. O Co. did not
sign the loan modification agreement. After the defendants defaulted
on the note and mortgage due to the nonpayment of monthly installments
of principal and interest, W Co. declared the entire balance of the note
due and payable and sought strict foreclosure of the mortgaged property.
Thereafter, W Co. assigned the mortgage to the plaintiff, and the trial
court granted W Co.’s motion to substitute the plaintiff as a party to
the action. The trial court granted the plaintiff’s motion for summary
judgment as to liability and rendered a judgment of strict foreclosure.
The trial court denied the defendants’ motion for reconsideration. The
defendants filed a motion to open and vacate the judgment, asserting,
for the first time, that there was a discrepancy between the debt amount
alleged in the complaint and that found in the strict foreclosure judg-
ment. Two days later, the defendants filed their first appeal, claiming
that the trial court erred in denying their motion for reconsideration.
Approximately one week later, pursuant to the applicable statute (§ 49-
15), title to the mortgaged property vested in the plaintiff. This court
dismissed the appeal as moot, and our Supreme Court denied the defen-
dants’ petition for certification to appeal. Thereafter, the defendants
filed a memorandum of law in support of their motion to open and
vacate the judgment, claiming that the trial court made a fundamental
mistake in relying on the principal debt amount listed in the plaintiff’s
affidavit of debt, namely, $400,706.05, rather than on the $231,920 amount
alleged in the complaint. The trial court denied the defendants’ motion,
and the defendants appealed to this court. Held:
1. Contrary to the plaintiff’s claim, this court did not lack subject matter
jurisdiction over the defendants’ appeal:
a. Although title to the mortgaged property had vested in the plaintiff
following the passage of the law day in accordance with § 49-15, because
the defendants claimed that the trial court made a fundamental mistake
in relying on an incorrect principal amount of the debt when rendering
its judgment of strict foreclosure, and because the defendants’ claims
of mistake and fraud presented the trial court with colorable grounds
for equitable relief pursuant to U.S. Bank National Assn. v. Rothermel
(339 Conn. 366), the defendants’ appeal was not moot; accordingly, this
court could exercise its limited, continuing jurisdiction, consistent with
§ 49-15, to provide the defendants with practical relief in the event that
it concluded that the trial court improperly declined to exercise its
jurisdiction and afford the defendants relief.
b. The defendants did not abandon their claim regarding the principal
debt amount by failing to raise it in their initial appeal to this court: the
defendants’ motion to open was not denied until after their initial appeal
had been dismissed, and, as a result, the defendants could not have
waived their right to raise the claim of error in the present appeal when
the trial court had not ruled on the issue until after the initial appeal
had been dismissed.
2. The trial court did not abuse its discretion in denying the defendants’
motion to open on the merits because the facts alleged did not present
the type of rare and exceptional circumstance required pursuant to
Rothermel for the court to exercise a limited form of continuing jurisdic-
tion after title to the mortgaged property had vested in the plaintiff:
a. The trial court reasonably could have concluded that, even if a mistake
had occurred, it did not rise to the level of the rare and exceptional
circumstance that would require a court in equity to provide relief, as
the plaintiff expressly relied on the $400,706.05 principal debt amount
in both of its motions for summary judgment, the defendants opposed
both motions yet, in doing so, failed to raise the issue regarding the
amount of the debt, and a copy of the loan modification agreement that
had been signed by the defendants was before the trial court; moreover,
the trial court reasonably could have determined that the defendants
had ample opportunities throughout the lifespan of the case to raise the
issue of the modified debt amount and that their decision to delay doing
so until after title to the real property had vested in the plaintiff under-
mined their argument that the alleged mistake warranted equitable relief.
b. The defendants’ bare assertion of fraud by the plaintiff did not satisfy
the clear and satisfactory evidence standard, and it fell short of the rare
and exceptional circumstance justifying continuing jurisdiction under
Rothermel because the defendants did not present any persuasive evi-
dence that the plaintiff intentionally pleaded a greater debt amount than
was actually owed so that its mortgage servicer could earn an increased
fee; moreover, the plaintiff’s assertion that the loan modification agree-
ment modified the loan did not prove that it was aware that the modified
principal amount of the debt was inaccurate, throughout the entirety of
the action the plaintiff consistently alleged that the principal debt amount
was $400,706.05, and it reasonably could be inferred that the plaintiff
acted under the belief that the loan modification agreement was effective
because it was signed by the defendants.
Argued April 10—officially released August 1, 2023
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the court, Spader, J., granted
the motion filed by the plaintiff Wilmington Trust,
National Association, as Trustee of ARLP Securitization
Trust, Series 2015-1 to substitute U.S. Bank National
Association as Legal Title Trustee for Truman 2016 SC6
Title Trust as the plaintiff; thereafter, the court, Cor-
dani, J., granted the plaintiff’s motion for summary
judgment as to liability against the named defendant
et al. and rendered a judgment of strict foreclosure;
subsequently, the court, Baio, J., denied the motion for
reconsideration filed by the named defendant et al. and
the named defendant et al. appealed to this court, which
dismissed the appeal as moot; thereafter, our Supreme
Court denied the petition for certification to appeal
filed by the named defendant et al.; subsequently, the
court, Cirello, J., denied the motion to open the judg-
ment filed by the named defendant et al., from which the
named defendant et al. appealed to this court. Affirmed.
Thomas P. Willcutts, for the appellants (named
defendant et al.).
William Dziedzic, with whom, on the brief, was
Adam L. Avallone, for the appellee (plaintiff).
Opinion
SUAREZ, J. In this residential mortgage foreclosure
action, the defendants Linda Booker and Ulish Booker,
Jr., appeal from the trial court’s denial of their motion
to open the judgment of strict foreclosure rendered in
favor of the plaintiff U.S. Bank National Association as
Legal Title Trustee for Truman 2016 SC6 Title Trust.1
The defendants claim that the court erred in denying
their motion to open the judgment because the court
improperly decided not to exercise its discretion and
afford them relief in connection with the grounds of
mistake and fraud raised therein.2 The plaintiff argues
that this court should dismiss the appeal because (1)
the defendants’ appeal is moot, as title in the mortgaged
property has vested in the plaintiff, and (2) the defen-
dants should not be allowed to raise their claim of error
because it could have been raised in the defendants’
prior appeal in this action. The plaintiff also argues that
the court did not abuse its discretion in denying the
motion to open. We reject the plaintiff’s jurisdictional
and reviewability arguments and conclude that the
court properly denied the defendants’ motion to open.
Accordingly, we affirm the judgment of the court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
April 25, 2017, the original plaintiff, Wilmington Trust,
National Association, as Trustee of ARLP Securitization
Trust, Series 2015-1 (Wilmington Trust), filed a com-
plaint against the defendants, alleging the following
facts: On March 30, 2006, the defendants were indebted
to New Century Mortgage Corporation (New Century)
in connection with a promissory note executed in favor
of New Century in the amount of $231,920. The note
was secured by a mortgage, executed by the defendants,
on their property located in West Haven. Seven years
later, the defendants negotiated with Ocwen Loan Ser-
vicing, LLC (Ocwen),3 for a loan modification and signed
an agreement dated December 9, 2013, the terms of
which increased the principal debt balance to
$400,706.05 and reduced the interest rate to 6 percent
(2013 loan modification agreement). Ocwen did not sign
the 2013 loan modification agreement.
Following a series of assignments, Wilmington Trust
became the assignee of the mortgage and, therefore,
was entitled to collect the debt evidenced by the note
and was entitled to enforce the mortgage. As of April
1, 2014, the defendants were in default on the note
and mortgage because of nonpayment of the monthly
installments of principal and interest. Wilmington Trust
thereafter exercised its option to declare the entire
balance of the note due and payable and sought strict
foreclosure of the defendants’ mortgaged property.
The record reflects the following additional proce-
dural history. On June 29, 2017, Wilmington Trust
assigned the mortgage to the plaintiff and, on January
11, 2018, moved to substitute it as the plaintiff in this
action. On January 26, 2018, Wilmington Trust moved
for a judgment of strict foreclosure of the defendants’
mortgaged property. On January 29, 2018, the court,
Spader, J., granted Wilmington Trust’s motion to substi-
tute the plaintiff as the party plaintiff. On May 9, 2018,
the plaintiff moved for summary judgment as to liability,
and the court, Hon. Anthony V. Avallone, judge trial
referee, denied the motion without prejudice due to a
discrepancy with the assignments of the mortgage as
set forth in the plaintiff’s complaint.4 On September
28, 2018, the plaintiff filed a subsequent motion for
summary judgment as to liability. On January 7, 2019,
the court, Cordani, J., granted the September 28, 2018
motion for summary judgment. On January 25, 2019,
the defendants, in a self-represented capacity, filed a
motion to reargue the September 28, 2018 motion for
summary judgment. On February 4, 2019, the court,
Cordani, J., denied the defendants’ motion to reargue
and rendered a judgment of strict foreclosure for the
plaintiff, setting the law day for April 22, 2019. On April
22, 2019, the defendants filed a motion to open the
judgment and extend the law day. On April 22, 2019,
the court, Cordani, J., denied their motion and reset
the law day to May 20, 2019.
On May 14, 2019, Ulish Booker, Jr., filed a bankruptcy
petition pursuant to chapter 13 of the United States
Bankruptcy Code, which resulted in an automatic stay
of the law day. On April 2, 2020, the United States
Bankruptcy Court for the District of Connecticut dis-
missed his bankruptcy case. On November 6, 2020, the
plaintiff filed a motion to reenter the strict foreclosure
judgment and set a new law day. On January 25, 2021,
the court, Baio, J., held a hearing and granted the plain-
tiff’s motion, setting the law day for March 22, 2021.5
On February 16, 2021, the defendants filed a motion for
reconsideration of the granting of strict foreclosure,
arguing that they did not receive proper notice of the
January 25, 2021 hearing and that the plaintiff lacked
standing due to the discrepancy with the assignments
of the mortgage as set forth in the complaint.6 On March
11, 2021, the court, Baio, J., denied the defendants’
motion for reconsideration. On March 16, 2021, the
defendants filed a motion pursuant to Practice Book
§ 10-33 to open and vacate the judgment of strict fore-
closure on the ground that the court lacked subject
matter jurisdiction due to the discrepancy with the
assignments of the mortgage. In their March 16, 2021
motion to open the judgment, for the first time in this
action, the defendants also argued that the debt amount
found in the strict foreclosure judgment was different
than the amount alleged in the complaint. On March
18, 2021, the defendants filed their first appeal in this
action (first appeal), claiming that the court erred in
denying their February 16, 2021 motion for reconsidera-
tion. On March 24, 2021, title in the property vested in
the plaintiff. On April 9, 2021, the defendants, who had
been self-represented until this time, retained counsel.
On May 4, 2021, this court, in the first appeal, ordered
the parties, sua sponte, to file memoranda of law as to
why the defendants’ appeal should not be dismissed as
moot because the law day had passed and title had
vested in the plaintiff. On May 26, 2021, after reviewing
the memoranda of law submitted by the parties, this
court dismissed the defendants’ appeal as moot. On
August 17, 2021, the defendants petitioned our Supreme
Court for certification to appeal, which was denied on
October 26, 2021.
On February 25, 2022, the defendants, through coun-
sel, filed a memorandum of law in support of their
March 16, 2021 motion to open the judgment. Therein,
the defendants claimed that the court made a fundamen-
tal mistake by relying on an incorrect principal debt
amount, taken from the plaintiff’s affidavit of debt,
when rendering its judgment of strict foreclosure. Spe-
cifically, the defendants alleged that the court erred
by using the principal debt amount of $400,706.05, in
accordance with the proposed 2013 loan modification
agreement, instead of the original principal debt amount
of $231,920, as alleged in the complaint. The defendants
argued that the court has equitable jurisdiction to cor-
rect a fundamental mistake under our Supreme Court’s
decision in U.S. Bank National Assn. v. Rothermel, 339
Conn. 366, 373, 260 A.3d 1187 (2021). On March 14,
2022, the plaintiff filed an objection to the defendants’
March 16, 2021 motion to open, arguing that the defen-
dants’ claim of error did not warrant the exercise of
the court’s equitable jurisdiction to open the judgment.
On April 14, 2022, the trial court, Cirello, J., held a
hearing on the defendants’ March 16, 2021 motion to
open the judgment and denied the motion.7 In its order
of April 14, 2022, denying the motion, the court stated
that, ‘‘[a]fter reviewing the court file, the written and
oral arguments and all the relevant exhibits, the court
finds that there are no legal or equitable reasons to
reopen the judgment. . . . To allow the defendants a
second bite at the apple to raise claims made in this
motion to open is not equitable to all parties con-
cerned.’’ This appeal followed.
On May 13, 2022, the plaintiff filed a motion to dismiss
this appeal, arguing that this court lacks subject matter
jurisdiction over the appeal because (1) the appeal is
moot, as title has vested in the plaintiff, and (2) the
claims raised in the appeal could have been raised in
the defendants’ first appeal. On June 29, 2022, this court
denied the plaintiff’s motion to dismiss without preju-
dice to the parties addressing the jurisdictional issue
raised by the plaintiff in their appellate briefs. Addi-
tional facts and procedural history will be set forth as
necessary.
I
As a preliminary matter, we address the arguments
raised by the plaintiff that it characterizes as implicating
this court’s subject matter jurisdiction. First, the plain-
tiff argues that this court lacks subject matter jurisdic-
tion because title has vested in the plaintiff, and, there-
fore, the appeal is moot, as this court cannot provide any
practical relief to the defendants. Second, the plaintiff
argues that the defendants’ claim could have been
raised in a prior appeal and, thus, has been abandoned.
We are not persuaded.
A
‘‘A threshold inquiry of this court upon every appeal
presented to it is the question of appellate jurisdiction.
. . . It is well established that the subject matter juris-
diction of the Appellate Court . . . is governed by
[General Statutes] § 52-263, which provides that an
aggrieved party may appeal to the court having jurisdic-
tion from the final judgment of the court. . . . [O]nce
the question of lack of jurisdiction of a court is raised,
[it] must be disposed of no matter in what form it is
presented . . . and the court must fully resolve it
before proceeding further with the case. . . . If it
becomes apparent to the court that such jurisdiction
is lacking, the appeal must be dismissed.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Trumbull v. Palmer, 123 Conn. App. 244, 249–
50, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d
526 (2010), and cert. denied, 299 Conn. 907, 10 A.3d
526 (2010).
‘‘Mootness implicates [this] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a [well settled] general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . [A] subject matter jurisdictional defect may
not be waived . . . [or jurisdiction] conferred by the
parties, explicitly or implicitly. . . . [T]he question of
subject matter jurisdiction is a question of law . . .
and, once raised, either by a party or by the court itself,
the question must be answered before the court may
decide the case.’’ (Internal quotation marks omitted.)
Brookstone Homes, LLC v. Merco Holdings, LLC, 208
Conn. App. 789, 798–99, 266 A.3d 921 (2021).
Motions to open judgments of strict foreclosure are
governed by General Statutes § 49-15 (a) (1). Under
§ 49-15 (a) (1), courts generally cannot open a judgment
of strict foreclosure after the passage of the law days
because such an event vests absolute title in the encum-
brancer. See U.S. Bank National Assn. v. Rothermel,
supra, 339 Conn. 375. Both our Supreme Court and this
court, however, have established that courts may, in
rare and exceptional cases, exercise a limited form of
continuing jurisdiction over motions to open strict fore-
closure judgments after the passage of the law days,
notwithstanding the statutory limitation imposed by
§ 49-15. Id., 376–77. Our Supreme Court has indicated
that rare and exceptional cases may include circum-
stances involving ‘‘[f]raud, accident, mistake, and sur-
prise . . . .’’ (Internal quotation marks omitted.) Id.,
379. In Rothermel, our Supreme Court stated that ‘‘[t]rial
courts may, under existing case law, grant motions to
dismiss pursuant to § 49-15 in cases in which a claim
raised in a postvesting motion to open fails to present
colorable grounds for equitable relief under these lim-
ited exceptions, and appellate courts may continue to
summarily dismiss appeals taken from those rulings.’’
(Emphasis added.) Id., 379–80 n.11. This court has
defined a colorable claim as ‘‘one that is superficially
well founded but that may ultimately be deemed invalid
. . . .’’ Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App.
148, 158–59, 842 A.2d 1140, cert. denied, 269 Conn. 908,
852 A.2d 738 (2004).
In the present case, the defendants claim, in their
March 16, 2021 motion to open, that the court made a
fundamental mistake by using the incorrect principal
amount when rendering its judgment of strict foreclo-
sure. Specifically, the defendants argued that the court
mistakenly relied on the plaintiff’s affidavit of debt,
which stated that the debt was $400,706.05 in accor-
dance with the proposed 2013 loan modification agree-
ment, instead of on the complaint, which alleged that
the original principal debt amount was $231,920. The
defendants assert that the correct principal debt
amount is $231,920 because the 2013 loan modification
agreement never became effective, as there is no evi-
dence in the record that the conditions precedent in
the agreement have been met, Ocwen is not a party to
the present action, and Ocwen did not sign the agree-
ment.8 The defendants further argued that the plaintiff
fraudulently represented to the court in its affidavit of
debt an incorrect principal debt amount because the
plaintiff’s mortgage servicer could potentially earn its
fee as a fixed percentage of the outstanding principal
balance, providing an incentive for the plaintiff to inten-
tionally inflate the principal debt amount.
The defendants’ claims of mistake and fraud pre-
sented the trial court with colorable grounds for equita-
ble relief under Rothermel, and, accordingly, we may
exercise our limited form of continuing jurisdiction to
provide the defendants practical relief in the event that
we conclude, as the defendants claim, that the trial
court improperly declined to exercise its discretion and
afford them relief in connection with their claims of
mistake and fraud embodied in their motion to open.
Thus, the defendants’ appeal is not moot.
B
The plaintiff next claims that this court lacks subject
matter jurisdiction because the defendants could have
raised the issue regarding the principal debt amount
used in the judgment of strict foreclosure in their prior
appeal. The plaintiff relies on Connecticut Savings
Bank v. Heghmann, 193 Conn. 157, 159–60, 474 A.2d
790, cert. denied, 469 U.S. 883, 105 S. Ct. 252, 83 L. Ed.
2d 189 (1984), for the notion that once an issue has
been abandoned on appeal, it is waived and may not
be resurrected. As a preliminary matter, we disagree
with the plaintiff insofar as it characterizes this claim
as being jurisdictional in nature. The issue of whether
the defendants have waived their claim of error by
failing to raise it in their first appeal involves important
jurisprudential principles as to when it is appropriate
for us to review a claim that has not been properly
preserved, but in no way implicates this court’s jurisdic-
tion to resolve the appeal. Addressing the argument as
one that is properly related to reviewability, we are not
persuaded that we should decline to review this claim.
‘‘It is well established that when a party brings a
subsequent appeal, it cannot raise questions which were
or could have been answered in its former appeals.
. . . Failure to raise an issue in an initial appeal to this
court constitutes a waiver of the right to bring the
claim.’’ (Internal quotation marks omitted.) Disciplin-
ary Counsel v. Evans, 159 Conn. App. 343, 356, 123
A.3d 69 (2015). This court has defined waiver as ‘‘an
intentional relinquishment or abandonment of a known
right or privilege.’’ (Internal quotation marks omitted.)
Gagne v. Vaccaro, 80 Conn. App. 436, 445, 835 A.2d 491
(2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004).
This principle applies, however, only when ‘‘the issue
that a party seeks to raise in a subsequent appeal was
one that the party actually litigated prior to the initial
appeal such that the issue could have been raised in
the initial appeal.’’ (Emphasis in original; internal quo-
tation marks omitted.) Disciplinary Counsel v. Evans,
supra, 356.
With these principles in mind, we conclude that the
plaintiff’s reliance on Heghmann is misplaced. In Hegh-
mann, the defendants appealed to our Supreme Court
from a judgment of foreclosure by sale. Connecticut
Savings Bank v. Heghmann, supra, 193 Conn. 158. After
our Supreme Court dismissed the appeal, the trial court
opened the judgment for the purpose of setting a new
sale date. Id. Subsequently, the defendants moved to
open the judgment, which motion was denied by the
trial court. Id. The defendants brought a subsequent
appeal from the denial of their motion to open, in which
they attempted to challenge the rulings that led to the
original judgment of foreclosure by sale. Id., 158–59. In
affirming the judgment of the trial court in the subse-
quent appeal, our Supreme Court, on the basis of a
review of the preliminary statement of issues in the
prior appeal, concluded that ‘‘the arguments now being
advanced by the defendants could have been asserted
in that appeal which was dismissed. . . . [T]he defen-
dants are obliquely attempting to revive an appeal that
has succumbed by being abandoned.’’ (Footnote omit-
ted.) Id., 159–60.
In the present case, the defendants first asserted the
discrepancy with the principal debt amount in the fore-
closure judgment on March 16, 2021, when they filed
their motion to open the judgment. This occurred two
days prior to the filing of their initial appeal.9 However,
the defendants’ March 16, 2021 motion to open was not
denied until April 14, 2022, after the prior appeal was
dismissed on May 26, 2021. It would strain logic for this
court to conclude that the defendants, in connection
with the prior appeal, somehow waived their right to
raise the current claim of error in the present appeal,
related to the ruling of April 14, 2022, when the trial
court did not rule on the issue raised in the claim until
after the prior appeal was dismissed. Therefore, we
conclude that the defendants did not waive the claim
that the court erred in denying their March 16, 2021
motion to open.
II
We now turn to the defendants’ claim that the court
improperly denied their motion to open the judgment
on its merits. We are not persuaded.
In their memorandum in support of their March 16,
2021 motion to open, the defendants asserted that, not-
withstanding the fact that title had vested in the plaintiff
in accordance with § 49-15 due to the passage of the
law day, under the unique circumstances of this case,
the court should exercise continuing jurisdiction pursu-
ant to Rothermel to afford them relief. In its April 14,
2022 order, the court rejected the defendants’ argu-
ments and concluded that there were no legal or equita-
ble grounds on which to open the judgment. On appeal,
the defendants argue that the court erred in denying
their motion to open and vacate the strict foreclosure
judgment by improperly deciding not to exercise its
limited equitable discretion and afford them relief in
connection with their claims of mistake and fraud. The
plaintiff contends that the court did not abuse its discre-
tion by denying the defendants’ March 16, 2021 motion
to open and vacate the judgment because the facts
alleged do not show that this case presents the type of
rare and exceptional circumstance described in Rother-
mel. We agree with the plaintiff.
‘‘The relevant standard of review is well established.
Whether proceeding under the common law or a statute,
the action of a trial court in granting or refusing an
application to open a judgment is, generally, within the
judicial discretion of such court, and its action will not
be disturbed on appeal unless it clearly appears that
the trial court has abused its discretion.’’10 (Internal
quotation marks omitted.) U.S. Bank National Assn.
v. Rothermel, supra, 339 Conn. 381. When considering
whether the court has abused its discretion, ‘‘we must
make every reasonable presumption in favor of the
correctness of its action. . . . Our review of a trial
court’s exercise of the legal discretion vested in it is
limited to the questions of whether the trial court cor-
rectly applied the law and could reasonably have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) Federal Deposit Ins. Corp. v. Owen,
88 Conn. App. 806, 811–12, 873 A.2d 1003, cert. denied,
275 Conn. 902, 882 A.2d 670 (2005). The court’s factual
findings, however, are subject to the clearly erroneous
standard of review. See U.S. Bank National Assn. v.
Rothermel, supra, 382. ‘‘The law governing strict fore-
closure lies at the crossroads between the equitable
remedies provided by the judiciary and the statutory
remedies provided by the legislature.’’ (Internal quota-
tion marks omitted.) Id., 374.
As previously discussed in part I A of this opinion,
§ 49-15 (a) (1) governs the court’s authority to open a
judgment of strict foreclosure. It provides: ‘‘Any judg-
ment foreclosing the title to real estate by strict foreclo-
sure may, at the discretion of the court rendering the
judgment, upon the written motion of any person having
an interest in the judgment and for cause shown, be
opened and modified, notwithstanding the limitation
imposed by section 52-212a, upon such terms as to
costs as the court deems reasonable, provided no such
judgment shall be opened after the title has become
absolute in any encumbrancer except as provided in
subdivision (2) of this subsection.’’ (Emphasis added.)
General Statutes § 49-15 (a) (1).
‘‘In Connecticut, the passage of the law days in an
action for strict foreclosure extinguishes a mortgagor’s
equitable right of redemption and vests absolute title
in the encumbrancer.’’ U.S. Bank National Assn. v.
Rothermel, supra, 339 Conn. 375. We previously have
read § 49-15 (a) (1) ‘‘in a manner that generally prohibits
mortgagors from obtaining practical relief after the pas-
sage of the law days and, as a result, ha[ve] concluded
that both postvesting motions to open a judgment and
subsequent appeals related to them are moot.’’ Id. Nev-
ertheless, our Supreme Court and this court have recog-
nized that the trial court possesses inherent powers to
provide limited forms of continuing equitable relief after
the passage of the law days in ‘‘rare and exceptional’’
cases, consistent with § 49-15. Id., 376–77.
The limited exception allowing courts to open a judg-
ment of strict foreclosure after title has vested in an
encumbrancer originated in New Milford Savings Bank
v. Jajer, 244 Conn. 251, 257, 708 A.2d 1378 (1998). In
Jajer, the plaintiff brought an action for foreclosure of
a mortgage and mistakenly omitted from its complaint
one of the three parcels of land included in the mortgage
conveyance. Id., 253. After the trial court rendered a
judgment of strict foreclosure on that complaint, the
law days had passed, and title for the two included
parcels of land vested in the plaintiff, the plaintiff dis-
covered its mistake and moved to open the court’s
judgment to amend its complaint to include the third
parcel of land. Id., 253–54. Our Supreme Court con-
cluded that § 49-15 did not deprive the court of jurisdic-
tion to open the judgment of foreclosure due to the
plaintiff’s clerical error. Id., 260. The court stated that,
‘‘consistently with its authority to exercise its equitable
discretion in foreclosure proceedings, the trial court
must be afforded the authority to open judgments on
a case-by-case basis ‘in order that complete justice may
be done.’ ’’ Id., 261.
Likewise, in Wells Fargo Bank, N.A. v. Melahn, 148
Conn. App. 1, 12–13, 85 A.3d 1 (2014), this court held
that the trial court, in rare and exceptional circum-
stances, has equitable discretion in a foreclosure pro-
ceeding to open a judgment after the passage of the
law days. Specifically, this court held that an attorney’s
false certification to the court that the plaintiff had
complied with the court’s judgment by notifying all
nonappearing defendant owners of the equity, consti-
tuted a rare and exceptional circumstance allowing the
court to open the judgment of strict foreclosure despite
the passing of the law day. Id., 3–5. This court explained,
‘‘[E]quity permits a court to provide relief in response
to an egregious mistake.’’ (Emphasis added; internal
quotation marks omitted.) Id., 12.
In Rothermel, our Supreme Court further clarified
that, pursuant to Jajer and Melahn, the court should
consider using its equitable authority to open a judg-
ment after the passage of law days only when the claim
raises a colorable ground for equitable relief. U.S. Bank
National Assn. v. Rothermel, supra, 339 Conn. 379–80
and n.11. In that case, the defendant obtained the funds
needed to purchase a parcel of real property by signing
a note promising to pay the principal and interest on
a loan that was secured by a mortgage on the property.
Id., 369. The defendant defaulted on the note and the
plaintiff moved for strict foreclosure of the mortgaged
property. Id. The trial court granted the plaintiff’s
motion and rendered a judgment of strict foreclosure.
Id. After granting fifteen of the plaintiff’s motions to
open the judgment, which were filed with the defen-
dant’s consent, the trial court set the law day for March
12, 2019. Id., 369–70. On March 13, 2019, the defendant
filed another motion to open the judgment, one day
after the law day had passed. Id., 371. The defendant
claimed that she had relied on both written and oral
misrepresentations by the plaintiff’s loan servicer, caus-
ing her to file the motion to open the strict foreclosure
judgment after the passage of the law day. Id., 370–71.
Specifically, the defendant alleged that the loan servicer
told her that the ‘‘foreclosure sale’’ was scheduled for
March 13, 2019. Id. The trial court denied the defen-
dant’s motion to open the judgment, stating that ‘‘it did
not have ‘jurisdiction or authority’ to open the judgment
under § 49-15’’ after the passage of the law day. Id., 371.
The trial court also denied the defendant’s motion on
its merits, stating that she became aware of the law
day on March 9, 2019, and that she had acted in a
‘‘ ‘dilatory and cavalier’ manner by unnecessarily
delaying the filing of her own motion to open the judg-
ment.’’ Id., 371–72. The defendant appealed, and this
court dismissed her appeal as moot. Id., 372.
Our Supreme Court granted certification and
reversed this court’s judgment dismissing the appeal.
Id., 372, 385. The court reasoned that the defendant
‘‘raised a colorable claim falling within a class generally
recognized in equity and sought relief through the
court’s inherent, continuing jurisdiction as previously
established in Melahn’’; id., 380; but ultimately deter-
mined that the trial court did not abuse its discretion
in concluding that the circumstances did not warrant
an award of equitable relief because the late filing of
the motion was, in part, due to the defendant’s own
inaction. Id., 384–85. Our Supreme Court cautioned,
however, that ‘‘the jurisdictional conclusion reached in
the present appeal should not be taken as an invitation
for parties in strict foreclosure proceedings to repack-
age motions to open the judgment filed after the passage
of the law days in a manner that superficially invokes
the inherent powers underlying Jajer or Melahn. Excep-
tions to the general rule against postvesting motions to
open judgments of strict foreclosure are, in fact, rare
and exceptional. A bare assertion that equity requires
such relief is insufficient; as in the present case, the
party seeking to invoke the trial court’s continuing juris-
diction must base their motion to open on particularized
factual allegations that could support a claim cognizable
in equity.’’ Id., 379 n.11. As we stated in part I A of
this opinion, our Supreme Court has provided some
guidance as to what exceptional cases may justify the
trial court exercising its continuing equitable authority
after the passage of the law days, noting that ‘‘[f]raud,
accident, mistake, and surprise are recognized grounds
for equitable interference.’’ (Internal quotation marks
omitted.) Id., 379.
In the present case, the defendants, in their motion
to open, raised a colorable claim that fell within the
ambit of Rothermel by arguing that the court should
exercise its equitable, continuing jurisdiction on the
basis of mistake and fraud. The court did not dismiss
the motion to open on the grounds that it lacked subject
matter jurisdiction or that it was unable to exercise its
discretion to grant the defendants relief, if warranted.
Instead, it considered the merits of the motion after
holding a hearing, at which the parties were afforded
an opportunity to address the matter. After the hearing,
the court denied the motion on its merits.
As stated previously in this opinion, the court, in its
order denying the motion to open, stated in broad terms
that no legal or equitable grounds existed to grant the
defendants’ motion and that ‘‘[t]o allow the defendants
a second bite at the apple to raise claims made in this
motion to open is not equitable to all parties con-
cerned.’’ Insofar as the defendants alleged that a mis-
take had occurred, the court reasonably could have
concluded that this case does not rise to the level of a
rare and exceptional circumstance that would require
a court in equity to provide relief, considering the statu-
tory limitations set forth in § 49-15. In Melahn, this court
stated that ‘‘[e]quity will not, save in rare and extreme
cases, relieve against a judgment rendered as the result
of a mistake on the part of a party or his counsel,
unless the mistake is unmixed with negligence, or . . .
unconnected with any negligence or inattention on the
part of the judgment debtor . . . .’’ (Internal quotation
marks omitted.) Wells Fargo Bank, N.A. v. Melahn,
supra, 148 Conn. App. 11. In the present case, the plain-
tiff stated in its complaint that ‘‘[t]he unpaid balance
due pursuant to the terms of said note is $400,706.05’’
plus interest, late charges and collection costs. More-
over, the plaintiff expressly relied on the modified debt
amount in both of its motions for summary judgment.
The defendants, however, opposed the motions and
failed to raise the issue regarding the amount of the
debt owed. Additionally, we note that, before the court
was a copy of the 2013 loan modification agreement,
signed by the defendants. See footnote 8 of this opinion.
The existence of this agreement undermines the defen-
dants’ assertion that a mistake had been made. More-
over, the court, in its discretion, reasonably may have
determined that, for the defendants to now raise the
issue of the modified debt amount at the eleventh hour,
after title has vested in the plaintiff, undermines their
argument that the alleged mistake warrants equitable
relief. The defendants have had ample opportunities
throughout the five year lifespan of this case to raise
the issue of the modified debt amount mentioned in
paragraph five of the complaint and consistently
throughout the pleadings. From these considerations,
it follows that the court was disinclined to provide the
defendants with the proverbial ‘‘second bite at the
apple.’’
The defendants also argue that the plaintiff’s reliance
on the modified principal debt amount in its affidavit
of debt amounted to intentional fraud because the plain-
tiff, in its objection to the defendants’ motion to open,
implicitly admitted that it was aware of the disconnect
between the original and modified principal debt
amounts when the plaintiff asserted that the defendants
should have realized that the debt figure was based
on the 2013 loan modification agreement. We are not
persuaded.
This court has defined fraud as ‘‘deception practiced
in order to induce another to part with property or
surrender some legal right, and which accomplishes the
end designed. . . . The elements of a fraud action are:
(1) a false representation was made as a statement of
fact; (2) the statement was untrue and known to be so
by its maker; (3) the statement was made with the intent
of inducing reliance thereon; and (4) the other party
relied on the statement to his detriment. . . . Addition-
ally, [t]he party asserting such a cause of action must
prove the existence of the first three of [the] elements
by a standard higher than the usual fair preponderance
of the evidence, which higher standard we have
described as clear and satisfactory or clear, precise
and unequivocal.’’ (Internal quotation marks omitted.)
Miller v. Guimaraes, 78 Conn. App. 760, 780–81, 829
A.2d 422 (2003).
In the present case, the defendants do not draw our
attention to any persuasive evidence in the record to
support a finding that the plaintiff knew about the dis-
crepancy between the original and modified principal
debt amounts, let alone to evidence that the plaintiff
intentionally pleaded the higher amount so that its mort-
gage servicer could earn a higher fee on the outstanding
principal balance. A bare assertion of fraud is not the
equivalent of clear and satisfactory evidence.
What the plaintiff stated in its objection to the defen-
dants’ motion to open does not reasonably support an
inference that the plaintiff had knowledge of the inaccu-
racy of the modified principal debt amount. The plaintiff
explicitly stated: ‘‘In the instant matter, the defendants
fail to offer even a scintilla of evidence to prove that
they were misinformed about the terms, or the amount
of the loan. The subject loan was modified by way
of [the 2013] [l]oan [m]odification [a]greement dated
December 9, 2013, and signed by the defendants.’’ The
plaintiff’s assertion does not prove the fact, by clear
and satisfactory evidence, that it was aware that the
modified principal debt amount was inaccurate. To the
contrary, the plaintiff’s assertion supports its position
that it believed the 2013 loan modification agreement
was effective and accurately reflected the debt owed
by the defendants. Throughout the entirety of this
action, the plaintiff has consistently alleged that the
principal debt owed by the defendants was $400,706.05.
Furthermore, it reasonably can be inferred that the
plaintiff acted under the belief that the 2013 loan modifi-
cation agreement was effective because the defendants
had signed it. Therefore, the defendants’ bare assertion
of intentional fraud by the plaintiff falls woefully short
of a rare and exceptional circumstance required by
Rothermel.
Accordingly, we conclude that the court did not abuse
its discretion in denying the defendants’ March 16, 2021
motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The underlying action was commenced by Wilmington Trust, National
Association, as Trustee of ARLP Securitization Trust, Series 2015-1 (Wilming-
ton Trust). Thereafter, the court granted Wilmington Trust’s motion to substi-
tute U.S. Bank National Association as Legal Title Trustee for Truman 2016
SC6 Title Trust as the plaintiff. Accordingly, in this opinion, we will refer
to U.S. Bank National Association as Legal Title Trustee for Truman 2016
SC6 Title Trust as the plaintiff. Moreover, in this opinion, the term defendants
refers only to Linda Booker and Ulish Booker, Jr. New Century Mortgage
Corporation, although named as a defendant in the original summons and
complaint, did not appear in the underlying proceeding and is not participat-
ing in this appeal.
2
We note that the defendants briefed this argument as two separate
claims. The first being that ‘‘[t]he defendants’ claim of error involves such a
fundamental mistake as to warrant the court exercising continuing equitable
jurisdiction, notwithstanding the time limitations of [General Statutes §] 49-
15’’ and the second being that ‘‘[t]he trial court erred in failing to open and
vacate its judgment following the plaintiff’s postjudgment admission that
the court had entered judgment on a mortgage note that was neither
[pleaded] nor produced to the court.’’ Because these two claims are closely
related, we will address both of them together in part II of this opinion as
part of our discussion regarding whether the court erred in denying the
defendants’ motion to open the judgment.
3
Ocwen is a third-party loan servicing company. Although Ocwen negoti-
ated a loan modification agreement with the defendants, it is not a party
to this action and is not participating in this appeal. In footnote 8 of this
opinion, we set forth the specific terms of the agreement.
4
The discrepancy with the assignments in the complaint involved the
order of the dates in the mortgage assignment between Christiana Trust, a
Division of Wilmington Savings Fund Society, FSB, as Trustee of ARLP Trust
2 and Wilmington Trust, the original plaintiff. Although the plaintiff never
amended the complaint to resolve the discrepancy, the defendants have not
raised an appellate claim related to this issue and, thus, have abandoned
any claim related thereto. See Russell v. Russell, 91 Conn. App. 619, 634–35,
882 A.2d 98, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005), and cert. denied,
276 Conn. 925, 888 A.2d 92 (2005).
5
The court also determined that the debt owed by the defendants was
$641,635.30 and the fair market value of the property was $258,000.
6
As we stated previously in this opinion, the alleged discrepancy, dis-
cussed in footnote 4 of this opinion, led to the denial of the plaintiff’s May
9, 2018 motion for summary judgment.
7
We note that the record does not contain the transcript of the April 14,
2022 hearing. Pursuant to Practice Book § 63-4 (a) (2), the defendants filed
a statement with this court that no transcript is necessary. This court fre-
quently has declined to review claims on appeal because the appellant has
failed to provide an adequate record for review. See, e.g., Rino Gnesi Co.
v. Sbriglio, 83 Conn. App. 707, 712, 850 A.2d 1118 (2004). In the present
case, we will review the defendants’ claim, as there exists a sufficient basis
for appellate review based on the parties’ pleadings, the defendants’ memo-
randum of law, and the court’s April 14, 2022 order. See id. Although a
transcript of the hearing on the motion would have aided and been relevant
to our understanding of the legal arguments raised in the trial court proceed-
ings, neither party has suggested that the hearing was evidentiary in nature
nor does the trial court record include exhibits from the hearing. The defen-
dants attached several documents, marked as ‘‘exhibits,’’ to their memoran-
dum of law. It appears from the record presented to this court that the
court relied on those documents in its consideration of the defendants’
motion to open. Furthermore, it is not necessary that we review the transcript
there does not appear to be any dispute with respect to the legal grounds
on which the defendants relied in bringing their motion to open the judgment.
8
The terms of the 2013 loan modification agreement are in relevant part
as follows: ‘‘In order for the terms of this modification to become effective,
you promise to make an initial down payment . . . of $3,510.55 on or before
1/1/2014 and two (2) equal monthly payments of principal and interest in
the amount of $2,732.14 to Ocwen (‘Trial Period’) beginning on 2/1/2014,
and thereafter due on [the] same day of each succeeding month. . . . You
agree that, at the end of the Trial Period, the new principal balance due
under your modified Note and the Mortgage will be $400,706.05.’’ The defen-
dants signed the 2013 loan modification agreement, but Ocwen did not.
9
Although the 2013 loan modification agreement was attached as an
exhibit to the defendants’ February 16, 2021 motion for reconsideration,
the issue of the discrepancy between the principal debt amounts was not
distinctly raised until they filed their March 16, 2021 motion to open.
10
The defendants argue that the standard of review should be plenary, as
their claim involves the court’s interpretation of the pleadings. A foreclosure
action is an equitable proceeding, however, and the determination of what
equity requires is a matter of discretion for the court. See McCord v. Fredette,
92 Conn. App. 131, 132–33, 883 A.2d 1258 (2005). We therefore review the
trial court’s decision in granting or refusing an application to open a judgment
under an abuse of discretion standard. U.S. Bank National Assn. v. Rother-
mel, supra, 339 Conn. 381.