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Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 740
Green Tree Servicing, LLC v. Clark
GREEN TREE SERVICING, LLC v. JANE E.
CLARK ET AL.
(AC 44582)
Bright, C. J., and Alvord and Palmer, Js.
Syllabus
Pursuant to statute (§ 8-265ee (a)), ‘‘a mortgagee who desires to foreclose
upon a mortgage . . . 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 commence a foreclosure of a mortgage prior to mailing such notice.’’
In 2014, the plaintiff G Co. sought to foreclose a mortgage on certain residen-
tial property owned by the defendant mortgagor. In 2015, G Co. filed its
affidavit of compliance with the state’s Emergency Mortgage Assistance
Program (EMAP), pursuant to § 8-265ee (a). W Co. was thereafter substi-
tuted as the plaintiff. The court granted W Co.’s motion for summary
judgment as to liability, and subsequently rendered a judgment of strict
foreclosure. The defendant filed an appeal, which was dismissed after
he failed to file an appellate brief. The defendant thereafter filed a
postjudgment motion to dismiss on the basis that the court lacked
subject matter jurisdiction because G Co. failed to send an EMAP notice
before commencing the action. The trial court denied the motion to
dismiss. The court found that, although G Co. had failed to provide the
defendant with timely notice of EMAP before bringing the present action
in violation of § 8-265ee (a), the public policy of finality outweighed
providing the defendant with a second opportunity to avail himself of
EMAP, especially after he undertook to mediate the dispute for nearly
one year before fully litigating the matter to a judgment and an appeal.
The court further concluded that to allow the defendant to sit on his
rights, only to collaterally attack the existing judgment, would have
permitted a strategic delay of the proceedings. On the defendant’s appeal
to this court, held that this court affirmed the trial court’s judgment
denying the defendant’s postjudgment motion to dismiss on the disposi-
tive alternative ground that the defendant waived his right to raise a
claim concerning G Co.’s compliance with EMAP: although G Co. had
failed to timely comply with the EMAP notice requirement and the
defendant’s motion to dismiss was not an impermissible collateral attack
on the foreclosure judgment, as the trial court retained jurisdiction to
open the judgment at the time of the filing of the motion to dismiss,
this court concluded that the defendant had waived his right to raise a
claim concerning G Co.’s EMAP notice compliance, as G Co. effectively
alerted the defendant to an issue with compliance in its affidavit by
averring that it had given the notice containing the information required
by § 8-265ee to the defendant in 2015, more than one year after the
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Green Tree Servicing, LLC v. Clark
present action had been commenced, and, despite being made aware
of this failure to comply with EMAP, at no point during the two years
that passed between the filing of G Co.’s affidavit and the trial court’s
judgment of strict foreclosure did the defendant raise G Co.’s noncompli-
ance with EMAP by way of a motion to strike, in his answer, or in
opposing W Co.’s motion for summary judgment, the defendant did not
file any opposition to W Co.’s motion for judgment of strict foreclosure,
and, although the defendant filed an appeal, that appeal was dismissed
after he failed to file an appellate brief; accordingly, although W Co.
failed to satisfy a mandatory condition precedent, no motion was filed
challenging the action on that basis prior to the court’s rendering judg-
ment of strict foreclosure or the defendant’s first appeal from that judg-
ment.
Argued December 6, 2023—officially released April 16, 2024
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 Hartford, where the named defendant et al. were
defaulted; thereafter, the plaintiff filed an amended
complaint; subsequently, Wilmington Savings Fund
Society, FSB, doing business as Christiana Trust, not
individually but as trustee for Pretium Mortgage Acqui-
sition Trust, was substituted as the plaintiff; subse-
quently, the court, Robaina, J., granted the substitute
plaintiff’s motion for summary judgment as to liability;
thereafter, the court, Dubay, J., granted the substitute
plaintiff’s motion for judgment of strict foreclosure and
rendered judgment thereon, from which the defendant
Charles I. Merlis appealed to this court, which dismissed
the appeal; subsequently, the court, M. Taylor, J.,
denied the motion to dismiss filed by the defendant
Charles I. Merlis, and the defendant Charles I. Merlis
appealed to this court. Affirmed.
Charles I. Merlis, self-represented, the appellant
(defendant).
Jeffrey M. Knickerbocker, for the appellee (substitute
plaintiff).
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4 ,0 0 Conn. App. 740
Green Tree Servicing, LLC v. Clark
Opinion
ALVORD, J. The self-represented defendant Charles
I. Merlis1 appeals from the judgment of the trial court
denying his motion to dismiss the foreclosure action
following the judgment of strict foreclosure rendered
in favor of the substitute plaintiff, Wilmington Savings
Fund Society, FSB, doing business as Christiana Trust,
not individually but as trustee for Pretium Mortgage
Acquisition Trust (Wilmington).2 On appeal, the defen-
dant claims that the court improperly denied his post-
judgment motion to dismiss the action because the orig-
inal plaintiff, Green Tree Servicing, LLC (Green Tree),
failed to give him proper notice of the state’s Emergency
Mortgage Assistance Program (EMAP), as required by
General Statutes § 8-265ee (a).3 We disagree because
1
The complaint also named Jane E. Clark; St. Francis Hospital and Medical
Center; Webster Bank, National Association; Tortora, Da Silva and Flaherty;
and National Credit Adjusters, LLC, as additional defendants. Clark was
defaulted for failure to plead, Webster Bank, National Association, was
defaulted for failure to disclose a defense, and the remaining additional
defendants were defaulted for failure to appear. None of the additional
defendants have participated in this appeal. Accordingly, we refer to Charles
I. Merlis as the defendant.
2
Green Tree Servicing, LLC (Green Tree), commenced this foreclosure
action in 2014. In November, 2015, the court granted the motion to substitute
Ditech Financial, LLC, as the plaintiff. In September, 2016, the court granted
the motion to substitute Wilmington as the plaintiff.
3
General Statutes § 8-265ee (a) provides in relevant part that ‘‘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 regis-
tered, or certified mail, postage prepaid at the address of the property which
is secured by the mortgage. No such mortgagee may commence 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 schedule or otherwise, and (2)
contact the authority, at an address and phone number contained in the
notice, to obtain information and apply for emergency mortgage assistance
payments if the homeowner and mortgagee are unable to resolve the delin-
quency or default.’’
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Green Tree Servicing, LLC v. Clark
we conclude that the defendant waived his claim. We
therefore affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In March, 2014,
Green Tree commenced this action against the defen-
dant and Jane E. Clark to foreclose a mortgage on
residential property in West Hartford. The parties par-
ticipated in the foreclosure mediation program; see
General Statutes § 49-31m; until mediation was termi-
nated due to the defendant’s failure to attend a sched-
uled mediation and to provide required financial infor-
mation. Upon termination of mediation in February,
2015, the parties reengaged in discovery and motion
practice.
On August 31, 2015, Green Tree filed an affidavit of
compliance with EMAP. In the affidavit, a paralegal
employed by Green Tree’s counsel averred that,
‘‘[b]ased on . . . [the] business records [of Green
Tree’s counsel] and its regular business practices,
[Green Tree] has complied with the [EMAP] by [Green
Tree’s counsel] giving on March 20, 2015 to all mortgag-
ors a notice containing the information required by said
statute.’’4 A few days later, on September 4, 2015, the
defendant, who was then represented by counsel,5 filed
a motion to strike the complaint on the basis that Green
Tree had misstated his name as ‘‘Charles I. Clark,’’ and
requested that Green Tree file a new complaint correct-
ing his name. In September, 2015, Green Tree responded
to the motion to strike by filing the operative amended
complaint. In November, 2015, the court granted Green
Tree’s motion to substitute Ditech Financial, LLC, as
Although § 8-265ee has been amended since the events underlying this
appeal; see Public Acts 2021, No. 21-44, § 8; those amendments have no
bearing on the merits of this appeal. In the interest of simplicity, we refer
to the current revision of the statute.
4
The affidavit did not have any attachments.
5
See footnote 11 of this opinion.
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Green Tree Servicing, LLC v. Clark
the plaintiff, and, in September, 2016, the court granted
the motion to substitute Wilmington as the plaintiff.
On January 11, 2017, the defendant filed an answer
and special defenses to the amended complaint. His
special defenses alleged that Wilmington lacked stand-
ing, that Wilmington did not possess the original note,
and payment. In June, 2017, Wilmington filed a motion
for summary judgment as to liability. The defendant
filed an objection to the motion for summary judgment
and affidavit in support of his objection. Therein, he
presented argument in support of his special defense
of payment and also argued that Green Tree had failed
to provide him with a valid notice of acceleration. The
court, Robaina, J., granted Wilmington’s motion for
summary judgment as to liability on September 11, 2017.
Wilmington thereafter filed a motion for judgment of
strict foreclosure, to which the defendant did not file
a response, and the court, Dubay, J., granted the motion
on November 13, 2017. The court set law days to com-
mence on January 29, 2018.
On December 1, 2017, the defendant filed an appeal
with this court.6 Following four extensions of time, the
defendant failed to file his appellate brief, and the
appeal was dismissed on August 23, 2019. Following
the dismissal of the appeal, on December 2, 2019, the
court granted Wilmington’s motion to reenter the judg-
ment of foreclosure and reset the law days to commence
on March 23, 2020. Over the course of the litigation,
the court reset the law days a total of eight times.
On October 6, 2020, the defendant filed, on a Judicial
Branch form designated for motions to open a judg-
ment, a motion in which he argued that the court lacked
In October, 2018, the defendant filed a motion for articulation, in which
6
he requested articulation as to his special defense of payment and his
contention that Wilmington did not possess the original note. The motion
for articulation was denied.
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Green Tree Servicing, LLC v. Clark
subject matter jurisdiction because Green Tree had
failed to comply with the EMAP notice requirements,
in light of this court’s decision in MTGLQ Investors,
L.P. v. Hammons, 196 Conn. App. 636, 638, 230 A.3d
882 (2020) (overruled by KeyBank, N.A. v. Yazar, 347
Conn. 381, 297 A.3d 968 (2023)), cert. denied, 335 Conn.
950, 238 A.3d 21 (2020). The defendant requested that
the court extend the law days for sixty days to permit
the parties to brief the subject matter jurisdiction issue.
The court granted the motion to set a new law day and
set law days to commence on December 8, 2020. The
law days were subsequently extended two additional
times, to March 30, 2021.
On December 7, 2020, the defendant filed a motion
to dismiss the foreclosure action on the basis that the
court lacked subject matter jurisdiction over the action
because Green Tree had failed to send an EMAP notice
before commencing the action. The defendant also filed
a memorandum of law in support of his motion. On
December 18, 2020, Wilmington filed a memorandum of
law in opposition to the defendant’s motion to dismiss,
arguing that it had complied with the EMAP require-
ment by sending a letter on March 20, 2015,7 and that
the defendant’s argument was barred by his failure to
raise the issue in his prior appeal.
The defendant filed a reply on February 19, 2021,
arguing that the mailing of the notice more than one
year after commencing the foreclosure action did not
constitute compliance with EMAP and that his claim
was not waivable because it implicated the court’s sub-
ject matter jurisdiction. On February 22, 2021, Wilming-
ton filed a surreply, in which it argued that the defen-
dant’s challenge constituted an impermissible collateral
7
Wilmington attached to its memorandum of law in opposition to the
defendant’s motion to dismiss a copy of the March 20, 2015 letter with a
certified mail tracking number.
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8 ,0 0 Conn. App. 740
Green Tree Servicing, LLC v. Clark
attack on the foreclosure judgment, citing Bank of New
York Mellon v. Tope, 202 Conn. App. 540, 541, 246 A.3d
4 (2021), rev’d, 345 Conn. 662, 286 A.3d 891 (2022).
Wilmington additionally argued that § 8-265ee does not
require an EMAP notice to be sent to a borrower when
a second borrower, in this case Clark, no longer lives
at the property. A hearing was held on the motion on
February 22, 2021.8
On March 4, 2021, the court, M. Taylor, J., issued a
memorandum of decision in which it denied the defen-
dant’s motion to dismiss. The court first found that
Green Tree mailed an EMAP notice to both the defen-
dant and Clark on March 20, 2015. No return receipt
was provided, and the defendant claimed that he did
not receive the notice and, thus, he did not avail himself
of the program. On the basis of the untimely mailing,
the court found that Green Tree ‘‘failed to provide the
defendant with timely notice of the EMAP program
before bringing this action to foreclose the mortgage
on his home, in contravention of the requirements of
§ 8-265ee (a).’’
The court framed its inquiry as ‘‘whether the statutory
EMAP provision, requiring notice of mortgage assis-
tance programs, ought to nullify a judgment of strict
foreclosure after years of litigation, during which the
defendant exercised his right to mediation as well as an
appeal after judgment, albeit dismissed on procedural
grounds.’’ The court explained that ‘‘the procedural con-
text of a challenge to subject matter jurisdiction is an
important consideration, leading courts to disfavor col-
lateral attacks on judgments.’’ The court noted that
the ‘‘underlying right to notice of EMAP has existed
throughout these proceedings and was, therefore, an
existing and knowable legal right.’’
8
The transcript of the hearing on the motion to dismiss was not filed in
this appeal.
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Green Tree Servicing, LLC v. Clark
The court considered the important public policy
underlying EMAP, which it described as especially
important in the present case, in which the defendant
had challenged the underlying default of his monthly
mortgage payment. The court explained: ‘‘Absent the
opportunity to apply for mortgage relief and resolve his
dispute with the plaintiff in a pre-litigation forum such
as EMAP, the dispute has continued into this long-stand-
ing litigation. In mitigation of his rights under EMAP,
though distinguishable, the defendant undertook the
opportunity to mediate his dispute with the plaintiff for
nearly a year before litigating the dispute to judgment
and an appeal. Therefore, whatever procedural and sub-
stantive rights may have flowed upon proper notice of
EMAP, the defendant was afforded the opportunity to
resolve the matter through court-sponsored mediation,
albeit subsequent to engaging the machinery of litiga-
tion. Although court-supervised mediation did not
resolve the foreclosure, EMAP similarly does not guar-
antee the resolution of the dispute between the par-
ties.’’9
The court determined that, ‘‘[a]t this stage of the
proceedings . . . based upon the facts and procedural
posture of this case, the public policy of finality out-
weighs providing the defendant with a second opportu-
nity, to begin again and avail himself of EMAP, espe-
cially after taking the opportunity to mediate the dispute
for nearly one year before fully litigating the matter to a
judgment and an appeal, albeit dismissed on procedural
grounds. To allow a defendant to sit on his or her know-
able rights, only to arise and collaterally attack an
existing judgment after seven years of litigation and an
appeal, would permit a strategic delay of proceedings
9
The court stated in a footnote that it had ‘‘no basis to conclude that the
defendant intentionally delayed his motion to dismiss for strategic pur-
poses,’’ but it expressed a concern that, ‘‘[t]o hold otherwise, here, might
allow for such abuse in other cases.’’
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10 ,0 0 Conn. App. 740
Green Tree Servicing, LLC v. Clark
that would have otherwise come to a conclusion on the
underlying merits of the case.’’ This appeal followed.
After this appeal was briefed and argued, this court
ordered consideration of the appeal deferred until the
final disposition by our Supreme Court of two pending
cases, Bank of New York Mellon v. Tope, 345 Conn. 662,
663, 286 A.3d 891 (2022), and KeyBank, N.A. v. Yazar,
347 Conn. 381, 384, 297 A.3d 968 (2023), which were
released on December 20, 2022, and August 1, 2023,
respectively. This court then ordered the parties to file
supplemental briefs addressing the effect of those deci-
sions on the present appeal and heard additional oral
argument on December 6, 2023.
On appeal, the defendant claims that the court
improperly denied his postjudgment motion to dismiss
the action because Green Tree failed to comply with
the EMAP notice requirement.
We first set forth our standard of review. ‘‘A motion
to dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss will be de novo.’’ (Inter-
nal quotation marks omitted.) Wells Fargo Bank, N.A.
v. Melahn, 222 Conn. App. 828, 838–39, 307 A.3d 911
(2023), cert. denied, 348 Conn. 951, 308 A.3d 1038
(2024). ‘‘[If] the trial court reaches a correct decision
but on [improper] grounds, this court has repeatedly
sustained the trial court’s action if proper grounds exist
to support it. . . . [W]e . . . may affirm the court’s
judgment on a dispositive [alternative] ground for which
there is support in the trial court record.’’ (Internal
quotation marks omitted.) Id., 840–41.
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Green Tree Servicing, LLC v. Clark
We next set forth the EMAP notice requirement.
‘‘[Section] 8-265ee prohibits the initiation of a valid suit
without providing the EMAP notice by affirmatively
providing that [n]o such mortgagee may commence a
foreclosure of a mortgage prior to mailing such notice.
. . . [General Statutes §] 8-265dd, which establishes
EMAP, also prevents the court from rendering any judg-
ment of foreclosure until the EMAP notice has been
sent, the sixty day response time has expired, and, if
relevant, a determination has been made on the applica-
tion for emergency mortgage assistance payments. . . .
Specifically, the statute provides in relevant part: [N]o
judgment of strict foreclosure nor any judgment order-
ing a foreclosure sale shall be entered in any action
instituted by the mortgagee . . . for the foreclosure of
an eligible mortgage unless . . . notice to the home-
owner who is a mortgagor has been given by the mort-
gagee in accordance with section 8-265ee and the time
for response has expired . . . .
‘‘Moreover, the EMAP does not require a return
receipt for the provision of the required notice to a
mortgagor, and the lack of a return receipt in the record
does not affect [a mortgagee’s] compliance with the
[EMAP]. . . . Consequently, [it is sufficient] to estab-
lish that a letter was actually placed in the mail. . . .
Whether a letter actually was placed in the mail may
be proved either by direct or circumstantial evidence.
It may be proved by the testimony of the person who
deposited it or by proof of facts from which it may be
reasonably inferred that it was duly deposited.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
844–45.
Our Supreme Court has held that compliance with
the EMAP notice requirement is a condition precedent
to the commencement of a foreclosure action. Specifi-
cally, it stated: ‘‘To have a cause of action on which
relief can be granted, the notice requirement must be
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Green Tree Servicing, LLC v. Clark
fulfilled. The legislature has made it clear that the bur-
den rests with the mortgagee to demonstrate compli-
ance with the EMAP notice requirement. Specifically,
subsection (b) of § 8-265ee requires the mortgagee to
file an affidavit with the court stating that the notice
provisions of subsection (a) have been complied with
and that the relevant time period has expired. Only after
the mortgagee files such an affidavit may the foreclo-
sure suit continue. See General Statutes § 8-265ee (b).
If a mortgagee fails to comply with § 8-265ee (a), it has
failed to satisfy a mandatory condition precedent and,
therefore, has failed to allege a claim on which relief
can be granted.’’ KeyBank, N.A. v. Yazar, supra, 347
Conn. 393–94.
The court agreed with the plaintiff’s contention that
the EMAP notice requirement does not implicate a
court’s subject matter jurisdiction, overruling MTGLQ
Investors, L.P. v. Hammons, supra, 196 Conn. App. 636.
KeyBank, N.A. v. Yazar, supra, 347 Conn. 396–97. In
rejecting the argument that a determination that the
EMAP notice requirement is not jurisdictional would
frustrate the legislative intent of the EMAP amend-
ments, the court stated: ‘‘Our holding that the EMAP
notice is a mandatory condition precedent does nothing
to dilute or impair the legislative intent or public policy
underlying the 2008 amendments. The mortgagee is still
mandated to provide the homeowner with the EMAP
notice. Therefore, the public policy underlying the
notice requirement—informing homeowners of their
rights and the resources available to them to assist in
avoiding foreclosure—is fulfilled. A foreclosure action
may not proceed unless the EMAP notice requirement
is carried out. If the plaintiff does not satisfy that condi-
tion, it has failed to allege a claim on which relief can
be granted.’’ Id., 398.
In a footnote, the court in Yazar identified the proce-
dural avenues available to a mortgagor seeking to raise
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Green Tree Servicing, LLC v. Clark
a challenge to the mortgagee’s compliance with the
EMAP notice requirement, explaining that ‘‘[t]he failure
to state a claim on which relief can be granted is typi-
cally addressed through a motion to strike, and, if the
motion is granted, the plaintiff is allowed an opportunity
to replead the stricken claim. See Practice Book §§ 10-
39 (a) (1) and 10-44. The failure to send an EMAP notice,
however, cannot be cured, as the plaintiff must send
the EMAP notice prior to initiating suit to have an
actionable claim to relief. In these instances, we have
stated that the use of a motion for summary judgment
to challenge the legal sufficiency of a complaint is
appropriate when the complaint fails to set forth a cause
of action and the defendant can establish that the defect
could not be cured by repleading. . . . As such, either
a motion to strike or a motion for summary judgment
is an available procedural avenue to challenge the fail-
ure to send an EMAP notice.’’ (Citation omitted; internal
quotation marks omitted.) Id., 394 n.9.
Most recently, in Wells Fargo Bank, N.A. v. Melahn,
supra, 222 Conn. App. 830–31, 838, this court affirmed
a judgment of strict foreclosure, finding no error in the
trial court’s denial of the defendant’s motion to dismiss
the action for lack of subject matter jurisdiction on the
basis of allegations that the plaintiff had filed false
affidavits regarding its compliance with the EMAP
notice requirement. The court first considered the trial
court’s determination that the motion constituted an
impermissible collateral attack. Id., 838. This court
rejected that basis for the denial of the motion to dis-
miss, stating that, because there was no final judgment
at the time the court decided the motion to dismiss,
the motion was not an impermissible collateral attack.
Id., 840. However, this court affirmed the judgment on
the alternative ground that, because ‘‘the question of a
plaintiff’s compliance with the EMAP notice require-
ment no longer implicates the court’s subject matter
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Green Tree Servicing, LLC v. Clark
jurisdiction over the foreclosure action . . . the court
would have been entitled to deny the motion to dismiss
because it failed to raise properly a claim that the court
lacked subject matter jurisdiction over the action.’’
(Citation omitted.) Id., 841. The court also stated that
‘‘the [trial] court addressed the merits of the defendant’s
EMAP claim when it adjudicated both the defendant’s
motion to dismiss and the plaintiff’s motion for sum-
mary judgment. . . . [T]he court properly determined
that the defendant failed to raise a genuine issue of
material fact regarding the plaintiff’s compliance with
the EMAP notification requirement.’’ Id.
In the present case, at the time the trial court denied
the defendant’s motion to dismiss, the court, to the
extent that it concluded that the defendant’s motion to
dismiss constituted an impermissible collateral attack
on the judgment, relied on this court’s decision in Bank
of New York Mellon v. Tope, supra, 202 Conn. App. 540.
In Bank of New York Mellon v. Tope, supra, 345 Conn.
665, 671, however, our Supreme Court reversed this
court’s decision and concluded that the defendant’s
motion to open the judgment of foreclosure by sale did
not constitute a collateral attack on an earlier judgment.
It noted that ‘‘an attack on a judgment within the same
action or proceeding in which it was obtained can be
a collateral attack if the judgment has become final and
the court that rendered the judgment no longer has
jurisdiction to open it.’’ Id., 672. The court explained,
however, that ‘‘[i]n a foreclosure by sale, the court
retains jurisdiction to modify the judgment until the
foreclosure sale is approved.’’ Id., 673. Because the sale
had not been approved, the judgment was not final and,
‘‘[a]s a result, when the court rendered the July, 2017
judgment, a new, four month limitation period was trig-
gered, under which the modified judgment could be
opened. Therefore, at the time the defendant filed his
motion to open the judgment on September 28, 2017,
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Green Tree Servicing, LLC v. Clark
the trial court had jurisdiction to open the judgment
under [General Statutes] § 52-212a.’’ Id., 676. Accord-
ingly, the court determined that the motion to open
was not an impermissible collateral attack. Id.
In the present case, the court retained jurisdiction
to open the foreclosure judgment at the time of the
filing of the motion to dismiss. See Real Estate Mortgage
Network, Inc. v. Squillante, 184 Conn. App. 356, 360,
194 A.3d 1262 (‘‘[w]hether the trial court has jurisdiction
to open a judgment of strict foreclosure is generally
dependent on whether title has vested in the encum-
brancer’’), cert. denied, 330 Conn. 950, 197 A.3d 390
(2018); see also General Statutes § 49-15 (providing that
no judgment of strict foreclosure ‘‘shall be opened after
the title has become absolute in any encumbrancer’’).
Accordingly, the motion did not constitute an impermis-
sible collateral attack on the judgment. See, e.g., Wells
Fargo Bank, N.A. v. Melahn, supra, 222 Conn. App. 840
(motion to dismiss was not impermissible collateral
attack due to absence of final judgment).
As noted previously in this opinion, however, this
court may affirm the court’s judgment on a dispositive
alternative ground for which there is support in the trial
court record. Accordingly, we consider Wilmington’s
contention that the defendant has waived his right to
raise a claim concerning EMAP compliance. We con-
clude that he has.10
It is axiomatic that ‘‘[t]he court’s function is generally
limited to adjudicating the issues raised by the parties
on the proof they have presented and applying appro-
priate procedural sanctions on motion of a party. . . .
The parties, may, under our rules of practice, challenge
10
Because we conclude that the defendant has waived his claim regarding
EMAP compliance, we need not reach Wilmington’s proposed alternative
ground for affirmance that no EMAP notice was required because Clark no
longer lived at the property.
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16 ,0 0 Conn. App. 740
Green Tree Servicing, LLC v. Clark
the legal sufficiency of a claim at two points prior to
the commencement of trial. First, a party may challenge
the legal sufficiency of an adverse party’s claim by filing
a motion to strike. Practice Book § 10-39. Second, a
party may move for summary judgment and request the
trial court to render judgment in its favor if there is no
genuine issue of fact and the moving party is entitled
to judgment as a matter of law. Practice Book §§ 17-
44 and 17-49. In both instances, the rules of practice
require a party to file a written motion to trigger the
trial court’s determination of a dispositive question of
law. The rules of practice do not provide the trial court
with authority to determine dispositive questions of law
in the absence of such a motion. . . .
‘‘A court may not grant summary judgment sua
sponte. . . . The issue first must be raised by the
motion of a party and supported by affidavits, docu-
ments or other forms of proof. . . . When a rule of
practice requires a written motion, a memorandum of
law and supporting documentation, it is because the
issue to be decided is of considerable importance. In
the case of summary judgment, which results in a swift,
concise end to often complex litigation without benefit
of a full trial, the parties and the court need to be as
well informed as possible on the applicable law and
facts.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Emeritus Senior Living v.
Lepore, 183 Conn. App. 23, 25–26 n.3, 191 A.3d 212
(2018).
Our Supreme Court in Yazar explained that motions
to strike or for summary judgment are appropriate pro-
cedural avenues to challenge a plaintiff’s compliance
with EMAP because ‘‘a mortgagee [who] fails to comply
with § 8-265ee (a) . . . has failed to satisfy a manda-
tory condition precedent and, therefore, has failed to
allege a claim on which relief can be granted.’’ KeyBank,
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0 Conn. App. 740 ,0 17
Green Tree Servicing, LLC v. Clark
N.A. v. Yazar, supra, 347 Conn. 393–94 and n.9. In set-
ting forth the procedural avenues available to a defen-
dant seeking to raise EMAP noncompliance, our
Supreme Court did not identify any postjudgment
motions.
In the present case, Green Tree effectively alerted
the defendant to an issue with its EMAP compliance
in its affidavit, which was filed on August 31, 2015.
‘‘Subsection (b) of § 8-265ee requires the mortgagee to
file an affidavit with the court stating that the notice
provisions of subsection (a) have been complied with
and that the relevant time period has expired. Only after
the mortgagee files such an affidavit may the foreclo-
sure suit continue.’’ KeyBank, N.A. v. Yazar, supra, 347
Conn. 394. In the present case, it was averred that Green
Tree had given, on March 20, 2015, a notice to the
mortgagors containing the information required by § 8-
265ee (a). Although the affidavit averred compliance
with the provisions of the statute, the affidavit clearly
stated the date on which it claimed it had given notice,
which date, significantly, was after the filing of the
present action.
Despite being made aware of Green Tree’s failure to
timely comply with EMAP, more than two years passed
between the filing of the affidavit and the court’s render-
ing of a judgment of strict foreclosure. At no point
during those two years did the defendant raise Green
Tree’s noncompliance with EMAP. Although the defen-
dant, who was then represented by counsel,11 filed a
11
The defendant was represented by Attorney John L. Giulietti from Sep-
tember 4, 2015, until after the rendering of judgment on November 13, 2017.
On December 6, 2017, Giulietti filed a motion to withdraw his appearance,
which the court granted on December 18, 2017. In addition to filing the
motion to strike, answer, and opposition to Wilmington’s motion for sum-
mary judgment, Giulietti also filed on the defendant’s behalf a motion to
dismiss for lack of subject matter jurisdiction predicated on a claim that
Wilmington lacked standing. That motion was later withdrawn.
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 740
Green Tree Servicing, LLC v. Clark
motion to strike the complaint shortly after the EMAP
affidavit was filed, the only ground alleged in the motion
to strike was that the complaint had misstated the
defendant’s last name. Following the filing of an
amended complaint to correct the misstatement, the
defendant did not thereafter attempt to challenge Green
Tree’s compliance with EMAP by filing a second motion
to strike, assuming it would have been permissible to
do so.12 Moreover, once the defendant filed his answer
to the amended complaint, he waived his right to chal-
lenge the legal sufficiency of the complaint in a motion
to strike. See, e.g., Rogan v. Rungee, 165 Conn. App.
209, 216 n.3, 140 A.3d 979 (2016) (party waived right to
raise issue properly raised in motion to strike by filing
answer); see also Practice Book §§ 10-6 and 10-7. In his
answer, the defendant did not raise noncompliance with
EMAP as a defense. Additionally, the defendant did not
at any time file a motion for summary judgment. In
responding to Wilmington’s motion for summary judg-
ment, filed in June, 2017, the defendant again failed to
raise EMAP noncompliance. Finally, the defendant did
not file any opposition to Wilmington’s motion for judg-
ment of strict foreclosure. He subsequently filed an
appeal from the judgment of foreclosure, but the appeal
12
Although our appellate courts have yet to address the issue, decisions
of our Superior Court have held that ‘‘the rules of practice preclude a party
from filing successive motions to strike when the grounds raised in a later
motion could have been raised in the initial motion . . . . [A] second motion
to strike may be appropriate in limited circumstances. For example, when
a plaintiff, pursuant to Practice Book § 10-44, files a subsequent pleading
alleging new facts . . . . Additional motions to strike, however, are not
allowed when the grounds asserted therein could have been raised in an
earlier motion. . . . [Because] [t]he Practice Book provides for pleading
multiple grounds in a single motion to strike and, further, provides that
pleadings are to advance after the adjudication of each enumerated pleading,
a defendant may not impede the progress of the suit by dividing his grounds
and pleading them in consecutive motions to strike.’’ (Citation omitted;
internal quotation marks omitted.) Red Law Firm, LLC v. Webster Bank,
Superior Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX-
S (February 7, 2014).
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Green Tree Servicing, LLC v. Clark
was dismissed in August, 2019, after the defendant had
failed to file his appellate brief.
Thus, although Wilmington failed to satisfy a manda-
tory condition precedent, no motion was filed challeng-
ing the action on that basis prior to the court’s rendering
of a judgment of foreclosure or the defendant’s first
appeal from that judgment. Moreover, because ‘‘the
question of a plaintiff’s compliance with the EMAP
notice requirement no longer implicates the court’s sub-
ject matter jurisdiction over the foreclosure action . . .
the court would have been entitled to deny the motion
to dismiss because it failed to raise properly a claim
that the court lacked subject matter jurisdiction over
the action.’’ Wells Fargo Bank, N.A. v. Melahn, supra,
222 Conn. App. 841; see also, e.g., Bank of New York
Mellon v. Croce, Superior Court, judicial district of Fair-
field, Docket No. CV-XX-XXXXXXX-S (September 11, 2023)
(denying motion to dismiss that claimed plaintiff failed
to comply with EMAP on basis that failure to comply
with EMAP is not subject matter defect and defendant
had waived her right to file motion to dismiss on other
grounds by filing her answer).
Accordingly, we conclude, under the specific proce-
dural facts and circumstances of the present case, that
the defendant waived his right to challenge Green Tree’s
compliance with EMAP and that the court’s denial of
the defendant’s postjudgment motion to dismiss does
not constitute reversible error.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.