Bank of New York Mellon, Trustee v. Mauro , 177 Conn. App. 295 ( 2017 )

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THE BANK OF NEW YORK MELLON, TRUSTEE
v. JEFFREY J. MAURO ET AL.
(AC 38970)
Lavine, Sheldon and Harper, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain of the defen-
dants’ real property. The trial court referred the parties to the foreclosure
mediation program, and the mediator issued a final report indicating
that the defendants did not appear for a scheduled mediation, and
that time had expired. The mediator referred the matter for further
proceedings back to the trial court, which granted in part the plaintiff’s
motion to strike the defendants’ special defenses and counterclaims. In
August, 2015, the defendants filed their operative five count counter-
claim, which reasserted claims for negligent, reckless and intentional
misrepresentation, as well as claims for violations of the Connecticut
Unfair Trade Practices Act (§ 42-110a et seq.) and the federal Truth in
Lending Act (15 U.S.C. § 1601 et seq.). Subsequently, the court granted
the plaintiff’s motion for summary judgment as to liability on the com-
plaint, and as to the five counterclaims. In addressing the motion for
summary judgment as to the counterclaims, the court ruled that the
counterclaims failed as a matter of law because they pertained to the
plaintiff’s conduct during mediation, which occurred years after the
execution of the mortgage and the defendants’ default. The court also
concluded that the counterclaims that pertained to the conduct of A
Co., the plaintiff’s predecessor in interest to the note and mortgage,
were directed at the wrong party and were barred by the applicable
statutes of limitations. Thereafter, the defendants appealed to this court,
which dismissed the appeal in part. Subsequently, the trial court granted
the plaintiff’s motion for a judgment of strict foreclosure and rendered
judgment thereon, and the defendants filed an amended appeal. Held:
1. The trial court did not err in granting the plaintiff’s motion for a judgment
of strict foreclosure with respect to the property on the basis of its
determination that there were no genuine issues of material fact and
that the plaintiff was entitled to summary judgment as a matter of law
as to liability on its foreclosure complaint: at the time of the granting
of the plaintiff’s motion for summary judgment, the trial court found
that the plaintiff had established a prima facie case for foreclosure,
the defendants’ operative pleading contained no special defenses to
foreclosure, and the defendants’ affidavits in opposition to the plaintiff’s
motion for summary judgment failed to create a genuine issue of material
fact as to any of the essential elements of the plaintiff’s prima facie
case, namely, whether the plaintiff was the holder of the note, the
defendants defaulted on the loan, or the plaintiff had satisfied the neces-
sary preconditions to foreclosure; moreover, the defendants’ claim that
a genuine issue of material fact existed as to whether their counterclaims
had a reasonable nexus to the making, validity or enforcement of the
mortgage and note was unavailing, as the validity or invalidity of the
counterclaims was irrelevant to whether the plaintiff was entitled to
prevail in its primary action and, thus, to have summary judgment ren-
dered in its favor in that action.
2. The trial court properly rendered judgment in favor of the plaintiff on all
five counts of the defendants’ operative counterclaim: that court prop-
erly concluded that, to the extent that the defendants’ counterclaims
were based on alleged misdealings with the defendants by the plaintiff’s
predecessor, A Co., which was not a party to this foreclosure action,
those counterclaims failed as a matter of law because there was no
evidence of record that the plaintiff expressly assumed the liabilities of
A Co. when it took the mortgage from A Co. by assignment, and, with
respect to the counterclaims that pertained to the plaintiff’s conduct
during the mediation that occurred years after the execution of the
mortgage and the defendants’ default, the trial court did not abuse its
discretion in determining that those counterclaims failed the transaction
test of the applicable rule of practice (§ 10-10), as they did not have a
reasonable nexus to the making, validity and enforcement of the mort-
gage and note; moreover, because the plaintiff’s motion for summary
judgment expressly sought the dismissal of the defendants’ counter-
claims on that ground, and both parties analyzed that portion of the
plaintiff’s motion for summary judgment as a motion to strike the defen-
dants’ counterclaims, this court treated the portion of the plaintiff’s
motion for summary judgment that sought the dismissal of the counter-
claims for improper joinder as a properly presented motion to strike,
the trial court’s judgment in favor of the plaintiff on the defendants’
counterclaims had to be construed as a final judgment of dismissal for
improper joinder, rather than a final judgment on the merits of the
defendants’ substantive claims, and it was proper for the plaintiff to
use a motion for summary judgment as a means of testing whether the
counterclaims satisfied the transaction test of § 10-10.
Argued May 23—officially released October 17, 2017
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Middlesex, where the named defendant et al.
filed a counterclaim and special defenses; thereafter,
the court, Domnarski, J., granted in part the plaintiff’s
motion to strike the counterclaim and special defenses;
subsequently, the court, Aurigemma, J., granted the
plaintiff’s motion for summary judgment as to liability
on the complaint and as to the counterclaim, and the
named defendant et al. appealed to this court; there-
after, this court dismissed the appeal in part; subse-
quently, the court, Aurigemma, J., granted the
plaintiff’s motion for a judgment of strict foreclosure
and rendered judgment thereon, and the named defen-
dant et al. filed an amended appeal. Affirmed.
Kenneth A. Votre, for the appellants (named defen-
dant et al.).
Zachary Grendi, with whom, on the brief, was
Pierre-Yves Kolakowski, for the appellee (plaintiff).
Opinion
SHELDON, J. In this mortgage foreclosure action,
the defendants,1 Jeffrey J. Mauro and Renee A. Mauro,
appeal from the judgment rendered by the trial court,
Aurigemma, J., in favor of the plaintiff, The Bank of
New York Mellon,2 on: the plaintiff’s claim for strict
foreclosure as to the defendants’ mortgaged property
in Killingworth, Connecticut; and the defendants’ coun-
terclaims against the plaintiff, seeking damages and
equitable relief based upon alleged misrepresentations
to them and other alleged misdealings with them con-
cerning the note and mortgage here at issue, both by the
plaintiff and by the original lender, America’s Wholesale
Lender (AWL), which was the plaintiff’s predecessor in
interest to the note and mortgage. As to the plaintiff’s
claim for strict foreclosure, the defendants argue that
the court erred in basing its judgment for the plaintiff
upon its prior, erroneous decision rendering summary
judgment for the plaintiff as to the defendants’ liability
for foreclosure in this action, assertedly without suffi-
cient evidence to establish the absence of any genuine
issues of material fact on that issue. As to their counter-
claims against the plaintiff, the defendants argue that,
to the extent that such counterclaims are based upon
the plaintiff’s own alleged misdealings with them rather
than those of AWL, the court erred in rendering sum-
mary judgment for the plaintiff by: (1) ruling that such
counterclaims, so narrowed, were not properly pleaded
in this action because they have no reasonable nexus
to the making, validity, or enforcement of the subject
note and mortgage; (2) ruling that one such counter-
claim was barred by the applicable statute of limita-
tions; and (3) failing to follow the prior ruling of a
different judicial authority, in partially denying a motion
to strike, that certain such counterclaims were legally
sufficient to state claims upon which relief could be
granted. We disagree with the defendants on each of
their claims, and thus affirm the judgment of the trial
court in its entirety.
The record reveals the following facts and procedural
history. On November 29, 2006, Jeffrey Mauro executed
an ‘‘interest only fixed rate’’ note in favor of AWL, in
the principal amount of $350,000. To secure that note,
the defendants executed an open-ended mortgage in
favor of Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for AWL, on their property located
at 330 Roast Meat Hill Road in Killingworth. Under the
terms of the note, Jeffrey Mauro was obligated to make
monthly payments of $1968.75 for the first ten years of
the loan, and increased monthly payments of $2661.27
thereafter, until his entire indebtedness under the note
was paid in full.
Jeffrey Mauro received a notice of default, dated Sep-
tember 16, 2009, advising him that, as of September 16,
2009, he had missed several months of payments on
the note, totaling $5769.17. He was instructed in the
notice to cure the default by October 16, 2009, and
informed that if he failed to do so, his obligation to
make payments of principal, interest, costs and fees
required under the note would be accelerated and fore-
closure proceedings would be brought against him as
to the mortgaged property. Ultimately, Jeffrey Mauro
was unable to cure the default by the date specified in
the notice of default.
On July 25, 2011, AWL, as the holder of the note,
endorsed the note in blank and transferred physical
possession of it to the plaintiff. Concurrently with this
transfer, MERS, as nominee for AWL, executed an
assignment of the mortgage in favor of the plaintiff.
Accordingly, by August, 2011, the plaintiff was both the
holder of the note and the assignee of the mortgage.
On June 24, 2013, the plaintiff commenced this action
by serving the defendants with legal process returnable
to the Superior Court for the judicial district of Middle-
sex.3 In its complaint, the plaintiff sought foreclosure of
the mortgage, immediate possession of the mortgaged
property, and reasonable attorney’s fees and costs. By
that time, the total remaining principal balance on the
note was approximately $348,685.68, and Jeffrey
Mauro’s total indebtedness to the plaintiff thereunder,
which also included unpaid interest, late charges and
costs, was greater. Thereafter, on July 22, 2013, Jeffrey
Mauro submitted to the plaintiff a request for foreclo-
sure mediation pursuant to General Statutes §§ 49-31k
through 49-31o. That request was granted by the court
on July 26, 2013, after which a foreclosure mediation
was conducted during the months of August and Octo-
ber, 2013. On November 22, 2013, the foreclosure media-
tor filed a final report with the court, in which she noted
that the ‘‘defendant4 did not appear for the [October
11, 2013] mediation, and time has expired.’’ (Footnote
added.) Accordingly, the mediator referred the matter
back to the court for further proceedings.
On January 21, 2014, the defendants filed their answer
to the plaintiff’s complaint, along with seven special
defenses and five counterclaims. The special defenses
and counterclaims were later amended on December
2, 2014. In their amended pleading, the defendants
asserted four special defenses to the plaintiff’s claim for
foreclosure, specifically: that AWL had ‘‘misrepresented
the terms of the loan’’; that the plaintiff itself had ‘‘failed
to act in good faith during the [foreclosure] mediation’’;
that AWL had violated state and federal law by ‘‘failing
to comply with specific disclosure requirements’’ during
the loan initiation process; and that the mortgage, as
originally negotiated by AWL, was the product of fraud,
misrepresentations and violations of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq., therefore barring the plaintiff from
foreclosing on the property. In their six counterclaims,
the defendants asserted claims for breach of contract,
negligent misrepresentation, reckless misrepresenta-
tion, intentional misrepresentation, violation of CUTPA
and violation of the Truth in Lending Act (TILA), 15
U.S.C. § 1601 et seq.
On December 17, 2014, the plaintiff filed a motion to
strike the defendants’ special defenses and counter-
claims, which the trial court, Domnarski, J., granted
in part and denied in part on April 17, 2015. In striking
each of the defendants’ four special defenses, the court
ruled that such special defenses were improper because
they were predicated upon the conduct of a nonparty,
AWL, and/or they were not related to the making, valid-
ity or enforcement of the note or mortgage. In striking
counts one, five and six of the defendants’ counter-
claims, the court ruled that: (1) the first counterclaim,
alleging breach of contract, failed to allege the existence
of a written agreement between the parties, and thus
was barred by the statute of frauds; (2) the fifth counter-
claim, alleging a violation of CUTPA, was based solely
upon alleged misdealings with the defendants by a non-
party, AWL, for which the plaintiff could not be held
liable without expressly assuming such liability; and (3)
the sixth counterclaim, alleging a violation of TILA, had
been pleaded improperly without the court’s permis-
sion. The court denied the plaintiff’s motion to strike,
however, as to the defendants’ second, third and fourth
counterclaims, which alleged, respectively, negligent,
reckless and intentional misrepresentation by both
AWL and the plaintiff. In denying the motion to strike
as to those counterclaims, the court held that, although
the plaintiff could not be held liable for AWL’s alleged
misdealings with the defendants unless the plaintiff
expressly assumed such liability, which had not been
alleged, the challenged counterclaims also contained
allegations that the plaintiff itself had made material
misrepresentations to the defendants during the fore-
closure mediation, which allegations stated claims upon
which relief could be granted. Notably, the plaintiff did
not challenge the defendants’ amended counterclaims,
as it had challenged their amended special defenses, on
the ground that they were improperly pleaded because
they were not related to the making, validity or enforce-
ment of the note or mortgage.
On August 14, 2015, the defendants submitted a
request for leave to file yet another amended counter-
claim, along with their now operative, five count coun-
terclaim. In the first three counts of their operative
counterclaim, the defendants reasserted claims against
the plaintiff of negligent, reckless and intentional mis-
representation based upon: AWL’s alleged misrepresen-
tations to them concerning the terms of the loan, the
interest rate on the loan, and their right to rescind the
loan; and the plaintiff’s own, allegedly deceitful conduct
toward them during the foreclosure mediation, more
particularly, giving them multiple false assurances that
the terms of the note would be modified to avoid fore-
closure on the property, when the plaintiff had no inten-
tion to agree to such modifications. In the fourth count
of the operative counterclaim, the defendants alleged
that the plaintiff had violated CUTPA during the foreclo-
sure mediation by making material misrepresentations
of fact as to the status of the loan and ‘‘wrongfully
[beginning] foreclosure proceedings against [them] by
misapplying and miscrediting [their] payments, creating
a default in the loan in order to proceed with the foreclo-
sure.’’ Finally, in the fifth count of the operative counter-
claim, the defendants alleged that the plaintiff was liable
to them under TILA, because: at the time of the loan’s
execution, AWL had misrepresented to them both the
terms of the loan and the suitability of the loan for
them; and later, during the foreclosure mediation, the
plaintiff itself had failed to provide them ‘‘with an accu-
rate and truthful rate of calculation for their mortgage.’’
Thereafter, on October 7, 2015, the plaintiff filed its
answer and special defenses to the defendants’ opera-
tive counterclaim. The plaintiff asserted in that pleading
that, to the extent that the defendants’ counterclaims
were based upon alleged misdealings with them by a
nonparty, AWL, the plaintiff was not liable for such
misdealings and, in the alternative, because any such
misdealings had occurred in 2006, those portions of the
counterclaims were barred by applicable statutes of
limitations. Lastly, the plaintiff asserted that, to the
extent that the defendants’ counterclaims were based
upon the plaintiff’s own alleged misdealings with them
during the 2013 foreclosure mediation, those claims
were ‘‘not sufficiently related to the making, validity or
enforcement of the note and mortgage’’ to permit their
assertion as counterclaims in this action.
The following month, the plaintiff filed a motion for
summary judgment. In support of its motion, insofar
as it sought summary judgment on the issue of the
defendants’ liability for foreclosure, the plaintiff
asserted that it had established a prima facie case for
foreclosure by showing that there was no genuine issue
of material fact: that the plaintiff was the holder of
the note; that the defendants had defaulted under the
express terms of the note; and that the plaintiff had
satisfied ‘‘any conditions precedent to foreclosure, as
established by the note and mortgage . . . .’’ Insofar
as the plaintiff sought summary judgment on the defen-
dants’ operative counterclaims, the plaintiff argued that
‘‘the defendants’ counterclaims should be dismissed
with prejudice because they are . . . time barred,
relate to conduct by other parties for which [the] plain-
tiff is not responsible, or are unrelated to the making,
validity or enforcement of the note and mortgage.’’ On
the final ground of unrelatedness to the making, validity
or enforcement of the note and mortgage, the plaintiff
argued that the defendants’ counterclaims should be
dismissed because they ‘‘all . . . fail the ‘transaction
test’ propounded in Practice Book § 10-10 and . . .
[the] defendants would not benefit from an opportunity
to replead their counterclaims yet again, which they
have already done four times previously.’’ (Emphasis
omitted.)
In opposition to the motion for summary judgment,
the defendants argued, inter alia, that summary judg-
ment was improper because: (1) in partially denying
the plaintiff’s earlier motion to strike, Judge Domnarski
had established, as the law of the case, that the defen-
dants’ counterclaims for negligent, reckless and inten-
tional misrepresentation were legally sufficient to state
claims upon which relief could be granted; (2) there
was a genuine issue of material fact as to whether the
defendants’ counterclaims had a reasonable nexus to
the making, validity or enforcement of the mortgage
and note; and (3) the defendants’ counterclaim under
TILA was not time barred because it was not based
upon the initial execution of the mortgage by AWL, but
instead upon the plaintiff’s deceptive conduct during
the 2013 foreclosure mediation, which had taken place
less than three years before this action was com-
menced.5
On February 19, 2016, the court issued its memoran-
dum of decision, rendering summary judgment in favor
of the plaintiff both as to the defendants’ liability for
foreclosure in this action and on the defendants’ opera-
tive counterclaims. In its decision, the court held that
the plaintiff had established a prima facie case as to its
foreclosure claim, which the defendants had ‘‘presented
no evidence to rebut.’’ Thereafter, in addressing the
plaintiff’s motion for summary judgment as to the defen-
dants’ counterclaims, the court noted that, ‘‘[o]ther than
conduct that occurred prior to the time the note and
mortgage were executed, the allegations in the counter-
claims complain about the plaintiff’s conduct which
occurred in postdefault mortgage modification negotia-
tions.’’ The court thus concluded that the challenged
counterclaims were ‘‘virtually indistinguishable’’ from
those ruled improper in U.S. Bank National Assn. v.
Sorrentino, 158 Conn. App. 84, 95–96, 118 A.3d 607,
cert. denied, 319 Conn. 951, 125 A.3d 530 (2015),
because here, as in Sorrentino, the challenged counter-
claims ‘‘pertain[ed] to the plaintiff’s conduct during
mediation, which occurred years after the execution of
the mortgage and the defendants’ default.’’ The court
thus ruled that ‘‘[the defendants’] counterclaims all fail
as a matter of law. The counterclaims which pertain to
the plaintiff’s conduct which allegedly occurred during
the postdefault mediation process cannot [survive]
under Sorrentino . . . . The counterclaims which per-
tain to the conduct of the plaintiff’s predecessor are
directed at the wrong party and are barred by the appli-
cable statutes of limitations . . . . For the foregoing
reasons, summary judgment enters in favor of the plain-
tiff as to liability only and judgment enters in favor of
the plaintiff on the defendants’ counterclaims.’’
Thereafter, on April 7, 2016, the plaintiff filed a
motion for judgment of strict foreclosure. On April 25,
2016, the court entered a judgment of strict foreclosure,
awarding the plaintiff $572,331.79, a sum representing
the entire remaining unpaid principal balance on the
loan, plus accrued interest, late charges, and reasonable
attorney’s fees. The court then designated May 31, 2016,
as the applicable law day. The defendants subsequently
filed the present appeal.6 Additional facts will be set
forth as necessary.
I
The defendants’ first claim on appeal is that the court
erred in granting the plaintiff’s motion for strict foreclo-
sure with respect to the property. More specifically, the
defendants assert that the court erred in basing its ruling
on that motion upon the prior granting of the plaintiff’s
motion for summary judgment on the issue of their
liability for foreclosure, because there assertedly were
genuine issues of material fact on that issue that should
have precluded the court from rendering summary judg-
ment thereon. We are not persuaded.
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. The courts are in entire agreement that
the moving party for summary judgment has the burden
of showing the absence of any genuine issue as to all
material facts, which, under applicable principles of
substantive law, entitle him to judgment as a matter of
law. . . . Because the burden of proof is on the mov-
ant, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . .
‘‘Of course, [o]nce the moving party has met its bur-
den [of production] . . . the opposing party [to survive
summary judgment] must present evidence that demon-
strates the existence of some disputed factual issue.’’
(Citations omitted; internal quotation marks omitted.)
Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902
(2010). It is well settled that ‘‘a court may properly grant
summary judgment as to liability in a foreclosure action
if the complaint and supporting affidavits establish an
undisputed prima facie case and the defendant fails to
assert any legally sufficient special defense.’’ GMAC
Mortgage, LLC v. Ford, 144 Conn. App. 165, 176, 73
A.3d 742 (2013).
As discussed in the preceding paragraphs, the court,
Domnarski, J., had previously granted the plaintiff’s
motion to strike the defendants’ four special defenses
to the plaintiff’s foreclosure action. Neither those nor
any other special defenses to the plaintiff’s foreclosure
claim were ever repleaded thereafter. Thus, at the time
the court, Aurigemma, J., rendered summary judgment
in favor of the plaintiff on the issue of the defendants’
liability, the defendants’ operative pleading contained
no special defenses to foreclosure, but only the opera-
tive counterclaims described in the preceding para-
graphs. In granting the plaintiff’s motion for summary
judgment as to the defendants’ liability for foreclosure,
the court held that the plaintiff had established a prima
facie case for foreclosure because it had presented doc-
umentary evidence and affidavits establishing that: (1)
the plaintiff was in physical possession of the note prior
to filing the present action; (2) the defendants had
defaulted on their loan by 2009; and (3) the plaintiff had
satisfied all necessary conditions to seek foreclosure
under the terms of the note by timely mailing the defen-
dants the notice of default. The court further noted that
the defendants had failed to put forth any evidence
creating a genuine issue of material fact as to any such
essential element, and held that the allegations in the
defendants’ counterclaims ‘‘[were] not proper grounds
for a defense to a foreclosure action.’’
The defendants now assert that their affidavits in
opposition to the plaintiff’s motion for summary judg-
ment created a genuine issue of material fact that should
have precluded the court from rendering summary judg-
ment in favor of the plaintiff in the primary foreclosure
action. More specifically, the defendants point to the
following assertions within their affidavits: (1) ‘‘[We]
elected not to seek other financing or to seek family
assistance to resolve [our] loan situation because [we]
believed [that] the [plaintiff] would do what [it] told
[us it] would do, and reinstate [our] loan’’; (2) ‘‘the
[plaintiff] promised to modify our mortgage, and then
failed to do so after we had provided all the requested
information, which directly resulted in this foreclosure
action’’; and (3) ‘‘in addition, the [plaintiff] wrongfully
began foreclosure proceedings against [us] by misap-
plying and miscrediting our payments, which wrong-
fully . . . created a default in the loan in order to
proceed with the foreclosure.’’
The contents of those affidavits, however, do not
create a genuine issue as to any of the essential elements
of the plaintiff’s prima facie case, namely, whether it
was the holder of the note, the defendants defaulted
on the loan, or the plaintiff satisfied the necessary pre-
conditions to foreclosure. Nor do such allegations sup-
port any special defense to foreclosure for, as
previously noted, no such special defense was then
pending. Instead, the contents of the defendants’ affida-
vits provide—at most—factual support for their coun-
terclaims against the plaintiff for misrepresentation,
fraud, and violations of CUTPA and TILA. Curiously, the
defendants attempt to overcome this fatal deficiency
by arguing that there is ‘‘a genuine issue of material
fact . . . as to whether [their] counterclaims have a
reasonable nexus to the making, validity, or enforce-
ment of the mortgage and note’’ and, on that ground,
they claim that the court erred in granting the plaintiff’s
motion for summary judgment as to their liability for
foreclosure and its subsequent motion for a judgment
of strict foreclosure.
The validity or invalidity of a counterclaim, how-
ever—either substantively, as a claim upon which relief
can be granted on its merits, or procedurally, as a claim
that can properly be brought as a counterclaim in the
context of the plaintiff’s primary action—is completely
irrelevant to whether the plaintiff is entitled to prevail in
its primary action, and thus to have summary judgment
rendered in its favor in that action. See 49 C.J.S. 357,
Judgments § 304 (2009) (‘‘The mere assertion of coun-
terclaims does not prevent the granting of summary
judgment on the complaint when the counterclaims
are sufficiently separable from the plaintiff’s causes of
action. Likewise, the mere assertion of . . . a counter-
claim that does not itself meet the criteria for summary
judgment . . . will not preclude summary judgment on
the complaint.’’ [Footnotes omitted.]). In the absence
of evidence demonstrating the existence of a genuine
issue of material fact as to any essential element of the
plaintiff’s prima facie case; GMAC Mortgage, LLC v.
Ford, supra, 144 Conn. App. 176; or, in the alternative,
as to any recognized special defense—and here there
is none—the defendants’ claim of error as to the grant-
ing of the plaintiff’s motion for summary judgment on
the issue of their liability for foreclosure is completely
devoid of merit, and must therefore be rejected. Cf.
Haaser v. A. C. Lehmann Co., 130 Conn. 219, 220, 33
A.2d 135 (1943) (‘‘a defense to the complaint cannot
be supplied by the affirmative allegations of a cross-
complaint’’), citing Erwin M. Jennings Co. v. DiGen-
ova, 107 Conn. 491, 495, 141 A. 866 (1928) (a defense
to an action should be pleaded as a special defense,
not as a counterclaim or a cross complaint).
II
The defendants’ final claim is that the trial court erred
in rendering judgment in favor of the plaintiff on all five
counts of their operative counterclaim. With respect to
counts one, two and three of the operative counter-
claim, sounding, respectively, in negligent, reckless and
intentional misrepresentation, the defendants argue
that the court misinterpreted and misapplied the Sor-
rentino case, and thus abused its discretion in holding
that those claims failed the transaction test of Practice
Book § 10-10. Moreover, although they concede that ‘‘a
mortgagor is precluded from bringing counterclaims
against an assignee of a note and mortgage if such
assignee has not expressly assumed the liabilities of
the original assignor,’’ they argue, in the alternative,
that Judge Aurigemma erred in rendering judgment for
the plaintiff on those three counterclaims in light of
Judge Domnarski’s previous ruling that the allegations
of those counterclaims for misrepresentation were
legally sufficient to survive the plaintiff’s motion to
strike. (Internal quotation marks omitted.) Lastly, with
respect to count five of their operative counterclaim,
alleging a violation of TILA, the defendants argue that
the court improperly concluded that the claim therein
pleaded was barred by the statute of limitations.
The plaintiff disagrees, contending that the court
properly rendered judgment in its favor on all of the
defendants’ counterclaims. In support of its position,
the plaintiff first distinguishes between those allega-
tions in the counterclaims that are based upon AWL’s
alleged misdealings with the defendants at or before
the time that the note was executed, and those allega-
tions that are based upon the plaintiff’s own alleged
misdealings with the defendants during the foreclosure
mediation several years later. To the extent that such
counterclaims are based upon AWL’s alleged misdeal-
ings with the defendants, the plaintiff argues that the
trial court properly held that those claims fail as a
matter of law because they are based upon the conduct
of a nonparty, for which it could not be held liable
without expressly assuming such liability, and, in the
alternative, that such claims are barred by applicable
statutes of limitations. To the extent that such claims
are based upon allegations of the plaintiff’s own alleged
misdealings with the defendants during the foreclosure
mediation, the plaintiff argues, under Sorrentino, that
the court correctly held that such claims must be dis-
missed because they have no reasonable nexus to the
making, validity or enforcement of the note, and thus
they were not properly pleaded as counterclaims in
this action.
We agree with the trial court that, to the extent that
the defendants’ counterclaims are based upon alleged
misdealings with the defendants by AWL, a nonparty
to this foreclosure action, those counterclaims all fail
as a matter of law because there is no evidence of
record that the plaintiff expressly assumed the liabilities
of the original lender, AWL, when it took the mortgage
from AWL by assignment. Hartford v. McKeever, 314
Conn. 255, 258–59, 101 A.3d 229 (2014); Bank of
America, N.A. v. Aubut, 167 Conn. App. 347, 370, 143
A.3d 638 (2016). The defendants do not claim to the
contrary. Instead, in their reply brief, they narrow their
challenge to the trial court’s rendering of summary judg-
ment for the plaintiff on their counterclaims to those
portions of the counterclaims that are based upon the
plaintiff’s own alleged misdealings with the defendants
during the foreclosure mediation. In light of this nar-
rowing of the defendants’ challenge, we need not
address the court’s alternative basis for rendering sum-
mary judgment in favor of the plaintiff on those parts
of the defendants’ counterclaims that were based upon
alleged misdealings with them by AWL, more particu-
larly, the plaintiff’s challenges to such claims under
applicable statutes of limitations.7 See Gold v. Rowland,
325 Conn. 146, 150 n.1, 156 A.3d 477 (2017).
Accordingly, the only remaining issue to be decided
is whether the court properly held that the allegations
of the defendants’ counterclaims, to the extent they are
based upon the plaintiff’s own alleged misdealings with
the defendants during the foreclosure mediation, failed
the transaction test of Practice Book § 10-10. In so
doing, we address this claim solely on its merits,
rejecting the defendants’ alternative law of the case
claim because we conclude such claim is unavailing
both in fact and in law.8 For the following reasons, we
conclude that the court properly determined that such
counterclaims did not satisfy the transaction test of
§ 10-10, and thus that they were properly dismissed
from this action. We further conclude that, in granting
the plaintiff’s motion for summary judgment seeking,
inter alia, the dismissal of such counterclaims, the
court’s ‘‘judgment . . . in favor of the plaintiff on the
defendants’ counterclaims’’ must be construed as a final
judgment of dismissal for improper joinder, rather than
a final judgment on the merits of the defendants’ sub-
stantive claims.9
As a preliminary matter, we note that our standard
of review depends on the nature of the court’s ruling,
and therefore we must characterize properly the nature
of the court’s judgment on the defendants’ counter-
claims before reaching the merits of the defendants’
claims on appeal. ‘‘We begin with certain basic princi-
ples that distinguish the procedural devices of a motion
for summary judgment and a motion to strike. 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 decid-
ing a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under appli-
cable principles of substantive law, entitle him to a
judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue
of material fact.’’ (Internal quotation marks omitted.)
American Progressive Life & Health Ins. Co. of New
York v. Better Benefits, LLC, 292 Conn. 111, 119, 971
A.2d 17 (2009). ‘‘The rules governing summary judgment
are equally applicable to counterclaims. Practice Book
§ 17-44.’’ U.S. Bank National Assn. v. Sorrentino, supra,
158 Conn. App. 93.
In contrast, a motion to strike, pursuant to Practice
Book § 10-39 (a), ‘‘shall be used whenever any party
wishes to contest . . . the legal sufficiency of the alle-
gations of any . . . counterclaim10 . . . to state a
claim upon which relief can be granted . . . .’’ (Foot-
note added.) It is well settled that a court may grant a
party’s motion to strike a counterclaim, in whole or in
part, when such counterclaim is improperly joined with
the plaintiff’s primary action in contravention of Prac-
tice Book § 10-10. See, e.g., JP Morgan Chase Bank,
Trustee v. Rodrigues, 109 Conn. App. 125, 132–33, 952
A.2d 56 (2008) (Affirming motion to strike defendants’
counterclaim for emotional distress because its allega-
tions ‘‘related to the conduct of the plaintiff that
occurred after the execution of the mortgage note
. . . . The disparity between the subject matter of the
plaintiff’s [foreclosure action] and that of the defen-
dants’ counterclaim warranted the . . . conclusion
that the counterclaim did not arise from the same trans-
action.’’); see also South Windsor Cemetery Assn., Inc.
v. Lindquist, 114 Conn. App. 540, 545–46, 970 A.2d
760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009).
Pursuant to Practice Book § 10-10, ‘‘any defendant may
file counterclaims against any plaintiff and cross claims
against any codefendant provided that each such coun-
terclaim and cross claim arises out of the transaction
or one of the transactions which is the subject of the
plaintiff’s complaint . . . .’’ (Emphasis added.) ‘‘[A]
proper application of Practice Book § 10-10 in a foreclo-
sure context requires consideration of whether a coun-
terclaim has some reasonable nexus to . . . the
making, validity or enforcement of the mortgage and
note.’’ U.S. Bank National Assn. v. Sorrentino, supra,
158 Conn. App. 96.
Although, by their nature, these motions serve differ-
ent purposes and are governed by different rules of
procedure, our case law clearly recognizes that a litigant
may use a motion for summary judgment to challenge
the legal sufficiency of a party’s counterclaims. See,
e.g., id., 94–95; see also Haynes v. Yale-New Haven
Hospital, 243 Conn. 17, 32 n.17, 699 A.2d 964 (1997);
Southbridge Associates, LLC v. Garofalo, 53 Conn. App.
11, 17–19, 728 A.2d 1114, cert. denied, 249 Conn. 919,
733 A.2d 229 (1999); cf. Sethi v. Yagildere, 136 Conn.
App. 767, 770 n.6, 47 A.3d 892, cert. denied, 307 Conn.
905, 53 A.3d 220 (2012). Accordingly, we have recog-
nized that where ‘‘both the substance of the motion [for
summary judgment] and the trial court’s ruling on the
motion demonstrate that it is more accurately described
as a motion to strike . . . we shall address [the] motion
for summary judgment as if it were a properly presented
motion to strike.’’11 (Internal quotation marks omitted.)
Santorso v. Bristol Hospital, 308 Conn. 338, 351–52, 63
A.3d 940 (2013), quoting Aetna Casualty & Surety Co.
v. Jones, 220 Conn. 285, 293, 596 A.2d 414 (1991).
Here, the plaintiff’s motion for summary judgment
expressly sought the dismissal of the defendants’ coun-
terclaims because, inter alia, they were ‘‘unrelated to
the making, validity or enforcement of the note and
mortgage.’’ The plaintiff thus sought dismissal of the
defendants’ counterclaims, in part, because they were
improperly joined in this action pursuant to Practice
Book § 10-10. In their memorandum of law opposing
the plaintiff’s motion for summary judgment, the defen-
dants argued, inter alia, that there was a genuine issue
of material fact as to whether the counterclaims had a
reasonable nexus to the making, validity and enforce-
ment of the note and mortgage. Moreover, in rendering
judgment in favor of the plaintiff as to the defendants’
counterclaims, the court held, inter alia, that those
counterclaims were improperly joined in this action
because they were predicated on the plaintiff’s postde-
fault conduct during the parties’ foreclosure mediation
which, under Sorrentino, has no reasonable nexus to
the making, validity or enforcement of the note and
mortgage. Clearly, therefore, both the parties and the
court analyzed this portion of the plaintiff’s motion for
summary judgment as a motion to strike the defendants’
counterclaims. We thus elect to treat that portion of
the plaintiff’s motion for summary judgment, in which
it sought dismissal of the defendants’ counterclaims for
improper joinder under § 10-10, as a properly presented
motion to strike. See Santorso v. Bristol Hospital,
supra, 308 Conn. 351–52.
The standard of review in an appeal challenging a
trial court’s granting of a motion to strike is well estab-
lished. ‘‘A motion to strike challenges the legal suffi-
ciency of a pleading . . . and, consequently, requires
no factual findings by the trial court. As a result, our
review of the court’s ruling is plenary. . . . We take
the facts to be those alleged in the [pleading] that has
been stricken and we construe the [pleading] in the
manner most favorable to sustaining its legal suffi-
ciency.’’ (Internal quotation marks omitted.) Id., 349.
As discussed in the preceding paragraphs, however,
the court in this case determined that the defendants’
counterclaims failed the transaction test pursuant to
Practice Book § 10-10. It is well settled that ‘‘[t]he trans-
action test is one of practicality, and the trial court’s
determination as to whether that test has been met
ought not be disturbed except for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) JP Morgan
Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.
App. 131–32. Thus, we consider whether the trial court
abused its discretion in determining that the defendants’
counterclaims failed the transaction test of § 10-10.
In the present case, the defendants argue that the
court should not have rendered judgment on their coun-
terclaims because the conduct alleged in support of
those counterclaims had a reasonable nexus to the
enforcement of the note. More specifically, the defen-
dants claim that ‘‘the conduct on the part of the foreclos-
ing party that is complained of by [the defendants] . . .
encompasses actions taken by the [plaintiff] regarding
possible loan modifications that would [have allowed
Jeffrey] Mauro to cure [the] delinquency. This is directly
related to the enforcement of the note . . . [because
the] only purpose behind the statements was enforce-
ment of the obligation.’’ We are not persuaded.
In Sorrentino, as in this case, a lender sought foreclo-
sure on a parcel of real property after the borrowers
defaulted on their loan. U.S. Bank National Assn. v.
Sorrentino, supra, 158 Conn. App. 87. After the lender
initiated foreclosure on the property, the lender and
borrower entered into a foreclosure mediation. Id., 88.
That mediation was unsuccessful, however, and thus
the matter was referred back to the court. Id. There-
after, the borrowers filed both an answer to the com-
plaint and counterclaims against the lender, alleging,
inter alia, that: the lender had made assurances that
the loan would be modified to avoid foreclosure; the
borrowers continually provided documents to assist in
the modification process; the lender’s promise to mod-
ify the loan was a ‘‘sham’’; and the lender ‘‘continued
to string [the borrowers] along, either expressly or
impliedly representing that [the borrowers] would be
eligible for a loan modification.’’ Id., 88–90. The lender
subsequently moved for summary judgment as to both
the borrowers’ liability in the primary foreclosure action
and ‘‘the propriety of the [borrowers’] counterclaims
and special defenses.’’ Id., 90. The trial court granted
the lender’s motion for summary judgment as to both
issues, and the borrowers subsequently appealed that
determination. Id.
On appeal in Sorrentino, this court held, inter alia:
‘‘Our review of the allegations underlying the defen-
dants’ mediation counterclaims shows that, even when
viewed in a light most favorable to the defendants as the
nonmoving party, all the allegations underlying those
counterclaims are addressed to the plaintiff’s improper
conduct during the foreclosure mediation program.
That program did not begin until after the execution of
the note and mortgage, and after the foreclosure action
was commenced, and, thus, does not reasonably relate
to the making, validity or enforcement of the note or
mortgage. . . . Moreover, the defendants have not pos-
ited how the factual allegations underlying the counter-
claims have any reasonable nexus to the making,
validity or enforcement of the mortgage or note, nor
can we discern one. . . . Even if the defendants were
provided with an opportunity to replead, we conclude
as a matter of law that no permissible corrections could
transform the counterclaims so that they comply with
the transaction test set forth in Practice Book § 10-10.’’
(Citation omitted.) Id., 97.
After reviewing the pleadings in this case, we con-
clude that the trial court did not abuse its discretion
in determining that the defendants’ counterclaims did
not have a reasonable nexus to the making, validity
and enforcement of the note. Indeed, the trial court
correctly determined that ‘‘the defendants’ counter-
claims concerning the plaintiff’s conduct during media-
tion/mortgage modification are virtually
indistinguishable from those of the defendant[s] in Sor-
rentino. They pertain to the plaintiff’s conduct during
[the mediation], which occurred years after the execu-
tion of the mortgage and the defendants’ default.’’ We
agree with the court’s interpretation of the counter-
claims at issue, and thus we conclude that the court
did not abuse its discretion in rendering judgment dis-
missing those counterclaims because, in accordance
with our decision in Sorrentino, they were improperly
joined in this action pursuant to the transaction test of
Practice Book § 10-10.
The Sorrentino court’s decision affirming the trial
court’s rendering of summary judgment in the case
before it is not to the contrary. In Sorrentino, the court
noted, inter alia, that: ‘‘In its memorandum in support
of summary judgment, the plaintiff argued to the court
that . . . the defendants’ mediation counterclaims
. . . were not part of the same transaction that is the
subject of the foreclosure complaint and [thus] were
improper. We view those arguments as directly chal-
lenging whether the counterclaims were properly joined
pursuant to the transaction test set forth in Practice
Book § 10-10 and, thus, their legal sufficiency. . . . The
defendants never argued that it was improper for the
court to consider the plaintiff’s insufficiency arguments
in adjudicating the motion for summary judgment or
that the plaintiff had waived its right to challenge the
joinder of the counterclaims by failing to file a motion
to strike. Accordingly, none of those issues is before
us on appeal.’’ U.S. Bank National Assn. v. Sorrentino,
supra, 158 Conn. App. 96. In light of the fact that the
Sorrentino court left open the question of whether it
was proper ‘‘for the court to consider the plaintiff’s
insufficiency arguments in adjudicating the motion for
summary judgment,’’ we conclude that a litigant may
use a motion for summary judgment as a means of
testing whether a party’s counterclaims satisfy the
transaction test of § 10-10. We further clarify that, where
a court determines that the counterclaims at issue fail
the transaction test of § 10-10, the appropriate remedy
is not a final judgment on the merits of those counter-
claims, but rather a judgment dismissing those counter-
claims on the ground of improper joinder with the
plaintiff’s primary action, without prejudice to the
defendants’ right to replead that claim, unless it is other-
wise barred, in a separate action.
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
In its complaint, the plaintiff named Yale-New Haven Hospital, Inc., as
a judgment lienholder on the property for an amount of $1500. Yale-New
Haven Hospital, Inc., was defaulted in this action for failure to appear. Thus,
all future references to the defendants in this decision are exclusively to
Jeffrey Mauro and Renee Mauro.
2
The plaintiff in this action is acting as trustee for the Certificateholders
of the CWALT, Inc., Alternative Loan Trust 2006–43CB, Mortgage Pass-
Through Certificates, Series 2006–43CB.
3
In its complaint, both Jeffrey and Renee Mauro were listed as the defen-
dants to the plaintiff’s foreclosure claim.
4
Although the foreclosure mediator’s report did not list Renee Mauro as
a participant in those proceedings, Mauro later submitted an affidavit in
opposition to the plaintiff’s motion for summary judgment, averring that
she had participated in the mediation in an effort to obtain a modification
of the note and, further, that she was a party to whom the plaintiff made
several misrepresentations as to its willingness and ability to modify the
terms of the note prior to initiating this foreclosure action. The plaintiff does
not dispute that contention, instead referring consistently to the defendants
when describing the participants in the foreclosure mediation.
5
The defendants misconstrue the scope of the court’s ruling on this issue.
In the plaintiff’s motion for summary judgment, it argued that ‘‘[the] defen-
dants’ preclosing allegations against [the] plaintiff’s predecessor must also
fail because all such claims are time barred. The note and mortgage were
executed on November 29, 2006. [The] defendants did not assert any [CUTPA
or TILA] claims against [the plaintiff] for [AWL’s] preorigination conduct
until January 21, 2014 . . . . [The] defendants’ claims concerning the con-
duct of [AWL] are time barred.’’ (Emphasis added.) In granting the plaintiff’s
motion for summary judgment on the defendants’ counterclaims, the court
held: ‘‘The plaintiff argues that the defendants’ preclosing allegations must
also fail because they are time barred. The court agrees. . . . The defen-
dants did not [assert] any claims against the plaintiff or the plaintiff’s prede-
cessor concerning preorigination conduct until January 21, 2014, over seven
years after the date of any alleged misrepresentation. Whether framed as a
[violation] of [CUTPA] . . . negligent or reckless misrepresentation, fraud
or a violation of [TILA], the violations are time barred. . . . The counter-
claims which pertain to the plaintiff’s conduct that allegedly occurred during
the postdefault mediation process cannot defeat a foreclosure action under
[U.S. Bank National Assn. v. Sorrentino, 158 Conn. App. 84, 118 A.3d
607, cert. denied, 319 Conn. 951, 125 A.3d 530 (2015)].’’ (Emphasis added.)
Accordingly, the court’s statute of limitations analysis was confined to those
portions of the defendants’ counterclaims concerning AWL’s alleged miscon-
duct at or before the execution of the note; insofar as the counterclaims
were based on the plaintiff’s postdefault conduct, the court ruled only that
those counterclaims were not properly joined in this action pursuant to
Practice Book § 10-10.
6
On March 9, 2016, after the court had granted the plaintiff’s motion for
summary judgment on the issue of the defendants’ liability, but before the
granting of its subsequent motion for strict foreclosure, the defendants filed
their original appeal in this matter. Thereafter, on April 6, 2016, the court
granted the plaintiff’s motion to dismiss that portion of the defendants’
appeal which challenged the court’s ruling as to the defendants’ liability for
foreclosure for lack of subject matter jurisdiction due to lack of a final
judgment. After the court granted the plaintiff’s motion for strict foreclosure,
the defendants filed an amended appeal in this matter.
7
As discussed in the preceding paragraphs, the court’s statute of limita-
tions analysis was limited only to the defendants’ allegations concerning
AWL’s conduct at or before the execution of the note at issue. See footnote
5 of this opinion. To the extent that the defendants’ TILA claim is predicated
on the plaintiff’s alleged misconduct during the foreclosure mediation, the
court ruled only that such allegations failed the transaction test of Practice
Book § 10-10. Therefore, we decline to address the merits of this claim.
8
In essence, the defendants argue that, pursuant to the law of the case
doctrine, Judge Aurigemma should have adhered to Judge Domnarski’s
ruling on the plaintiff’s motion to strike their counterclaims for misrepresen-
tation and declined to rule on whether to dismiss portions of the counter-
claims that were predicated on AWL’s alleged misconduct. We are
unpersuaded.
‘‘The law of the case doctrine provides that [w]here a matter has previously
been ruled upon interlocutorily, the court in a subsequent proceeding in
the case may treat that decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the absence of some new
or overriding circumstance. . . . A judge [however] is not bound to follow
the decisions of another judge made at an earlier stage of the proceedings,
and if the same point is again raised he has the same right to reconsider
the question as if he had himself made the original decision.’’ (Citation
omitted; internal quotation marks omitted.) Henderson v. Lagoudis, 148
Conn. App. 330, 338–39, 85 A.3d 53 (2014); see also Breen v. Phelps, 186
Conn. 86, 99, 439 A.2d 1066 (1982) (‘‘The law of the case is not written in
stone but is a flexible principle of many facets . . . . In essence it expresses
the practice of judges generally to refuse to reopen what has been decided
and is not a limitation on their power.’’ [Citation omitted.]).
We find no merit to the defendants’ argument that the law of the case
doctrine applies in this matter. First, the defendants provide no support for
their proposition that, in ruling on a motion for summary judgment, a court
is bound by another judge’s ruling on a party’s motion to strike. Second,
even if the law of the case doctrine precluded such reconsideration—which
it does not—Judge Domnarski expressly noted that the plaintiff, as assignee
of the note, was not liable for the alleged misconduct of the original lender,
AWL. The defendants concede this very point in their reply brief to this
court. Third, Judge Domnarski made no ruling as to whether these counter-
claims were properly joined pursuant to the transaction test of Practice
Book § 10-10. Thus, even if we were to apply the law of the case doctrine
with such weight and rigidity as the defendants propose, we would still
find no basis for concluding either that Judge Domnarski made a prior
inconsistent ruling on this issue, or that Judge Aurigemma was precluded
from considering, on a motion for summary judgment, whether, as a matter
of law, the plaintiff could be held liable for misrepresentations made by its
predecessor in interest to the note and mortgage.
9
Insofar as the plaintiff requested that these counterclaims be dismissed
with prejudice, we acknowledge that the court’s ruling precluded the defen-
dants from repleading their counterclaims in the present action. We do not,
however, interpret the court’s judgment as precluding the defendants from
pleading their counterclaims in a separate action.
10
‘‘[A] counterclaim is a cause of action existing in favor of the defendant
against the plaintiff and on which the defendant might have secured affirma-
tive relief had he sued the plaintiff in a separate action.’’ (Internal quotation
marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.
App. 125, 131, 952 A.2d 56 (2008).
11
Our courts have also recognized, however, that ‘‘[t]here is a substantial
difference between [the effects of] a motion for summary judgment and a
motion to strike. The granting of a defendant’s motion for summary judgment
puts the plaintiff out of court . . . . The granting of a motion to strike
allows the plaintiff to replead his or her case.’’ (Citation omitted.) Rivera
v. Double A Transportation, Inc., 248 Conn. 21, 38 n.3, 727 A.2d 204 (1999)
(Berdon, J., concurring and dissenting).