Wilmington Trust, National Assn. v. N'Guessan ( 2022 )

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WILMINGTON TRUST, NATIONAL ASSOCIATION,
AS TRUSTEE v. VICTOR K.
N’GUESSAN ET AL.
(AC 44964)
Bright, C. J., and Alvord and Alexander, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant N. N filed various special defenses, and subsequently
filed a request for leave to amend his special defenses to add as an
additional special defense that the foreclosure action was barred by the
doctrines of res judicata and/or collateral estoppel, apparently referenc-
ing a 2011 foreclosure action against him involving the same mortgage
and a prior assignee of the mortgage, which was dismissed for failure
to prosecute with due diligence. The trial court granted a motion for
summary judgment as to liability filed by the plaintiff, and rejected each
of N’s special defenses except that it failed to address the special defense
regarding res judicata and collateral estoppel. Thereafter, while a motion
for a judgment of strict foreclosure was pending, the court issued an
order sustaining the plaintiff’s objections to N’s interrogatories and
requests for production. The court rendered judgment of strict foreclo-
sure, from which N appealed to this court. Held:
1. The trial court did not err in granting the plaintiff’s motion for summary
judgment without considering the applicability of the doctrines of res
judicata and collateral estoppel as, based on this court’s plenary review,
neither doctrine precluded the court from concluding that there were
no genuine issues of material fact as to N’s liability: the doctrine of res
judicata was inapplicable as the record indicated that the court in the
2011 foreclosure action dismissed that action and that it had not been
adjudicated on the merits; moreover, the doctrine of collateral estoppel
was inapplicable because, although the same note and mortgage that
were at issue in the 2011 foreclosure action were at issue in this foreclo-
sure action, there was no question that the court was faced with a
different set of events as six years had passed between when the 2011
action was dismissed and the present action was instituted, N made no
payments on the mortgage during those intervening years, submitted
no evidence setting forth any equitable defense for his failure to make
payments, and did not submit any other evidence that was sufficient to
create a genuine issue of material fact as to his liability in the present
action, and, in the absence of such evidence, the court was not obligated
to rely on the trial court’s conclusion, when denying summary judgment
in the 2011 action, that there were sufficient factual questions to warrant
a trial.
2. The trial court did not abuse its discretion by sustaining the plaintiff’s
objections to N’s interrogatories and requests for production: the court
sustained the objections more than one year after rendering summary
judgment, and a review of the record revealed that the discovery sought
by N was not connected to the plaintiff’s motion for summary judgment
and, instead, was related to the issue of determining the final debt that
he owed the plaintiff; moreover, N did not articulate how he was harmed
by the court’s order on his discovery requests and failed to demonstrate
how receiving responses would have assisted him in creating genuine
issues of material fact as to liability.
Argued April 5—officially released August 2, 2022
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district
of Hartford, where the court, Dubay, J., granted the
plaintiff’s motion for summary judgment as to liability
against the named defendant; thereafter, the matter was
tried to the court, M. Taylor, J.; judgment of strict
foreclosure, from which the named defendant appealed
to this court. Affirmed.
Maria K. Tougas, for the appellant (named defen-
dant).
Victoria L. Forcella, for the appellee (plaintiff).
Opinion
ALEXANDER, J. The defendant Victor K. N’Guessan1
appeals from the judgment of strict foreclosure ren-
dered by the trial court in favor of the plaintiff, Wilming-
ton Trust.2 On appeal, the defendant claims that the
court (1) erred in granting the plaintiff’s motion for
summary judgment without considering the applicabil-
ity of the doctrines of res judicata and collateral estop-
pel3 and (2) abused its discretion by sustaining the plain-
tiff’s objections to his interrogatories and requests for
production. We disagree and, accordingly, affirm the
judgment of the court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The defendant is
the owner of real property in Manchester (property).
The plaintiff commenced a foreclosure action against
the defendant on May 4, 2017. In a complaint dated
April 28, 2017, the plaintiff alleged that on October
13, 2005, the defendant had executed and delivered to
Lehman Brothers Bank, FSB, a note in the principal
amount of $124,000, secured by a mortgage on the prop-
erty. The plaintiff further alleged that it became the
holder of the note through a series of assignments and
that the defendant was in default on the note. The plain-
tiff sought a judgment of foreclosure.
On December 12, 2017, the defendant filed his answer
and asserted three special defenses. On the same date,
the defendant filed a notice indicating that he had
served upon the plaintiff ‘‘his first set of interrogatories
and requests for production.’’ On April 10, 2018, the
plaintiff filed objections to these interrogatories and
requests for production. On July 11, 2018, the defendant
filed amended special defenses in which he added a
fourth special defense that the plaintiff miscalculated
the payoff of the mortgage and misapplied or failed to
apply payments the defendant made.
On October 2, 2018, the plaintiff filed a motion for
summary judgment as to liability. On December 14,
2018, the defendant filed an objection to the plaintiff’s
motion. On December 20, 2018, the defendant filed a
request for leave to amend his amended special
defenses. In his proposed second amended list of spe-
cial defenses, he requested to add a fifth special defense,
which stated: ‘‘The subject foreclosure action is barred
by the doctrines of res judicata and/or collateral estop-
pel.’’ The defendant apparently was referencing a previ-
ous foreclosure action against him involving the same
mortgage, which was commenced in February, 2008,
by Aurora Loan Services, LLC (Aurora), a prior assignee
of the mortgage. Aurora filed a motion for summary
judgment in that case, which the court, Aurigemma,
J., denied on July 19, 2011. On December 7, 2015, the
court, Scholl, J., dismissed Aurora’s foreclosure action.4
In the present case, on March 29, 2019, the court,
Dubay, J., granted the plaintiff’s motion for summary
judgment and issued a memorandum of decision. Judge
Dubay concluded that the affidavit of Trey Cook, an
employee of the plaintiff’s loan servicer, established
that the plaintiff was the holder of the note executed
by the defendant, the plaintiff was in possession of the
note prior to the commencement of foreclosure, and the
defendant was in default for failure to make payments in
accordance with the terms of the note and the mortgage.
Judge Dubay further concluded that ‘‘[t]he defendant
ha[d] submitted no evidence to contradict this represen-
tation,’’ and, accordingly, that ‘‘the plaintiff ha[d] estab-
lished a prima facie case in this action.’’ Judge Dubay
rejected each of the defendant’s four special defenses.
He concluded that those special defenses ‘‘ha[d] not
demonstrated the existence of any disputed material
fact.’’ Judge Dubay did not, however, address the fifth
special defense regarding res judicata and collateral
estoppel, which the defendant purported to raise in his
proposed second amended special defenses after the
plaintiff filed its motion for summary judgment. On
April 9, 2019, the defendant filed a motion to reargue/
reconsider, which Judge Dubay denied on April 22,
2019.
On April 29, 2019, the plaintiff filed a motion for a
judgment of strict foreclosure and an affidavit of debt.
On May 6, 2019, the defendant filed an objection to
that motion and to the affidavit of debt. The defendant
requested an evidentiary hearing ‘‘in accordance with
Practice Book § 17-50 as genuine issues exist as to the
damages in this case and there are outstanding discov-
ery responses that the plaintiff has not complied with.’’
Additionally, the defendant claimed ‘‘a right of setoff
against the plaintiff’s debt . . . .’’
On November 12, 2020, while the plaintiff’s motion
for a judgment of strict foreclosure was pending, the
court, M. Taylor, J., issued an order sustaining the
plaintiff’s objections to the defendant’s interrogatories
and requests for production. That order stated:
‘‘Although the questions posed relate to previously filed
pleadings, [Judge Dubay] has apparently ruled that
there are no remaining, operable defenses or counter-
claims. See motion for reconsideration of summary
judgment . . . and other pleadings regarding discov-
ery . . . and the resulting orders by [Judge Dubay].’’
On September 7, 2021, a hearing was held before
Judge Taylor on the plaintiff’s motion for a judgment
of strict foreclosure and the defendant’s objections. On
September 13, 2021, Judge Taylor rendered a judgment
of strict foreclosure in favor of the plaintiff. At the entry
of judgment, Judge Taylor found that the fair market
value of the property was $188,000 and that the debt
owed to the plaintiff was $313,335.73. The law day was
set for November 16, 2021. This appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
I
The defendant first claims that the court erred in
granting the plaintiff’s motion for summary judgment
without considering the applicability of the doctrines
of res judicata and collateral estoppel. Although the
defendant unsuccessfully attempted to add a special
defense asserting that these doctrines apply, his claim
is not that the court abused its discretion in denying
his request to amend his amended special defenses.
Rather, he challenges the court’s failure to specifically
address his arguments of res judicata and collateral
estoppel in his objection to the summary judgment
motion. Although the court did not address these argu-
ments, on the basis of our plenary review, we conclude
as a matter of law that the defendant cannot prevail on
his claims of res judicata and collateral estoppel.
The following procedural history is relevant to this
claim. Aurora commenced a foreclosure action against
the defendant in 2008 and subsequently moved for sum-
mary judgment as to liability. In 2011, the defendant
filed an affidavit (2011 affidavit) and objection to Auro-
ra’s motion for summary judgment. The defendant
claimed that while he was renovating the property,
Aurora illegally gained access to the property, took
possession of the property, and changed the locks so
that he could not access the property. The defendant
argued that Aurora’s actions prevented him from com-
pleting his renovations and from renting the property
to tenants. Judge Aurigemma’s 2011 order denying
Aurora’s motion for summary judgment indicated: ‘‘The
defendant’s affidavit has raised equitable issues con-
cerning [Aurora’s] conduct. Trial is appropriate to
address these issues.’’ The case never went to trial and
the court later dismissed the action. Although the
record before this court does not reveal why the action
was dismissed, the defendant represents that the action
‘‘was dismissed because [Aurora] failed to prosecute
the case with due diligence.’’
In the defendant’s objection to the motion for sum-
mary judgment in the present case, he claimed that
because Judge Aurigemma determined that issues of
material fact existed that prevented the granting of sum-
mary judgment as to liability in the Aurora foreclosure
action, the doctrine of collateral estoppel barred the
plaintiff, as the ‘‘successor mortgagee,’’ from ‘‘relitigat-
ing the same issue of summary judgment on liability in
this case.’’ In the alternative, he claimed that the doc-
trine of res judicata applied because Aurora elected not
to go to trial for the remainder of the time it held the
note ‘‘and the case was ultimately dismissed, which is
considered a final judgment.’’ In the present case, the
defendant attached to his objection an affidavit dated
December 13, 2018 (2018 affidavit), as well as a copy
of the 2011 affidavit from the Aurora foreclosure action.
The 2018 affidavit provided a brief history of the Aurora
foreclosure action and repeats many of the facts alleged
in his 2011 affidavit.
On appeal, the defendant claims that Judge Dubay
erred in not addressing res judicata and collateral estop-
pel when rendering judgment. The defendant advances
the same arguments that he made before the court in
his objection to the plaintiff’s motion for summary judg-
ment. The defendant contends that there were genuine
issues of material fact as to his liability, which the court
had determined in the prior Aurora case, and that the
court in the present case was precluded from reaching
the opposite conclusion when it rendered summary
judgment in favor of the plaintiff. We disagree.
The following legal principles are relevant to this
claim. ‘‘Practice Book § 17-49 provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . . On appeal, we must determine whether
the legal conclusions reached by the trial court are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
of the trial court. . . . Our review of the trial court’s
decision to grant the defendant’s motion for summary
judgment is plenary. . . . Additionally, the applicabil-
ity of res judicata and collateral estoppel presents a
question of law over which we employ plenary review.’’
(Citation omitted; internal quotation marks omitted.)
Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).
‘‘Res judicata, or claim preclusion, express[es] no
more than the fundamental principle that once a matter
has been fully and fairly litigated, and finally decided,
it comes to rest. . . . Generally, for res judicata to
apply, four elements must be met: (1) the judgment
must have been rendered on the merits by a court of
competent jurisdiction; (2) the parties to the prior and
subsequent actions must be the same or in privity; (3)
there must have been an adequate opportunity to litigate
the matter fully; and (4) the same underlying claim must
be at issue.’’ (Citation omitted; internal quotation marks
omitted.) Wheeler v. Beachcroft, LLC, 320 Conn. 146,
156–57, 129 A.3d 677 (2016).
‘‘[C]ollateral estoppel precludes a party from relitigat-
ing issues and facts actually and necessarily determined
in an earlier proceeding between the same parties or
those in privity with them upon a different claim.’’ Dow-
ling v. Finley Associates, Inc., 248 Conn. 364, 373–74,
727 A.2d 1245 (1999). ‘‘For an issue to be subject to
collateral estoppel, it must have been fully and fairly
litigated in the first action. It also must have been actu-
ally decided and the decision must have been necessary
to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered. . . .
‘‘Additionally, [a]pplication of the doctrine of collat-
eral estoppel is neither statutorily nor constitutionally
mandated. The doctrine, rather, is a judicially created
rule of reason that is enforced on public policy grounds.
. . . Accordingly, as we have observed in regard to the
doctrine of res judicata, the decision whether to apply
the doctrine of collateral estoppel in any particular case
should be made based upon a consideration of the doc-
trine’s underlying policies, namely, the interests of the
defendant and of the courts in bringing litigation to a
close . . . and the competing interest of the plaintiff in
the vindication of a just claim. . . . These [underlying]
purposes are generally identified as being (1) to pro-
mote judicial economy by minimizing repetitive litiga-
tion; (2) to prevent inconsistent judgments which
undermine the integrity of the judicial system; and (3)
to provide repose by preventing a person from being
harassed by vexatious litigation. . . . We also have
explained that [c]ourts should be careful that the effect
of the doctrine does not work an injustice. . . . Thus,
[t]he doctrines of preclusion . . . should be flexible
and must give way when their mechanical application
would frustrate other social policies based on values
equally or more important than the convenience
afforded by finality in legal controversies.’’ (Citations
omitted; internal quotation marks omitted.) Lighthouse
Landings, Inc. v. Connecticut Light & Power Co., 300
Conn. 325, 344–45, 15 A.3d 601 (2011).
We first note that, although the defendant has argued
that the doctrine of res judicata barred the plaintiff’s
foreclosure action, that doctrine is inapplicable. There
is nothing in the record indicating that the court in
Aurora’s foreclosure action made a decision on the
merits when it dismissed that action in 2015. In fact,
in his brief to this court, the defendant represents that
the Aurora foreclosure action ‘‘was dismissed because
[Aurora] failed to prosecute the case with due dili-
gence.’’ The plaintiff does not dispute this assertion.
Because Aurora’s action was dismissed for failure to
prosecute and was not adjudicated on the merits, res
judicata did not bar the plaintiff from bringing the pres-
ent action. See Milgrim v. Deluca, 195 Conn. 191, 194–
95, 487 A.2d 522 (1985) (dismissal for failure to prose-
cute pursuant to predecessor to Practice Book § 14-3
‘‘is not an adjudication on the merits that can be treated
as res judicata’’).5
We next turn to the defendant’s argument that the
doctrine of collateral estoppel precluded the court from
granting the plaintiff’s motion for summary judgment.
Although the defendant’s liability was again at issue
when the court considered the plaintiff’s motion for
summary judgment, we are not persuaded that the doc-
trine of collateral estoppel barred the court from render-
ing summary judgment in favor of the plaintiff. In deny-
ing Aurora’s motion for summary judgment in the
Aurora foreclosure action, the court concluded that
there were genuine issues of material fact as to the
defendant’s equitable defenses that required a trial.
When the court granted the plaintiff’s motion for sum-
mary judgment in the present case, however, it neces-
sarily determined that the defendant failed to present
sufficient evidence to create a genuine issue of material
fact as to his equitable defenses to the current action.
‘‘A mortgagee that seeks summary judgment in a fore-
closure action has the evidentiary burden of showing
that there is no genuine issue of material fact as to any
of the prima facie elements, including that it is the
owner of the debt. Appellate courts in this state have
held that the burden is satisfied when the mortgagee
includes in its submissions to the court a sworn affidavit
averring that the mortgagee is the holder of the promis-
sory note in question at the time it commenced the
action. . . . The evidentiary burden of showing the
existence of a disputed material fact then shifts to the
defendant. It is for the maker of the note to rebut the
presumption that a holder of the note is also the owner
of it.’’ (Internal quotation marks omitted.) Wells Fargo
Bank, N.A. v. Strong, 149 Conn. App. 384, 392, 89 A.3d
392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014).
The court relied on Cook’s affidavit to conclude that
there were no genuine issues of material fact as to the
defendant’s liability. The court further concluded that
the defendant submitted ‘‘no evidence’’ to contradict
Cook’s representations in his affidavit. Our plenary
review of the record confirms the court’s assessment
of the evidence before it. The plaintiff commenced the
present action in 2017, six years after the defendant
averred in his 2011 affidavit that Aurora’s actions had
impacted his ability to make mortgage payments. Con-
sequently, the issue in the present case was not whether
the defendant had a defense to the Aurora foreclosure
action, but whether he had a defense to the action
instituted six years later. In response to the plaintiff’s
motion for summary judgment, the defendant did not
provide any information since 2011 linking his failure
to make his mortgage payments to the plaintiff’s con-
duct or the conduct of its predecessor.6 For example,
in his 2018 affidavit, the defendant repeats much of the
information from his 2011 affidavit rather than provid-
ing updates about his continued inability to pay. The
defendant did not submit any other evidence which was
sufficient to create a genuine issue of material fact as
to his liability. In the absence of such evidence, the
court was not obligated to rely on the 2011 denial of
summary judgment which found that there were suffi-
cient factual questions to warrant a trial.
The United States Supreme Court addressed a similar
issue in Commissioner of Internal Revenue v. Sunnen,
333 U.S. 591, 68 S. Ct. 715, 92 L. Ed. 898 (1948). In
Sunnen, the court addressed whether a prior determi-
nation by the Board of Tax Appeals regarding the tax
treatment of royalties paid in certain years precluded
a different result as to the royalties paid during subse-
quent tax years. Id., 596–97. As the court explained:
‘‘[C]ollateral estoppel is a doctrine capable of being
applied so as to avoid an undue disparity in the impact
of income tax liability. A taxpayer may secure a judicial
determination of a particular tax matter, a matter which
may recur without substantial variation for some years
thereafter. But a subsequent modification of the signifi-
cant facts or a change or development in the controlling
legal principles may make that determination obsolete
or erroneous, at least for future purposes. . . . [Collat-
eral estoppel] is designed to prevent repetitious law-
suits over matters which have once been decided and
which have remained substantially static, factually and
legally. It is not meant to create vested rights in deci-
sions that have become obsolete or erroneous with time
. . . .’’ (Citation omitted.) Id., 599.
‘‘Of course, where a question of fact essential to the
judgment is actually litigated and determined in the first
tax proceeding, the parties are bound by that determina-
tion in a subsequent proceeding even though the cause
of action is different. . . . And if the very same facts
and no others are involved in the second case, a case
relating to a different tax year, the prior judgment will
be conclusive as to the same legal issues which appear,
assuming no intervening doctrinal change. But if the
relevant facts in the two cases are separable, even
though they be similar or identical, collateral estoppel
does not govern the legal issues which recur in the
second case. Thus the second proceeding may involve
an instrument or transaction identical with, but in a
form separable from, the one dealt with in the first
proceeding. In that situation, a court is free in the
second proceeding to make an independent examina-
tion of the legal matters at issue. . . . Before a party
can invoke the collateral estoppel doctrine in these cir-
cumstances, the legal matter raised in the second pro-
ceeding must involve the same set of events or docu-
ments and the same bundle of legal principles that
contributed to the rendering of the first judgment.’’
(Citations omitted; emphasis added; footnote omitted.)
Id., 601–602.
In the present case, although the same note and mort-
gage that were at issue in the Aurora case are at issue
in this case, there is no question that the court in the
present case was faced with a different set of events.
Six years passed between when the Aurora case was
dismissed and the present action was instituted. Never-
theless, it is undisputed that the defendant made no
payments on the mortgage during those intervening
years. At the same time, the defendant submitted no
evidence with his objection to the plaintiff’s motion for
summary judgment setting forth any equitable defense
for his failure to make payments during those six years.
Consequently, he cannot rely solely on the Aurora
court’s conclusion that there was a genuine issue of
material fact in 2011 as binding the court in the present
action to conclude that such an issue of fact still exists.
On the basis of our plenary review of the defendant’s
claim, we conclude that neither the doctrine of res
judicata nor the doctrine of collateral estoppel pre-
cluded the court from concluding that there were no
genuine issues of material fact as to the defendant’s
liability.
II
The defendant next claims that the court abused its
discretion by sustaining the plaintiff’s objections to his
interrogatories and requests for production. We dis-
agree.
We begin by setting forth the standard of review and
legal principles applicable to this claim. Our Supreme
Court has ‘‘long recognized that the granting or denial
of a discovery request rests in the sound discretion of
the [trial] court, and is subject to reversal only if such
an order constitutes an abuse of that discretion. . . .
[I]t is only in rare instances that the trial court’s decision
will be disturbed. . . . Therefore, we must discern
whether the court could [have] reasonably conclude[d]
as it did.’’ (Internal quotation marks omitted.) Blumen-
thal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d
1088 (2003).
In the present case, Judge Dubay did not rule on the
plaintiff’s objections to the defendant’s interrogatories
and requests for production prior to granting the plain-
tiff’s motion for summary judgment. Rather, Judge Tay-
lor sustained the plaintiff’s objections on November
12, 2020, more than one year after Judge Dubay had
rendered summary judgment. Our review of the record
reveals that the discovery sought by the defendant was
not connected to the plaintiff’s motion for summary
judgment. In his objection to the motion for summary
judgment, the defendant did not claim any issues
regarding discovery, nor did he raise any arguments
related to the plaintiff’s objections to his discovery
requests. At no point did he request that the court post-
pone its decision on the plaintiff’s motion for summary
judgment so that he could conduct additional discovery.
Instead, the defendant’s discovery requests related to
the issue of determining the final debt that he owed
the plaintiff.
Furthermore, on appeal to this court, the defendant
does not articulate how he was harmed by the court’s
order on his discovery requests. He has failed to demon-
strate how receiving responses to these requests would
have assisted him in creating genuine issues of material
fact as to liability. See Shaw v. Freeman, 134 Conn.
App. 76, 89, 38 A.3d 1231 (2012) (no abuse of discretion
in sustaining objections to discovery requests where
party failed to demonstrate how responses to requests
would have assisted in prosecuting party’s claims or
that discovery sought would have created genuine issue
of material fact). Instead, he broadly argues that the
court’s ‘‘denial . . . of the most basic of fundamental
rights to engage in any discovery in a civil action prior
to the entry of a final judgment’’ constituted an abuse
of discretion. Simply put, the defendant has failed to
demonstrate how these responses might have kept the
court from rendering a judgment of strict foreclosure.
See Finan v. Finan, 107 Conn. App. 369, 379, 945 A.2d
476 (2008) (‘‘[i]n the absence of a showing that the
[excluded] evidence would have affected the final
result, its exclusion is harmless’’ (internal quotation
marks omitted)). Accordingly, we conclude that the
defendant has failed to establish that the court abused
its discretion in sustaining the plaintiff’s objections to
his discovery requests.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
The other defendant named in the plaintiff’s complaint, Mortgage Elec-
tronic Registration Systems, Inc., did not participate in this appeal. Accord-
ingly, we refer to N’Guessan as the defendant.
2
The plaintiff’s full name is Wilmington Trust, National Association Not
in Its Individual Capacity but Solely as Successor Trustee to Citibank, N.A.
as Trustee to Lehmans XS Trust Mortgage Pass-Through Certificates, Series
2005-8.
3
The defendant also sought to add a four count counterclaim when he
filed his motion to amend his answer and special defenses. The four counts
alleged vexatious litigation, abuse of process, negligence, and violation of
the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et
seq., on the part of the plaintiff. The plaintiff objected to the defendant’s
attempt to add this counterclaim. The court, Dubay, J., did not rule on
the plaintiff’s objection prior to rendering summary judgment. Rather, in a
subsequent order, the court, M. Taylor, J., stated that Judge Dubay ‘‘ha[d]
apparently ruled that there [were] no remaining, operable defenses or coun-
terclaims.’’ The defendant has not briefed any claims with respect to his
counterclaim and, thus, we deem any issues related to the court’s disposition
of the counterclaim to be abandoned on appeal.
4
Additional information about the foreclosure action commenced by
Aurora will be provided in part I of this opinion.
5
Additionally, at oral argument, this court inquired about which judgment
served as the basis for the defendant’s res judicata argument. The defendant
did not directly answer the court’s question. Rather, the defendant’s counsel
stated that his arguments regarding res judicata were ‘‘not as strong’’ as his
arguments regarding collateral estoppel.
6
A review of the record indicates that the defendant has not made any
mortgage payments since filing the 2011 affidavit.