Caliber Home Loans, Inc. v. Zeller ( 2021 )

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CALIBER HOME LOANS, INC. v. MICHAEL
A. ZELLER ET AL.
(AC 43576)
Bright, C. J., and Lavine and Alexander, Js.*
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant C Co. The defendant Z had executed a note for a loan
that was used to purchase the property that was secured by the mortgage,
and that loan was now in default. Prior to the commencement of the
foreclosure action, Z quitclaimed his interest in the property to C Co.
The plaintiff alleged in its complaint that it was the holder of the note
and mortgage. The plaintiff thereafter filed a motion to substitute S Co.
as the plaintiff, explaining that, since the commencement of the action,
it had assigned the mortgage and note to S Co. The trial court granted
the motion to substitute and thereafter the matter was tried to the court.
The court concluded that S Co. had been assigned the mortgage and
was in possession of the note, endorsed in blank, that C Co. lacked
standing to challenge the adequacy of the notice of acceleration and
default under the note because it was not a party to the note and
mortgage, and rejected C Co.’s special defenses. From the judgment of
strict foreclosure, C Co. appealed to this court. Held:
1. The trial court’s finding that S Co. was in possession of the note, endorsed
in blank and, therefore, was the rightful owner of the debt entitled to
foreclose on the mortgage was not clearly erroneous, as the record
contained evidence that supported the court’s finding; S Co. produced
the original note, endorsed in blank, and mortgage at trial and presented
testimony regarding the history of the documents and how they came
to be in S Co.’s possession, testimony which the court was free to credit.
2. The trial court properly determined that C Co. lacked standing to challenge
the adequacy of the notice of acceleration and default under the note:
contrary to its claim, C Co. was not a foreseeable interested party, the
transfer of interest in the property by quitclaim deed from Z to C Co.
did not transfer any rights or obligations in the underlying note and
mortgage to C Co., and C Co.’s contention that it made payments under
the note was belied by the record, which established that payments
were made on behalf of C Co. by another entity, and that C Co. made
only one payment, and the check was not cashed; moreover, the court
did not abuse its discretion in admitting the evidence of notice as a full
exhibit, as C Co.’s arguments as to the sufficiency of this evidence had
no bearing on the admissibility of the evidence.
3. The trial court did not err in determining that S Co. had proven the amount
of the outstanding debt; the court was within its right to credit the
evidence submitted by S Co., including witness testimony and an affidavit
of debt, in determining the amount of the debt, and the court did not
improperly reject the defendant’s characterization of the evidence as
confusing or conflicting; moreover, the court was free to find that C
Co.’s claim that it was unaware that checks that it had submitted for
payment had not been accepted was not credible.
4. The trial court properly rejected C Co.’s special defenses of payment,
equitable estoppel and unclean hands; the court was free to reject the
evidence C Co. submitted in support of its special defense of payment,
and C Co. failed to prove that the court’s findings of fact were clearly
erroneous; moreover, C Co. failed to provide the court with any addi-
tional factual basis or legal argument in support of its special defenses
of equitable estoppel and unclean hands, beyond what was asserted in
its special defense of payment.
5. The trial court abused its discretion by ordering a judgment of strict
foreclosure, rather than foreclosure by sale, because there was substan-
tial equity in the property.
Argued November 18, 2020—officially released July 6, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant Cambridge Holdings, Inc.,
and for other relief, brought to the Superior Court in the
judicial district of Hartford, where the named defendant
was defaulted for failure to appear; thereafter, Special-
ized Loan Servicing, LLC, was substituted as the plain-
tiff; subsequently, the matter was tried to the court,
Scholl, J.; judgment of strict foreclosure, from which
the defendant Cambridge Holdings, Inc., appealed to
this court. Reversed in part; judgment directed; further
proceedings.
Maria K. Tougas, for the appellant (defendant Cam-
bridge Holdings, Inc.).
Victoria L. Forcella, for the appellee (substitute
plaintiff).
Opinion
ALEXANDER, J. The defendant Cambridge Holdings,
Inc. (Cambridge),1 appeals from the judgment of strict
foreclosure rendered by the trial court in favor of the
substitute plaintiff, Specialized Loan Servicing, LLC
(SLS). On appeal, the defendant claims that (1) SLS
presented insufficient evidence to prove it had standing
to foreclose on the mortgage, (2) it had standing to
challenge the adequacy of the notice of acceleration and
default under the note, (3) SLS presented insufficient
evidence to prove the amount of the outstanding debt,
(4) it proved its special defenses, and (5) the court
erred in rendering a judgment of strict foreclosure. We
agree with the defendant only as to its final claim, and
therefore we reverse the judgment of strict foreclosure
and remand the case with direction to render a judg-
ment of foreclosure by sale.
The following facts, as found by the trial court, and
procedural history are relevant to our resolution of this
appeal. On January 10, 1990, the defendant Michael A.
Zeller executed a note in the amount of $85,000 in favor
of The First National Bank of Boston, which was
secured by a mortgage on real property known as 272
Alewife Lane in Suffield (property). The note and mort-
gage subsequently were assigned to BancBoston Mort-
gage Corporation and were endorsed in blank on Febru-
ary 20, 1990. On August 15, 2006, Zeller executed a
quitclaim deed for his interest in the property in favor
of the defendant. On June 24, 2013, the mortgage was
assigned by JP Morgan Chase Bank, N.A., as attorney-
in-fact for the Federal Deposit Insurance Corporation
as Receiver of Washington Mutual Bank formerly
known as Washington Mutual Bank, FA, successor in
interest to HomeSide Lending, Inc., formerly known
as BancBoston Mortgage Corporation, to the original
plaintiff, Caliber Home Loans, Inc. (Caliber).
Caliber commenced the present foreclosure action
on November 27, 2013. The defendant was named in
the original complaint but was not served properly. A
judgment of strict foreclosure was rendered on June
23, 2014. On May 20, 2015, Caliber filed a motion to
open and vacate the judgment, which was granted on
June 1, 2015. Thereafter, on June 9, 2015, Caliber filed
a motion to cite in the defendant, which was granted
on June 22, 2015. On July 13, 2015, Caliber filed an
amended complaint and the defendant filed its answer
on October 14, 2015. In its answer, the defendant
asserted the special defenses of payment, improper
notice of default, improper acceleration of the note and
mortgage, equitable estoppel, unclean hands, and
waiver.
On January 10, 2018, Caliber assigned the mortgage
to SLS. On February 5, 2019, Caliber filed a motion
pursuant to Practice Book § 9-16, to substitute SLS as
the plaintiff, which the court granted on March 7, 2019.
Thereafter, on May 16, 2019, SLS filed an amended com-
plaint seeking, inter alia, to foreclose the mortgage.2
A trial was held before the court, Scholl, J., on May
15, 29, and 30, 2019. On October 23, 2019, the court
issued a memorandum of decision in which it rendered
a judgment of strict foreclosure. In its decision, the
court determined that the mortgage had been assigned
by Caliber to SLS, that the note had been endorsed in
blank, and that SLS was in possession of the note.
The court further determined that the defendant lacked
standing to challenge the adequacy of the notice of
acceleration and default under the note, stating that
the defendant ‘‘is not a party to the note and mortgage
and therefore has no standing to argue noncompliance
with their terms.’’
On the basis of the testimony and evidence, the court
determined that SLS had proven the amount of debt to
be $113,111.51 and that the fair market value of the
property was $204,000. The court found that the defen-
dant had failed to prove its special defenses of payment,
equitable estoppel, unclean hands, and waiver. The
court rendered a judgment of strict foreclosure. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant first claims that SLS did not present
sufficient evidence to prove it had standing to foreclose
on the mortgage. The defendant argues that ‘‘[n]o docu-
ment submitted by SLS at trial . . . established that
SLS was given authority to foreclose this loan from the
owner of this loan.’’ We disagree.
‘‘A determination regarding standing concerns a ques-
tion of law over which we exercise plenary review.’’
World Business Lenders, LLC v. 526-528 North Main
Street, LLC, 197 Conn. App. 269, 273, 231 A.3d 386(2020). Additionally, ‘‘[i]n order to establish a prima
facie case in a mortgage foreclosure action, the plaintiff
must prove by a preponderance of the evidence that it is
the owner of the note and mortgage, that the defendant
mortgagor has defaulted on the note and that any condi-
tions precedent to foreclosure, as established by the
note and mortgage, have been satisfied.’’ GMAC Mort-
gage, LLC v. Ford, 144 Conn. App. 165, 176, 73 A.3d
742 (2013). ‘‘If the foreclosing party shows that it is a
valid holder of the note and can produce the note, it
is presumed that the foreclosing party is the rightful
owner of the debt.’’ U.S. Bank, National Assn. v. Schaef-
fer, 160 Conn. App. 138, 150, 125 A.3d 262 (2015). ‘‘The
note must be sufficiently endorsed so as to demonstrate
that the foreclosing party is a holder, either by a specific
endorsement to that party or by means of a blank
endorsement to bearer.’’ Id.Furthermore, ‘‘[a] trial court’s determination that a
party is the owner and holder of a promissory note is
reviewed pursuant to the clearly erroneous standard of
review. . . . A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Citations omitted; internal
quotation marks omitted.) AS Peleus, LLC v. Success,
Inc., 162 Conn. App. 750, 753–54, 133 A.3d 503 (2016).
In the present case, the trial court determined, on
the basis of the evidence before it, that the note was
endorsed in blank and that SLS was in possession of
the note and mortgage. The record confirms that SLS
presented both the operative note and mortgage at trial,
and its key witness, Laura Ollier, testified extensively
as to the history of both documents and how the docu-
ments came to be in SLS’s possession. Ollier testified
that SLS took over the servicing of the loan in Decem-
ber, 2018, and, as part of that process, received records
from the prior loan servicer, Caliber, and incorporated
those records into its own business records. See foot-
note 3 of this opinion. ‘‘The plaintiff’s possession of a
note endorsed in blank is prima facie evidence that it
is a holder and is entitled to enforce the note, thereby
conferring standing to commence a foreclosure action.
. . . After the plaintiff has presented this prima facie
evidence, the burden is on the defendant to impeach
the validity of [the] evidence that [the plaintiff] pos-
sessed the note at the time that it commenced the . . .
action or to rebut the presumption that [the plaintiff]
owns the underlying debt. . . . The defendant [must]
set up and prove the facts [that] limit or change the
plaintiff’s rights . . . .’’ (Internal quotation marks omit-
ted.) Bank of America, N.A. v. Kydes, 183 Conn. App.
479, 487, 193 A.3d 110, cert. denied, 330 Conn. 925, 194
A.3d 291 (2018). We agree with the trial court that by
producing the note and mortgage at trial, SLS estab-
lished the presumption that it owned the underlying
debt. Therefore, the burden was on the defendant to
submit evidence and prove that a separate entity was
the owner of the note and debt.
In order to rebut the presumption of ownership of
the debt, the defendant must prove that someone else
is the owner of the note and, therefore, the debt. As an
example, the defendant may show that ownership of
the note had passed to another party. In the absence
of proof, the plaintiff may rest its standing to foreclose
on its status as the holder of the note. See U.S. Bank,
National Assn. v. Schaeffer, supra, 160 Conn. App. 150.
The defendant does not dispute the fact that SLS
presented the original note and mortgage at trial.
Instead, the defendant argues that ‘‘the evidence . . .
established that SLS was not the owner of the debt.’’
We are not persuaded. After a careful review of the
evidence, the record establishes that the mortgage was
assigned by Caliber to SLS on January 10, 2018. The
testimony of Laura Ollier confirmed that, as part of the
boarding procedure her office undertook when acquir-
ing this debt, the original loan documents, including
the note, were held in bailment with counsel because of
the present underlying action.3 The defendant’s counsel
argued before the trial court that the testimony did not
establish that the mortgage and the note pertained to
the same underlying debt; however, the court deter-
mined that ‘‘the note is endorsed in blank and the evi-
dence established that [SLS] is in possession of the
note.’’
‘‘[N]othing in our law is more elementary than that
the trier is the final judge of the credibility of witnesses
and of the weight to be accorded to their testimony.
. . . The trier is free to accept or reject, in whole or
in part, the testimony offered by either party.’’ (Internal
quotation marks omitted.) Shearn v. Shearn, 50 Conn.
App. 225, 231, 717 A.2d 793 (1998). Given the evidence
before it, the court determined that SLS was in posses-
sion of the note. SLS produced the note endorsed in
blank and, therefore, it is the rightful owner of the debt
and entitled to foreclose on the mortgage. Although the
defendant disagrees with the court’s conclusion as to
the facts, the record contains evidence that supports
the court’s finding. On the basis of our review of the
record, we conclude that the court’s factual determina-
tions were not clearly erroneous. There is evidence to
support its finding that SLS was in possession of both
the note and mortgage and, therefore, the court properly
concluded that SLS has standing to enforce the underly-
ing debt and to foreclose on the mortgage.
II
The defendant next claims that the court improperly
determined that it lacked standing to challenge the ade-
quacy of the notice of acceleration and default under
the note. The defendant further claims that the court
improperly admitted into evidence documents that
established notice. We are not persuaded by either of
the defendant’s claims.
‘‘A determination regarding standing concerns a ques-
tion of law over which we exercise plenary review.’’
World Business Lenders, LLC v. 526-528 North Main
Street, LLC, supra, 197 Conn. App. 273.
In its decision, the trial court determined that the
defendant ‘‘is not a party to the note and mortgage and
therefore has no standing to argue noncompliance with
their terms.’’ The court relied on this court’s decision
in Wells Fargo Bank, N.A. v. Strong, 149 Conn. App.
384, 401, 89 A.3d 392, cert. denied, 312 Conn. 923, 94
A.3d 1202 (2014), for the proposition that ‘‘[c]ontract
obligations are imposed because of conduct of parties
manifesting consent, and are owed only to the specific
individuals named in the contract. . . . It is well settled
that one who [is] neither a party to a contract nor a
contemplated beneficiary thereof cannot sue to enforce
the promises of the contract.’’ (Internal quotation marks
omitted.) The court reasoned that, because the defen-
dant was not a party to the underlying note or mortgage,
it had no standing to argue noncompliance with its
terms.
We first consider the defendant’s standing claim. The
defendant does not contend that it was a party to the
making of the note or mortgage. The defendant argues
that it was a third-party transferee4 of the subject prop-
erty and, therefore, a ‘‘foreseeable interested party’’
under the note and mortgage. As a result of this alleged
status, the defendant contends it had standing to chal-
lenge the adequacy of the notice of acceleration and
default.
The defendant, however, obtained its interest in the
property by quitclaim deed from Zeller. A quitclaim
deed of title to property that secures a note and mort-
gage, by itself, does not transfer the rights and obliga-
tions in the underlying note or mortgage. See GMAC
Mortgage, LLC v. Ford, supra, 144 Conn. App. 182 (‘‘[The
defendant’s] act of quitclaiming . . . interest to a third
party did not implicate the making, validity or enforce-
ment of the note or mortgage . . . . The defendant
remained liable for repayment of the note despite the
quitclaim deed to a third party, who took title subject
to the mortgage and any potential foreclosure.’’).
The defendant directs us to paragraph 10 of the note
and paragraph 17 of the mortgage to support its argu-
ment that those documents contemplate consideration
of the claimed legal interest of subsequent transferees
of the underlying property. We disagree. Although both
paragraphs begin with the phrase ‘‘[i]f all or any part
of the Property or any interest in it is sold or trans-
ferred,’’ these paragraphs contemplate and set forth a
procedure whereby, in such circumstance, the lender
may accelerate and require immediate payment of the
debt.5 Contrary to the defendant’s assertions, these
paragraphs do not contemplate that any subsequent
transferee of the property is entitled to any rights in the
underlying note or mortgage. Instead, these paragraphs
are meant to protect the mortgagee’s interest if a trans-
fer occurs.
The defendant further argues that it was a ‘‘foresee-
able interested party’’ because it made payments under
the note. This, however, is belied by the record before
us. Richard Gleicher, the director of the defendant and
vice president of Premier Capital, LLC (Premier Capi-
tal), testified that, although the defendant holds title to
the property in this dispute, a separate entity, Premier
Capital, ‘‘owns’’ the note and mortgage.6 Premier Capital
made payments on behalf of the defendant, but the
defendant itself made only one payment under the note.
The one payment by check from the defendant, how-
ever, was not cashed. This evidence does not establish
that the defendant was a contemplated beneficiary of
either the note or the mortgage. Accordingly, we agree
with the trial court’s conclusion that the defendant is
not a ‘‘foreseeable interested party’’ to these documents
and lacks standing to challenge SLS’s compliance with
their terms.
The defendant further argues, however, that, even if
it does not have standing to challenge the notice of the
acceleration and default under the note, the trial court
nonetheless erred by admitting the evidence of notice
as a full exhibit in contradiction to its statement that
the exhibit would be admitted ‘‘based on the expressed
condition that it would allow [the defendant] to chal-
lenge whether it constituted sufficient notice from the
mortgage holder . . . and whether it was in compli-
ance with the mortgage provisions.’’ Specifically, the
defendant challenges the trial court’s admission as a
full exhibit a letter from Vericrest Financial.7 In support
of its argument, the defendant points to the following
two statements the trial court made in response to the
defendant’s objection to the admission of the letter into
evidence:
‘‘The Court: [W]hat I think I’ll do is I’m going to allow
the letter, but you can certainly argue that this is [not]—
a sufficient notice, you know—absent any other evi-
dence. But I’ll allow the letter as their claim of notice.’’
‘‘The Court: I’ll allow it for the . . . limited purpose
of their allegations of notice. You can certainly argue
that it’s not notice in compliance with the mortgage.’’
The defendant argues that these statements by the
court preconditioned the admission of the evidence ‘‘on
the basis [that the court] would consider [the defen-
dant’s] arguments as to its sufficiency.’’ We disagree.
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence . . . [and its] ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest abuse
of discretion.’’ (Internal quotation marks omitted.) In
re Harlow P., 146 Conn. App. 664, 681, 78 A.3d 281,
cert. denied, 310 Conn. 957, 81 A.3d 1183 (2013).
In the present case, the record is clear that the trial
court admitted the Vericrest Financial letter as a full
exhibit for the purpose of establishing the plaintiff’s
notice. The trial court advised the defendant that it
could make arguments against the weight of this evi-
dence. However, the evidentiary ruling by the court did
not preclude the evidence from its consideration nor
did the court’s ruling amount to a precondition as to
the full admission of the letter into evidence. The defen-
dant’s claims against the sufficiency of the notice had
no bearing on the admissibility of the evidence. We,
therefore, are not persuaded by the defendant’s claim
that the court abused its discretion in admitting these
exhibits into evidence.
III
The defendant next claims that the trial court erred
in its determination that the plaintiff had proved the
amount of the outstanding debt. We disagree.
‘‘To the extent that the trial court has made findings
of fact, our review is limited to deciding whether such
findings were clearly erroneous. . . . As the finder of
fact, the court is responsible for weighing the evidence.
It is the [fact finder’s] right to accept some, none or all
of the evidence presented. . . . Moreover, [e]vidence
is not insufficient . . . because it is conflicting or
inconsistent. [The court] is free to juxtapose conflicting
versions of events and determine which is more credi-
ble. . . . It is the [finder of fact’s] exclusive province
to weigh the conflicting evidence and to determine the
credibility of witnesses.’’ (Citation omitted; internal
quotation marks omitted.) Brown v. Hartford, 160
Conn. App. 677, 702, 127 A.3d 278, cert. denied, 320
Conn. 911, 128 A.3d 954 (2015).
In determining the amount of the debt, the court
relied both on the testimony of the plaintiff’s witness
and on an affidavit of debt admitted into evidence.8 The
court found that the amount of monthly principal and
interest under the loan was $714.73 and that the evi-
dence established that the payments made by, or on
the behalf of, the defendant, were ‘‘insufficient to cover
the amount of escrow required for taxes and insurance,’’
thus resulting in the default of the loan. The court noted
that no evidence was proffered regarding payments
made after July 18, 2013. The defendant claimed to have
been unaware that many of the checks it submitted for
payment had not been accepted. The court found that
the claim was not credible.
The defendant contends that the court erred in its
determination because of ‘‘confusing’’ and ‘‘conflicting’’
evidence. In support, the defendant relies on Cliffside
Condominium Assn., Inc. v. Cushman, 100 Conn. App.
803, 921 A.2d 609 (2007), for the proposition that incon-
sistent and confusing evidence cannot establish the
amount of the debt. We are not persuaded.
In Cliffside Condominium Assn., Inc., the trial court
determined that ‘‘there were numerous inconsistencies
in the testimony and evidence regarding the amount of
the debt, including conflicting affidavits offered by the
plaintiff as to the amount of the debt and the application
of payments made by the defendant.’’ Id., 805. The court
found that no debt was owed to the plaintiff and the
plaintiff itself had characterized the evidence as
‘‘ ‘somewhat confusing.’ ’’ Id. On appeal, this court
affirmed the trial court’s determination that the plaintiff
had failed to meet its burden to prove the amount of
debt based on its factual findings that the evidence was
conflicting and confusing. Id. The present case is readily
distinguishable, however, because here the court found
that SLS had proven the amount of debt on the basis
of the evidence before it. The defendant has not per-
suaded us that the court improperly determined the
debt from the evidence presented or that it improperly
rejected the defendant’s characterization of the evi-
dence as confusing or conflicting. The court was fully
within its right to credit the evidence before it and to
rely on such evidence in its determination of the amount
of the debt.
IV
The defendant next argues that the trial court erred
in its determination that the defendant had not proven
its remaining special defenses of payment, equitable
estoppel, and unclean hands.9 We disagree.
Central to the defendant’s argument as to its special
defenses is the claim that the court did not appropriately
credit the defendant’s proffered evidence and Gleicher’s
testimony. The defendant argues that, ‘‘[i]n weighing
the credibility of [Gleicher’s] testimony and evidence
on payment, versus the lack of evidence as to the accu-
racy of the plaintiff’s debt, the defendant’s evidence
should have been credited . . . .’’ The defendant points
to exhibits showing payments made on the note
between 2007 and 2013, and Gleicher’s testimony that
the payments were sufficient to clear the account. As
discussed, however, the trial court noted that no evi-
dence was proffered regarding any payments made after
July 18, 2013, and that the defendant’s claim that it was
unaware that many of the checks submitted for payment
had not been accepted/cashed was not credible. Fur-
thermore, Gleicher testified at trial that he did not
believe payments for property taxes had been made.
As previously stated, ‘‘[n]othing in our law is more
elementary than that the trier is the final judge of the
credibility of witnesses and of the weight to be accorded
to their testimony. . . . The trier is free to accept or
reject, in whole or in part, the testimony offered by
either party.’’ (Internal quotation marks omitted.)
Shearn v. Shearn, supra, 50 Conn. App. 231. Our review
of the record leads us to conclude that the trial court’s
findings of fact were not clearly erroneous. See Brown
v. Hartford, supra, 160 Conn. App. 702. As discussed
in part III of this opinion, the defendant failed to prove
that the court erred in its determination of the defen-
dant’s debt. We therefore conclude that the court prop-
erly concluded that the defendant did not prove its
special defense of payment.
As to its remaining special defenses of equitable
estoppel and unclean hands, the defendant did not pro-
vide the trial court or this court with any additional
factual basis or legal argument beyond what was
asserted in its special defense of payment. ‘‘Whe[n] an
issue is merely mentioned, but not briefed beyond a
bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions
regarding a claim, with no mention of relevant authority
and minimal or no citations from the record, will not
suffice. . . . [F]or this court judiciously and efficiently
to consider claims of error raised on appeal . . . the
parties must clearly and fully set forth their arguments
in their briefs. We do not reverse the judgment of a
trial court on the basis of challenges to its rulings that
have not been adequately briefed . . . .’’ (Citation
omitted; internal quotation marks omitted.) Manere v.
Collins, 200 Conn. App. 356, 358–59 n.1, 241 A.3d 133(2020). We therefore are not persuaded by the defen-
dant’s claim that the court improperly rejected its spe-
cial defenses.
V
Lastly, the defendant claims that the court erred in
rendering a judgment of strict foreclosure rather than
a judgment of foreclosure by sale. We agree with the
defendant.
‘‘In a foreclosure proceeding the authority of the trial
court to order either a strict foreclosure or a foreclosure
by sale is clear. General Statutes § 49-24 provides: All
liens and mortgages affecting real property may, on the
written motion of any party to any suit relating thereto,
be foreclosed by a decree of sale instead of a strict
foreclosure at the discretion of the court before which
the foreclosure proceedings are pending. In interpreting
this statute, we have stated that [i]n Connecticut, the
law is well settled that whether a mortgage is to be
foreclosed by sale or by strict foreclosure is a matter
within the sound discretion of the trial court. . . . The
foreclosure of a mortgage by sale is not a matter of
right, but rests in the discretion of the court before
which the foreclosure proceedings are pending.’’ (Cita-
tions omitted; internal quotation marks omitted.) Fidel-
ity Trust Co. v. Irick, 206 Conn. 484, 488, 538 A.2d
1027 (1988).
‘‘[C]ritical to the determination of whether the trial
court has abused its discretion in rendering judgment
of foreclosure by sale rather than strict foreclosure
is whether there is substantial equity in the subject
property, and whether the sale would generate enough
cash to satisfy the junior creditors. . . . [I]f there is
need of a sale to protect the just rights of the parties,
we have little fear that the court will not order it. . . .
In a foreclosure proceeding the trial court must exercise
its discretion and equitable powers with fairness not
only to the foreclosing mortgagee, but also to subse-
quent encumbrancers and the owner.’’ (Citations omit-
ted; internal quotation marks omitted.) Brann v. Sav-
ides, 48 Conn. App. 807, 811, 712 A.2d 963 (1998).
‘‘[W]e have recognized that when the value of the
property substantially exceeds the value of the lien
being foreclosed, the trial court abuses its discretion
when it refuses to order a foreclosure by sale.’’ (Internal
quotation marks omitted.) US Bank National Assn. v.
Christophersen, 179 Conn. App. 378, 394, 180 A.3d 611,
cert. denied, 328 Conn. 928, 182 A.3d 1192 (2018).
In the present case, the trial court found that the
underlying debt was $113,111.51 and that the fair market
value of the property was $204,000. This amounts to a
difference of $90,888.49. See Fidelity Trust Co. v. Irick,
supra, 206 Conn. 489–91 (difference of $17,150 between
underlying debt and appraisal value determined to be
‘‘substantial excess equity’’ to require foreclosure by
sale). In its decision, the trial court based its judgment
of strict foreclosure on the plaintiff’s request for a judg-
ment of strict foreclosure made in its posttrial brief
and the defendant’s failure to object to that request.
However, the record shows that the posttrial briefs
were ordered to be filed simultaneously, thereby not
affording the defendant an opportunity to reply. Fur-
ther, at oral argument before this court, the plaintiff’s
counsel stated that the plaintiff would agree to a rever-
sal of the trial court’s judgment for the limited purpose
of ordering a foreclosure by sale. Accordingly, given
the equity of the property and the record before us,
we conclude that the court abused its discretion by
ordering a judgment of strict foreclosure.10
The judgment is reversed with respect to the order
of strict foreclosure and the case is remanded with
direction to order foreclosure by sale and for further
proceedings according to law; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In its original complaint, the original plaintiff, Caliber Home Loans, Inc.,
named Michael A. Zeller, Waters Edge Condominium Association, and KMZ,
Inc., as defendants. Zeller was defaulted for failing to appear and Waters
Edge Condominium Association and KMZ, Inc., were defaulted for failing
to plead. The amended complaint filed by SLS likewise named these defen-
dants. We refer to Cambridge as the defendant in this opinion.
2
The court granted SLS permission to file its amended complaint after
the first day of trial.
3
Specifically, the following colloquy took place:
‘‘[The Court]: What’s the boarding process?
‘‘[The Witness]: Your Honor, the boarding process is a highly complicated
process that a loan goes through when it’s . . . transferred from one ser-
vicer to another. The point of that service—the boarding process is to take
the documents received from the prior servicer, verify those documents,
that they are the correct documents for that loan, and transfer them while
verifying the information and the custody of them into the new servicer’s
records.
‘‘[The Court]: Okay.
‘‘[The Defendant’s Counsel]: But I thought you said SLS didn’t take custody
of the original documents?
‘‘[The Witness]: We didn’t take custody of the original documents because
they were being held in a bailment with our attorney.
‘‘[The Defendant’s Counsel]: Right. So during the boarding process nobody
had the original note and mortgage in SLS.
‘‘[The Witness]: We had copies of the originals.
‘‘[The Defendant’s Counsel]: The question is nobody had the original note
and mortgage when they boarded the note—
‘‘[The Witness]: No, because we were able to—
‘‘[The Defendant’s Counsel]: —and mortgage.
‘‘[The Witness]: —verify they were with counsel.
‘‘[The Defendant’s Counsel]: Okay. But did anybody compare the note
and mortgage copies with the originals that were in counsel’s office in
Connecticut when you boarded them?
‘‘[The Witness]: Yes, that is part of the boarding procedures.’’
4
‘‘An instrument is transferred when it is delivered by a person other
than its issuer for the purpose of giving to the person receiving delivery the
right to enforce the instrument.’’ (Internal quotation marks omitted.) Ulster
Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn. App. 699, 709, 41 A.3d
1077 (2012).
5
Paragraph 10 of the note and paragraph 17 of the mortgage are identical
and provide: ‘‘Transfer of the Property or a Beneficial Interest in Borrower.
If all or any part of the Property or any interest in it is sold or transferred
(or if a beneficial interest in Borrower is sold or transferred and Borrower
is not a natural person) without Lender’s prior written consent, Lender may,
at its option, require immediate payment in full of all sums secured by this
Security Instrument. However, this option shall not be exercised by Lender
if exercise is prohibited by federal law as of the date of this Security Instru-
ment.
‘‘If Lender exercises this option, Lender shall give Borrower notice of
acceleration. The notice shall provide a period of not less than 30 days from
the date the notice is delivered or mailed within which Borrower must pay
all sums secured by this Security Instrument. If Borrower fails to pay these
sums prior to the expiration of this period, Lender may invoke any remedies
permitted by this Security Instrument without further notice or demand on
Borrower.’’
6
Specifically, Gleicher testified that ‘‘[the defendant] took title to the
property . . . . And then Premier Capital, Inc., continued to pay the Wash-
ington Mutual mortgage on the prop[erty] . . . .’’ He further testified that
the payments are ‘‘paid out on behalf of [the defendant] . . . . The Premier
Capital checks, paid by Premier Capital. Premier Capital is affiliated with
[the defendant]. [The defendant] has—it owes money to Premier Capital,
and it’s properly reflected in everybody’s books. . . . Premier Capital . . .
owns notes and mortgages. When we foreclose on the notes and mortgages,
those—the title to the real estate . . . vests in [the defendant]. Premier
Capital continues to make the payments on the—on these—on the real
estate, but [the defendant] has . . . title to the real estate.’’
7
The letter, dated May 4, 2013, and addressed to Zeller, stated that the
January 10, 1990 mortgage was in default for failure to make payments. The
letter stated, inter alia, that ‘‘[f]ailure to cure the default on or before July
3, 2013, may result in acceleration of the sums secured and result in the
foreclosure and sale of the property.’’
8
The defendant’s suggestion in its principal brief that the court improperly
relied on the affidavit because it constituted hearsay is without merit. The
record shows that it was the defendant’s counsel who offered the affidavit
into evidence as a full exhibit during her cross-examination of the plain-
tiff’s witness.
9
Although the defendant argued the additional special defense of waiver
before the trial court, it abandoned this defense on appeal.
10
Additionally, the record shows that the parties entered into a stipulation
that issues of priority would be determined after a judgment of foreclosure
was rendered. A foreclosure by sale is equitable in this matter to protect the
rights of junior creditors and other parties with an interest in the underlying
property. Following the trial court’s decision, the defendant KMZ, Inc., filed
a motion to open the judgment of strict foreclosure and convert the judgment
to a foreclosure by sale, arguing that there is substantial equity above SLS’s
debt to partially or wholly satisfy KMZ, Inc.’s debt.