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HOMEBRIDGE FINANCIAL SERVICES, INC.
v. THOMAS M. JAKUBIEC
(AC 45453)
Suarez, Seeley and Norcott, Js.
Syllabus
The original plaintiff, H Co., sought to foreclose a mortgage on certain real
property owned by the defendant T. Just before the commencement of
the present action, H Co. recorded a lis pendens on the land records
regarding the property. T died two days after he had been served with
process commencing the present action. The court subsequently granted
H Co.’s motion to cite in as defendants, inter alia, T’s widow, heirs,
beneficiaries, representatives or creditors, and H Co. filed an amended
complaint to include these parties. Thereafter, H Co. moved for a judg-
ment of strict foreclosure, and T’s widow, R, filed an objection, claiming
that she had notified H Co.’s counsel of her contact information but
had not received any papers or notice in connection with the foreclosure
action. R subsequently filed a motion to dismiss, alleging a lack of
personal jurisdiction due to ineffective service of process, and the trial
court granted the motion to dismiss with respect to T’s estate but noted
that the case remained pending as to the other parties cited in by H Co.
Several months later, H Co. filed a motion for summary judgment as to
liability, contending that the note and mortgage were in default by virtue
of nonpayment. R objected to H Co.’s motion for summary judgment
and filed an answer and special defenses, including, inter alia, unclean
hands. Thereafter, the court granted a motion to substitute F Co. for H
Co., as F Co. had acquired the right to collect the debt due on the loan.
The court granted F Co.’s motion for summary judgment with respect
to liability, determining that F Co. had demonstrated that it was the
holder of the note and therefore was entitled to pursue this foreclosure
action, that F Co. had established a prima facie case, that the note had
been in default for nonpayment for more than three years, and that R
failed to present evidence to support her special defenses. Two months
later, the court rendered a judgment of strict foreclosure. F Co. subse-
quently moved to open the judgment and extend the law days to allow
for additional time to review a loss mitigation package, which the court
granted. More than two years later, during which time a series of motions
to open had been granted and R had produced a Probate Court order
showing that she had acquired a 100 percent interest in the property
pursuant to the laws of intestate succession, R filed a motion stating
that she had complied with a court order to provide F Co. with certain
documents and sought the enforcement of a new mortgage agreement.
Specifically, she contended that she had submitted a completed assump-
tion package, including the required documentation, executed a mort-
gage in her name, and made a series of scheduled trial payments, which
F Co. had failed to apply. F Co. objected, claiming that there was no
settlement to enforce. It explained that, at the time R executed the loan
modification agreement, she lacked legal title to the property, and F
Co. rejected any settlement agreement on that basis. F Co. also asserted
that after R had acquired the property, it had offered her a trial period
plan, which required three payments. After R failed to make these
required payments, F Co. denied R a permanent modification. The court
sustained F Co.’s objection with respect to the motion to enforce the
settlement and assigned the case to the foreclosure mediation program.
More than one year later, R filed a motion for nonsuit, claiming that F
Co. failed to abide by the terms of the parties’ settlement agreement,
to comply with a standing court order by filing a federal mortgage
foreclosure moratorium affidavit within fourteen days, and to comply
with a subsequent court order requiring the filing of that affidavit by a
specific date. R also stated that F Co. had repeatedly returned her
payments by issuing checks to T, rather than to R. One day later, F
Co. filed the federal mortgage foreclosure moratorium affidavit. F Co.
subsequently filed an objection to the motion for nonsuit, arguing that
a nonsuit was not warranted because its delay in filing the federal
mortgage foreclosure moratorium affidavit was not the result of any bad
faith. The court subsequently denied R’s motion for nonsuit. Thereafter,
following several sessions, a premediation report was issued by a foreclo-
sure mediator, terminating the mediation as a result of R’s failure to
submit certain documents. Several months later, F Co. filed a motion
for a judgment of strict foreclosure. R filed an objection, contending
that the notice required pursuant to the state’s Emergency Mortgage
Assistance Program (EMAP) (§§ 8-265cc through 8-265kk) had not been
provided to T prior to the commencement of this foreclosure action,
and, as a result, the court lacked subject matter jurisdiction. R also
iterated her claims that F Co. had returned payments she made via a
check issued to T and that F Co.’s actions demonstrated an attempt to
walk away from the settlement it had offered. R further maintained that
F Co.’s conduct constituted unclean hands, and, therefore, it should be
barred from seeking foreclosure, an equitable action. F Co. filed a reply
to R’s objection, in which it provided documents establishing that,
although the trial period plan for the loan modification required pay-
ments of $1750.36, R had made payments of only $943.35, argued that
it was not required to accept insufficient payments, and claimed that,
because R had failed to submit documents to the foreclosure mediator
as requested, she had failed to provide any proof of compliance with
the payment obligations to reinstate the loan. With respect to R’s claim
regarding the EMAP notice, F Co. indicated that proper notice had been
sent to T prior to the commencement of this action, as demonstrated
by the inclusion of this information in the materials attached to the
motion for summary judgment. Finally, the plaintiff countered that R
failed to substantiate her claims related to her unclean hands special
defense or plead it properly, and it noted that, under Connecticut law, a
lender has no duty to engage in settlement negotiations with a borrower.
Following a remote hearing, the court granted F Co.’s motion for a
judgment of strict foreclosure and rendered judgment thereon. On R’s
appeal to this court, held:
1. R could not prevail on her claim that the trial court improperly denied
her motion to dismiss for lack of personal jurisdiction as a result of
improper service; pursuant to statute (§ 52-325 (a)) and the relevant
Connecticut Standards of Title (13.7 (B) and 19.1), once H Co. recorded
the lis pendens on the land records with respect to the property and
properly commenced this action against T by way of abode service prior
to his death, R, as the party who acquired T’s interest in the property
pursuant to the laws of intestate succession, was bound in this foreclo-
sure action to the same extent as if she had been made a party to the
action, and F Co., while free to do so, was not required to serve R.
2. R could not prevail on her claim that the trial court improperly denied
her motion for nonsuit: the factual predicate underlying R’s argument
that the nonsuit should have been granted because F Co. breached
the parties’ modification agreement did not exist, as, contrary to R’s
insistence, the record did not show that the parties had, in fact, reached
a binding settlement and/or loan modification; moreover, with respect
to the claims regarding F Co.’s failure to timely submit the federal
mortgage foreclosure moratorium affidavit, R failed to demonstrate how
she was harmed by F Co.’s conduct or why the court’s refusal to enter
a nonsuit and dismiss the case, a remedy of last resort, amounted to an
abuse of its discretion with respect to the delayed filing of that affidavit.
3. R could not prevail on her claim that the trial court improperly rejected
her special defense of unclean hands and rendered a judgment of strict
foreclosure for F Co.; although R made bald allegations that F Co.’s
conduct warranted the application of the unclean hands doctrine, she
failed to provide evidentiary material to support her claim, including
any evidence demonstrating that H Co.’s asserted lack of knowledge of
her whereabouts when the foreclosure action was commenced was
anything more than a mistake or that F Co. participated in wilful miscon-
duct that rose to the level of unclean hands with respect to, inter alia,
the return of R’s partial payments during the loan modification trial
period, its issuance of checks and correspondence to T after his death,
and its purportedly improper refusal to process loan modification
paperwork.
4. This court declined to address R’s claims that the trial court improperly
denied her motion to enforce a loan modification agreement, improperly
granted F Co.’s motion for summary judgment, and improperly failed
to dismiss the foreclosure action as a result of H Co.’s failure to comply
with the EMAP notice requirement, R having failed to adequately brief
these claims.
Argued October 5, 2023—officially released January 30, 2024
Procedural History
Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of New
London, where the court, Cosgrove, J., granted the
plaintiff’s motion to cite in the state of Connecticut et
al. as party defendants; thereafter, the plaintiff filed an
amended complaint; subsequently, the court, Cosgrove,
J., granted the motion to dismiss filed by the defendant
Robyn Jakubiec only as to the estate of Thomas M.
Jakubiec; thereafter, Freedom Mortgage Corporation
was substituted as the plaintiff; subsequently, the court,
Cosgrove, J., granted the substitute plaintiff’s motion
for summary judgment as to liability; thereafter, the
court, Calmar, J., denied the defendant Robyn Jaku-
biec’s motion for nonsuit; subsequently, the court, Hon.
Emmet L. Cosgrove, judge trial referee, granted the
substitute plaintiff’s motion for judgment of strict fore-
closure and rendered judgment thereon, from which
the defendant Robyn Jakubiec appealed to this court.
Affirmed.
Edward Bona, for the appellant (defendant Robyn
Jakubiec).
Jeffrey M. Knickerbocker, for the appellee (substitute
plaintiff).
Opinion
NORCOTT, J. In this foreclosure appeal, the defen-
dant Robyn Jakubiec, the widow of the defendant
Thomas M. Jakubiec (decedent), presents a myriad of
challenges in an effort to overturn the judgment of strict
foreclosure rendered following the granting of a motion
for summary judgment as to liability in favor of the
substitute plaintiff, Freedom Mortgage Corporation.1
We conclude that several of the defendant’s claims are
inadequately briefed, and the remainder are without
merit. Accordingly, we affirm the judgment of the trial
court and remand the case for the sole purpose of
setting new law days.
The following facts and extensive procedural history
are relevant to this appeal. Homebridge Financial Ser-
vices, Inc. (Homebridge), commenced this action
against the decedent on April 16, 2015, via abode ser-
vice. In its complaint, Homebridge alleged that the dece-
dent owed Equity Source Home Loans, LLC, $212,000,
as evidenced by a promissory note dated June 28, 2010,
and that he had executed a mortgage for property
located at 28 Nelkin Road in Colchester to secure this
note. On February 7, 2014, the mortgage was assigned
to Real Estate Mortgage Network, Inc., which subse-
quently changed its name to Homebridge. The note was
in default as a result of nonpayment of the required
monthly installments since July 1, 2013, and the unpaid
balance totaled $201,575.15, plus interest, late charges
and collection costs. Near the time of the commence-
ment of this action, Homebridge recorded a lis pendens
on the land records regarding the property.2
The decedent died two days after he had been served
with process commencing the present action. On June
3, 2015, the court granted Homebridge’s motion to cite
in ‘‘the State of Connecticut, Department of Revenue
Services and The Widow, Heirs, Beneficiaries, Repre-
sentatives or Creditors of [the decedent] . . . .’’ On
June 26, 2015, Homebridge filed an amended complaint
and included these parties.
On September 4, 2015, Homebridge moved for a judg-
ment of strict foreclosure. Three weeks later, the defen-
dant filed an objection, claiming that she had ‘‘received
no papers or notice in connection with this matter’’ and
asserting that she had notified the plaintiff’s counsel
of her contact information. On October 9, 2015, the
defendant filed a motion to dismiss alleging a lack of
personal jurisdiction due to ineffective service of pro-
cess. On November 23, 2015, the court granted the
defendant’s motion to dismiss with respect to the estate
of the decedent and noted that the case remained pend-
ing as to the other parties cited in by Homebridge.
Various filings ensued.
On April 21, 2016, Homebridge filed a motion for
summary judgment as to liability pursuant to Practice
Book § 17-44. Specifically, it contended: ‘‘Said note and
mortgage are now in default by virtue of nonpayment
of the monthly installments of principal and interest
due on July 1, 2013, and each and every month there-
after, and the plaintiff has exercised its option to declare
the entire balance of said note due and payable.’’ On
May 12, 2016, the defendant objected to Homebridge’s
motion for summary judgment and filed an answer and
special defenses, including unclean hands, lack of
authority to assign the mortgage, destruction of the
original note, anticipatory repudiation, and lack of
standing. On June 21, 2016, the court granted a motion
to substitute the plaintiff for Homebridge, as the plain-
tiff had acquired the right to collect the debt due on
the loan in foreclosure.
On September 29, 2016, the court denied the motion
for summary judgment, but, after granting the plaintiff’s
motion for reconsideration, the court subsequently
granted the motion for summary judgment with respect
to liability on December 21, 2016.3 The court determined
that the plaintiff had demonstrated that it was the holder
of the note and therefore was entitled to pursue this
foreclosure action. The court also determined that the
plaintiff had established a prima facie case and that the
note had been in default for nonpayment since July 1,
2013. It further concluded that the defendant failed to
present evidence to support her special defenses. On
February 14, 2017, the court rendered a judgment of
strict foreclosure, finding that the property’s fair market
value was $260,000 and the total debt was $274,083.08.
On April 26, 2017, the plaintiff moved to open the
judgment and extend the law days to allow for addi-
tional time ‘‘to review a loss mitigation package.’’ The
court granted this motion on May 8, 2017. Additional
motions to open were granted and new law days were
set. On March 22, 2018, the defendant moved to open
and vacate the judgment, claiming that she successfully
had entered into a modification agreement and made
the three trial payments, as well as the first installment
of the new loan agreement offered by the plaintiff,
which required a monthly payment of $943.35.4 The
defendant further contended that the plaintiff had sent
her a loan modification agreement, which she had exe-
cuted and returned. The plaintiff objected, arguing that
the defendant was neither a borrower on the loan nor
a titled owner, and, therefore, the modification was null
and void and not a proper ground for opening and
vacating the judgment. The court granted the defen-
dant’s motion to open and extended the law days. On
May 25, 2018, the defendant filed a motion to open
the judgment and extend the law days. The defendant
claimed that the Probate Court had issued an order
granting her a 100 percent interest in the property.5 The
court granted this motion and set new law days.
The plaintiff moved to open the judgment on July 16,
2018, for the purpose of allowing additional time for
the completion of a trial modification of the loan agree-
ment,6 which the court granted, setting new law days.
Additional motions to open and the setting of new law
days ensued.
On November 18, 2019, the defendant filed a motion
stating that she had complied with a court order to
provide the plaintiff with certain documents and sought
the enforcement of the new mortgage agreement, pursu-
ant to Audubon Parking Associates Ltd. Partnership
v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d
729 (1993) (Audubon). Specifically, she contended that
she had submitted a completed assumption package,
including the required documentation, executed a mort-
gage in her name, and made a series of scheduled trial
payments, which the plaintiff had failed to apply. The
plaintiff objected on November 27, 2019, claiming that
there was no settlement to enforce and no grounds to
vacate the judgment. It explained that, at the time the
defendant executed the loan modification agreement,
the defendant lacked legal title to the property, and it
rejected any settlement agreement on that basis. It also
argued that this modification lacked consideration.
More recently, in April, 2019, the plaintiff offered a
trial period plan to the defendant, which required three
payments of $1750.36. After the defendant failed to
make these required payments, the plaintiff denied the
defendant a permanent modification.
On December 2, 2019, the court sustained the plain-
tiff’s objection with respect to the motion to enforce the
settlement and overruled it with respect to the motion
to open. It also assigned the case to the foreclosure
mediation program. On September 10, 2021, following
several sessions, a premediation report was issued by
a foreclosure mediator, terminating the mediation as
a result of the defendant’s failure to submit certain
documents.
On June 28, 2021, the defendant filed a motion for
nonsuit pursuant to Practice Book § 14-3,7 claiming that
the plaintiff failed (1) to abide by the terms of the
parties’ settlement agreement, (2) to comply with a
September 24, 2020 standing order by filing a federal
mortgage foreclosure moratorium affidavit within four-
teen days, and (3) to comply with the June 10, 2021 order
requiring the filing of the federal mortgage foreclosure
moratorium affidavit by June 25, 2021. In this motion,
the defendant further stated that the plaintiff repeatedly
had returned payments the defendant made to the plain-
tiff via checks made out to the decedent, rather than
to the defendant. In addition to an order of nonsuit, the
defendant requested reasonable attorney’s fees. One
day later, the plaintiff filed the federal mortgage foreclo-
sure moratorium affidavit.
On July 9, 2021, the plaintiff filed an objection to
the motion for nonsuit. After summarizing the lengthy
procedural history of this case, the plaintiff argued that
a nonsuit was not warranted because its delay in filing
the federal mortgage foreclosure moratorium affidavit
was not the result of any bad faith.8 On August 2, 2021,
the court denied the defendant’s motion for nonsuit.
On March 21, 2022, the plaintiff filed a motion for
a judgment of strict foreclosure.9 Ten days later, the
defendant filed an objection to the plaintiff’s motion
for a judgment of strict foreclosure. In her objection,
the defendant contended that the required notice, pur-
suant to the Emergency Mortgage Assistance Program
(EMAP), General Statutes §§ 8-265cc through 8-265kk,10
was not provided to the decedent prior to the com-
mencement of this foreclosure action, and, as a result,
the court lacked subject matter jurisdiction.11 Addition-
ally, the defendant iterated her claims that the plaintiff
had returned payments she made via a check issued to
the decedent and that the plaintiff’s actions demon-
strated an attempt ‘‘to walk away from the settlement
it had offered . . . .’’ The defendant further maintained
that the plaintiff’s conduct constituted unclean hands
and, therefore, it should be barred from seeking foreclo-
sure, an equitable action. Specifically, the defendant
contended that the ‘‘record is replete with numerous
actions taken by the plaintiff requiring that it be denied
foreclosure. Among these included submitting a false
affidavit as to the lack of knowledge as to the defen-
dant’s residence and whereabout[s]. These acts have
included refusal of trial payments, confusion of
amounts due, repeated notices directed to the [dece-
dent], checks written out to the [decedent], and material
failure to comply with EMAP.’’ Finally, she stated that
the plaintiff ‘‘offered and agreed to functional reforma-
tion of the mortgage to place the loan in the defendant’s
name instead of [the decedent’s] name. The plaintiff
has repeatedly acted contrary to what it agreed to.’’
On April 1, 2022, the plaintiff filed a reply to the
defendant’s objection. Therein, it provided documents
establishing that the trial period plan in 2019 for the
loan modification required payments of $1750.36, and
the defendant had made payments of only $943.35. The
plaintiff further argued that it was not required to accept
insufficient payments. Next, the plaintiff claimed that
in August and September, 2021, the defendant failed
to submit documents to the foreclosure mediator as
requested. She failed, therefore, to provide ‘‘any proof’’
of compliance with the payment obligations to reinstate
the loan. With respect to the defendant’s claim regard-
ing the EMAP notice, the plaintiff indicated that proper
notice had been sent to the decedent on January 13,
2015, prior to the commencement of this action, as
demonstrated by the inclusion of this information in
the materials attached to the motion for summary judg-
ment. Turning to the defendant’s special defense of
unclean hands, the plaintiff countered that she had
failed to substantiate her claims or plead the defense
properly. Finally, it noted that, under Connecticut law, a
lender has no duty to engage in settlement negotiations
with a borrower.
On April 21, 2022, following a remote hearing, the
court granted the plaintiff’s motion for a judgment of
strict foreclosure. As of March 30, 2022, it found that
the debt totaled $416,641.77 and the fair market value
of the property was $275,000. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that the complaint should
have been dismissed as a result of improper service.
Specifically, she argues that the plaintiff engaged in a
pattern of conduct to evade the requirement to provide
her with actual notice in accordance with General Stat-
utes § 52-57 and that, as a result, the court lacked per-
sonal jurisdiction over the defendant. The plaintiff
counters that the decedent was served properly and
that, pursuant to General Statutes § 52-325 (a), follow-
ing the recording of a lis pendens, any person acquiring
an interest in the property shall be bound by all proceed-
ings to the same extent as if she were made a party to
the action; therefore, it was not required to serve the
defendant in this case. We agree with the plaintiff.
As previously stated in this opinion, Homebridge, the
original plaintiff, commenced this action against the
decedent by abode service on April 16, 2015, two days
before he died. On May 14, 2015, Homebridge filed a
motion for order of notice stating that all reasonable
efforts to ascertain information regarding the widow,
heirs, beneficiaries, representatives, or creditors of the
decedent had failed, and therefore it sought an order
directing that notice of the foreclosure action to these
entities be made by publication in the Norwich Bulletin
newspaper. On June 3, 2015, the court issued an order
directing that the complaint be amended on or before
July 9, 2015, to add the widow, heirs, beneficiaries,
representatives or creditors of the decedent, and, on
June 11, 2015, the court granted the motion for an order
of notice by publication.
On September 25, 2015, the defendant filed an objec-
tion to Homebridge’s then pending motion for a judg-
ment of strict foreclosure.12 On October 9, 2015, the
defendant filed a motion to dismiss pursuant to Practice
Book § 10-30. Therein, she claimed that Homebridge
‘‘misrepresented or failed to accurately report to the
court that [she] had contacted [Homebridge’s counsel]
several times after [the decedent] had passed . . . to
relay this information and her contact information as
executor of the estate on May 4, 2015. . . . [Home-
bridge] was required to effectuate abode service on [the
defendant], which it did not and actively chose not to
do, instead opting for a method least likely to provide
any substantial notice. . . . The complaint should be
dismissed for lack of personal jurisdiction.’’13 The court
granted the motion to dismiss only as to the estate of
the decedent.
On December 28, 2015, the defendant moved to dis-
miss the action as to herself and the decedent. She
claimed that, as a result of the dismissal of the action
against the estate, the foreclosure should be dismissed
in its entirety. On January 6, 2016, Homebridge filed an
objection, arguing that ‘‘this action is saved by Connecti-
cut’s lis pendens statute [§ 52-325 (a)].’’ It stated that
on or about April 13, 2015, Homebridge caused a lis
pendens to be recorded on the land records. Relying
upon § 52-325 (a) and standards 13.7 and 19.1 of the
Connecticut Standards of Title,14 the plaintiff asserted
that, because the lis pendens had been recorded on the
land records and the decedent had been served prior
to his death, it was not required to do anything further
in order to proceed with the foreclosure action. In its
March 4, 2016 memorandum of decision, the court
agreed with Homebridge with respect to its argument
pertaining to the lis pendens statute and denied the
motion to dismiss.
We begin by setting forth the legal principles relevant
to a motion to dismiss alleging improper service and the
resulting lack of personal jurisdiction. ‘‘[T]he Superior
Court . . . may exercise jurisdiction over a person
only if that person has been properly served with pro-
cess, has consented to the jurisdiction of the court or
has waived any objection to the court’s exercise of
personal jurisdiction.’’ (Internal quotation marks omit-
ted.) People’s United Bank, National Assn. v. Purcell,
187 Conn. App. 523, 526, 202 A.3d 1112 (2019). Stated
differently, the ‘‘[f]ailure to comply with the statutory
requirements of service renders a complaint subject to
a motion to dismiss on the ground of lack of personal
jurisdiction.’’ Morgan v. Hartford Hospital, 301 Conn.
388, 401, 21 A.3d 451 (2011), overruled in part on other
grounds by Carpenter v. Daar, 346 Conn. 80, 87, 287
A.3d 1027 (2023). Furthermore, ‘‘[b]ecause a challenge
to the personal jurisdiction of the trial court is a ques-
tion of law, our review is plenary.’’ (Internal quotation
marks omitted.) Myrtle Mews Assn., Inc. v. Bordes, 125
Conn. App. 12, 15, 6 A.3d 163 (2010).
The record establishes that Homebridge filed a lis
pendens on the land records with respect to the prop-
erty and that it properly commenced this action against
the decedent by way of abode service, prior to his
death.15 In such circumstances, the plaintiff, while free
to do so, was not required to serve the defendant. See
Santander Bank, N.A. v. Clark, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S (Sep-
tember 29, 2022) (if mortgagor dies subsequent to or
during pendency of foreclosure action, heirs or devisees
may be substituted but plaintiff is not required to do
so provided lis pendens was recorded prior to death);
see also HSBC Bank USA, N.A. v. Pitts Chapel UFW
Baptist Church, Inc., Superior Court, judicial district
of New Haven, Docket No. CV-XX-XXXXXXX-S (October
11, 2022) (same); Nationstar Mortgage, LLC v. Wigfield,
Superior Court, judicial district of New London, Docket
No. CV-XX-XXXXXXX-S (April 5, 2017) (same). We agree
with the reasoning, based on § 52-325 (a) and the Con-
necticut Standards of Title,16 set forth in these decisions
from the Superior Court.
Section 52-325 (a) provides in relevant part that, ‘‘[i]n
any action in a court of this state . . . the plaintiff or
his attorney, at the time the action is commenced or
afterwards . . . may cause to be recorded in the office
of the town clerk of each town in which the property
is situated a notice of lis pendens . . . . Such notice
shall, from the time of the recording only, be notice to
any person thereafter acquiring any interest in such
property of the pendency of the action; and each person
whose . . . interest is thereafter obtained, by descent
or otherwise, shall be deemed to be a subsequent pur-
chaser or encumbrancer, and shall be bound by all
proceedings taken after the recording of such notice,
to the same extent as if he were made a party to the
action. . . .’’ (Emphasis added.) See also Connecticut
Bar Association, Connecticut Standards of Title (Cum.
Supp. 2014), standards 13.7 (B) and 19.1.
In the present case, Homebridge recorded the lis pen-
dens on the land records and commenced the foreclo-
sure action by serving the decedent. Following the dece-
dent’s death, the defendant acquired her interest in the
property and, pursuant to § 52-325 (a) and the relevant
Connecticut Standards of Title, was bound in this fore-
closure action to the same extent as if she had been
made a party to the action. Homebridge was not
required to serve the defendant under these facts and
circumstances. Accordingly, we conclude that the court
properly denied the defendant’s motion to dismiss for
lack of personal jurisdiction.
II
The defendant next claims that the court improperly
denied her motion for nonsuit. Specifically, she argues
that the plaintiff failed (1) to abide by a settlement
agreement reached by the parties, (2) to comply with
the standing order, dated September 24, 2020, requiring
that a federal mortgage foreclosure moratorium affida-
vit be filed within fourteen days, and (3) to comply with
the subsequent June 10, 2021 court order requiring that
the federal mortgage foreclosure moratorium affidavit
be filed by June 25, 2021. The plaintiff responds that,
despite the defendant’s contentions, the parties never
entered into a settlement or modification agreement
and that its actions, consisting of minor filing errors or
delays, were not done in bad faith and were not egre-
gious or sufficient to warrant a nonsuit. We agree with
the plaintiff.
On June 10, 2021, the court issued the following order:
‘‘Pursuant to the [September 24, 2020] standing order
by Judge Abrams, an AFFIDAVIT—FEDERAL MORT-
GAGE FORECLOSURE MORATORIUM (JD-CV-172) is
required to be filed within [fourteen] days of the issu-
ance of the standing order. Please file the affidavit by
June 25, 2021, or the case may be dismissed.’’ On June
25, 2021, the plaintiff requested a two week extension
of time to comply with the court’s June 10, 2021 order.
On June 28, 2021, while the plaintiff’s request was pend-
ing, the defendant filed a motion for nonsuit. The next
day, the court denied the plaintiff’s request for an exten-
sion, and the plaintiff filed the federal mortgage foreclo-
sure moratorium affidavit. The court denied the defen-
dant’s motion for nonsuit on August 2, 2021.
‘‘Practice Book § 17-19 provides in relevant part that
[i]f a party fails to comply with an order of a judicial
authority . . . the party may be nonsuited or defaulted
by the judicial authority.’’ (Internal quotation marks
omitted.) Burton v. Dimyan, 68 Conn. App. 844, 846,
793 A.2d 1157, cert. denied, 260 Conn. 925, 797 A.2d
520 (2002); see generally Jaconski v. AMF, Inc., 208
Conn. 230, 232, 543 A.2d 728 (1988) (rules of practice
plainly authorize trial court to enter nonsuit for non-
compliance with its orders). The ultimate decision of
whether to order a nonsuit is reviewed under the abuse
of discretion standard. See Ridgaway v. Mount Vernon
Fire Ins. Co., 328 Conn. 60, 70–71, 176 A.3d 1167 (2018);
see also West Haven Lumber Co. v. Sentry Construction
Corp., 117 Conn. App. 465, 476, 979 A.2d 591 (denial of
motion for nonsuit was not abuse of discretion), cert.
denied, 294 Conn. 919, 984 A.2d 70 (2009). Furthermore,
our Supreme Court has noted that ‘‘the court’s discre-
tion should be exercised mindful of the policy prefer-
ence to bring about a trial on the merits of a dispute
whenever possible and to secure for the litigant his day
in court.’’ (Internal quotation marks omitted.) Ridga-
way v. Mount Vernon Fire Ins. Co., supra, 71.
Applying these principles, we conclude that the court
did not abuse its discretion in denying the defendant’s
motion for nonsuit. First, the factual predicate underly-
ing the defendant’s argument that the nonsuit should
have been granted because the plaintiff breached the
parties’ modification agreement does not exist. Con-
trary to her insistence, the record does not show that
the parties had, in fact, reached a binding settlement
and/or loan modification with which the plaintiff subse-
quently failed to abide.17 Second, with respect to the
claims regarding the plaintiff’s failure to timely submit
the federal mortgage foreclosure moratorium affidavit,
the defendant has failed to demonstrate why the denial
of the motion for nonsuit constitutes an abuse of discre-
tion. Instead, she asserts generally that the plaintiff’s
conduct during the litigation amounted to a violation
of the rules and lack of candor and, as a direct conse-
quence, ‘‘dragged out [the litigation] far beyond any
need or good faith reason.’’ The defendant has failed
to demonstrate how she was harmed by the plaintiff’s
conduct or why the court’s refusal to enter a nonsuit
and dismiss the case, a remedy of last resort, amounted
to an abuse of its discretion with respect to the delayed
filing of the federal mortgage foreclosure moratorium
affidavit. See, e.g., Vaccaro v. Loscalzo, 201 Conn. App.
606, 622–23, 243 A.3d 786 (2020) (our Supreme Court
has refused to uphold sanction of nonsuit when other
alternatives to dismissal would have permitted case to
be heard on merits while ensuring future compliance
with court orders), cert. denied, 336 Conn. 908, 244
A.3d 147 (2021); see generally Ridgaway v. Mount Ver-
non Fire Ins. Co., supra, 328 Conn. 71 (dismissal of
action is remedy of last resort); Usowski v. Jacobson,
267 Conn. 73, 96, 836 A.2d 1167 (2003) (same). Accord-
ingly, we conclude that this claim must fail.
III
The defendant next claims that the court improperly
rejected her special defense of unclean hands. Specifi-
cally, she argues that the plaintiff’s conduct throughout
the litigation warranted the application of this doctrine.
The plaintiff, citing Thompson v. Orcutt, 257 Conn. 301,
313–14, 777 A.2d 670 (2001), counters that this doctrine
‘‘is used for fraud or misrepresentation in instances
such that there is significant and purposeful fraud or
perjury, or ‘only when a plaintiff’s improper conduct
relates in some significant way to the claim he or she
now asserts.’ ’’ Furthermore, it again argues that it had
no duty to take any further steps to notify the defendant
of this action following the recording of the lis pendens
on the land records and the abode service of the dece-
dent prior to his death, that the defendant was responsi-
ble for tendering insufficient monthly payments with
respect to the 2019 loan modification, and that it had
not failed to comply with the court’s orders. We con-
clude that the defendant’s unclean hands defense is
without merit.
The following additional facts and procedural history
will facilitate our discussion. Homebridge moved for
summary judgment as to liability on April 21, 2016. The
defendant filed her answer and special defenses on May
12, 2016. In her first special defense, she raised the
doctrine of unclean hands.18 On December 21, 2016,
the court granted the plaintiff’s motion for summary
judgment.19 In its memorandum of decision, the court
explained, inter alia,20 that the defendant had failed to
provide evidentiary material to support her claim of
unclean hands.
At the outset, we note that ‘‘[i]t is well settled that a
trial court in foreclosure proceedings has discretion,
on equitable considerations and principles, to withhold
foreclosure or to reduce the amount of the stated
indebtedness.’’ (Internal quotation marks omitted.)
Bank of America, N.A. v. Aubut, 167 Conn. App. 347,
378, 143 A.3d 638 (2016). ‘‘Because an action to fore-
close a mortgage is an equitable proceeding, the doc-
trine of unclean hands may be applicable. It is a funda-
mental principle of equity jurisprudence that for a
complainant to show that he is entitled to the benefit
of equity he must establish that he comes into court
with clean hands. . . . The clean hands doctrine is
applied not for the protection of the parties but for the
protection of the court. . . . It is applied not by way
of punishment but on considerations that make for the
advancement of right and justice. . . . The doctrine of
unclean hands expresses the principle that where a
plaintiff seeks equitable relief, he must show that his
conduct has been fair, equitable and honest as to the
particular controversy in issue. . . . Unless the plain-
tiff’s conduct is of such a character as to be condemned
and pronounced wrongful by honest and fair-minded
people, the doctrine of unclean hands does not apply.
. . . The party seeking to invoke the clean hands doc-
trine to bar equitable relief must show that his opponent
engaged in wilful misconduct with regard to the matter
in litigation. . . . The trial court enjoys broad discre-
tion in determining whether the promotion of public
policy and the preservation of the courts’ integrity dic-
tate that the clean hands doctrine be invoked. . . . Wil-
ful misconduct has been defined as intentional conduct
designed to injure for which there is no just cause or
excuse. . . . [Its] characteristic element is the design
to injure either actually entertained or to be implied
from the conduct and circumstances. . . . Not only the
action producing the injury but the resulting injury also
must be intentional.’’ (Citations omitted; internal quota-
tion marks omitted.) U.S. Bank National Assn. v. Eich-
ten, 184 Conn. App. 727, 746–47, 196 A.3d 328 (2018);
see also U.S. Bank, National Assn. v. Moncho, 203
Conn. App. 28, 53, 247 A.3d 161 (application of unclean
hands doctrine rests within sound discretion of trial
court and is subject to limited review on appeal), cert.
denied, 336 Conn. 935, 248 A.3d 708 (2021); Bank of
America, N.A. v. Aubut, supra, 380 (trial court enjoys
broad discretion in determining whether clean hands
doctrine applies).
On appeal, the defendant reasserts her bald allega-
tions of the plaintiff’s unclean hands. She has failed,
however, to direct us to evidence of the plaintiff’s
‘‘deplorable conduct’’ that would warrant the applica-
tion of this doctrine. Although the defendant contends
that Homebridge ‘‘lied’’ about its lack of knowledge
of her whereabouts when the foreclosure action was
commenced, she has not presented any evidence dem-
onstrating that this was anything more than a mistake.
Furthermore, the defendant failed to present evidence
of the plaintiff’s wilful misconduct that rose to the level
of unclean hands with respect to, inter alia, the return
of the defendant’s partial payments during the modifica-
tion trial period in 2019, issuing checks and correspon-
dence to the decedent after his death, and the purport-
edly improper refusal to process modification
paperwork. ‘‘[T]he party raising a special defense has
the burden of proving the facts alleged therein. . . . If
the plaintiff in a foreclosure action has shown that it
is entitled to foreclose, then the burden is on the defen-
dant to produce evidence supporting its special
defenses in order to create a genuine issue of material
fact . . . . Legally sufficient special defenses alone do
not meet the defendant’s burden. The purpose of a
special defense is to plead facts that are consistent
with the allegations of the complaint but demonstrate,
nonetheless, that the plaintiff has no cause of action.’’
(Citations omitted; internal quotation marks omitted.)
U.S. Bank National Assn. v. Eichten, supra, 184 Conn.
App. 745; see also Bank of New York Mellon v. Mangia-
fico, 198 Conn. App. 722, 727, 234 A.3d 1115 (2020); see
generally Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d
1145 (2014) (it is incumbent on party opposing summary
judgment to establish factual predicate from which it
can be determined, as matter of law, that genuine issue
of material fact exists).
The party raising a special defense has the burden
of producing evidence supporting its special defense.
U.S. Bank National Assn. v. Eichten, supra, 184 Conn.
App. 745; Ocwen Loan Servicing, LLC v. Sheldon, 208
Conn. App. 132, 137, 264 A.3d 106 (2021). Given the
evidentiary lacunae with respect to the special defense
of unclean hands, coupled with our deferential standard
of review, we conclude that this claim is doomed on
appeal. ‘‘Simply put, the defendant’s allegations and
evidentiary submission were insufficient to fall within
our Supreme Court’s clarification of the making, valid-
ity, or enforcement test, as set forth in U.S. Bank
National Assn. v. Blowers, [332 Conn. 656, 675, 212
A.3d 226 (2019)], namely, that allegations that the mort-
gagee has engaged in conduct that wrongly and substan-
tially increased the mortgagor’s overall indebtedness,
caused the mortgagor to incur costs that impeded the
mortgagor from curing the default, or reneged upon
modifications are the types of misconduct that are
directly and inseparably connected . . . to enforce-
ment of the note and mortgage. . . . Therefore,
because the defendant did not . . . meet his burden
of proving the facts alleged in his special defense . . .
his claim fails.’’ (Citation omitted; internal quotation
marks omitted.) Bank of New York Mellon v. Mangia-
fico, supra, 198 Conn. App. 731–32. Accordingly, we
conclude that the court properly rejected the defen-
dant’s claim of unclean hands and rendered a judgment
of strict foreclosure in favor of the plaintiff.
IV
Finally, the defendant raises additional claims, all of
which we decline to address on their merits due to
inadequate briefing. See Wells Fargo Bank, N.A. v. Tar-
zia, 186 Conn. App. 800, 813–14, 201 A.3d 511 (2019).
Specifically, the defendant contends that the court
should have (1) granted her motion to enforce a settle-
ment, filed pursuant to Audubon Parking Associates
Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225
Conn. 804,21 (2) denied the plaintiff’s motion for sum-
mary judgment, and (3) dismissed the foreclosure
action as a result of the plaintiff’s failure to comply
with the EMAP notice requirement. After a careful
review, we conclude that the defendant failed to brief
these issues adequately and therefore we decline to
review their merits.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [When] a claim is asserted in
the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned. . . . For a reviewing court to judiciously
and efficiently . . . consider claims of error raised on
appeal . . . the parties must clearly and fully set forth
their arguments in their briefs. . . . In addition, brief-
ing is inadequate when it is not only short, but confus-
ing, repetitive, and disorganized.’’ (Internal quotation
marks omitted.) Wells Fargo Bank, National Assn. v.
Doreus, 218 Conn. App. 77, 79 n.1, 290 A.3d 921, cert.
denied, 347 Conn. 904, 297 A.3d 198 (2023); see also
Carmichael v. Stonkus, 133 Conn. App. 302, 307, 34 A.3d
1026, cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).
The defendant’s Audubon claim consists of a single
paragraph in her appellate brief and a single citation.
She has failed to clearly and fully set forth an argument
as to why the court committed reversible error with
respect to this issue.22 Her claim regarding the granting
of the plaintiff’s motion for summary judgment fares
no better. It consists of three paragraphs and three case
citations that primarily address general legal principles
related to summary judgment.23 The brief baldly asserts
that the court overlooked the unclean hands defense.
Finally, the defendant’s EMAP claim,24 which contains
citation to two cases and consists of three paragraphs,
similarly is lacking in the requisite legal analysis.25
On the basis of inadequate briefing, we decline to
address the merits of the defendant’s claims regarding
the denial of her Audubon motion, the granting of the
plaintiff’s motion for summary judgment, and the failure
to dismiss the foreclosure action due to the lack of
compliance with the EMAP notice.
The judgment is affirmed and the case is remanded
for the sole purpose of setting new law days.
In this opinion the other judges concurred.
1
On June 2, 2016, the original plaintiff, Homebridge Financial Services,
Inc., filed a motion to substitute Freedom Mortgage Corporation as the
plaintiff, as that entity had acquired the right to collect the debt due on the
loan in foreclosure. The court granted this motion on June 21, 2016. We
therefore refer to Freedom Mortgage Corporation as the plaintiff in this
opinion. Additionally, our references in this opinion to the defendant are
to Robyn Jakubiec.
2
‘‘Generally, a notice of lis pendens is simply a notice that, when properly
recorded, warns third parties, such as prospective purchasers, that the title
to the property is in litigation; [t]he doctrine underlying lis pendens is that
a person who deals with property while it is in litigation does so at his peril
. . . . An encumbrance is a burden on the title and, as such, impedes
its transfer. Ballentine’s Law Dictionary (3d Ed. 1969).’’ (Citation omitted;
internal quotation marks omitted.) Ghent v. Meadowhaven Condominium,
Inc., 77 Conn. App. 276, 284, 823 A.2d 355 (2003); see also Williams v.
Bartlett, 189 Conn. 471, 480, 457 A.2d 290, appeal dismissed, 464 U.S. 801,
104 S. Ct. 46, 78 L. Ed. 2d 67 (1983).
3
‘‘In order to establish a prima facie case in a mortgage foreclosure action,
the plaintiff must prove by a preponderance of the evidence that it is the
owner of the note and mortgage, that the defendant mortgagor has defaulted
on the note and that any conditions precedent to foreclosure, as established
by the note and mortgage, have been satisfied. . . . Thus, a court may
properly grant summary judgment as to liability in a foreclosure action if
the complaint and supporting affidavits establish an undisputed prima facie
case and the defendant fails to assert any legally sufficient special defense.’’
(Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong, 149
Conn. App. 384, 392, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202
(2014); see also JPMorgan Chase Bank, National Assn. v. Syed, 197 Conn.
App. 129, 134, 231 A.3d 286 (2020).
4
In a subsequent pleading, the plaintiff provided the court with a letter
dated April 23, 2019, addressed to the decedent, which provided that a trial
period plan requiring three monthly payments of $1750.36 was necessary
before a permanent modification of the loan would take effect.
5
Specifically, the defendant attached a May 22, 2018 order from the Pro-
bate Court awarding her a 100 percent interest in the property pursuant to
the laws of intestate succession.
6
In her October 17, 2018 motion to open the judgment and extend the
law day for cause, the defendant claimed that she successfully had entered
into a modification agreement after making three trial payments and the
parties’ execution of a new loan agreement.
7
Practice Book § 14-3 provides in relevant part: ‘‘(a) If a party shall fail
to prosecute an action with reasonable diligence, the judicial authority may,
after hearing, on motion by any party to the action pursuant to Section 11-
1, or on its own motion, render a judgment dismissing the action with
costs. . . .’’
8
Specifically, the plaintiff asserted that it had requested a two week
extension of time to file the federal mortgage foreclosure moratorium affida-
vit on June 25, 2021, and once that request was denied, it immediately filed
said affidavit.
9
‘‘In a foreclosure proceeding the authority of the trial court to order
either a strict foreclosure or a foreclosure by sale is clear. [See General
Statutes § 49-24.] . . . In interpreting this statute, we have stated that [i]n
Connecticut, the law is well settled that whether a mortgage is to be fore-
closed by sale or by strict foreclosure is a matter within the sound discretion
of the trial court. . . . The foreclosure of a mortgage by sale is not a matter
of right, but rests in the discretion of the court before which the foreclosure
proceedings are pending.’’ (Internal quotation marks omitted.) Caliber Home
Loans, Inc. v. Zeller, 205 Conn. App. 642, 658, 259 A.3d 1, cert. denied, 338
Conn. 914, 259 A.3d 1179 (2021).
General Statutes § 49-24 provides in relevant part: ‘‘All liens and mortgages
affecting real property may, on the written motion of any party to any suit
relating thereto, be foreclosed (1) by a decree of sale instead of a strict
foreclosure at the discretion of the court before which the foreclosure
proceedings are pending . . . .’’
10
General Statutes § 8-265ee (a) provides: ‘‘On and after July 1, 2008, a
mortgagee who desires to foreclose upon a mortgage which satisfies the
standards contained in subdivisions (1), (9), (10) and (11) of subsection (e)
of section 8-265ff, shall give notice to each homeowner who is a mortgagor
by registered, or certified mail, postage prepaid at the address of the
property which is secured by the mortgage. No such mortgagee may com-
mence a foreclosure of a mortgage prior to mailing such notice. Such notice
shall advise the homeowner of his delinquency or other default under the
mortgage and shall state that the homeowner has sixty days from the date
of such notice in which to (1) have a face-to-face meeting, telephone or
other conference acceptable to the authority with the mortgagee or a face-
to-face meeting with a consumer credit counseling agency to attempt to
resolve the delinquency or default by restructuring the loan payment sched-
ule or otherwise, and (2) contact the authority, at an address and phone
number contained in the notice, to obtain information and apply for emer-
gency mortgage assistance payments if the homeowner and mortgagee are
unable to resolve the delinquency or default.’’ (Emphasis added.) See also
Pennymac Corp. v. Tarzia, 215 Conn. App. 190, 201, 281 A.3d 469 (2022).
11
On August 1, 2023, our Supreme Court released its decision in KeyBank,
N.A. v. Yazar, 347 Conn. 381, 297 A.3d 968 (2023), which stated: ‘‘[W]e
conclude that the EMAP notice requirement is not jurisdictional. Rather,
it is a mandatory condition precedent to the commencement of a foreclosure
action.’’ (Emphasis added.) Id., 396; see also JPMorgan Chase Bank,
National Assn. v. Essaghof, 221 Conn. App. 475, 483, 302 A.3d 339, cert.
denied, 348 Conn. 923, 304 A.3d 445 (2023); Bank of New York Mellon v. Croce,
Superior Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S
(September 11, 2023).
12
Specifically, the defendant’s motion stated: ‘‘The undersigned and widow
of the [decedent], having received no papers or notice in connection with this
matter, represents to the court that she would not have had any awareness
of this case proceeding had she not checked the court’s website online. The
undersigned also represents that she has called [Homebridge’s counsel] and
informed them of her contact information, the [decedent’s] untimely passing
in April and the fact that the [decedent’s] affairs are being presently resolved
in Probate Court.’’
13
In its objection to the defendant’s motion to dismiss, Homebridge argued
that the service by publication pursuant to General Statutes § 52-68 was
sufficient under the facts and circumstances of this case.
14
Standard 19.1 of the Connecticut Standards of Title provides in relevant
part: ‘‘[A]fter the recording . . . of a notice of lis pendens, any party who
thereafter acquires an interest in the property being foreclosed, by way of
a conveyance, encumbrance (including mechanics’ and all other inchoate
liens, certificates of which are recorded subsequently to the notice of lis
pendens), or by way of descent or otherwise, or whose conveyance or encum-
brance is subsequently executed or subsequently recorded, is bound by all
proceedings taken after such recording to the same extent as if that person
were a party defendant in the foreclosure. Any such party may move the
court to be made a party defendant. . . .’’ (Emphasis added.) Connecticut
Bar Association, Connecticut Standards of Title (Cum. Supp. 2014), stan-
dard 19.1.
Standard 13.7 (B) of the Connecticut Standards of Title provides in relevant
part: ‘‘Although the mortgagor, upon granting the mortgage, is divested of
all legal title in the mortgaged property, retaining only an equity of redemp-
tion which is considered personal property, nevertheless, upon the mortgag-
or’s death, this personal property is converted into real property (again by
the operation of the doctrine of equitable conversion), the title to which
descends to the mortgagor’s heirs or devisees. This results in the following
. . . (c) if the mortgagor dies subsequent to or during the pendency of a
foreclosure action, the mortgagor’s heirs or devisees, may be substituted
for the deceased mortgagor, but the plaintiff is not obliged to move for
their substitution as parties defendant, provided the plaintiff recorded a
lis pendens at any time prior to the mortgagor’s death.’’ (Emphasis added.)
Connecticut Bar Association, Connecticut Standards of Title, supra, standard
13.7 (B).
We note that, ‘‘[a]lthough the standards of title are not controlling author-
ity, they nevertheless are persuasive to the extent that they establish the
custom in the legal community . . . and this court previously has found
the standards and comments helpful in resolving issues on appeal.’’ (Citation
omitted.) Hannaford v. Mann, 134 Conn. App. 265, 276, 38 A.3d 1239, cert.
denied, 304 Conn. 929, 42 A.3d 391 (2012).
15
In its March 4, 2016 memorandum of decision, the court stated that
‘‘[a]s a part of the process served, a lis pendens was recorded in the land
records’’ and that ‘‘the service commencing this litigation was accomplished
on April 16, 2015.’’
16
See footnote 14 of this opinion.
17
In the plaintiff’s November 27, 2019 objection to the defendant’s motion
to enforce the settlement, it set forth the following summary of the loss
mitigation options: ‘‘On or about October 12, 2017, the plaintiff offered a
modification . . . to the defendant, and she executed it. However, at the
time, she was not lawfully siesed of the property. As a result, that modifica-
tion was not accepted by the plaintiff. The Probate Court did not give her
title to the property until April 17, 2018. Most recently on April 23, 2019,
the plaintiff offered a trial period plan. . . . The trial plan required three
payments of $1750.36. On July 12, 2019, after the defendant refused to
comply with the trial period plan, the plaintiff denied the defendant for a
permanent modification.’’ (Citation omitted.)
18
Specifically, the defendant alleged the following: ‘‘1. The plaintiff misrep-
resented to the court that there were no pending probate cases for the
[decedent].
‘‘2. The plaintiff misrepresented to the court that it was unable to verify,
contact or locate anyone residing in the property subject to this action when
in fact the [defendant] had actively contact[ed] the plaintiff and its agents
to alert them to the circumstances of [the decedent’s] passing and her
occupancy of the property.
‘‘3. The purpose of the plaintiff’s misrepresentations were to blindside
and ambush the defendant with a judgment of foreclosure prior to her even
having notice of any pleading or filing made with the court.
‘‘4. Knowing that newspaper notice was wilfully and deliberately insuffi-
cient, the plaintiff then reiterated, unethically and dishonestly to the court,
that it was sufficient in its objection to the [defendant’s] motion to dismiss,
which was granted, going so far as to opine its sufficiency ‘where it is not
reasonably possible or practicable to give more adequate warning’ even
though the undersigned had gone above and beyond alerting the plaintiff
. . . as to her occupancy of the property.
‘‘5. The defendant incorporates each and every allegation of every subse-
quent special defense as if set forth here.
‘‘6. The above conduct is so morally reprehensible and inequitable that
it would shock the conscience of the average person, and the plaintiff ought
to be denied the equitable relief of foreclosure because it has failed to
speak with candor before the tribunal and has wilfully engaged in the same
unethical, unjust conduct.’’
19
‘‘[I]t is appropriate for a court to render summary judgment in favor of
a plaintiff when the special defenses asserted by a defendant are either not
legally viable or do not present a genuine issue of a material fact.’’ Kazlon
Communications, LLC v. American Golfer, Inc., 82 Conn. App. 593, 596,
847 A.2d 1012 (2004).
20
In its December 21, 2016 memorandum of decision, the trial court also
reasoned that, with respect to the unclean hands special defense, ‘‘the
conduct complained of in the pleadings does not relate to the validity,
making or enforcement of the note and mortgage between [the decedent]
and the lender. It would not be a legally sufficient defense.’’ This specific
reasoning is no longer proper. In 2019, our Supreme Court stated that
‘‘appellate case law recognizes that conduct occurring after the origination
of the loan, after default, and even after the initiation of the foreclosure
action may form a proper basis for defenses in a foreclosure action [including
unclean hands and laches].’’ U.S. Bank National Assn. v. Blowers, 332 Conn.
656, 672–73, 212 A.3d 226 (2019). It further explained that ‘‘equitable and
practical considerations inexorably lead to the conclusion that allegations
that the mortgagee has engaged in conduct that wrongly and substantially
increased the mortgagor’s overall indebtedness, caused the mortgagor to
incur costs that impeded the mortgagor from curing the default, or reneged
upon modifications are the types of misconduct that are directly and insepa-
rably connected . . . to enforcement of the note and mortgage.’’ (Citation
omitted; internal quotation marks omitted.) Id., 675.
21
‘‘In Audubon, our Supreme Court shaped a procedure by which a trial
court could summarily enforce a settlement agreement to settle litigation.’’
Kinity v. US Bancorp, 212 Conn. App. 791, 815, 277 A.3d 200 (2022); see
also Matos v. Ortiz, 166 Conn. App. 775, 796–97, 144 A.3d 425 (2016).
22
In its appellate brief, the plaintiff counters that the parties never entered
into a settlement, as the defendant failed to provide either good title or
adequate payment, and therefore the defendant’s reliance on Audubon was
misplaced. Additionally, as noted in part II of this opinion, the defendant’s
Audubon claim would necessarily fail because the record does not support
the contention that the parties had reached a binding settlement and/or loan
modification. See Reiner v. Reiner, 190 Conn. App. 268, 277, 210 A.3d 668
(2019) (‘‘[g]enerally, [a] trial court has the inherent power to enforce sum-
marily a settlement agreement as a matter of law [only] when the terms of
the agreement are clear and unambiguous . . . and when the parties do
not dispute the terms of the agreement’’ (internal quotation marks omitted)).
23
The plaintiff argues in its appellate brief that the defendant set forth
conclusory statements without referring to evidence that established a genu-
ine issue of material fact.
24
In its brief to this court, the plaintiff counters that the EMAP notice
was not required under the facts and circumstances of this case and that
the defendant had raised this issue for the first time on appeal.
25
Furthermore, the core of the defendant’s argument is that the failure
to comply with the EMAP notice results in lack of subject matter jurisdiction.
Subsequent to the filing of the briefs in the present case, our Supreme Court
expressly rejected this contention. See KeyBank, N.A. v. Yazar, 347 Conn.
381, 398, 297 A.3d 968 (2023); see also JPMorgan Chase Bank, National
Assn. v. Essaghof, supra, 221 Conn. App. 483.