JPMorgan Chase Bank, National Assn. v. Malick ( 2023 )

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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
v. ABU HASHEM MALICK ET AL.
(SC 20662)
Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js.
Syllabus
Pursuant to the rules of practice (§ 23-18 (a)), in any action to foreclose a
mortgage, ‘‘where no defense as to the amount of the mortgage debt is
interposed, such debt may be proved by presenting to the judicial author-
ity the original note and mortgage, together with the affidavit of the
plaintiff . . . stating what amount, including interest to the date of the
hearing, is due . . . .’’
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the named defendant, M, after he defaulted on a promissory
note secured by the mortgage. After the trial court granted the plaintiff’s
motion for summary judgment as to liability, the plaintiff moved for
judgment of strict foreclosure and submitted an affidavit of debt pursu-
ant to Practice Book § 23-18 (a) to establish the amount of the debt
owed. M objected, claiming that the affidavit contained hearsay and
incorrectly calculated his municipal tax liability and the outstanding
interest that he owed on the loan. The trial court granted M additional
time to obtain and submit verified documentation to support his claims,
but M did not do so. Instead, M filed another objection to the plaintiff’s
affidavit of debt, further claiming that municipal records indicated that
the plaintiff had overstated M’s municipal taxes and incorrectly calcu-
lated the interest he owed. M’s objection included an exhibit containing
a year-to-year breakdown of what he claimed were the taxes actually
owed on the property, which M had obtained from the records of the
municipal tax collector. At a subsequent hearing to consider M’s offer
of proof in support of his objection, the trial court relied on the plaintiff’s
affidavit of debt and other submissions in rendering judgment of strict
foreclosure. In doing so, the court accepted the figure that the plaintiff
represented in its affidavit of debt as the amount of interest M owed,
but the court did not consider, or require the plaintiff to provide, any
evidence in support of that amount. M appealed to the Appellate Court,
and that court reversed the trial court’s judgment, concluding that the
trial court had improperly relied on the plaintiff’s affidavit of debt under
§ 23-18 (a), which provides an exception to the general prohibition on
hearsay evidence when the amount of the debt is not in dispute. The
Appellate Court reasoned that, because M had objected to the stated
amount of the municipal taxes and interest that was due, the hearsay
exception in § 23-18 (a) was inapplicable, and the plaintiff thus was
required to present evidence regarding the amount of the debt beyond
the affidavit it had submitted. On the granting of certification, the plaintiff
appealed to this court.
Held that the Appellate Court correctly concluded that the trial court improp-
erly had relied on the plaintiff’s affidavit of debt to establish the amount
of debt M owed instead of requiring the plaintiff to present evidence
as to the amount of the debt:
1. This court clarified the standards applicable to trial court rulings on the
admissibility of affidavits of debt offered under Practice Book § 23-18 (a):
To preclude the admission of a plaintiff’s affidavit of debt pursuant to
§ 23-18 (a), a defense challenging the amount of the mortgage debt must
be actively made, must specifically concern the amount of the debt, and
must be based on some articulated legal reason or fact as to why the
amount of debt asserted is incorrect.
Moreover, a defense is insufficient if it focuses on matters ancillary to
the amount of the debt, such as issues involving liability, that is, whether
the loan is actually in default, involving the credibility of the affiant, or
involving defects in the execution of the affidavit itself.
2. In the present case, M’s objection to the plaintiff’s affidavit of debt properly
implicated the amount of the debt by challenging the plaintiff’s calcula-
tion of interest and municipal taxes that M allegedly owed.
3. The plaintiff could not prevail on its claim that, to properly interpose a
defense within the meaning of Practice Book § 23-18 (a), an objection
to an affidavit of debt must be accompanied not only by legal or factual
argument, but also by supporting, admissible evidence:
In construing the phrase ‘‘where no defense as to the amount of the
mortgage debt is interposed,’’ as used in § 23-18 (a), this court looked
to the commonly accepted usage of the words ‘‘defense’’ and ‘‘interpose,’’
and concluded that § 23-18 (a) merely requires a defendant to advance
a stated reason, in law or fact, as to why the amount of the debt is
incorrect, an objection clearly falls within the broad scope of the term
‘‘interpose,’’ insofar as an objection interferes with a plaintiff’s ability
to rely on an affidavit to prove the amount of indebtedness, this broad
definition of ‘‘interpose’’ was supported by Appellate Court case law,
and M’s specific objection to the affidavit of debt in the present case
satisfied the requirements of § 23-18 (a) because it advanced a supporting
legal or factual argument, namely, that the plaintiff incorrectly calculated
the interest that M owed and failed to include certain property tax
abatements that the municipality had allegedly afforded M.
Moreover, the plaintiff’s contention that an objection to an affidavit of
debt must be accompanied by supporting, admissible evidence, in addi-
tion to legal or factual argument, was not supported by this state’s
appellate case law, and this court’s construction of § 23-18 (a) as not
requiring that supporting, admissible evidence accompany an objection
to an affidavit of debt was consistent with the fact that it is the plaintiff
in a foreclosure action that bears the burden of establishing the amount
of the debt owed, and that burden remains with the plaintiff after the
defendant sufficiently interposes a defense as to the amount of the debt.
In the present case, M went beyond what the rules of practice required
when he attached to his objection the year-to-year breakdown of what
he claimed were the accurate taxes, that objection was based on an
articulated reason and sufficed to prevent the trial court from relying
on the plaintiff’s affidavit of debt alone to support the calculation of the
amount of property tax that M owed, and, although M did not provide
official records from the municipal tax collector to support his calcula-
tion of the amount of property tax he owed, neither this court nor
the language of § 23-18 (a) has ever required a defendant to provide
such evidence.
Argued January 10—officially released July 4, 2023
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district
of Fairfield, where the defendant Shujaat Malick was
defaulted for failure to appear; thereafter, the court,
Bruno, J., granted the plaintiff’s motion for summary judg-
ment as to liability; subsequently, the case was tried to
the court, Bruno, J.; judgment of strict foreclosure,
from which the named defendant appealed to the Appel-
late Court, Moll, Alexander and Bishop, Js., which
reversed the trial court’s judgment and remanded the
case for further proceedings, and the plaintiff, on the
granting of certification, appealed to this court. Affirmed.
Brian D. Rich, with whom, on the brief, was Logan
A. Carducci, for the appellant (plaintiff).
Jeffrey Gentes and Theresa Dudek filed a brief for
the Connecticut Fair Housing Center as amicus curiae.
Joseph R. Dunaj filed a brief for USFN as amicus
curiae.
Opinion
D’AURIA, J. The sole issue in this certified appeal
concerns the applicability of the hearsay exception con-
tained in Practice Book § 23-18 (a), which allows a
creditor to prove the amount of the debt in a foreclosure
action by submitting an affidavit ‘‘of the plaintiff or
other person familiar with the indebtedness,’’ rather
than through live testimony, ‘‘where no defense as to
the amount of the mortgage debt is interposed . . . .’’
The plaintiff, JPMorgan Chase Bank, National Associa-
tion, appeals from the Appellate Court’s judgment
reversing the trial court’s judgment of strict foreclosure
rendered against the named defendant, Abu Hashem
Malick.1 The plaintiff claims that the Appellate Court
incorrectly held that, because the defendant had
objected to the amount of the mortgage debt, § 23-18
(a) did not apply as a matter of law in the present
case. Specifically, the plaintiff argues that, because the
defendant failed to provide admissible evidence to sup-
port his claims that the plaintiff had miscalculated the
amount of interest and municipal taxes he owed, the
defendant’s objection did not suffice to bar the applica-
tion of § 23-18 (a), and thus the trial court properly
allowed the plaintiff to establish the amount of the debt
by affidavit.2 We disagree with the plaintiff and affirm
the Appellate Court’s judgment.
The Appellate Court’s opinion contains most of the
undisputed facts and procedural history required to
resolve this appeal; see JPMorgan Chase Bank, National
Assn. v. Malick, 208 Conn. App. 38, 39–41, 263 A.3d 920(2021); which we summarize along with other facts in
the record. ‘‘The defendant is the owner of real property
in Fairfield (property). In [its] complaint . . . the plain-
tiff alleged that the defendant had executed and deliv-
ered to Washington Mutual Bank, N.A., its predecessor
in interest, a note in the principal amount of $417,000,
of which the plaintiff became the holder, secured by a
mortgage on the property. The plaintiff further alleged
that the defendant was in default on the note and that
it had elected to accelerate the debt. The plaintiff sought
a judgment of foreclosure. The defendant filed an
answer in which he alleged in part that he had ‘no
monetary obligations’ to the plaintiff.’’ (Footnote omit-
ted.) Id., 39–40.
The plaintiff moved for summary judgment as to lia-
bility, which the trial court granted. The plaintiff then
moved for a judgment of strict foreclosure. Prior to the
trial court’s hearing that motion, ‘‘the plaintiff filed an
affidavit of debt, signed by . . . an [a]uthorized
[s]igner of the plaintiff, attesting that the defendant
owed the plaintiff $749,420.60 as of June 13, 2019. . . .
[Two weeks later] the plaintiff updated its affidavit of
debt to include the interest that had accumulated since
[it filed the first] affidavit.’’ (Internal quotation marks
omitted.) Id., 40.
After the plaintiff filed its updated affidavit, the defen-
dant ‘‘object[ed] to the plaintiff’s affidavit of debt on
the grounds that it contained hearsay and inaccurate
calculations as to the defendant’s municipal tax liability
and the interest owed on his loan. . . . [T]he court
held a hearing on the plaintiff’s motion for judgment
of strict foreclosure, and [it] issued an order granting
the defendant [one week of] additional time . . . to
obtain and submit verified documentation to support
his contention that the plaintiff had miscalculated the
outstanding interest due, as well as the defendant’s
municipal tax liability. The defendant thereafter filed
another objection to the plaintiff’s affidavit in which he
claimed that according to ‘town records,’ the plaintiff
had overstated his municipal taxes by $4208.83, and that
it had miscalculated his interest by ‘tens of thousands
of dollars.’ The defendant also claimed an offset for
damages in the amount of $5,810,000.’’ (Footnote omit-
ted.) Id., 40–41. The defendant’s objection included an
exhibit listing the property taxes owed on the property
for the years 2009 through 2017, which he had obtained
from the records of the town tax collector.
One week later, the trial court conducted a second
hearing on the plaintiff’s motion for a judgment of strict
foreclosure for the purpose of considering the defen-
dant’s offer of proof in support of his objection to the
amount of the mortgage debt established by the plain-
tiff’s affidavit of debt. Id., 41. At the hearing, the defen-
dant3 discussed with the court alleged discrepancies in
the municipal tax records, relying on the exhibit he had
filed with his most recent objection to the affidavit. The
court stated that it was ‘‘able to make a finding that
the property taxes that are owed on the [property] are
somewhere between $49,185.64, which is . . . what
[the defendant] believes they are based upon his investi-
gation, and $43,394.47, which is what they were stated
to be in the affidavit of debt . . . .’’ As to the alleged
miscalculated interest, the defendant did not provide
the court with the documentation it had requested at the
first strict foreclosure hearing. Instead, the defendant
asked the court to order the plaintiff to provide him
with a breakdown of the interest rate that had been
applied for each year of his loan. The court declined to
order the plaintiff to do so, indicating that the defendant
should have had bank statements displaying the interest
rates for the duration of the loan. The court gave the
defendant an additional two weeks to come forward
with proof that the amount of the interest calculated
by the plaintiff was inaccurate.
Before adjourning that hearing, and relying on the
plaintiff’s affidavit of debt and other submissions, the
court rendered judgment of strict foreclosure, making
‘‘all of the necessary findings except as to the amount
of the interest and the taxes.’’ The court then directed
the plaintiff to clarify via documentation the breakdown
of the escrow payments to resolve the discrepancy
between the parties’ calculations of property taxes. It
requested the plaintiff to do so within two weeks. As
to amount of interest the defendant owed, the court
accepted the figure in the plaintiff’s affidavit of debt,
stating that it would adjust this finding only if the defen-
dant ‘‘provide[d] any proof and documentation of that
interest figure being inaccurate.’’ Nine days later, the
plaintiff moved for an extension of time to prepare a
year to year summary of the disputed tax charges in
response to the court’s order that it do so. Notwith-
standing its earlier direction to the plaintiff to provide
this information, the court denied the motion, stating
that ‘‘no extension is necessary, as no action is neces-
sary on the part of counsel. The plaintiff owes the court
nothing. Judgment has entered.’’ Thus, the trial court
did not require the plaintiff to provide, and did not
consider, any evidence in support of the amount of the
debt stated in the affidavit. Nor did the defendant ever
provide the court with the documentation it requested
regarding the allegedly miscalculated interest.
The defendant appealed to the Appellate Court, claiming
that the trial court erred as a matter of law by accepting
the plaintiff’s affidavit of debt and relying on it to estab-
lish the amount of the defendant’s indebtedness over his
objections to the interest and property tax calculations.
JPMorgan Chase Bank, National Assn. v. Malick, supra,
208 Conn. App. 39. The Appellate Court agreed with
the defendant and reversed the trial court’s judgment;
id.; based on this court’s decision in Burritt Mutual
Savings Bank of New Britain v. Tucker, 183 Conn.
369, 374–75, 439 A.2d 396 (1981). The plaintiff sought
certification to appeal to this court, which we granted,
limited to the issue of whether ‘‘the Appellate Court
incorrectly determine[d] that an objection to an affida-
vit of debt is sufficient to challenge the affidavit under
Practice Book § 23-18 (a) . . . when the . . . defen-
dant failed to advance any evidence as to the amount
of the debt . . . .’’ JPMorgan Chase Bank, National
Assn. v. Malick, 340 Conn. 912, 264 A.3d 1001 (2021).
We now affirm the judgment of the Appellate Court.
I
We agree with the Appellate Court’s helpful and lucid
statement in Bank of America, N.A. v. Chainani, 174
Conn. App. 476, 483–84, 166 A.3d 670 (2017), of the
applicable standard of review of trial court rulings on
the admissibility of affidavits of debt offered under
Practice Book § 23-18 (a). Specifically, ‘‘[t]he scope of
our appellate review depends upon the proper charac-
terization of the rulings made by the trial court. . . .
[T]he proper characterization of the trial court’s ruling
is clarified by examining the nature of an affidavit of
debt and the function of . . . § 23-18 (a) in foreclo-
sures. Without question, an affidavit of debt is hearsay
evidence because it is an out-of-court statement, by an
absent witness, that is offered to prove the truth of the
amount of the debt averred in the affidavit. . . . As is
relevant here, the purpose of § 23-18 (a) is to serve
as an exception to the general prohibition of hearsay
evidence when appropriate circumstances arise,
namely, that the amount of the debt is not in dispute.
. . . Therefore, the [plaintiff’s] claim that the [Appellate
Court] erred in determining that § 23-18 (a) [does not]
appl[y] is most properly characterized as challenging
the trial court’s determination that an exception to the
general prohibition of hearsay applies to the affidavit
of debt.
‘‘A trial court’s decision to admit evidence, if prem-
ised on a correct view of the law . . . calls for the
abuse of discretion standard of review. . . . In other
words, only after a trial court has made the legal deter-
mination that a particular statement . . . is subject to
a hearsay exception, is it [then] vested with the discre-
tion to admit or to bar the evidence based upon rele-
vancy, prejudice, or other legally appropriate grounds
related to the rule of evidence under which admission
is being sought. . . . Therefore, a trial court’s legal
determination of whether Practice Book § 23-18 (a)
applies is a question of law over which our review
is plenary.’’ (Citations omitted; emphasis in original;
footnote omitted; internal quotation marks omitted.)
Id.; see, e.g., Weaver v. McKnight, 313 Conn. 393, 426,
97 A.3d 920 (2014) (whether hearsay exception applies
is legal question demanding plenary review).
Practice Book § 23-18 (a) provides that, in any fore-
closure action, ‘‘where no defense as to the amount of
the mortgage debt is interposed, such debt may be
proved by presenting to the judicial authority the origi-
nal note and mortgage, together with the affidavit of the
plaintiff or other person familiar with the indebtedness,
stating what amount, including interest to the date of
the hearing, is due, and that there is no setoff or counter-
claim thereto.’’
Thus, to preclude the admission of an affidavit of
debt pursuant to Practice Book § 23-18 (a) to establish
the amount of mortgage debt, a defense to the mortgage
debt must concern the amount of the debt. See Burritt
Mutual Savings Bank of New Britain v. Tucker, supra,183 Conn. 375. Moreover, we agree fully with the Appel-
late Court’s survey of applicable case law as making
‘‘clear that a defense challenging the amount of the debt
must be actively made to prevent the application of
§ 23-18 (a).’’ Bank of America, N.A. v. Chainani, supra,174 Conn. App. 486. A defense is insufficient if it focuses
on ‘‘matters that are ancillary to the amount of the debt,
such as whether the loan is in default, which is a matter
of liability, or [matters] that attack the credibility of
the affiant or defects in the execution of the affidavit
itself.’’ Id., 487; see, e.g., HSBC Bank USA, National
Assn. v. Gilbert, 200 Conn. App. 335, 351, 238 A.3d 784(2020) (defendants’ objection to affidavit of debt on
grounds that affiant had no personal knowledge of and
relied on hearsay source in calculating starting loan
balance was insufficient to bar application of § 23-18
(a)); Suffield Bank v. Berman, 25 Conn. App. 369, 374,
594 A.2d 493 (trial court’s acceptance of affidavit of debt
under § 23-18 (a) was proper when defendant failed to
disclose defense to liability), cert. dismissed, 220 Conn.
913, 597 A.2d 339 (1991), and cert. denied, 220 Conn.
914, 597 A.2d 340 (1991). Additionally, ‘‘a defense to
the amount of the debt must be based on some articu-
lated legal reason or fact.’’ Connecticut National Bank
v. N. E. Owen II, Inc., 22 Conn. App. 468, 472–73, 578
A.2d 655 (1990); id., 473 (defendants’ claim that they
lacked knowledge as to correctness of amount of debt
was insufficient to raise challenge that requires eviden-
tiary hearing). A defendant not only must object to the
amount of the debt but must specifically object as to
why the amount of the debt is incorrect: for example,
whether late charges should have been waived or money
had been advanced for taxes. See Burritt Mutual Savings
Bank of New Britain v. Tucker, supra, 375.
The plaintiff recognizes that the defendant’s objec-
tion in this case correctly implicated the amount of the
debt by challenging the plaintiff’s calculation of interest
and municipal taxes. Instead, it argues that, to ‘‘inter-
pose’’ a ‘‘defense,’’ as those words are used in Practice
Book § 23-18 (a), a defendant must raise not only a
specific defense regarding the amount of the debt but
must present legal argument and admissible evidence
that sufficiently support that defense. According to the
plaintiff, the hearsay exception in § 23-18 (a) applies in
the present case because the defendant’s objection was
not properly supported by an evidentiary proffer.4
II
The Appellate Court concluded that this court’s hold-
ing in Burritt Mutual Savings Bank of New Britain v.
Tucker, supra, 183 Conn. 369, required it to reject the
trial court’s admission of the affidavit of debt in the
present case because the defendant had objected to
the amount of the debt. See JPMorgan Chase Bank,
National Assn. v. Malick, supra, 208 Conn. App. 41–42.
A review of Burritt Mutual Savings Bank of New Brit-
ain is beneficial to our analysis because, although that
case is not solely dispositive in resolving the present
case, it requires us to address a critical aspect of the
plaintiff’s claim that was not sufficiently considered by
the Appellate Court.
After the trial court in Burritt Mutual Savings Bank
of New Britain rendered a default judgment, the plain-
tiff submitted an affidavit to establish the amount of
the mortgage debt. Burritt Mutual Savings Bank of
New Britain v. Tucker, supra, 183 Conn. 374. The defen-
dant objected to the affidavit, specifically disputing ‘‘the
amounts shown thereon for principal, interest, taxes,
and late charges.’’ Id. After allowing the defendant to
testify as to his own calculation of the debt, the trial
court found the debt to be the amount claimed in the
affidavit. Id. The court did not require the plaintiff to
present any additional evidence as to the amount of the
debt. Id., 374–75. On appeal to this court, the defendant
claimed that the trial court had improperly relied on
the affidavit the plaintiff submitted to establish the
amount of the debt and argued that, because he had
raised a defense to the debt, Practice Book (1978–97)
§ 527 (now § 23-18 (a)) did not apply and a ‘‘bank officer
should have been [at the hearing] to testify.’’ Id. 374.
The plaintiff countered that the only dispute the defen-
dant had raised concerned the accuracy of mathemati-
cal calculations, which the trial court could easily verify.
Id., 375. This court held that the record did not support
the plaintiff’s contention because the defendant also
claimed a waiver of late charges and disputed whether
money had been advanced for taxes. Id. This court held
that ‘‘[i]t [was] clear that the defendant did raise a
defense concerning the amount of the mortgage debt
before the trial court.’’ Id. The predecessor to Practice
Book § 23-18 (a) therefore did not apply, and the general
rule against admitting hearsay evidence precluded use
of the affidavit. Id. As a result, this court vacated the
trial court’s judgment in part, and, on remand, the plain-
tiff was required to present evidence to establish the
amount of the debt instead of merely relying on the
hearsay contained in the affidavit. Id., 382.
In the present case, the defendant objected in rele-
vant part on the ground that the plaintiff’s accounting of
his property tax payments and interest was inaccurate.
Based on these challenges, the Appellate Court cor-
rectly held that the defendant had raised a specific
objection ‘‘concerning the amount of the mortgage
debt’’ established by the plaintiff’s affidavit. (Internal
quotation marks omitted.) JPMorgan Chase Bank,
National Assn. v. Malick, supra, 208 Conn. App. 43.
What the Appellate Court did not sufficiently address,
however, was whether, to properly ‘‘interpose’’ a
‘‘defense,’’ Practice Book § 23-18 (a) also required the
defendant to support his objection with legal argument
and admissible evidence. We now turn to that issue.
III
The plaintiff argues that, to constitute a defense
under Practice Book § 23-18 (a), a defendant’s objection
to a plaintiff’s affidavit of debt must be ‘‘supported with
evidence and arguments challenging the amount of the
debt.’’ (Internal quotation marks omitted.) The plaintiff
is correct that a defendant’s objection must include a
legal or factual argument. However, its contention that
the rules of practice also require that a defendant pro-
vide evidence in support of his objection exceeds what
the rules of practice and relevant case law require.
When construing our rules of practice, we apply the
rules of statutory construction. E.g., Meadowbrook Cen-
ter, Inc. v. Buchman, 328 Conn. 586, 594, 181 A.3d 550(2018). ‘‘[W]e follow the clear meaning of unambiguous
rules, because [a]lthough we are directed to interpret
liberally the rules of practice, that liberal construction
applies only to situations in which a strict adherence
to them [will] work surprise or injustice.’’ (Internal quo-
tation marks omitted.) Id., 595.
Practice Book § 23-18 (a) provides in relevant part:
‘‘In any action to foreclose a mortgage where no defense
as to the amount of the mortgage debt is interposed,
such debt may be proved by presenting to the judicial
authority the original note and mortgage, together with
the affidavit of the plaintiff or other person familiar
with the indebtedness . . . .’’ (Emphasis added.) Our
rules of practice do not define the word ‘‘defense’’ in the
context of § 23-18 (a). Thus, we look to the commonly
approved usage of the word. See, e.g., Ugrin v. Chesh-
ire, 307 Conn. 364, 380, 54 A.3d 532 (2012). Black’s Law
Dictionary defines ‘‘defense’’ as ‘‘[a] defendant’s stated
reason why the plaintiff or prosecutor has no valid case
. . . a defendant’s answer, denial, or plea . . . .’’
Black’s Law Dictionary (11th Ed. 2019) p. 528. The
Appellate Court has cited an earlier edition of Black’s
Law Dictionary as defining the word ‘‘defense’’ for pur-
poses of § 23-18 (a) as ‘‘[t]hat which is offered and
alleged by [the] party proceeded against in an action
or suit, as a reason in law or fact why the plaintiff
should not recover or establish what he seeks.’’ (Inter-
nal quotation marks omitted.) Connecticut National
Bank v. N. E. Owen II, Inc., supra, 22 Conn. App. 472,
quoting Black’s Law Dictionary (5th Ed. 1979) p. 377.
A ‘‘stated reason’’ ‘‘in law or fact’’ that challenges a
plaintiff’s right to recover includes a legal or factual
argument raised in opposition to that party. Addition-
ally, as discussed in part I of this opinion, a defendant’s
‘‘defense’’ under § 23-18 (a) must specifically concern
the amount of the mortgage debt.
Moreover, because the plaintiff challenges the suffi-
ciency of the defendant’s defense, we also must define
what it means to ‘‘interpose’’ a defense. Our rules of
practice do not define the word ‘‘interpose,’’ and this
court has not defined the word in the context of Practice
Book § 23-18 (a) or in any other context. Merriam-Web-
ster’s Collegiate Dictionary defines ‘‘interpose’’ as ‘‘to
place in an intervening position’’ or ‘‘to put forth by
way of interference or intervention . . . .’’ Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2014) p. 654.
To ‘‘intervene’’ is defined as ‘‘to occur, fall, or come
between points of time or events,’’ ‘‘to interfere with
the outcome or course . . . of a condition or process,’’
or ‘‘to come in or between by way of hindrance or
modification.’’ Id., p. 655. This is a broad definition that
merely requires a defendant to advance a defense.
Appellate Court case law supports this broad defini-
tion. Although the Appellate Court has not defined the
term ‘‘interpose,’’ it has addressed how a defense to the
amount of the debt may be interposed. Specifically, the
Appellate Court has held that a defense to the amount
of the mortgage debt may be raised by an objection
challenging the amount of the debt when the plaintiff
attempts to introduce the affidavit into evidence; see
Bank of America, N.A. v. Chainani, supra, 174 Conn.
App. 486; as defenses relating to the mathematical cal-
culation of the mortgage debt need not be disclosed
before the foreclosure hearing.5 Suffield Bank v. Ber-
man, supra, 25 Conn. App. 374. An objection clearly
falls within the broad scope of the plain meaning of the
word ‘‘interpose,’’ as an objection interferes with the
plaintiff’s ability to rely on the affidavit to prove the
amount of indebtedness. See Black’s Law Dictionary
(11th Ed. 2019) p. 1290 (defining ‘‘objection’’ as ‘‘[a]
formal statement opposing something that has occurred,
or is about to occur, in court and seeking the judge’s
immediate ruling on the point’’).
The defendant in the present case objected to the
amount of the debt listed in the plaintiff’s affidavit,
arguing that the plaintiff incorrectly calculated the inter-
est and property taxes he owed, and, therefore, the
plaintiff’s calculation of debt was not valid. Using the
previously mentioned definitions of ‘‘defense’’ and
‘‘interposed,’’ we conclude that the defendant’s objec-
tions to the plaintiff’s affidavit of debt satisfied the plain
meaning of those words in Practice Book § 23-18 (a).
Nevertheless, the plaintiff argues that case law applying
§ 23-18 (a) requires that a defense as to the amount of
the mortgage debt be supported by legal argument and
admissible evidence before the court may find the affi-
davit inadmissible. The plaintiff is correct that § 23-18
(a) requires a supporting legal or factual argument, i.e., a
specific argument about why the debt amount is incorrect.
But the defendant’s objection satisfied that requirement
in the present case. The defendant specifically objected
that the plaintiff’s failure to include property tax abate-
ments the municipality had allegedly provided him for
at least three years. Additionally, the defendant
objected to the plaintiff’s calculation of interest and
requested that the court require the plaintiff to provide
a breakdown of his variable interest rate for the years
that he was not paying his mortgage. See National City
Mortgage Co. v. Stoecker, 92 Conn. App. 787, 798, 888
A.2d 95 (‘‘defendant’s claim seeking to establish the
chronology and specific nature of the payments was
well articulated and is therefore readily distinguishable
from a vague claim of insufficient knowledge’’), cert.
denied, 277 Conn. 925, 895 A.2d 799 (2006).
As for its contention that supporting evidence must
accompany the objection, the plaintiff emphasizes that
the defendant in Burritt Mutual Savings Bank of New
Britain testified in support of his assertions that the
mortgage debt was incorrect, whereas the defendant
in the present case failed even to appear at the hearing
at which he could have testified in support of his objec-
tion. As mentioned previously, the defendant did appear
at the strict foreclosure hearing to testify in support of
his objection. Moreover, our holding in Burritt Mutual
Savings Bank of New Britain does not require that a
defendant testify, as the defendant did in that case, for
his objection to an affidavit of debt to suffice to prevent
its admissibility. Nor did we hold in Burritt Mutual
Savings Bank of New Britain that a defendant must
provide documentation to support his defense, and,
thus, the defendant’s failure in the present case to do
so, as the trial court ordered, does not distinguish his
objection from the defendant’s objection in Burritt
Mutual Savings Bank of New Britain. See Burritt
Mutual Savings Bank of New Britain v. Tucker, supra,183 Conn. 374–75.
The plaintiff places greater reliance on Bank of
America, N.A. v. Chainani, supra, 174 Conn. App. 476,
to support its argument that the defendant’s objection
to its affidavit did not suffice because he did not provide
evidence to support his objections. In Chainani, the
first stage of the foreclosure action focused on whether
the plaintiff had standing to commence the action. Id.,
480. The defendant’s answer in that case denied that the
mortgage loan was in default and pleaded insufficient
knowledge to admit or to deny the alleged amount of
the debt. Id., 479–80. At the hearing in which the court
addressed the issue of standing, the trial court admitted
the plaintiff’s affidavit of debt over the defendant’s
objection that he had advanced a defense implicating
the amount of the debt in his answer to the plaintiff’s
complaint. Id., 480.
The trial court thereafter conducted a hearing to
determine the amount of the debt and the form of judg-
ment it would render. Id. Prior to that hearing, the
plaintiff had submitted an updated affidavit of debt in
support of its motion for a judgment of strict foreclo-
sure, and the defendant once again objected on the
same grounds he had objected to the first affidavit. Id.,
480–81. The defendant did not ‘‘inform the court of any
new legal arguments, evidence, or witnesses that he
anticipated presenting to dispute the amount of the
debt contained in the . . . [second] affidavit.’’ Id., 481.
The trial court again overruled the objection and admit-
ted the affidavit under Practice Book § 23-18 (a). Id.
The trial court then found in the plaintiff’s favor, deter-
mined the amount of the debt based on the affidavit,
and rendered judgment of strict foreclosure. Id.
On appeal to the Appellate Court, the defendant in
Chainani claimed that his answer to the plaintiff’s com-
plaint contained responses to the allegations sufficient
to bar the affidavit’s admission. Id. The defendant
argued that the trial court ‘‘should have understood
these responses to be a challenge to the amount of the
debt . . . .’’ (Emphasis added.) Id., 485. Holding that
the trial court properly relied on the affidavit of debt,
the Appellate Court reiterated what it previously had
held in numerous cases—to preclude the admission of
an affidavit of debt under Practice Book § 23-18 (a), a
defendant must raise a defense ‘‘squarely focused’’ on
the amount of the debt. Id., 487; see also Suffield Bank
v. Berman, supra, 25 Conn. App. 374 (trial court’s accep-
tance of affidavit of debt under § 23-18 (a) was proper
when defendant failed to disclose defense to liability).
Applying this rule, the Appellate Court in Chainani
determined that the defendant’s objection could not be
considered a defense under § 23-18 (a) because it did
not specifically challenge the amount of the debt but
merely pleaded insufficient knowledge as to the amount
of the debt. See Bank of America, N.A. v. Chainani,
supra, 174 Conn. App. 487.
The plaintiff argues that the present case is ‘‘on all
fours’’ with Chainani. We cannot agree. First, the plain-
tiff asserts that the Appellate Court in Chainani
rejected the defendant’s argument that Practice Book
§ 23-18 (a) should not apply because it is ‘‘not enough
to merely object to the amount of debt.’’ But, in fact, the
defendant in Chainani never objected to the amount
of the debt at all. Instead, he pleaded insufficient knowl-
edge as to the amount of the debt and a general denial
of liability. Bank of America, N.A. v. Chainani, supra, 174
Conn. App. 487. The plaintiff also inaccurately argues
that the trial court overruled the defendant’s objection
in Chainani because he ‘‘failed to ‘respon[d] to the
court’s questions regarding his objections’ and failed
to introduce ‘legal arguments, evidence, or witnesses’
regarding [the] same.’’ See Bank of America, N.A. v.
Chainani, supra, 488. The trial court in Chainani was
merely providing the defendant the opportunity to
respond to the second affidavit with new legal argu-
ments, evidence, or witnesses to encourage arguments
that went beyond his previous assertions of insufficient
knowledge and denial of default. Id. In other words,
the trial court gave the defendant an opportunity to
sufficiently interpose a defense by specifically challeng-
ing the amount of the debt. Id. Thus, the issue in Chainani
was not the sufficiency of the defendant’s objection to
the affidavit of debt, including whether admissible evi-
dence was required to interpose a defense. The issue
was that the defendant failed to object to the amount
of the debt at all.
The plaintiff focuses on the following sentence in
Chainani to support its claim that the defendant’s
objection was insufficient: ‘‘It is axiomatic that such a
defense may be raised by pleading a special defense
attacking the amount of the debt claimed, but it may
also be raised by objection, supported with evidence
and arguments challenging the amount of the debt,
upon the attempted introduction of the affidavit in
court.’’ (Emphasis added.) Id., 486. It is true, as we have
explained, that a defendant must provide argument as
to why he or she is objecting to the amount of the debt,
‘‘based on some articulated legal reason or fact,’’ as this
is supported by our rules of practice and case law.
Connecticut National Bank v. N. E. Owen II, Inc.,
supra, 22 Conn. App. 472–73. The defendant did so in
this case. It is arguable whether, through the previous
statement in Chainani, the Appellate Court was sug-
gesting that, in support of a defendant’s objection to
an affidavit of debt, both argument and evidence are
required to prevent the affidavit from being admitted
into evidence. However, to the extent Chainani sug-
gests both argument and evidence are necessary, we
disagree. The court in Chainani cited Suffield Bank v.
Berman, supra, 25 Conn. App. 372–74, in support of its
statement that an objection to the amount of debt must
be ‘‘supported with evidence and arguments.’’ Bank of
America, N.A. v. Chainani, supra, 174 Conn. App. 486.
However, the issue in Suffield Bank was whether the
defendants’ failure to disclose a defense to the mortgage
debt prior to the foreclosure hearing barred them from
later contesting liability at the hearing. Suffield Bank
v. Berman, supra, 373. The defendants in Suffield Bank
claimed that Burritt Mutual Savings Bank of New Brit-
ain v. Tucker, supra, 183 Conn. 369, supported their
contention that the trial court, over their objection, had
improperly accepted the plaintiff’s affidavit as proof
of the debt. Suffield Bank v. Berman, supra, 373–74.
However, the defendants in Suffield Bank failed to dis-
pute the affidavit’s accuracy; rather, they sought to offer
‘‘evidence that their obligation to pay interest [had been]
discharged . . . .’’ Id., 373. The holding in Suffield
Bank prevented the defendants from offering evidence
that ‘‘went to the issue of the defendants’ liability for
interest,’’ which required the disclosure of their defense
to liability prior to the foreclosure hearing. (Emphasis
added.) Id., 374. The court in Suffield Bank did not hold
that a defendant must proffer evidence to successfully
interpose a defense to the amount of the debt. The court
in Chainani cited no other case law for its proposition
that evidence is required for an objection to be sufficient
under Practice Book § 23-18 (a), and we have found
none.6
This construction is further supported by the fact
that, in a foreclosure action, it is the plaintiff’s burden
to establish the amount of the debt. See 59A C.J.S. 216,
Mortgages § 986 (2009) (‘‘[a]s with civil matters gener-
ally, the plaintiff in a mortgage foreclosure action has
the burden to establish the facts necessary to entitle
the plaintiff to the relief sought’’). Practice Book § 23-
18 (a) provides plaintiffs with an efficient method of
meeting their burden to establish the amount of the
debt if no defense is interposed. Although it is the defen-
dant’s burden to sufficiently interpose a defense to the
claimed amount of the debt, once a defense is inter-
posed, the burden remains on the plaintiff to prove the
amount of the debt. At no point does the burden shift
to the defendant to prove that the plaintiff’s affidavit
is incorrect. In other words, once the defendant has
sufficiently interposed a defense as to the amount of
the debt, the plaintiff is required to satisfy its burden
under the Connecticut Code of Evidence, without the
benefit of § 23-18 (a). The purpose of this procedure is
to allow a defendant to cross-examine the witnesses
presented on the issue of the amount of the debt, as
well as to allow a defendant an opportunity to present
his or her own evidence. See National City Mortgage
Co. v. Stoecker, supra, 92 Conn. App. 798 (defendant
sought to cross-examine plaintiff as to timing and pre-
cise nature of expenditures claimed by plaintiff).
By attaching to his objection to the plaintiff’s affidavit
a document with a year to year breakdown of what he
claimed were the accurate property taxes, the defen-
dant went beyond what our rules of practice require.
Along with argument based on an articulated reason,
this objection certainly sufficed to prevent the court
from relying on the affidavit for these calculations.
Although the defendant did not provide official records
from the town tax collector to support his calculation
of the amount of property tax he owed, we have never
required, and the language of Practice Book § 23-18 (a)
does not require, a defendant to provide any evidence.7
The plaintiff contends that a determination by this
court that the defendant’s objection to the affidavit
of debt sufficed will effectively eliminate the hearsay
exception in Practice Book § 23-18 (a). Specifically, the
plaintiff argues that, if the defendant prevails in the
present case, a foreclosure defendant can trigger an
evidentiary hearing simply by objecting to the affidavit
of debt without providing supporting evidence or
appearing for a hearing designed to give him or her the
opportunity to do so.8 In this opinion, however, this
court clearly holds that a general objection does not
suffice under § 23-18 (a). Rather, a defendant must raise
a specific defense as to the amount of the debt—for
example, that the interest or taxes were incorrect.
The trial court in the present case improperly placed
the burden on the defendant to prove that the amount
of interest listed in the plaintiff’s affidavit of debt was
inaccurate. At all times, it was the plaintiff’s burden to
prove the amount of the debt. The defendant sufficiently
objected to the amount of interest and municipal taxes,
and it was not his burden to provide further evidence
to ‘‘prove’’ his objection. By placing the burden on the
defendant to establish that the affidavit of debt was
inaccurate, the trial court prevented the defendant from
having an opportunity to cross-examine the plaintiff’s
witnesses, including the affiant. Accordingly, the Appel-
late Court correctly held that the trial court had improp-
erly relied on the plaintiff’s affidavit of debt rather than
having required the plaintiff to present evidence as to
the amount of the debt.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant also is known as Abu Hashem W.Q. Malick. The plaintiff
also named Shujaat Malick and HOP Energy, LLC, as defendants in the trial
court, but they are not parties to this appeal. In the interest of simplicity,
we refer to Abu Hashem Malick as the defendant.
2
Although the defendant filed a brief in the Appellate Court and appeared
through counsel at oral argument before that court, he did not file a brief
in or appear at oral argument before this court after failing to comply with
our order requiring him to file a brief by August 16, 2022. We, therefore,
have considered this appeal in light of the record and the plaintiff’s brief
and oral argument only. See, e.g., Walsh v. Jodoin, 283 Conn. 187, 191 n.4,
925 A.2d 1086 (2007).
3
The Appellate Court stated that the defendant did not attend the hearing;
see JPMorgan Chase Bank, National Assn. v. Malick, supra, 208 Conn. App.
41; but the record shows that he did attend, although he did not provide the
trial court with the verified documentation it had requested. The Appellate
Court’s statement may have been made in reliance on the trial court’s
incorrect statement in its denial of the plaintiff’s motion for an extension
of time, in which the court stated that the defendant had not been present
at the second hearing.
4
The plaintiff also argues that the defendant waived any valid objection
he may have had by failing to appear at the July 15, 2019 hearing to provide
verified documentation as to his calculation of the debt. This is incorrect.
The record clearly shows that the defendant appeared at the strict foreclo-
sure hearing and presented arguments on his objections to the affidavit of
debt. To the extent that the plaintiff’s waiver argument extends to the
defendant’s failure to provide documentation as to the allegedly incorrect
interest calculations, as discussed in part III of this opinion, the trial court
erroneously placed the burden on the defendant to prove that the plaintiff’s
affidavit of debt was incorrect. Therefore, the defendant’s failure to provide
the documentation the trial court requested does not constitute a waiver
of his objection.
5
The Appellate Court has held that a defendant may challenge the amount
of the debt by way of a special defense. See Bank of America, N.A. v.
Chainani, supra, 174 Conn. App. 486. We note that trial courts have disagreed
about whether a defendant may properly challenge the amount of the debt
by pleading a special defense. See Nationstar Mortgage, LLC v. Amatulli,
Docket No. CV-XX-XXXXXXX-S, 2023 WL 1794235, *8 (Conn. Super. February
1, 2023) (defendants’ special defense disputing amount of debt was ‘‘not a
special defense but rather constitute[d] part of a general denial’’). But see
Ingomar Ltd. Partnership v. Packer, Docket No. CV-020-467401, 2007 WL
1675846, *11–12 (Conn. Super. May 23, 2007) (adjudicating named defen-
dant’s special defense asserting that holders of note and mortgage misstated
principal, amounts of installment payments, interest and late charges).
Because the defendant in the present case interposed his defense by way
of an objection, we do not need to address the validity of pleading a special
defense related to the amount of mortgage debt owed.
6
Whether evidence is required for an objection to be sufficient was not
relevant to the court’s holding in Chainani, as the primary issue was whether
the defendant’s objection implicated the amount of debt at all. See Bank
of America, N.A. v. Chainani, 174 Conn. App. 480–81.
7
In fact, because of the defendant’s objection and argument, the trial
court itself ordered the plaintiff to determine whether the property taxes
listed in the affidavit of debt were incorrectly calculated. When the plaintiff
moved for an extension of time to provide the court with that information,
the court ruled that the plaintiff owed the court nothing, contrary to its
previous order. See footnote 3 of this opinion.
8
The plaintiff’s argument is supported by the amicus brief submitted by
USFN. That brief argues that, if the defendant prevails, a party would need
to file only a pro forma objection to the amount of the debt, even a frivolous
objection, to render Practice Book § 23-18 (a) inapplicable. USFN argues
that this court should require that a defendant present some evidence,
via testimony, an affidavit or other compelling documentation, to support
its objection.
Not only are we not persuaded that our holding today contradicts Practice
Book § 23-18 (a), but we are not persuaded that our holding will unduly
Judicial Branch’s Foreclosure Mediation Program. See State of Connecticut
Judicial Branch, Ezequiel Santiago Foreclosure Mediation Program: Report
to the Banking Committee of the General Assembly (March 1, 2021) pp. 4–5
(91 percent of foreclosure cases eligible for mediation between July 1,
2013, and December 31, 2020, were settled), available at https://jud.ct.gov/
statistics/fmp/FMP Report bank 2021.pdf (last visited June 30, 2023). Of
the cases that ultimately move to foreclosure judgment, many are uncon-
tested. Thus, it is not often that a defendant in a foreclosure action will
challenge the use of an affidavit of debt pursuant to § 23-18 (a). Moreover,
the purpose of § 23-18 (a) is to serve as a hearsay exception when the
appropriate circumstances arise: circumstances that we hold did not arise
in this case. See Bank of America, N.A. v. Chainani, supra, 174 Conn. App.
484. In cases in which a defendant’s challenge to an affidavit of debt is
successful, that ruling promotes the public policy of providing homeown-
ers—many of whom are self-represented—with opportunities to avoid fore-
closure and provides transparency and fairness throughout the judicial
process. See State of Connecticut Judicial Branch, Ezequiel Santiago Fore-
closure Mediation Program, supra, p. 14.