Citimortgage, Inc. v. Rey ( 2014 )


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    CITIMORTGAGE, INC. v. MIGDALIA REY
    (AC 35539)
    Lavine, Sheldon and Bishop, Js.
    Argued February 20—officially released June 3, 2014
    (Appeal from Superior Court, judicial district of New
    Haven, Maronich, J.)
    Renata Strause and Christian Mott, law student
    interns, with whom were J. L. Pottenger, Jr., Jeffrey
    Gentes, and, on the brief, Nathan J. Robinson and Lev
    Menand, law student interns, for the appellant
    (defendant).
    Donald E. Frechette, with whom was Tara L. Trifon,
    for the appellee (plaintiff).
    Opinion
    BISHOP, J. This appeal calls upon the court to decide
    whether, in a residential foreclosure action in which
    the parties have participated in court-sponsored for-
    bearance mediation and in which a final forbearance
    agreement has been reported to the court, a defendant
    may counterclaim for damages allegedly caused by the
    plaintiff’s subsequent pursuit of the foreclosure com-
    plaint in an alleged breach of the forbearance
    agreement. Because, in the particular factual and proce-
    dural circumstances of this case, we answer that ques-
    tion in the affirmative, we reverse the judgment of the
    trial court.
    In this residential foreclosure action, the defendant,
    Migdalia Rey, appeals from the judgment rendered
    against her on the basis of her claim that the trial court
    incorrectly struck all counts of her counterclaim
    because, in the court’s view, it did not relate to the
    making, validity or enforcement of the mortgage or note
    on which this foreclosure action is based.
    The following procedural overview and undisputed
    factual underlayment set the context for our analysis.
    By complaint dated June 2, 2008, the plaintiff, CitiMort-
    gage, Inc., as a mortgage assignee and holder of the
    associated promissory note, sought to foreclose on a
    residential home mortgage secured by property owned
    by the defendant on the basis of its claim that she was
    in default on the promissory note she had executed
    in favor of the original mortgagee, The Connecticut
    National Bank. In response, the defendant appeared and
    filed a petition to participate in the court’s foreclosure
    mediation process, and in conjunction with that peti-
    tion, made application, pursuant to General Statutes
    § 49-31f, for protection and a stay of the foreclosure
    action. Pursuant to these requests by the defendant, the
    matter was referred to the court-sponsored foreclosure
    mediation program for possible resolution.1 On Novem-
    ber 24, 2008, the court’s foreclosure mediator, Karen
    Zarkades, filed a document captioned, ‘‘Mediator’s Final
    Report’’ with the court, which indicated that the matter
    had been settled. As to disposition, the report indicated
    that the action was to be withdrawn ‘‘within 90 days,
    or dismissed by the Court after successful completion
    of three (3) payments under the parties’ Forbearance
    Plan.’’ On November 7, 2008, before the filing of this
    report by Zarkades, the parties had executed a docu-
    ment captioned, ‘‘Stipulated Special Forbearance
    Agreement,’’ which contained several recitals dealing,
    inter alia, with the parties’ anticipation that the foreclo-
    sure action would be put on hold pending the defen-
    dant’s fulfillment of the obligations undertaken
    pursuant to the stipulation, the total amount of the
    debt, the three monthly payments to be made by the
    defendant, and a provision requiring the defendant to
    either pay the loan in full or resubmit updated financial
    information to the plaintiff by February 1, 2009, for a
    review of further loss mitigation options. The defendant
    made the three monthly payments as required by the
    stipulation and thereafter recommenced making
    monthly payments in the amount required by the under-
    lying promissory note.2
    Notwithstanding the filing of this mediation report
    and for reasons not readily apparent from a review of
    the record, the plaintiff sought to continue with the
    foreclosure litigation by reclaiming its motion for a
    judgment of strict foreclosure on October 26, 2009, and
    again on December 14, 2009. The defendant, in turn,
    filed her answer, three special defenses, and a five count
    counterclaim on March 12, 2010. Generally, in her
    answer, the defendant asserted that she was not in
    default on the note on the basis of her claim that she had
    complied fully with the terms of the parties’ forbearance
    agreement. By way of special defense, the defendant
    alleged that: (1) she had made payments pursuant to
    the terms of the parties’ forbearance agreement and
    that, by accepting those payments, the plaintiff had
    waived its rights to declare her in default on the note
    and to foreclose in the mortgage; (2) by pursuing the
    defendant in contravention to the terms of the forbear-
    ance agreement the plaintiff was acting with unclean
    hands and thus was not entitled to the equitable remedy
    of foreclosure; and (3) the plaintiff’s pursuit of the rem-
    edy of foreclosure constituted a breach of its duty of
    acting in good faith and fair dealing. By way of a coun-
    terclaim, the defendant alleged that the plaintiff’s pur-
    suit of the remedy of foreclosure in contravention of
    the terms of the parties’ forbearance agreement: (1)
    constituted a breach of contract; (2) was negligent;
    (3) negligently inflicted emotional distress on her; (4)
    constituted a breach of its duty of good faith and fair
    dealing; and (5) was a violation of the Connecticut
    Unfair Trade Practices Act (CUTPA), General Statutes
    § 42-110a et seq.
    On January 25, 2011, the plaintiff moved for summary
    judgment on liability. In support of its motion, the plain-
    tiff attached an affidavit, which set forth the details
    of the parties’ forbearance agreement and contained
    allegations regarding the manner in which the defen-
    dant purportedly had not fully complied with its terms.
    In short, the plaintiff argued in its motion for summary
    judgment that it was entitled to a judgment on liability
    not only on the basis of the original note and mortgage,
    but also on the basis of the defendant’s alleged failure
    to fulfill her duties under the forbearance agreement.3
    Thereafter, on April 23, 2012, the plaintiff withdrew
    its foreclosure complaint.4 Subsequently, on October
    25, 2012, the plaintiff moved to strike the defendant’s
    counterclaim as legally insufficient. Specifically, the
    plaintiff argued, inter alia, that: (1) the defendant’s
    counterclaim should be stricken because it did not
    relate to the making, validity or enforcement of the
    note or mortgage; (2) the plaintiff had not breached the
    foreclosure agreement; (3) the defendant’s claim for
    negligence should be stricken because the plaintiff
    owed the defendant no duty of care; and (4) the defen-
    dant’s claim of breach of the covenant of good faith
    and fair dealing should be stricken because the defen-
    dant had failed to prove that the plaintiff acted in bad
    faith. In granting the plaintiff’s motion to strike, the
    court stated as follows: ‘‘While courts have recognized
    equitable defenses in foreclosure actions, they have
    generally only been considered proper when they attack
    the making, validity or enforcement of the lien, rather
    than some act or procedure of the lienholder. . . . The
    rationale behind this is that counterclaims and special
    defenses which are not limited to the making, validity
    or enforcement of the note or mortgage fail to assert any
    connection with the subject matter of the foreclosure
    action and as such do not arise out of the same transac-
    tion as the foreclosure action. . . . Eastern Savings
    Bank v. Mara, Superior Court, judicial district of Stam-
    ford-Norwalk, Docket No. CV-05-4006305 (June 5, 2006)
    (Dooley, J.). The court finds that insofar as all the allega-
    tions of [the defendant’s] five count counterclaim arise
    from the execution and performance of the forbearance
    agreement they are not related to the making, validity
    or enforcement of the note [or] mortgage. For the fore-
    going reasons, the plaintiff’s motion to strike the defen-
    dant the [defendant’s] counterclaims in their entirety
    is hereby GRANTED.’’ (Internal quotation marked omit-
    ted.) Thereafter, on motion of the plaintiff, the court
    rendered judgment in favor of the plaintiff on all counts
    of the defendant’s counterclaim. This appeal followed.
    At the outset, we note that the parties are in dispute
    concerning our standard of review. The plaintiff claims
    that because the central question in this appeal is
    whether the court correctly applied the transaction test
    set forth in Practice Book § 10-10,5 which is applicable,
    generally, to counterclaims, our review should be defer-
    ential. To be sure, numerous opinions of this court and
    our Supreme Court support the proposition that a trial
    court’s determination of whether a particular counter-
    claim fits within the parameters of Practice Book § 10-
    10 requires a reviewing court only to assess whether,
    in coming to its conclusions, the court abused its discre-
    tion. See, e.g., Wallingford v. Glen Valley Associates,
    Inc., 
    190 Conn. 158
    , 161, 
    459 A.2d 525
    (1983) (‘‘[t]he
    transaction test is one of practicality, and the trial
    court’s determination as to whether the test has been
    met ought not to be disturbed except for an abuse
    of discretion’’ [internal quotation marks omitted]). The
    defendant, on the other hand, claims that our review
    should be plenary given that the central question raised
    in this appeal is whether the court utilized the correct
    legal test in its analysis of the counterclaim’s legal viabil-
    ity and not whether the court abused its discretion in
    its application of the correct criteria. We agree with
    the defendant in this regard. From our review of the
    court’s decision, it is not apparent that the court consid-
    ered the parameters of Practice Book § 10-10 in decid-
    ing to strike the counterclaim. To the contrary, the
    court expressly fastened its decision on whether the
    counterclaim met the ‘‘making, validity and enforce-
    ment’’ standard generally applicable to legal defenses
    in foreclosure actions. Because the defendant’s claim
    that the court utilized the incorrect test raises a question
    of law, our review is plenary. See Wells Fargo Bank of
    Minnesota, N.A. v. Morgan, 
    98 Conn. App. 72
    , 78, 
    909 A.2d 526
    (2006).
    We begin our analysis with a consideration of
    whether the court applied the legally correct test in
    assessing the viability of the counterclaim. As noted,
    the court struck the counterclaim on the basis that it
    did not relate to the making, validity or enforcement
    of the original note and mortgage. Although we are
    aware that the ‘‘making, validity or enforcement test’’
    has been employed by courts in assessing the viability
    of special defenses and counterclaims in foreclosure
    cases, and we acknowledge that the tests can be inter-
    twined, we believe that the proper test to be utilized
    when assessing the legal viability of a counterclaim is
    set forth in Practice Book §10-10, and is commonly
    referred to as the ‘‘transaction test.’’ Although that test,
    in the foreclosure context, may incorporate a consider-
    ation of whether a counterclaim has a sufficient nexus
    to the making, validity or enforcement of the note and
    mortgage, it does not limit a viable counterclaim to
    those that directly challenge the making, validity or
    enforcement of a note or mortgage.
    To be sure, a review of decisional law regarding the
    proper test for assessing the applicability of defenses
    and counterclaims in foreclosure actions does not pro-
    vide complete clarity. Close scrutiny reveals, however,
    that even when courts utilize the phrase, ‘‘making, valid-
    ity or enforcement,’’ in assessing the viability of both
    special defenses and counterclaims, courts require that
    a viable legal defense directly attack the ‘‘making, valid-
    ity or enforcement’’ while, in assessing counterclaims,
    courts have required only that the subject of the coun-
    terclaims have a sufficient connection to the making,
    validity or enforcement of the note and mortgage to
    pass the transaction test. For example, in Morgera v.
    Chiappardi, 
    74 Conn. App. 442
    , 
    813 A.2d 89
    (2003), this
    court applied the transaction test to a counterclaim in
    a foreclosure action in which the defendant had claimed
    that she had entered into the subject loan transaction
    only as part of a package in which the plaintiff had
    made false representations regarding other properties
    he had conveyed to the defendant at the same time.
    In reversing the trial court, this court held that the
    counterclaim had arisen from the same transaction as
    the subject mortgage and note because there was an
    adequate nexus between the transactions. 
    Id., 458–59. This
    court opined: ‘‘In addition, insofar as the court’s
    posture permitted the defendant to do so, the concate-
    nation of circumstances engendered by the plaintiff’s
    fraudulent misrepresentations made for a reasonable
    nexus between the counterclaim and his conduct in
    inducing the defendant’s making of the note and mort-
    gage on the property . . . hence raising serious ques-
    tions about their validity and enforcement.’’ 
    Id., 452. With
    similar reasoning but leading to a different out-
    come, in Mechanics Savings Bank v. Townley Corp.,
    
    38 Conn. App. 571
    , 572–73, 
    662 A.2d 815
    (1995), a junior
    encumbrancer filed special defenses and counterclaims
    alleging that the plaintiff mortgagee had breached
    agreements with him regarding property other than the
    subject property, this court noted that the trial court
    had stricken the special defenses on the ground that
    they did not address the making, validity or enforce-
    ment of the notes and mortgages that were the subject
    of the complaint. The trial court also struck the counter-
    claims because the agreements upon which they rested
    were ‘‘transactions separate and distinct from the sub-
    ject of the complaint.’’ 
    Id., 573. Similarly,
    in Southbridge Associates, LLC v. Garo-
    falo, 
    53 Conn. App. 11
    , 17, 
    728 A.2d 1114
    , cert. denied,
    
    249 Conn. 919
    , 
    733 A.2d 229
    (1999), this court found
    that the trial court properly granted summary judgment
    where the defendant had filed both special defenses
    and counterclaims on the basis that the special defenses
    failed to attack the making, validity or enforcement of
    the subject notes and mortgages and that the counter-
    claims did not arise out of the transactions that were
    the subject of the plaintiff’s complaint. Applying the
    same analysis, this court in JP Morgan Chase Bank,
    Trustee v. Rodrigues, 
    109 Conn. App. 125
    , 
    952 A.2d 56
    (2008), upheld the decision of the trial court striking
    the defendants’ counterclaims. As to the counterclaim
    seeking damages for emotional distress, this court
    opined: ‘‘In the present case, the defendants’ allegations
    related to the conduct of the plaintiff that occurred after
    the execution of the mortgage note and with respect to
    documents other than the mortgage note. The disparity
    between the subject matter of the plaintiffs’ complaint
    and that of the defendants’ counterclaim warranted the
    court’s conclusion that the counterclaim did not arise
    from the same transaction.’’ 
    Id., 133. As
    to the counter-
    claim alleging a CUTPA violation, the court agreed that
    it should be stricken on the basis that it did not relate
    to the making, validity or enforcement of the mortgage
    note and, thus, also did not arise out of the same transac-
    tion as the complaint. 
    Id., 133–35. We
    acknowledge that this latter language, regarding
    the making, validity or enforcement of the note, could
    be construed to state that for a counterclaim in a fore-
    closure action to be legally viable, it must directly attack
    the making, validity or enforcement of the subject mort-
    gage or note. We find more persuasive the essential
    conclusion of Morgera, Rodrigues, and similar deci-
    sions, that such a counterclaim must simply have a
    sufficient relationship to the making, validity or
    enforcement of the subject note or mortgage in order
    to meet the transaction test as set forth in Practice
    Book § 10-10 and the policy considerations it reflects.
    Our view is buttressed by this court’s opinion in South
    Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.
    App. 540, 
    970 A.2d 760
    , cert. denied, 
    293 Conn. 932
    , 
    981 A.2d 1076
    (2009), in which it was confronted with a
    counterclaim in a legal posture it found similar to the
    counterclaims in Rodrigues. The court in Lindquist
    opined, in regard to the similarities between the two
    cases: ‘‘Likewise, in the present case, the transaction
    underlying the complaint involves the transfer of an
    interest in land, while the transactions underlying the
    stricken counts of the counterclaim involve interactions
    between the plaintiff and the defendant that occurred
    well after the transfer took place. Therefore, the court
    did not abuse its discretion in finding that the stricken
    counts involved issues of fact and law different from
    those in the complaint and that bringing the counter-
    claim as a separate action would not involve a substan-
    tial duplication of effort by the parties and the courts.’’
    (Internal quotation marks omitted.) 
    Id., 548. We
    conclude, accordingly, that in assessing the legal
    viability of counterclaims to a foreclosure action, the
    court should employ the transaction test set forth in
    Practice Book § 10-10, and that although this test may
    require an assessment of whether the counterclaim in
    question relates to the making, validity or enforcement
    of the subject note and mortgage, there can be such a
    nexus even though the counterclaim may not directly
    attack the making, validity or enforcement of the mort-
    gage and note which form the basis of the foreclo-
    sure complaint.
    We turn now to a consideration of the transaction
    test. Practice Book § 10-10 provides in pertinent part:
    ‘‘In any action for legal or equitable relief, any defendant
    may file counterclaims against any plaintiff . . . pro-
    vided that each such counterclaim . . . arises out of
    the transaction or one of the transactions which is the
    subject of the plaintiff’s complaint.’’ In assessing the
    legal viability of a counterclaim and, in particular,
    whether it arises from the same transaction as the com-
    plaint, we have not required a complete identity of
    issues. Rather, the claims must have a sufficient close-
    ness that the trial of the complaint and counterclaim
    will not imperil judicial economy. For example, in Ceci
    Bros., Inc. v. Five Twenty-One Corp., 
    81 Conn. App. 419
    , 423 n.3, 
    840 A.2d 578
    , cert. denied, 
    268 Conn. 922
    ,
    
    846 A.2d 881
    (2004), this court concluded, in the particu-
    lar facts: ‘‘Because the two agreements, one alleged in
    the plaintiff’s amended complaint and the other alleged
    in the defendant’s counterclaim, were intertwined, the
    counterclaim in this case was proper.’’ As this court
    has previously observed: ‘‘Our Supreme Court has
    instructed that the [r]elevant considerations in
    determining whether the transaction test has been met
    include whether the same issues of fact and law are
    presented by the complaint and the [counter]claim and
    whether separate trials on each of the respective claims
    would involve a substantial duplication of effort by
    the parties and the courts.’’ (Internal quotation marks
    omitted.) South Windsor Cemetery Assn., Inc. v. Lind-
    
    quist, supra
    , 
    114 Conn. App. 547
    . Further, our Supreme
    Court has stated: ‘‘Where the underlying purposes of
    [Practice Book § 10-10], to wit, judicial economy, avoid-
    ance of multiplicity of litigation, and avoidance of piece-
    meal disposition of what is essentially one action, are
    thwarted rather than served by the filing of a cross
    claim, the cross claim may properly be expunged.’’
    (Internal quotation marks omitted.) Wallingford v. Glen
    Valley Associates, 
    Inc., supra
    , 
    190 Conn. 161
    . In
    assessing this test, this court has opined: ‘‘The transac-
    tion test is one of practicality, and the trial court’s
    determination as to whether that test has been met
    ought not to be disturbed except for an abuse of discre-
    tion.’’ (Internal quotation marks omitted.) South Wind-
    sor Cemetery Assn., Inc. v. Lind
    quist, supra
    , 546.
    In the procedural posture we face in the present case,
    however, we are not in a position to assess whether
    the court abused its discretion in deciding whether the
    subject counterclaim met the transaction test of Prac-
    tice Book § 10-10 because it is apparent from the record
    that the court did not employ the transaction test.
    Rather, as noted, the court concluded that because the
    counterclaim did not attack the making, validity or
    enforcement of the note or mortgage, the claim, as such,
    did not arise out of the same transaction as the subject
    of the complaint. In coming to this conclusion, the court
    made no assessment of the relationship between the
    forbearance agreement and the enforceability of the
    mortgage or note; nor did the court assess whether
    permitting the counterclaim to go forward would have
    fulfilled or thwarted the aims of judicial economy.
    Although we could remand this appeal in order to
    require the trial court to make an explicit assessment
    in accord with the provisions of Practice Book § 10-10,
    we are able to decide the issue now because resolution
    of the issue requires no additional fact finding and also
    because both parties have fully briefed the issue. There-
    fore, we conclude that ‘‘a final resolution of the defen-
    dant’s appeal will best serve the interests of judicial
    economy.’’ (Internal quotation marks omitted.) Collins
    v. Anthem Health Plans, Inc., 
    275 Conn. 309
    , 332, 
    880 A.2d 106
    (2005).
    The question to decide is whether the subject of the
    defendant’s counterclaim is sufficiently intertwined
    with the complaint that it arises from the same transac-
    tion. In this instance, it would be an abuse of discretion
    to answer that question in the negative. Unlike the fac-
    tual circumstances of JP Morgan Chase Bank, Trustee
    v. 
    Rodrigues, supra
    , 
    109 Conn. App. 127
    –28, in which
    the defendants filed a counterclaim alleging that the
    plaintiff had forced them into entering into another
    agreement notwithstanding an earlier forbearance
    agreement, the forbearance agreement we confront in
    the case at hand was entered into between the parties
    during this litigation and in regard to the subject note
    and mortgage. Here, the defendant does not claim that
    the forbearance agreement modified the terms of the
    original mortgage and note, but, rather, that the forbear-
    ance agreement should have restrained the plaintiff’s
    pursuit of the equitable remedy of foreclosure. That
    distinction separates this case from Rodrigues, where,
    as noted, the defendant had claimed damages resulting
    from the plaintiff’s failure to adhere to an extrinsic
    agreement. 
    Id. Unlike Rodrigues,
    the defendant in the
    case at hand claims that the plaintiff had entered into an
    agreement to forbear from pursuing foreclosure, thus
    directly implicating the plaintiff’s right, in equity, to
    seek the remedy of a judgment by foreclosure.
    Also, as pointed out by the defendant, the plaintiff, in
    reasserting its right to pursue the remedy of foreclosure,
    affirmed the existence of the forbearance agreement
    and alleged, as partial justification for its pursuit, that
    the defendant had failed to comply with terms of the
    forbearance agreement. In that manner, as noted, the
    plaintiff incorporated the forbearance agreement into
    the enforceability of the original note and mortgage.6
    Furthermore, in seeking summary judgment, the plain-
    tiff directly invoked the terms and conditions of the
    forbearance agreement in asserting its right to proceed
    to a judgment of foreclosure. Thus, by its own pleading,
    the plaintiff has confirmed the nexus between the
    enforcement of the note and mortgage and the terms
    and conditions of the parties’ forbearance agreement.
    In regard to the risk of duplication, a criterion for the
    application of the transaction rule embodied in Practice
    Book § 10-10, there can be no risk that proceeding on
    the counterclaim in this foreclosure action would cause
    a duplication of litigation as the foreclosure litigation
    has been concluded by withdrawal.
    Finally, there are reasons well grounded in public
    policy and consistent with the equitable nature of fore-
    closure, to find that a mortgagee who enters into a
    forbearance agreement during foreclosure litigation
    with a qualified residential borrower should not be per-
    mitted to pursue the remedy of foreclosure when the
    borrower has fully complied with its terms. Accord-
    ingly, a lender who wrongfully pursues the remedy of
    foreclosure in violation of the terms of a foreclosure
    forbearance agreement it has negotiated in the midst
    of litigation may be liable for any harm it causes to a
    borrower for its failure to forbear as promised. If there
    is no potential for consequences to a lender who deter-
    mines, unilaterally, to violate the terms of a forbearance
    agreement reached through the aegis of the court-man-
    dated foreclosure forbearance mediation program, the
    program itself may sink into irrelevance and ultimate
    disuse. Surely the General Assembly did not envision
    such an outcome in the creation of the foreclosure
    forbearance mediation program.
    In this instance, we conclude that the court incor-
    rectly struck the defendant’s counterclaim because,
    contrary to the court’s conclusion, it squarely meets
    the transaction test. Furthermore, the advancement of
    the counterclaim in this instance would enhance and
    not detract from the goals of judicial economy and the
    avoidance of duplicative litigation.
    The judgment is reversed and the case is remanded
    for further proceedings consistent with this opinion.
    In this opinion the other judges concurred.
    1
    The court’s foreclosure mediation program was created pursuant to
    General Statutes § 49-31m, which requires the creation of such a program
    in each judicial district in actions to foreclose mortgages on residential
    real property. Section 49-31m provides in relevant part: ‘‘Such foreclosure
    mediation shall (1) address all issues of foreclosure, including, but not
    limited to, reinstatement of the mortgage, assignment of law days, assign-
    ment of sale date, restructuring of the mortgage debt and foreclosure by
    decree of sale . . . .’’ General Statutes § 49-31f, captioned ‘‘Application for
    protection from foreclosure action. Qualifications. Court determination of
    eligibility. Stay of foreclosure action,’’ sets forth the criteria for referral of
    residential foreclosure actions to court-sponsored mediation.
    2
    The parties are in dispute as to whether the defendant fully complied
    with the terms of the forbearance agreement. The plaintiff claims that the
    agreement called for an acceleration of the note, requiring the defendant
    to pay the loan in full or submit additional financial information to the
    plaintiff by February 1, 2009. The defendant, on the other hand, claims that
    the requirement in the agreement that she pay the loan in full by a certain
    date meant only that, once she had made three required monthly payments,
    the agreement required her to resume monthly payments in accord with
    the tenor of the original note until it was paid in full. In resolving the issues
    on appeal, we need not and, indeed, should not attempt to resolve this fact-
    laden dispute as to the meaning of the language and intent of the parties
    regarding the forbearance agreement.
    3
    The affidavit contained several paragraphs concerning the forbearance
    agreement. Of note, the affidavit alleged, in part, that: ‘‘Section 6a of the
    Agreement states that if after the payments made by borrower as referenced
    in Section 3 of the Agreement, the loan is still delinquent, the borrower
    must make arrangements prior to the expiration of the terms contained in
    Section 3 to cure the delinquency. Section 7 of the Agreement states that
    if the parties are unable to agree to a resolution for the remaining delinquency
    amount, the Plaintiff may proceed with its foreclosure action, without further
    notice. Section 9 of the Agreement states that the Plaintiff will not discon-
    tinue the pending foreclosure action until the borrower’s account is current.’’
    (Emphasis in original.)
    4
    The reasons for the substantial gaps in time between filings cannot be
    readily explained by reference to the record. It is apparent, however, that
    at some juncture, the defendant was successful in restructuring and reinstat-
    ing the underlying debt, thus nullifying the need, from the plaintiff’s optic,
    of pursuing the foreclosure litigation.
    5
    Practice Book § 10-10 provides: ‘‘Supplemental pleadings showing mat-
    ters arising since the original pleading may be filed in actions for equitable
    relief by either party. In any action for legal or equitable relief, any defendant
    may file counterclaims against any plaintiff and cross claims against any
    codefendant provided that each such counterclaim and cross claim arises
    out of the transaction or one of the transactions which is the subject of the
    plaintiff’s complaint; and if necessary, additional parties may be summoned
    in to answer any such counterclaim or cross claim. A defendant may also
    file a counterclaim or cross claim under this section against any other party
    to the action for the purpose of establishing that party’s liability to the
    defendant for all or part of the plaintiff’s claim against that defendant.’’
    6
    In assessing the viability of the counterclaim under the transaction test,
    we assume the accuracy of the allegations the counts contain. In doing so,
    we have and offer no opinion as to whether those accusations can stand the
    test of proof in an evidentiary setting in which their accuracy is not assumed.