Ocwen Loan Servicing, LLC v. Mordecai ( 2021 )

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OCWEN LOAN SERVICING, LLC v.
MICHAEL A. MORDECAI ET AL.
(AC 43295)
Prescott, Alexander and Suarez, Js.
Syllabus
In 2011, the plaintiff, O Co., sought to foreclose a mortgage on certain real
property owned by the defendants, and thereafter filed a motion to
substitute N Co. as the plaintiff. In 2017, N Co. filed a motion for summary
judgment as to liability only as to its amended complaint. Soon thereafter,
N Co. assigned the mortgage to W Co., and filed a motion to substitute
W Co. as the plaintiff, which the court granted. For several months, the
parties engaged in discovery and litigated discovery disputes, including
W Co.’s inability to locate and produce loan payment history records
for a period of more than two years. While discovery objections were
still outstanding, W Co. reclaimed the motion for summary judgment in
2018. Subsequently, the trial court ordered W Co. to provide additional
discovery regarding its search efforts to locate the missing loan payment
records. After the completion of discovery, the defendants filed a request
to amend their answer and special defenses, which contained seven
special defenses to address the incomplete payment records and related
issues regarding changes in the amount of escrow payments. The defen-
dants also submitted a caseflow request for a continuance to respond
to W Co.’s motion for summary judgment until after the court ruled on
their request to amend, arguing, in relevant part, that the amended
special defenses, if granted, would have direct significance on the motion
for summary judgment, and, therefore, should be considered first. The
court, however, denied the requested continuance. W Co. filed an objec-
tion to the defendants’ request to amend, claiming that the defendants’
counsel sought to delay the case, which the court sustained, and there-
after denied the defendants’ request to amend without explanation or
analysis. In 2019, W Co. filed a reply to the defendants’ original special
defenses and a certificate of closed pleadings. The court granted W
Co.’s motion for summary judgment, finding that no genuine issues of
material fact existed as to liability on the note and mortgage, but pro-
vided no legal analysis. Thereafter, the court rendered a judgment of
strict foreclosure in favor of W Co., from which the defendants appealed
to this court. Held that the trial court’s denial of the defendants’ request
to amend their answer and special defenses constituted an abuse of
discretion: the court failed to provide a sound reason for denying the
defendants’ request as the granting of the amendment would not have
unduly delayed trial or unfairly prejudiced W Co. in light of the facts
that the proposed amendment was filed prior to W Co.’s certificate of
closed pleadings, the motion for summary judgment had languished on
the docket for a significant period of time without being claimed for a
hearing by W Co., and no trial date had been scheduled; moreover, it
was appropriate procedurally and as a matter of legal strategy for the
defendants to wait until discovery was completed as the missing informa-
tion could have been relevant to the defendants’ theory of defense where
such discovery related to the amount of the debt owed and the issue
of default; furthermore, although the case had been pending for a signifi-
cant period of time, some of that delay was attributable to W Co. or to
its predecessors in interest and nothing in the record supported a finding
that the defendants engaged in unreasonable or purely dilatory behavior
in defending the foreclosure action; additionally, the defendants sought
to have the trial court articulate the factual and/or legal basis for its
decision to disallow the amendment but were thwarted in their efforts
by the unavailability of the trial judge; accordingly, the trial court’s error
in failing to allow the defendants to amend their answer and special
defenses required the reversal of the court’s granting of the motion for
summary judgment as to liability and the judgment of strict foreclosure
because such judgment was rendered in part on the summary determina-
tion of liability.
Argued September 16—officially released December 28, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the defendants, and for other relief, brought to
the Superior Court in the judicial district of Fairfield,
where Wilmington Savings Fund Society, F.S.B., was
substituted as the plaintiff; thereafter, the court, Bruno,
J., denied the defendants’ request to amend their answer
and special defenses; subsequently, the court, Bruno,
J., granted the substitute plaintiff’s motion for summary
judgment as to liability only; thereafter, the court,
Bruno, J., rendered judgment of strict foreclosure, from
which the defendants appealed to this court. Reversed;
further proceedings.
Jeremy E. Baver, for the appellants (defendants).
Christopher J. Picard, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendants, Michael A. Mordecai
and Elizabeth M. Keyser, appeal from the judgment of
strict foreclosure rendered by the trial court in favor
of the substitute plaintiff Wilmington Savings Fund
Society, F.S.B., D/B/A Christiana Trust, not individually
but as trustee for Pretium Mortgage Acquisition Trust
(Wilmington).1 The defendants claim that the court (1)
abused its discretion by denying their request to amend
their special defenses, (2) improperly granted summary
judgment as to liability because a genuine issue of mate-
rial fact existed regarding whether they had defaulted
on the note, and (3) misapplied Practice Book § 23-18
(a)2 in rendering a judgment of strict foreclosure
because they had asserted a defense regarding the
amount of the debt owed. We agree with the defendants
that the court abused its discretion by not allowing them
to amend their special defenses and, consequently, also
improperly granted the motion for summary judgment
as to liability and rendered a judgment of strict foreclo-
sure without due consideration of those defenses.3
Accordingly, we reverse the judgment of the court and
remand for further proceedings consistent with this
opinion.
The record reveals the following relevant undisputed
facts and procedural history. In 2007, the defendants
purchased residential property in Fairfield. They exe-
cuted a promissory note in favor of Taylor, Bean &
Whitaker Mortgage Corporation (TB&W) in the princi-
pal amount of $340,000 (note). As security for the note,
the defendants executed a mortgage on the Fairfield
property in favor of Mortgage Electronic Registration
Systems, Inc. (MERS), as nominee for TB&W (mort-
gage).4 TB&W later endorsed the note in blank.
In August, 2011, Ocwen Loan Servicing, LLC (Ocwen),
as successor in interest to TB&W, commenced the
underlying mortgage foreclosure action. In its com-
plaint, Ocwen alleged that the mortgage had been
‘‘assigned to [it] by virtue of an assignment of mort-
gage,’’ and that it was ‘‘the holder of [the] note and
mortgage.’’ Ocwen further alleged that the note was in
default and that it had elected to accelerate the balance
due on the note, declare the note due in full, and fore-
close the mortgage securing the note.
For more than four years, the parties participated in
court-sponsored foreclosure mediation.5 The defen-
dants, however, were unable to obtain a loan modifica-
tion, and the mediation was terminated by order of the
court on January 22, 2016.
On April 11, 2016, Ocwen filed a motion to default
the defendants for failure to plead. It also filed a demand
for a disclosure of defenses. The clerk initially granted
the motion for default. That same day, however, the
defendants filed a disclosure of defenses and a request
to revise the complaint. As a result, the clerk vacated
the default against the defendants. One of the revisions
sought by the defendants was for Ocwen to provide
more factual details regarding its allegation that it cur-
rently was the holder of the note. Ocwen filed an objec-
tion, which the court sustained.
Soon thereafter, however, Ocwen filed a motion to
substitute Nationstar Mortgage, LLC (Nationstar), as
the plaintiff. Ocwen stated in its motion that it had
assigned the subject mortgage deed and note to
Nationstar. Attached to the motion to substitute was a
copy of a page from the Fairfield land records showing
that an assignment of mortgage from Ocwen to
Nationstar had been executed on October 29, 2013,
and subsequently recorded on November 18, 2013.6 The
defendants objected to the substitution, arguing, inter
alia, that the assignment only referred to the mortgage
and not the note. Further, the defendants argued that,
in objecting to their request to revise, Ocwen had made
admissions to the court about its own status as the
holder of the note and that it had the right to enforce the
mortgage that appeared to conflict with the assignment
attached to the motion to substitute. The court sus-
tained the defendants’ objection and denied the motion
to substitute, stating: ‘‘There is no indication that
Nationstar is the holder or owner of the note.’’
On October 26, 2016, Ocwen filed a motion for judg-
ment of strict foreclosure and a preliminary statement
of the debt calculated as of October 5, 2016. According
to that statement, the principal and accrued interest
on the note totaled $481,708.53. Ocwen simultaneously
filed an appraisal that indicated that the fair market
value of the subject property was $430,000. Ocwen also
filed a second motion to default the defendants for
failure to plead.
The clerk denied the motion for default, noting that,
on November 1, 2016, the defendants filed a motion
to strike the foreclosure complaint. In their motion to
strike, the defendants argued, in relevant part, that the
complaint failed to state a cause of action for foreclo-
sure because Ocwen had failed to adequately plead
regarding its status as the holder of the note or to
identify the precise nature of the alleged default. Ocwen
filed an opposition to the motion to strike and also
renewed its motion to substitute Nationstar as the plain-
tiff. The renewed motion to substitute contained a rep-
resentation that Nationstar, through its counsel, was in
possession of the note, which was endorsed in blank,
and, thus, Nationstar was the current holder of the
note.
On January 5, 2017, the court granted the defendants’
motion to strike the foreclosure complaint, agreeing
with the defendants that the original complaint lacked
sufficient allegations regarding ‘‘prima facie elements
of a cause of action for foreclosure of a mortgage
. . . .’’ The court also granted Ocwen’s motion to substi-
tute Nationstar as the plaintiff by virtue of Ocwen’s
allegation that it had assigned the subject mortgage to
Nationstar on October 29, 2013, and that Nationstar,
through its counsel, was in possession of the note
endorsed in blank. Nationstar then filed an amended
complaint on January 11, 2017, which is the operative
complaint in this action.
The defendants filed a timely answer to the amended
complaint on February 2, 2017. The defendants also
asserted four special defenses at that time.7
On June 22, 2017, Nationstar filed a motion for sum-
mary judgment as to liability only. On July 6, 2017, the
defendants filed a motion to dismiss the foreclosure
action in which they argued that the court lacked sub-
ject matter jurisdiction because Nationstar was neither
the owner of the debt nor the holder of the note.
Nationstar sought and was granted an extension of time
to respond to the motion to dismiss, following which,
on August 22, 2017, it filed a motion to substitute Wil-
mington as the plaintiff, stating that it had assigned the
subject mortgage to Wilmington, which currently was
in possession of the note. A copy of the assignment of
mortgage from Nationstar to Wilmington was attached
and showed that the assignment had been executed on
July 6, 2017, the day the defendants filed their motion
to dismiss.
The court granted the motion to substitute Wilming-
ton as the plaintiff on September 14, 2017. On January
21, 2018, the court denied the defendants’ motion to
dismiss. Over the next several months, the parties
exchanged discovery and litigated several discovery dis-
putes. The parties argued their outstanding discovery
disputes to the court, Hon. Alfred J. Jennings, Jr., judge
trial referee, on May 29, 2018, which issued a ruling on
September 23, 2018. Among the issues to be resolved
was Wilmington’s inability to locate and produce loan
payment history records for a period of more than two
years starting from the loan origination date through
August 19, 2009. Judge Jennings stated in his discovery
ruling that the defendants have provided a payment
history that ‘‘admittedly has a gap or gaps,’’ and that
Wilmington ‘‘is unable to find payment history records
for the gap period(s).’’ In relevant part, the court
ordered Wilmington to provide the defendants with
additional discovery regarding its search efforts to
locate the missing loan payment records.
On December 26, 2018, following the completion of
discovery, the defendants filed a request to amend their
answer and special defenses. The attached proposed
amended pleading contained seven special defenses,
the primary basis of which were to address the incom-
plete payment records and related issues regarding
changes in the amount of escrow payments. The first
and second amended special defenses alleged unclean
hands, asserting generally that Wilmington and its pre-
decessors in interest knew about the incomplete pay-
ment history, and that the amount of the claimed debt
was inaccurate, which unduly prejudiced the defen-
dants both during mediation and in defending against
the foreclosure action. The third special defense
asserted that the defendants had not been given proper
notice of the alleged default or other requisite statutory
notice requirements. The fourth special defense
sounded in payment pursuant to General Statutes § 42a-
3-602 and alleged that the defendants ‘‘were current on
the correctly calculated mortgage payment amounts.’’
The fifth special defense alleged a failure to comply
with regulations promulgated under the federal Real
Estate Settlement Procedures Act of 1974 (RESPA),
in particular 12 C.F.R. § 1024.38, which requires loan
servicers to provide borrowers with accurate and cur-
rent information regarding a borrower’s mortgage loan.
The sixth special defense sounded in fraud. The seventh
special defense asserted, inter alia, that the note was
endorsed in blank by someone ‘‘not authorized to
endorse the instrument.’’
The defendants also filed a separate caseflow request
that sought a continuance to respond to and argue the
motion for summary judgment as to liability until after
the court had ruled on their request to amend their
special defenses. Judge Jennings issued an order on
December 28, 2018, denying the requested continuance.
The court explained that, unless an objection to a
request to amend is filed within fifteen days, it is deemed
granted by consent; see Practice Book § 10-60 (a) (3);
and no such objection had been filed. The court ordered
the parties to appear on January 2, 2019, as previously
scheduled, ‘‘with a timetable for hearing the motion for
summary judgment, which has been pending for more
than eighteen months.’’ Wilmington thereafter filed an
objection to the defendants’ request to amend their
special defenses.
On January 7, 2019, the court ordered the defendants
to file any opposition to the motion for summary judg-
ment within fourteen days of the court’s ruling on the
objection to their request to amend, which was sched-
uled for a hearing on January 22, 2019. Following that
hearing, on January 30, 2019, the court, Bruno, J.,
denied the defendants’ request to amend their special
defenses without any explanation or analysis. Wilming-
ton filed a reply to the defendants’ original special
defenses on February 1, 2019, denying all allegations
therein. The same day, Wilmington filed a certificate of
closed pleadings.
On February 13, 2019, the defendants filed their mem-
orandum in opposition to the motion for summary judg-
ment. Wilmington thereafter filed a reply to the opposi-
tion. Judge Bruno heard argument on the motion for
summary judgment on February 19, 2019. At the hear-
ing, the court asked the defendants to submit a supple-
mental memorandum of case law that supported their
legal arguments. The defendants complied with that
request.
On April 25, 2019, the court, Bruno, J., issued an
order granting the motion for summary judgment as to
liability. The court provided no legal analysis for its
ruling, including failing to address directly any of the
defendants’ original special defenses. Rather, the court
provided the following statement only: ‘‘When counsel
for [Wilmington] and the defendant[s] appeared at short
calendar in February to present their respective argu-
ments on this motion for summary judgment . . . this
case had been pending since 2011. Since that hearing,
there have been many more pleadings filed . . .
addressed to [the motion for summary judgment], and
. . . specifically to information asserted by defense
counsel during oral argument on the motion for sum-
mary judgment. The court has had the benefit of the
able oral arguments of counsel, as well as the pleadings,
and has considered all of this in reaching its decision
that summary judgment should enter for the plaintiff.
. . . The motion for summary judgment having been
heard, the court finds that there are no genuine issues
of material fact. The motion is granted as to liability.
Judgment may enter for [Wilmington] on the com-
plaint.’’
On April 29, 2019, the court, Bellis, J., issued a dor-
mancy dismissal order that required Wilmington ‘‘to
file the appropriate motion and obtain judgment on or
before [July 29, 2019], or the case will be dismissed for
failure to prosecute with due diligence.’’ Wilmington,
on July 23, 2019, filed a caseflow request asking the
court to grant it an exemption to the court’s dormancy
order or, alternatively, to write in the matter on the
upcoming foreclosure calendar for July 29, 2019. In
support of its request, Wilmington stated that it ‘‘has
all the requisite documents to obtain judgment includ-
ing an updated appraisal and executed affidavit of debt.
Given the aforementioned, it would be an exercise of
futility and would unduly burden the court’s docket to
dismiss this matter and require [Wilmington] to com-
mence a new action.’’ The following day, the court clerk
issued an order that the motion for judgment would be
written on the foreclosure docket for July 29, 2019.
On July 25, 2019, Wilmington filed a foreclosure work-
sheet, an affidavit of debt, and an affidavit regarding
attorney’s fees. The next day, the defendants filed a
memorandum in opposition to the motion for judgment
of strict foreclosure.8 Wilmington filed a reply to the
opposition that same day. On the day of the July 29,
2019 hearing, Wilmington filed a motion for extension
of time and a caseflow request arguing, in essence, that
it sought relief from the dormancy order in the event
that the court determined additional argument would
be necessary or was otherwise inclined to hold off the
hearing on the motion for judgment of strict foreclo-
sure.
The court, Bruno, J., proceeded with the hearing on
the motion for judgment of strict foreclosure, following
which it rendered judgment in favor of Wilmington. The
court made findings as to the amount of the debt and
the fair market value of the property, and it set law
days to commence on October 29, 2019. The court’s
order did not address the substance of the defendants’
objections.9 The defendants timely filed the present
appeal.
Shortly after the appeal was filed, on October 4, 2019,
Wilmington filed a motion for articulation asking Judge
Bruno to provide the factual and legal basis for her
decision to grant the motion for summary judgment as
to liability. Wilmington, citing this court’s then recent
decision in Bayview Loan Servicing, LLC v. Frimel,
192 Conn. App. 786, 218 A.3d 717 (2019), argued that
the court’s summary judgment ruling had failed to
include any findings by the court that Wilmington had
established a prima facie case for foreclosure or met
its evidentiary burden of establishing in the first
instance that there were no genuine issues of mate-
rial fact.10
On February 4, 2020, Judge Stevens issued the follow-
ing case management order: ‘‘This motion for articula-
tion, and all other matters [in] this case involving Judge
Bruno, are hereby reassigned to Judge Spader.’’ Judge
Spader soon thereafter issued an order effectively grant-
ing the motion for articulation and articulating what it
speculated to be the factual and legal basis for Judge
Bruno’s decision to grant summary judgment as to liabil-
ity. The court indicated that it had read Judge Bruno’s
order on the motion for summary judgment, reviewed
all the applicable pleadings, and listened to a recording
of oral argument. It acknowledged that Judge Bruno
did ‘‘not proactively make a statement in her order of
the plaintiff’s setting forth its prima facie case,’’ but the
court nonetheless concluded that ‘‘[i]t is clear, however,
that the plaintiff did set forth its prima facie case . . . .’’
Judge Spader then proceeded to set forth his analysis
for why Wilmington was entitled to summary judgment.
In addition to concluding that Wilmington had estab-
lished its entitlement to summary judgment, the court
also concluded that ‘‘[t]he defendants simply fail to
establish their special defenses.’’11 The defendants filed
a motion for further articulation directed at Judge Spad-
er’s ‘‘articulation,’’ which, according to the defendants,
contained ‘‘factual detail[s] not present in the original
order and case law that was not briefed or argued by
the parties.’’ The court denied the defendants’ motion.
This court later granted the defendants permission
to file a late motion for articulation directed at Judge
Bruno’s denial of their request to amend their special
defenses. Specifically, the defendants asked the trial
court to articulate the factual and legal basis for denying
their request to amend and to state whether the court
had found that the proposed special defenses were valid
under U.S. Bank National Assn. v. Blowers, 332 Conn.
656, 212 A.3d 226 (2019).12 This motion for articulation
again was referred to Judge Spader, who denied the
motion, stating in relevant part that ‘‘while Judge Bruno
is unavailable presently, had the movant requested an
articulation from her on a timelier basis, she may have
been able to provide one. This court is unable to provide
more articulation but posits that none is really neces-
sary. A summary judgment motion was pending and it
was then that the defendant[s] wanted to amend its
defenses, the court would not then allow the late preju-
dicial amendment, which was in its discretion to do.’’13
(Emphasis added.) The defendants filed a motion for
review of the denial of their motion for articulation.
This court granted the motion for review but denied
the relief requested therein.14
With the following background in mind, we turn to
our discussion of the defendants’ first claim on appeal.
The defendants claim that the court abused its discre-
tion by denying their request to amend their special
defenses to the foreclosure complaint. The defendants
argue that the amendments would not cause delay and
that the amendments were necessary ‘‘to conform with
facts verified by the final resolution of several discovery
disputes.’’ For the reasons that follow, we agree with
the defendants.
General Statutes § 52-130 provides: ‘‘Parties may
amend any defect, mistake or informality in the plead-
ings or other parts of the record or proceedings. When
either party supposes that in any part of the pleadings
he has missed the ground of his plea, and that he can
plead a different plea that will save him in his cause, he
may change his plea, answer, replication or rejoinder,
as the case may be, and plead anew, and the other party
shall have reasonable time to answer the same; and, in
any case when a party amends or alters any part of the
pleadings or pleads anew, if it occasions any delay in
the trial or inconvenience to the other party, he shall
be liable to pay costs at the discretion of the court.
Any court may restrain the amendment or alteration of
pleadings, so far as may be necessary to compel the
parties to join issue in a reasonable time for trial.’’ See
also Practice Book § 10-60. Thus, by statute, a party,
as a matter of right, may make substantive amendments
to any pleading. That right is subject only to the court’s
discretion to award costs or to limit an amendment if
doing so is necessary to prevent undue delay of a trial.
‘‘The granting or denial of a motion to amend the
pleadings is a matter within the trial court’s discretion.
. . . In the interest of justice courts are liberal in per-
mitting amendments; unless there is a sound reason,
refusal to allow an amendment is an abuse of discre-
tion. . . . The trial court is in the best position to
assess the burden which an amendment would impose
on the opposing party in light of the facts of the particu-
lar case. The essential tests are whether the ruling of
the court will work an injustice to either the plaintiff
or the defendant and whether the granting of the motion
will unduly delay a trial.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Baker v. Cor-
disco, 37 Conn. App. 515, 522–23, 657 A.2d 230, cert.
denied, 234 Conn. 907, 659 A.2d 1207 (1995).
‘‘In determining whether there has been an abuse of
discretion [in granting or denying an amendment], much
depends on the circumstances of each case. . . . In
the final analysis, the court will allow an amendment
unless it will cause an unreasonable delay, mislead the
opposing party, take unfair advantage of the opposing
party or confuse the issues, or if there has been negli-
gence or laches attaching to the offering party.’’ (Inter-
nal quotation marks omitted.) Miller v. Fishman, 102
Conn. App. 286, 293, 925 A.2d 441 (2007), cert. denied,
285 Conn 905, 942 A.2d 414 (2008).
‘‘The court’s discretion [to deny an amendment] is
not unfettered; it is a legal discretion subject to review.
. . . The trial court’s discretion imports something
more than leeway in decision making and should be
exercised in conformity with the spirit of the law and
should not impede or defeat the ends of substantial
justice.’’ (Citation omitted; internal quotation marks
omitted.) Id., 291–92.
‘‘In exercising its discretion with reference to a
motion for leave to amend, a court should ordinarily
be guided by its determination of the question whether
the greater injustice will be done to the mover by deny-
ing him his day in court on the subject matter of the
proposed amendment or to his adversary by granting
the motion, with the resultant delay.’’ (Internal quota-
tion marks omitted.) Jacob v. Dometic Origo AB, 100
Conn. App. 107, 113, 916 A.2d 872, cert. granted, 282
Conn. 922, 925 A.2d 1103 (2007) (appeal withdrawn
August 7, 2007). The law of this state favors courts
allowing amendments in the absence of some sound
basis for not doing so; id., 111; particularly if the record
fails to disclose some significant injustice or prejudice
to the nonmoving party. Id., 114; see also Conference
Center Ltd. v. TRC, 189 Conn. 212, 216–17, 455 A.2d 857(1983) (‘‘a trial court may be well-advised to exercise
leniency when amendments are proffered in response
to a motion for summary judgment, rather than on the
eve of trial’’); Miller v. Fishman, supra, 102 Conn. App.
286 (holding that it was abuse of discretion for court
to rule on motion for summary judgment without first
considering pending request to amend because pro-
posed amendment would not have unduly delayed trial
or unfairly prejudiced other party); but see Citizens
National Bank v. Hubney, 182 Conn. 310, 313, 438 A.2d
430 (1980) (court properly exercised discretion by not
permitting amendment ‘‘after the pleadings had been
closed and the motion for summary judgment filed’’).
We are mindful that, ‘‘[a]lthough it is not [the] habit [of
appellate courts] to disturb a trial court’s determination
of whether an amendment should be permitted, we have
done so on rare occasions when allowing the rul[ing]
to stand would work an injustice to one of the parties.’’
(Internal quotation marks omitted.) Connecticut
National Bank v. Voog, 233 Conn. 352, 369, 659 A.2d
172 (1995). Our careful review of the record before us
leads us to conclude, for the following reasons, that
this is such a case.
First, the pleadings had not yet been closed at the
time the defendants sought to amend their answer and
special defenses. Wilmington in fact had not yet filed
any response to the original special defenses raised
by the defendants. Accordingly, the court could not
reasonably have viewed the need to respond to the
amended answer and special defenses as an ‘‘inconve-
nience to the other party . . . .’’ General Statutes § 52-
130. Moreover, although Wilmington’s predecessor,
Nationstar, had filed a motion for summary judgment,
that motion already had languished on the docket for
a significant period of time without being claimed for
a hearing by Wilmington.
Second, it was appropriate procedurally and as a
matter of legal strategy for the defendants to wait to
fully develop and perfect their special defenses until
Wilmington had complied with their discovery request.
They made their request to amend promptly thereafter.
It was reasonable for the defendants to wait to amend
their special defenses until discovery was completed
because information regarding the missing payment
records may have proved relevant to the defendants’
theory of defense that escrow payments had been
improperly calculated and increased, which had a bear-
ing on both the amount of any debt owed and the issue
of default. The request to amend also cannot reasonably
be construed as having been made ‘‘on the eve of trial
. . . .’’ Conference Center Ltd. v. TRC, supra, 189 Conn.
217. No trial date had been scheduled, and the court
could have permitted the amendments and then allowed
Wilmington sufficient time to respond without ‘‘occa-
sion[ing] any delay in the trial . . . .’’ General Statutes
§ 52-130.
Third, to the extent that the case had been pending
for a significant period of time, some of that delay
fairly is attributable to Wilmington or its predecessors
in interest rather than to the defendants. Certainly, the
underlying foreclosure action had been on the trial
court’s docket for many years, and the court had a
legitimate interest in advancing the case. A significant
portion of the delay in this case, however, nearly four
years, was the result of the lengthy court-sponsored
mediation process. Moreover, the multiple transfers of
the mortgage during the pendency of the action and
the resulting need to substitute plaintiffs resulted in
additional delays that were outside of the control of
the defendants. Nothing in the record before us would
support a finding that the defendants engaged in unrea-
sonable or purely dilatory behavior in defending the
foreclosure action, certainly none that would justify
disallowing an amendment of their answer and special
defenses prior to the close of pleadings. For example,
the record does not reflect that the defendant filed
multiple and frivolous bankruptcy proceedings,
improper interlocutory appeals, or excessive and
unproductive motions. Although the defendants
engaged in motion practice, they only filed pleadings
permitted under our rules of practice and in the proper
order. See Practice Book §§ 10-6 and 10-8. Furthermore,
the defendants’ motions were meritorious, resulting,
for example, in the striking of the original complaint.
The operative complaint in this matter was not filed
until 2017, a few years prior to the judgment of strict
foreclosure.
Finally, we are mindful that the defendants sought
to have the court articulate the factual and/or legal basis
for its decision to disallow the defendants’ amendment,
but they were thwarted in their efforts by the unavail-
ability of Judge Bruno. ‘‘[O]ur appellate courts often
have recited . . . that, in the face of an ambiguous or
incomplete record, we will presume, in the absence of
an articulation, a trial court acted correctly, meaning
that it undertook a proper analysis of the law and made
whatever findings of the facts were necessary.’’
(Emphasis in original.) Zaniewski v. Zaniewski, 190
Conn. App. 386, 396, 210 A.3d 620 (2019); see also Bell
Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482,
586 A.2d 1157 (1991). This court has made clear, how-
ever, that the adoption of such a presumption of correct-
ness is not warranted in a case such as the present one
‘‘in which a party has done all that can reasonably be
expected to obtain an articulation but has been
thwarted through no fault of its own.’’ Zaniewski v.
Zaniewski, supra, 397.15
In sum, the court failed to provide any explanation, let
alone a ‘‘ ‘sound reason,’ ’’ for denying the defendants’
request to amend their special defenses. Baker v. Cor-
disco, supra, 37 Conn. App. 522. The record reflects no
such reason. As previously stated, at the time they made
their request, the pleadings had not yet closed. Although
a motion for summary judgment had been filed, the
motion had not been calendared for a hearing on its
merits. No trial date had been set, and, although the
trial court had an interest in moving the case forward,
this was not a matter in which the defendants had
engaged in dilatory defense tactics. For all these rea-
sons, we conclude that the court’s denial of the defen-
dants’ request to amend their answer and special
defenses was an abuse of discretion.16
The court’s error in failing to allow the amended
answer and special defenses requires the reversal of
the court’s subsequent order granting the motion for
summary judgment. ‘‘[B]ecause any valid special
defense raised by the defendant ultimately would pre-
vent the court from rendering judgment for the plaintiff,
a motion for summary judgment should be denied when
any [special] defense presents significant fact issues
that should be tried.’’ (Internal quotation marks omit-
ted.) U.S. Bank National Assn. v. Eichten, 184 Conn.
App. 727, 745, 196 A.3d 328 (2018). Furthermore,
because the judgment of strict foreclosure was ren-
dered in part on the summary determination of liability,
that judgment likewise cannot stand.
The judgment of strict foreclosure, the summary judg-
ment as to liability only, and the trial court’s denial of
the defendants’ request to amend their special defenses
are reversed, and the case is remanded with direction
to grant the defendants’ request to amend the answer
and special defenses and for further proceedings in
accordance with this opinion.
In this opinion the other judges concurred.
1
The original plaintiff, Ocwen Loan Servicing, LLC, assigned the subject
mortgage deed to Nationstar Mortgage, LLC (Nationstar). Nationstar later
was substituted as the plaintiff. Nationstar subsequently assigned the mort-
gage to Wilmington, which was substituted as the plaintiff for Nationstar.
In this opinion, for clarity purposes, we refer to the original plaintiff and
the substitute plaintiffs by name.
2
Practice Book § 23-18 (a) provides: ‘‘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, stating what amount, including interest to
the date of the hearing, is due, and that there is no setoff or counterclaim
thereto.’’ (Emphasis added.)
3
Because we reverse the granting of the motion for summary judgment
as to liability and the resulting judgment of strict foreclosure on the ground
that the court improperly failed to allow the defendants to amend their
special defenses, it is unnecessary to reach the other claims of error raised
by the defendants.
4
‘‘MERS acts as the nominal mortgagee for the loans owned by its mem-
bers . . . which include originators, lenders, servicers, and investors . . . .
[If a] member transfers an interest in a mortgage loan to another MERS
member, MERS privately tracks the assignment within its system but remains
the mortgagee of record. According to MERS, this system saves lenders
time and money, and reduces paperwork, by eliminating the need to prepare
and record assignments when trading loans. . . . If, on the other hand, a
MERS member transfers an interest in a mortgage loan to a non-MERS
member, MERS no longer acts as the mortgagee of record and an assignment
of the security instrument to the non-MERS member is drafted, executed,
and typically recorded in the local land recording office.’’ (Internal quotation
marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 122 n.1, 74 A.3d
1225 (2013).
5
During the pendency of mediation, ‘‘[a] litigation hold is placed on the
case, during which time a mortgagee is prohibited from making any motion,
request or demand of a mortgagor, except as it may relate to the mediation
program; General Statutes § 49-31l (c) (6); and no judgment of strict foreclo-
sure or foreclosure by sale may be rendered against the mortgagor during
the mediation period. General Statutes §§ 49-31l (c) (6) and 49-31n (c) (9).’’
U.S. Bank National Assn. v. Blowers, 332 Conn. 656, 677–78 n.17, 212 A.3d
226 (2019).
6
Ocwen’s motion to substitute suggests that the defendants’ earlier
attempt to obtain revisions regarding the identity of the holder of the note
was more than appropriate.
7
The first special defense asserted unclean hands premised on Nationstar
or intervening holders of the note having knowingly presented false docu-
ments to the court. The second special defense asserted that the defendants
previously had paid off the note in full to a prior holder or Nationstar
had ‘‘received payments sufficient to pay off the entire alleged outstanding
balance.’’ The third special defense asserted that the note was endorsed
with an unauthorized signature. Finally, the fourth special defense alleged
that Nationstar lacked standing to prosecute the foreclosure action.
8
Specifically, the defendants raised the following six arguments: ‘‘(1) The
defendants dispute the amount of the debt and raised a defense. Practice
Book § 23-18 does not apply and a decision that relies on [the affidavit of
debt] is improper. An evidentiary hearing must be held to decide the amount
of the debt.
‘‘(2) The defendants dispute the amount of the debt and the appraised
value of the house and believe that it is undervalued by at least $20,000.
‘‘(3) The [affidavit of debt] is hearsay, it is contradicted by [Wilmington’s]
previous admissions, is otherwise unreliable, and it fails to prove the amount
of the debt.
‘‘(4) The affidavit of attorney’s fees fails to meet any showing of reasonable-
ness and should be thrown out.
‘‘(5) [Wilmington’s] attempt to rush to judgment before the dormancy
dismissal order enters has severed the defendants’ rights to a fair hearing.
‘‘(6) As a matter of equity, the defendants should not be liable, and [Wilmin-
gton] should not experience a windfall for the delay caused by the . . .
multiple substitutions, delays, and failure to diligently prosecute this matter
that has been pending for over seven years. The court should adjust the
amount of the damages accordingly.’’
9
On August 12, 2019, Judge Bruno issued an order directed at the defen-
dants’ opposition to the motion for judgment of strict foreclosure, stating
simply that the opposition was marked ‘‘off’’ and citing to the ‘‘[c]ourt’s
entry of strict foreclosure on July 29, 2019.’’
10
In Bayview Loan Servicing, LLC v. Frimel, supra, 192 Conn. App.
786, the trial court granted the plaintiff mortgagee’s motion for summary
judgment as to liability only and subsequently rendered a judgment of fore-
closure by sale. Id., 791–92. This court reversed the judgment. Id., 788. It
determined, in relevant part, that the trial court had improperly granted
summary judgment solely on the ground that the defendant mortgagor had
not timely filed any opposition to summary judgment. Id., 793. This court
explained: ‘‘[T]he court was required to consider, in the first instance,
whether the plaintiff, as the movant, had satisfied its burden of establishing
its entitlement to summary judgment. If the plaintiff had failed to meet its
initial burden, it would not matter if the defendant had not filed any
response.’’ (Emphasis added.) Id., 795.
11
The defendants, of course, had no obligation to ‘‘establish their special
defenses’’ in opposing summary judgment, but only needed to raise a genuine
issue of material fact with respect to one or more of their defenses.
12
In Blowers, our Supreme Court discussed the standard that courts apply
in evaluating counterclaims and special defenses asserted by defendants in
mortgage foreclosure actions, clarifying that the so-called ‘‘making, validity
or enforcement test’’ that routinely had been applied by lower courts is
‘‘nothing more than a practical application of the standard rules of practice
that apply to all civil actions to the specific context of foreclosure actions.’’
(Internal quotation marks omitted.) U.S. Bank National Assn. v. Blowers,
supra, 332 Conn. 667; see also Practice Book § 10-10. The Supreme Court
specifically held that ‘‘a proper construction of ‘enforcement’ [under that
test] includes allegations of harm resulting from a mortgagee’s wrongful
postorigination conduct in negotiating loan modifications, when such con-
duct is alleged to have materially added to the debt and substantially pre-
vented the mortgagor from curing the default.’’ (Footnote omitted.) U.S.
Bank National Assn. v. Blowers, supra, 667. The court observed that ‘‘appel-
late case law recognizes that conduct occurring after the origination of the
loan, after default, and even after the initiation of the foreclosure action
may form a proper basis for defenses in a foreclosure action.’’ Id., 672. The
court continued: ‘‘[A]llegations that the mortgagee has engaged in conduct
that wrongly and substantially increased the mortgagor’s overall indebted-
ness, caused the mortgagor to incur costs that impeded the mortgagor
from curing the default, or reneged upon modifications are the types of
misconduct that are directly and inseparably connected . . . to enforce-
ment . . . . Such allegations, therefore, provide a legally sufficient basis
for special defenses in [a] foreclosure action.’’ (Citations omitted; internal
quotation marks omitted.) Id., 675–76.
13
We note, on the basis of our review of the record, that Judge Bruno,
who denied the request to amend without comment, never made any findings
that the defendants’ request to amend, which was made prior to the close
of pleadings, was somehow untimely or made solely for the purpose of
delay. Nor did the court indicate that granting the request would have unduly
prejudiced Wilmington.
14
Although the defendants did not file a motion for review of Judge
Spader’s earlier articulation or challenge in their later motion for review
Judge Spader’s authority to articulate decisions rendered by Judge Bruno,
we are aware of no statute or rule of practice that authorizes an articulation
of a trial court’s ruling by anyone other than the judge who rendered it.
Practice Book § 66-5 expressly provides that, upon the filing of a motion
for articulation, ‘‘[t]he appellate clerk shall forward the motion . . . to the
trial judge who decided, or presided over, the subject matter of the motion
. . . for a decision on the motion. . . .’’ (Emphasis added.) We have repeat-
edly stated that a request for articulation is not intended to provide the trial
court with an opportunity to substitute a new decision or to change the
reasoning or basis for a prior decision. See, e.g., Lusa v. Grunberg, 101
Conn. App. 739, 743, 923 A.2d 795 (2007). If a judge other than the one who
rendered a decision is permitted to attempt to divine from its review of the
record the factual and legal basis for a decision, the result, effectively, is a
wholly new decision. Because there is no way to know whether that new
decision was rendered on the same factual and legal basis as the original,
we disavow the procedure followed in this case.
15
In Zaniewski, this court declined to apply any presumption of correct-
ness to the trial court orders issued as part of a judgment of dissolution of
marriage. Like in the present case, the court’s decision in Zaniewski was
‘‘devoid of any factual findings in support of its conclusions.’’ Zaniewski
v. Zaniewski, supra, 190 Conn. App. 397. The appellant in Zaniewski filed
a motion for an articulation but was prevented from obtaining one by the
immediate retirement of the trial judge in that case following the issuance
of his decision. Id., 391. This court reasoned, in part, that an action to
dissolve a marriage is an equitable proceeding and, accordingly ‘‘principles
of equity must guide the entire process, including any appeal.’’ Id., 397. To
the extent that our decision in Zaniewski turned on the equitable nature
of the underlying proceedings, we note that a foreclosure action is also
equitable in nature. See People’s United Bank v. Sarno, 160 Conn. App. 748,
754, 125 A.3d 1065 (2015).
16
Nothing in this opinion should be read as commenting on the merits of
the defendants’ proposed amended pleading.