Wells Fargo Bank, N.A. v. Melahn ( 2020 )

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WELLS FARGO BANK, N.A., TRUSTEE v.
MICHAEL JOHN MELAHN ET AL.
(AC 39426)
Bright, Moll and Bear, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
of the defendant M, who filed a second amended answer with special
defenses and an eight count counterclaim. The counterclaim included
claims for, inter alia, violations of the Connecticut Unfair Trade Practices
Act (CUTPA) (§ 42-110a et seq.). Thereafter, the plaintiff filed a motion
to strike M’s special defenses and all eight counts of the counterclaim,
which the trial court granted on the grounds of legal insufficiency and
that seven of the counterclaims did not relate to the making, validity,
or enforcement of the note and mortgage, and, therefore, failed the
transaction test. Subsequently, the trial court rendered judgment on the
counterclaim in favor of the plaintiff, from which M appealed to this
court, which dismissed the appeal in part and affirmed in part. The
plaintiff, on the granting of certification, appealed to our Supreme Court,
which vacated the judgment of this court and remanded the case to this
court with direction to reconsider in light of its decision in U.S. Bank
National Assn. v. Blowers (332 Conn. 656). Held:
1. This court dismissed M’s appeal from the trial court’s striking of the
second amended special defenses because that portion of his appeal
was not taken from a final judgment.
2. The trial court did not err in striking M’s second amended counterclaim
and rendering judgment thereon in favor of the plaintiff: at oral argument
before this court, M abandoned any claim regarding the trial court’s
rulings as to the counts of his second amended counterclaim sounding
in negligent and intentional misrepresentation, fraud and breach of con-
tract/breach of the implied contract of good faith and fair dealing; more-
over, the court properly determined that the defendant failed to allege
sufficient facts to demonstrate CUTPA violations and did not rely on
the making, validity or enforcement test in striking the counts of that
counterclaim alleging deceptive acts and practices in violation of
CUTPA, wanton and reckless violation of M’s rights in misrepresenta-
tions and omissions made during loan negotiations, and unfair trade
practices, and a claim for punitive damages, thus, Blowers was not
germane to the issue of whether the trial court erred; furthermore, M’s
allegations that the plaintiff violated the uniform foreclosure standing
orders, inter alia, by failing to send him notice of the foreclosure judg-
ment within ten days following the entry thereof did not sufficiently
relate to the enforcement of the note or mortgage because the alleged
conduct occurred after the foreclosure judgment had been rendered
and thus did not arise out of the same transaction as the plaintiff’s
foreclosure complaint.
Argued January 21—officially released June 16, 2020
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Danbury, where the named defendant was defaulted
for failure to appear; thereafter, the court, Pavia, J.,
granted the plaintiff’s motion for judgment of strict
foreclosure and rendered judgment thereon; subse-
quently, the court, Pavia, J., opened the judgment and
granted the motion to dismiss filed by the named defen-
dant; thereafter, the court, Pavia, J., granted the plain-
tiff’s motion to reargue and vacated its order of dis-
missal, and the named defendant appealed to this court,
Gruendel, Bear and Flynn, Js., which reversed the trial
court’s judgment and remanded the matter for further
proceedings; subsequently, the named defendant filed
amended special defenses and a counterclaim; there-
after, the court, Russo, J., granted the plaintiff’s motion
to strike the amended special defenses and counter-
claim and rendered judgment on the counterclaim for
the plaintiff, from which the named defendant appealed
to this court, Sheldon, Bright and Bear, Js., which dis-
missed the appeal in part and affirmed the trial court’s
judgment in part, and the named defendant, on the
granting of certification, appealed to our Supreme
Court, which vacated the judgment of this court and
remanded the case to this court with direction to recon-
sider. Appeal dismissed in part; affirmed in part.
Ridgely Whitmore Brown, for the appellant
(named defendant).
Marissa I. Delinks, for the appellee (plaintiff).
Opinion
MOLL, J. This foreclosure case returns to this court
on remand from our Supreme Court. See Wells Fargo
Bank, N.A. v. Melahn, 333 Conn. 923, 218 A.3d 67 (2019).
The defendant Michael John Melahn1 appeals from the
judgment of the trial court rendered in favor of the
plaintiff, Wells Fargo Bank, N.A., as trustee,2 on the
defendant’s stricken second amended counterclaim and
the court’s striking of the defendant’s second amended
special defenses. In Wells Fargo Bank, N.A. v. Melahn,
181 Conn. App. 607, 614, 186 A.3d 1215 (2018), rev’d,
333 Conn. 923, 218 A.3d 67 (2019), this court dismissed,
for lack of a final judgment, the portion of the defen-
dant’s appeal taken from the striking of his second
amended special defenses and affirmed the judgment
in all other respects. Thereafter, the defendant peti-
tioned our Supreme Court for certification to appeal.
Our Supreme Court granted the defendant’s petition,
vacated this court’s judgment, and remanded the case
to this court with direction to reconsider its judgment
in light of our Supreme Court’s decision in U.S. Bank
National Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226(2019). Wells Fargo Bank, N.A. v. Melahn, supra, 333
Conn. 923. On remand, we conclude that Blowers does
not require a different disposition of the appeal. Accord-
ingly, we dismiss, for lack of a final judgment, the appeal
as to the striking of the defendant’s second amended
special defenses, and we affirm the judgment in all
other respects.
The following facts and procedural history, as set
forth by this court in two prior opinions, are relevant
to our resolution of this appeal. ‘‘On September 9, 2010,
the plaintiff filed an action against the defendant to
foreclose a mortgage on certain of his real property.
The defendant was defaulted for failure to appear on
November 2, 2010. The court rendered a judgment of
strict foreclosure on November 22, 2010, with a law
day of January 11, 2011. As part of its judgment, the
court ordered the plaintiff to ‘send notice to nonap-
pearing individual defendants by regular and certified
mail in accordance with the standing orders.’ Paragraph
D of the uniform foreclosure standing orders, form JD-
CV-104, provides: ‘Within 10 days following the entry
of judgment of strict foreclosure the plaintiff must send
a letter by certified mail, return receipt requested, and
by regular mail, to all non-appearing defendant owners
of the equity and a copy of the notice must be sent to
the clerk’s office. The letter must contain the following
information: a.) the letter is being sent by order of the
Superior Court; b.) the terms of the judgment of strict
foreclosure; c.) non-appearing defendant owner(s) of
equity risk the loss of the property if they fail to take
steps to protect their interest in the property on or
before the defendant owners’ law day; d.) non-
appearing defendant owner(s) should either file an indi-
vidual appearance or have counsel file an appearance in
order to protect their interest in the equity. The plaintiff
must file the return receipt with the Court. The Plaintiff
Must Not File A Certificate Of Foreclosure On The Land
Records Before Proof Of Mailing Has Been Filed With
The Court.’ On November 23, 2010, the court sent notice
of the order and judgment to the plaintiff. The plaintiff,
however, did not send notice to the defendant until
January 7, 2011, four days before his law day, and the
certified notice was not delivered to him until January
11, 2011, the actual law day. The notice sent to the
then nonappearing defendant also did not contain the
important information required by the standing orders,
which the court had mandated in its judgment. Despite
this deficiency, the plaintiff nevertheless certified to
the court that notice had been mailed ‘in compliance
with Uniform Foreclosure Standing Order JD-CV-79 and
JD-CV-104 (d), on January 7, 2011, to all counsel and
pro se parties of record to this action . . . .’ (Empha-
sis omitted.)
‘‘On February 22, 2011, after the defendant secured
legal representation, his attorney filed an appearance
in the case, and, on March 31, 2011, he filed a motion
to dismiss the foreclosure action due to the plaintiff’s
noncompliance with the court’s judgment and the false
certification. The plaintiff opposed the motion. On July
14, 2011, the court opened the judgment of strict foreclo-
sure and granted the defendant’s motion to dismiss,
holding that because the plaintiff had ‘failed to comply
with the notice requirement of the standing orders, the
matter is dismissed as to [the defendant]. . . .’ On
August 24, 2011, the plaintiff filed a motion to reargue,
citing the case of Falls Mill of Vernon Condominium
Assn., Inc. v. Sudsbury, 128 Conn. App. 314, 320–21,
15 A.3d 1210 (2011). The defendant objected to the
plaintiff’s motion and argued that the dismissal was a
proper sanction for the plaintiff’s failure to adhere to
the order contained in the court’s judgment and that it
filed a false certification. The court granted the plain-
tiff’s motion and concluded that, despite the plaintiff’s
failure to adhere to the notice requirements contained
in the judgment of strict foreclosure, the court was
precluded from opening the judgment and dismissing
the action because the law day had passed and title had
become absolute in the plaintiff. The court therefore
vacated its order granting the defendant’s motion to
dismiss and then denied the defendant’s motion.’’ (Foot-
notes omitted.) Wells Fargo Bank, N.A. v. Melahn, 148
Conn. App. 1, 3–6, 85 A.3d 1 (2014). The defendant
appealed therefrom. Id., 5–6.
‘‘In [Wells Fargo Bank, N.A. v. Melahn, supra, 148
Conn. App. 1], this court, despite the running of the
law day, reversed the judgment of strict foreclosure
and remanded the case to the trial court because the
plaintiff had failed to comply with the foreclosure stand-
ing orders by giving timely notice to the defendant of
certain important terms of the foreclosure judgment
and the adverse consequences of his continued failure
to take action. Id., 4, 12–13. Moreover, the plaintiff incor-
rectly had certified to the court that the required notice
had been provided to the defendant when, in fact, it
had not been provided. Id., 6, 12–13.
‘‘After the case was remanded to the trial court, the
defendant, on June 4, 2015, filed an answer with special
defenses and a four count counterclaim, which included
a count alleging no specific cause of action, a count
alleging a violation of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq., a count alleging breach of contract/breach of the
implied covenant of good faith and fair dealing, and a
count alleging fraudulent or negligent misrepresenta-
tion. The plaintiff moved to strike the special defenses
and the counterclaim, alleging, in relevant part, that all
counts of the counterclaim were legally insufficient.
The defendant, thereafter, consented to the granting of
that motion.
‘‘On August 28, 2015, the defendant filed an amended
answer with special defenses and a four count counter-
claim, which included counts for (1) tortious predatory
lending and foreclosure practices, (2) a CUTPA viola-
tion, (3) breach of contract/breach of the implied cove-
nant of good faith and fair dealing, and (4) fraudulent
and negligent misrepresentation. The plaintiff again
moved, in relevant part, to strike all counts of the coun-
terclaim on the ground of legal insufficiency. On Sep-
tember 10, 2015, the court granted the motion to strike.
‘‘On October 26, 2015, the defendant filed a second
amended answer with special defenses and an eight
count counterclaim. The alleged factual basis for the
defendant’s counterclaim was, in relevant part, as fol-
lows: The defendant, his wife, and his mother-in-law
reside in the subject property. The defendant was non-
appearing in the initial foreclosure. The plaintiff had
failed to comply with the uniform foreclosure standing
orders by sending a letter, via regular and certified mail,
to the defendant regarding the rendering of judgment.
. . . The plaintiff negligently misrepresented facts that
induced the defendant to enter into the mortgage and
loan agreement, despite the defendant’s inability to pay
the loan on a long-term basis, and the plaintiff benefited
from these misrepresentations. The plaintiff made sev-
eral misrepresentations that it knew, or should have
known, to be false, and, as a result of these misrepresen-
tations, the defendant was harmed.
‘‘On the basis of these alleged facts, the defendant
set forth the following numbered counts in his counter-
claim: (1) negligent misrepresentation, (2) intentional
misrepresentation and fraud, (3) breach of contract/
breach of the implied covenant of good faith and fair
dealing, (4) a violation of CUTPA, (5) wanton and reck-
less violation of CUTPA, (6) a violation of CUTPA, (7)
a violation of CUTPA with an ascertainable loss, and
(8) a violation of CUTPA with punitive damages. The
plaintiff objected to the second amended answer with
special defenses and counterclaim on the ground that
the defendant had failed to comply with Practice Book
(2015) § 10-60 (a).3 The court sustained the objection
and ordered the second amended answer with special
defenses and counterclaim stricken.
‘‘On November 12, 2015, the defendant refiled his
second amended answer with special defenses and an
eight count counterclaim. In response, on November
25, 2015, the plaintiff filed a motion to strike with preju-
dice the defendant’s refiled pleading on the ground that
the special defenses and each count of the counterclaim
were legally insufficient. The plaintiff alleged, in rele-
vant part, that counts one, two, four, five, six, seven,
and eight of the counterclaim failed to allege required
elements, and did not relate to the making, validity, or
enforcement of the note and mortgage, and that they,
therefore, failed the transaction test. . . . As to count
three of the counterclaim, the plaintiff alleged that it
failed to identify a breach by the plaintiff. The court,
in a thorough memorandum of decision, issued on May
20, 2016, granted the plaintiff’s motion on the grounds
advanced by the plaintiff.
‘‘On June 6, 2016, the defendant filed an ‘amendment
of counterclaim after motion to strike,’ which sought
to add a single paragraph to counts one through four,
providing: ‘The above facts implicate the making, valid-
ity, and enforcement of the original note and arise out
of the same transactional facts that are the subject of
[the] plaintiff’s complaint.’ In that pleading, the defen-
dant also stated that he would be filing a motion to
reargue the other stricken counts of his counterclaim
within twenty days.4
‘‘On June 21, 2016, the plaintiff filed a motion for
judgment on the defendant’s counterclaims on the basis
of the court’s May 20, 2016 decision striking each count.
In that motion, the plaintiff also objected to the June
6, 2016 purported amendment on the ground that it was
improper and did not constitute a new pleading that
required a response. The defendant did not file an objec-
tion to the motion for judgment. The court, apparently
in agreement with the plaintiff, rendered judgment on
the counterclaim in favor of the plaintiff.’’5 (Citations
omitted; footnotes in original.) Wells Fargo Bank, N.A.
v. Melahn, supra, 181 Conn. App. 609–13. The defendant
appealed from the judgment rendered on his second
amended counterclaim in the plaintiff’s favor and the
court’s striking of his second amended special defenses.
Id., 609.
In resolving the defendant’s appeal, this court dis-
missed, for lack of a final judgment, the portion of the
appeal taken from the striking of the defendant’s second
amended special defenses and affirmed the judgment
in all other respects. Id., 614. Thereafter, in granting
the defendant’s petition for certification to appeal, our
Supreme Court vacated this court’s judgment and
remanded the case with direction to reconsider the
judgment in light of Blowers. See Wells Fargo Bank,
N.A. v. Melahn, supra, 333 Conn. 923. We now revisit
the defendant’s appeal in accordance with our Supreme
Court’s order.6
We begin by providing ‘‘an overview of our Supreme
Court’s decision in [U.S. Bank National Assn. v. Blow-
ers, supra, 332 Conn. 656]. In Blowers, after the mort-
gagee had commenced an action to foreclose the mort-
gage encumbering the mortgagor’s real property, the
mortgagor filed special defenses sounding in equitable
estoppel and unclean hands, and a counterclaim sound-
ing in negligence and violations of CUTPA. Id., 659. In
support thereof, the mortgagor alleged that the mort-
gagee committed various acts, which occurred either
after the mortgagor’s default on the promissory note
or after the mortgagee had commenced the foreclosure
action,7 that, inter alia, frustrated his ability to obtain
a proper loan modification and increased the amount
of the debt, including attorney’s fees and interest,
claimed by the mortgagee in the foreclosure action. Id.,
661. Additionally, in support of his negligence claim,
the mortgagor alleged that the mortgagee’s actions had
ruined his credit score, which detrimentally affected
his business and personal affairs, and caused him to
incur significant legal and other expenses. Id. The mort-
gagor also asserted that the mortgagee should be
estopped from collecting the damages that it had caused
by its own alleged misconduct and barred from foreclos-
ing the mortgage at issue due to its unclean hands. Id.,661–62. With respect to his counterclaim, he sought
compensatory and punitive damages, injunctive relief,
and attorney’s fees. Id., 662.
‘‘The mortgagee moved to strike the mortgagor’s spe-
cial defenses and counterclaim, claiming that they were
unrelated to the making, validity, or enforcement of the
note and failed to state a claim upon which relief may
be granted. Id. The trial court granted the motion to
strike, concluding that the alleged misconduct by the
mortgagee had occurred following the execution of the
note and, therefore, neither the counterclaim nor the
special defenses related to the making, validity, or
enforcement thereof. Id., 662–63. Additionally, the court
determined that the mortgagor had alleged sufficient
facts to support his special defenses, but the court did
not reach the issue of whether the counterclaim was
supported by adequate facts. Id., 662. Thereafter, the
court rendered a judgment of strict foreclosure. Id.,
663. The mortgagor appealed to this court, which
affirmed the judgment, with one judge dissenting. U.S.
Bank National Assn. v. Blowers, 177 Conn. App. 622,
638, 172 A.3d 837 (2017), rev’d, 332 Conn. 656, 212 A.3d
226 (2019); id., 638–51 (Prescott, J., dissenting).
‘‘On certified appeal to our Supreme Court, the mort-
gagor challenged, inter alia, the propriety of the making,
validity, or enforcement test, and, to the extent that the
test applied in foreclosure actions, the proper scope
of ‘’’enforcement’’’ under the test. U.S. Bank National
Assn. v. Blowers, supra, 332 Conn. 664. Our Supreme
Court explained that the making, validity, or enforce-
ment test is ‘nothing more than a practical application
of the standard rules of practice that apply to all civil
actions to the specific context of foreclosure actions.’
. . . Id., 667. Having clarified the proper standard, the
court agreed with the mortgagor that ‘a proper construc-
tion of ‘‘enforcement’’ includes allegations of harm
resulting from a mortgagee’s wrongful postorigination
conduct in negotiating loan modifications, when such
conduct is alleged to have materially added to the debt
and substantially prevented the mortgagor from curing
the default.’ Id.‘‘The court observed that ‘[a]n action for foreclosure
is ‘‘peculiarly an equitable action’’’; id., 670; and that
‘appellate case law recognizes that conduct occurring
after the origination of the loan, after default, and even
after the initiation of the foreclosure action may form
a proper basis for defenses in a foreclosure action.’ Id.,
672. The court determined that ‘[t]his broader temporal
scope is consistent with the principle that, in equitable
actions, ‘‘the facts determinative of the rights of the
parties are those in existence at the time of final hear-
ing’’ . . . [and] is not inconsistent with a requirement
that a defense sufficiently relates to enforcement of the
note or mortgage. The various rights of the mortgagee
under the note and mortgage (or related security instru-
ments) are not finally or completely ‘‘enforced’’ until
the foreclosure action is concluded.’ (Citations omit-
ted.) Id., 673. The court further determined that ‘[t]he
mortgagor’s rights and liabilities . . . depend not only
on the validity of the note and mortgage but also on
the amount of the debt. That debt will determine
whether strict foreclosure or foreclosure by sale is
ordered, and, in turn, whether a deficiency judgment
may be recovered and the amount of that deficiency.
. . . The debt may include principal, interest, taxes,
and late charges owed. . . . The terms of the note or
mortgage may also permit an award of reasonable attor-
ney’s fees for expenses arising from any controversy
relating to the note or mortgage . . . .’ (Citations omit-
ted.) Id., 674–75.
‘‘The court continued: ‘These equitable and practical
considerations inexorably lead to the conclusion that
allegations that the mortgagee has engaged in conduct
that wrongly and substantially increased the mortgag-
or’s overall indebtedness, caused the mortgagor to incur
costs that impeded the mortgagor from curing the
default, or reneged upon modifications are the types
of misconduct that are directly and inseparably con-
nected . . . to enforcement . . . . Such allegations,
therefore, provide a legally sufficient basis for special
defenses in the foreclosure action. Insofar as the coun-
terclaims rest, at this stage, upon the same allegations as
the special defenses, judicial economy would certainly
weigh in favor of their inclusion in the present action.’8
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 675–76. On the basis of that ratio-
nale, the court reversed this court’s judgment and
remanded the matter to this court with direction to
reverse the judgment of strict foreclosure and remand
the matter to the trial court for further proceedings.
Id., 678.’’ (Footnotes in original and footnote omitted.)
HSBC Bank USA, National Assn. v. Nathan, 195 Conn.
App. 179, 193–97, 224 A.3d 1173 (2020).
With Blowers in mind, we turn to the defendant’s
claims on appeal. The defendant asserts that the trial
court improperly (1) struck his second amended special
defenses, and (2) struck his second amended counter-
claim and thereupon rendered judgment in favor of the
plaintiff. We address each claim in turn.
I
We first consider the defendant’s claim that the trial
court improperly struck his second amended special
defenses. As this court concluded in Wells Fargo Bank,
N.A. v. Melahn, supra, 181 Conn. App. 613, this portion
of the appeal was not taken from a final judgment. See
Glastonbury v. Sakon, 172 Conn. App. 646, 651, 161
A.3d 657 (2017) (‘‘‘The granting of a motion to strike a
special defense is not a final judgment and is therefore
not appealable. . . . The striking of special defenses
neither terminates a separate proceeding nor so con-
cludes the rights of the parties that further proceedings
cannot affect them.’ ’’). Blowers has no bearing on this
jurisdictional defect. Accordingly, we dismiss, for lack
of a final judgment, the portion of the appeal taken from
the striking of the second amended special defenses.
II
We next address the defendant’s claim that the trial
court improperly struck his second amended counter-
claim and thereupon rendered judgment in the plain-
tiff’s favor. As a preliminary matter, we discuss the
scope of the claim that the defendant is raising on
appeal. The defendant’s second amended counterclaim
set forth eight counts, with count one sounding in negli-
gent misrepresentation, count two sounding in inten-
tional misrepresentation and fraud, count three sound-
ing in breach of contract/breach of the implied covenant
of good faith and fair dealing, and counts four through
eight sounding in CUTPA violations. During oral argu-
ment held on remand, the defendant’s counsel stated
in relevant part that (1) the defendant was not challeng-
ing the court’s striking of count one sounding in negli-
gent misrepresentation, (2) he did not brief a claim
of error regarding the court’s striking of count three
sounding in breach of contract/breach of the implied
covenant of good faith and fair dealing, and (3) the
‘‘focus’’ of the appeal was the court’s rulings concerning
the defendant’s CUTPA claims. We construe the state-
ments made by defendant’s counsel as an abandonment
of any claim regarding the court’s rulings as to counts
one through three of the defendant’s second
amended counterclaim.
With respect to counts four through eight of the
defendant’s second amended counterclaim, the trial
court summarized the defendant’s allegations therein
as follows: ‘‘In count four, the defendant alleges that
the plaintiff’s actions constitute deceptive acts and
practices in violation of General Statutes § 42-110b. In
count five, the defendant alleges that the plaintiff com-
mitted a wanton and reckless violation of the defen-
dant’s rights in the misrepresentations and omissions
made during loan negotiations. In count six, the defen-
dant alleges that the plaintiff’s failure to provide timely
notice of the foreclosure judgment to the defendant
constitutes an unfair trade practice or deceptive prac-
tice in violation of § 42-110b. In count seven, the defen-
dant further alleges that he has experienced a sustain-
able injury from the unfair trade practices of the
plaintiff, and that he has suffered an ascertainable loss
as a result. Finally, in count eight, the defendant alleges
that he is entitled to punitive damages because of the
plaintiff’s intentional and wanton violation of the defen-
dant’s rights.’’ In striking those counts, the court stated:
‘‘[T]he defendant, in [his second amended] counter-
claim, does not allege any facts that demonstrate that
the plaintiff participated in any act that violated CUTPA.
Although the defendant does summarize, at great
length, the plaintiff’s alleged participation in the ‘sub-
prime mortgage crisis,’ that summary is conclusory only
and is therefore insufficient as a matter of law with
regard to whether the plaintiff participated in an actual
deceptive practice, or a practice that amounted to the
violation of public policy. Moreover, as stated earlier,
the defendant’s allegations in count six of the second
amended counterclaim with regard to any postjudgment
activity attributable to the plaintiff does not sufficiently
relate to the making, validity, or enforcement of the
note or mortgage to satisfy the transaction test for coun-
terclaims in a foreclosure action.9 The court, accord-
ingly, grants the plaintiff’s motion to strike the defen-
dant’s second amended counterclaim in connection
with counts four, five, six, seven, and eight on the
ground that the defendant does not sufficiently allege
facts to demonstrate violations of CUTPA.’’ (Foot-
note added.)
In Blowers, our Supreme Court expounded on the
parameters of the making, validity, or enforcement test
and assumed, for purposes of that opinion, that the
special defenses and counterclaim at issue in that case
‘‘would otherwise be legally sufficient.’’ U.S. Bank
National Assn. v. Blowers, supra, 332 Conn. 670. In
striking counts four, five, seven, and eight of the defen-
dant’s second amended counterclaim, the trial court
did not rely on the making, validity, or enforcement
test; instead, the court determined that the defendant
failed to allege sufficient facts therein demonstrating
CUTPA violations. Therefore, Blowers is not germane
to the issue of whether the court erred in striking counts
four, five, seven, and eight of the second amended coun-
terclaim. In turn, we discern no error in the court strik-
ing those counts and thereupon rendering judgment in
favor of the plaintiff. In fact, on appeal, the defendant
does not argue, in any cognizable manner, that the court
committed error in determining that he failed to allege
sufficient facts demonstrating violations of CUTPA. See
Traylor v. State, 332 Conn. 789, 805, 213 A.3d 467 (2019)
(appellant’s ‘‘complete failure to challenge what the
trial court actually decided in its memoranda of decision
operates as an abandonment of his claims’’).
In count six of his second amended counterclaim,
the defendant alleged in relevant part that the plaintiff
violated the uniform foreclosure standing orders, inter
alia, by failing to send him notice of the November 22,
2010 foreclosure judgment within ten days following
the entry thereof and that the plaintiff’s violation of
the uniform foreclosure standing orders constituted a
violation of CUTPA. The court determined that the alle-
gations in count six regarding ‘‘any postjudgment activ-
ity attributable to the plaintiff’’ did not sufficiently relate
to the making, validity, or enforcement of the note or
mortgage.10 Thus, we must consider whether the court’s
determination constituted error in light of Blowers. We
conclude that it did not.
Initially, we observe that, in general, ‘‘[a]ppellate
review of a trial court’s decision to grant a motion to
strike is plenary. . . . This is because a motion to strike
challenges the legal sufficiency of a pleading . . . and,
consequently, requires no factual findings by the trial
court . . . . In ruling on a motion to strike, the court
must accept as true the facts alleged in the special
defenses and construe them in the manner most favor-
able to sustaining their legal sufficiency. . . . The alle-
gations of the pleading involved are entitled to the same
favorable construction a trier would be required to give
in admitting evidence under them and if the facts prov-
able under its allegations would support a defense or
a cause of action, the motion to strike must fail.’’ (Cita-
tions omitted; internal quotation marks omitted.) U.S.
Bank National Assn. v. Blowers, supra, 332 Conn. 667–
68. Here, with Blowers in mind, we must determine
whether the allegations supporting the sixth count of
the defendant’s second amended counterclaim ‘‘bear a
sufficient connection to enforcement of the note or
mortgage. The meaning of enforcement in this context
presents an issue of law over which we also exercise
plenary review.’’11 (Footnote omitted.) Id., 670.
Having reviewed the allegations of count six of the
second amended counterclaim, with Blowers guiding
our analysis, we conclude that the allegations do not
sufficiently relate to enforcement of the note or mort-
gage. The alleged conduct by the plaintiff regarding its
violation of the uniform foreclosure standing orders
occurred postjudgment, that is, after the November 22,
2010 foreclosure judgment had been rendered. Whether
the plaintiff complied with the uniform foreclosure
standing orders related to enforcement of that judg-
ment, not the enforcement of the note or mortgage.
Thus, the plaintiff’s actions at issue did not arise out
of the same transaction as the plaintiff’s foreclosure
complaint. See Practice Book § 10-10.12 Additionally,
the defendant did not allege that the plaintiff’s conduct
substantially prevented him from curing his default or
materially added to his debt. See U.S. Bank National
Assn. v. Blowers, supra, 332 Conn. 675 (‘‘allegations
that the mortgagee has engaged in conduct that wrongly
and substantially increased the mortgagor’s overall
indebtedness, caused the mortgagor to incur costs that
impeded the mortgagor from curing the default, or
reneged upon modifications are the types of misconduct
that are directly and inseparably connected . . . to
enforcement of the note and mortgage’’ (citation omit-
ted; internal quotation marks omitted)). For these rea-
sons, we conclude that the trial court did not err in
striking count six of the second amended counterclaim
and thereupon rendering judgment in the plaintiff’s
favor.
The appeal is dismissed with respect to the striking
of the defendant’s special defenses; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The complaint also named Danbury Radiological Associates, P.C., and
Danbury Hospital as defendants, but those parties were defaulted for failure
to appear and are not participating in this appeal. For purposes of clarity,
we will refer to Michael John Melahn as the defendant.
2
The full name of the plaintiff is Wells Fargo Bank, N.A., as Trustee for
Option One Mortgage Loan Trust 2007-6, Asset-Backed Certificates, Series
2007-6.
3
‘‘Practice Book (2015) § 10-60 (a) provides: ‘Except as provided in Section
10-66, a party may amend his or her pleadings or other parts of the record
or proceedings at any time subsequent to that stated in the preceding section
in the following manner:
‘‘ ‘(1) By order of judicial authority; or
‘‘ ‘(2) By written consent of the adverse party; or
‘‘ ‘(3) By filing a request for leave to file such amendment, with the amend-
ment appended, after service upon each party as provided by Sections 10-
12 through 10-17, and with proof of service endorsed thereon. If no objection
thereto has been filed by any party within fifteen days from the date of the
filing of said request, the amendment shall be deemed to have been filed
by consent of the adverse party. If an opposing party shall have objection
to any part of such request or the amendment appended thereto, such
objection in writing specifying the particular paragraph or paragraphs to
which there is objection and the reasons therefor, shall, after service upon
each party as provided by Sections 10-12 through 10-17 and with proof of
service endorsed thereon, be filed with the clerk within the time specified
above and placed upon the next short calendar list.’ ’’ Wells Fargo Bank,
N.A. v. Melahn, supra, 181 Conn. App. 611–12 n.3.
4
‘‘But see Practice Book § 10-44, which provides: ‘Within fifteen days after
the granting of any motion to strike, the party whose pleading has been
stricken may file a new pleading; provided that in those instances where
an entire complaint, counterclaim or cross complaint, or any count in a
complaint, counterclaim or cross complaint has been stricken, and the party
whose pleading or a count thereof has been so stricken fails to file a new
pleading within that fifteen day period, the judicial authority may, upon
motion, enter judgment against said party on said stricken complaint, coun-
terclaim or cross complaint, or count thereof. Nothing in this section shall
dispense with the requirements of Sections 61-3 or 61-4 of the appellate
rules.’ ’’ Wells Fargo Bank, N.A. v. Melahn, supra, 181 Conn. App. 613 n.4.
5
In a footnote in Wells Fargo Bank, N.A. v. Melahn, supra, 181 Conn.
App. 613 n.5, this court concluded that the ‘‘June 6, 2016 attempted amend-
ment was disregarded as improper by the trial court’’ and that the defendant
had not raised a claim of error regarding that action.
6
Following the remand from our Supreme Court, we sua sponte ordered
the parties to file supplemental briefs addressing the impact, if any, of
Blowers on the defendant’s appellate claims. The parties filed supplemental
briefs in accordance with our order and, thereafter, appeared before us for
oral argument.
7
‘‘The mortgagor alleged, inter alia, that the mortgagee had (1) offered
rate reductions lowering the mortgagor’s monthly mortgage payments, only
to later renege on the modifications following the mortgagor’s successful
completion of trial payment periods, (2) increased the mortgagor’s monthly
payment amount of modified payments that had been agreed to following
the intervention of the state’s Department of Banking, (3) erroneously
informed the mortgagor’s insurance company that the mortgagor’s real prop-
erty was no longer being used as the mortgagor’s residence, resulting in the
cancelation of the mortgagor’s insurance policy and requiring the mortgagor
to replace the coverage at higher premium costs, and (4) engaged in dilatory
conduct during the course of approximately ten months of mediation ses-
sions held after the commencement of the foreclosure action. U.S. Bank
National Assn. v. Blowers, supra, 332 Conn. 659–61.’’ HSBC Bank USA,
National Assn. v. Nathan, 195 Conn. App. 179, 194 n.13, 224 A.3d 1173 (2020).
8
‘‘In striking the mortgagor’s special defenses and counterclaim, the trial
court also ‘acknowledged that a foreclosure sought after a modification had
been reached during mediation could have the requisite nexus to enforce-
ment of the note, but found that there had been no such modification . . . .’
U.S. Bank National Assn. v. Blowers, supra, 332 Conn. 662. On appeal, the
mortgagor also challenged ‘the sufficiency of the allegations to establish
that the parties had entered into a binding modification if such allegations
are necessary to seek equitable relief on the basis of postorigination conduct.’
Id., 664. Our Supreme Court determined that ‘[t]o the extent that the plead-
ings reasonably may be construed to allege that the April, 2012 intervention
by the Department of Banking resulted in a binding modification, there can
be no doubt that the breach of such an agreement would bear the requisite
nexus [to enforcement of the note or mortgage].’ Id., 675.’’ HSBC Bank USA,
National Assn. v. Nathan, supra, 195 Conn. App. 197 n.15.
9
In striking count one of the second amended counterclaim sounding in
negligent misrepresentation, in which the defendant alleged in relevant part
that the plaintiff’s failure to provide him with timely notice of the November
22, 2010 foreclosure judgment constituted negligent misrepresentation, the
court determined that the defendant’s claim did ‘‘not meet the transaction
test for a counterclaim in a foreclosure action.’’ In striking count two of
the second amended counterclaim sounding in intentional misrepresentation
and fraud, in which the defendant alleged in relevant part that the plaintiff
made a fraudulent misrepresentation by certifying to the court that it had
notified the defendant of the foreclosure judgment, the court determined that
‘‘[a]llegations regarding what occurred after the initiation of the foreclosure
proceedings do not arise out of the same transaction as the original com-
plaint.’’
10
The trial court’s May 20, 2016 memorandum of decision striking the
defendant’s second amended counterclaim and special defenses is ambigu-
ous as to whether the court struck count six of the second amended counter-
claim only on the ground that the allegations therein did not satisfy the
making, validity, or enforcement test, or on the additional ground that the
allegations did not allege adequate facts establishing a CUTPA violation.
We need not further address this ambiguity because, mindful of Blowers,
we conclude that the court did not err in determining that the allegations
set forth in count six did not sufficiently relate to the making, validity, or
enforcement of the note or mortgage.
11
The court in Blowers focused on the ‘‘enforcement’’ component of the
making, validity, or enforcement test. U.S. Bank National Assn. v. Blowers,
supra, 332 Conn. 667, 670. In the present case, it is evident that the allegations
contained in count six of the second amended counterclaim did not relate
to the making or validity of the note or mortgage. Accordingly, our analysis
focuses on whether the allegations set forth in count six sufficiently related
to the enforcement of the note or mortgage.
12
Practice Book § 10-10 provides in relevant part: ‘‘In any action for legal
or equitable relief, any defendant may file counterclaims against any plaintiff
. . . provided that each such counterclaim . . . arises out of the transac-
tion or one of the transactions which is the subject of the plaintiff’s complaint
. . . .’’ As our Supreme Court explained in Blowers, the making, validity,
or enforcement test is ‘‘nothing more than a practical application of the
standard rules of practice that apply to all civil actions to the specific context
of foreclosure actions.’’ U.S. Bank National Assn. v. Blowers, supra, 332
Conn. 667.