JPMorgan Chase Bank, National Assn. v. Essaghof

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JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION v. ROGER
ESSAGHOF ET AL.
(SC 20090)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Kahn, Ecker and Vertefeuille, Js.*
Syllabus
Pursuant to statute (§ 49-1), ‘‘[t]he foreclosure of a mortgage is a bar to any
further action upon the mortgage debt, note or obligation against the
person or persons who are liable for the payment thereof . . . .’’
Pursuant further to statute (§ 49-14 (a)), however, ‘‘[a]t any time within
thirty days after the time limited for redemption has expired, any party to
a mortgage foreclosure may file a motion seeking a deficiency judgment.’’
The plaintiff bank sought to foreclose a mortgage on certain of the defen-
dants’ real property after they had defaulted on a loan that had been
modified by agreement. The trial court rendered a judgment of strict
foreclosure, from which the defendants appealed to the Appellate Court.
While the appeal was pending and the defendants were still occupying
the property, the trial court granted the plaintiff’s motion for equitable
relief and ordered the defendants to reimburse the plaintiff for future
property taxes and homeowners insurance premiums that the plaintiff
would pay during the pending appeal. The defendants filed an amended
appeal with the Appellate Court, which affirmed the trial court’s judg-
ment of strict foreclosure and determined that the trial court’s order
relating to tax and insurance premium reimbursements was not an abuse
of discretion. On the granting of certification, the defendants appealed
to this court. Held:
1. The trial court abused its discretion by ordering the defendants to make
monetary payments to the plaintiff outside of a deficiency judgment
pursuant to § 49-14, and, accordingly, the Appellate Court improperly
upheld that order: by pursuing strict foreclosure, the plaintiff elected
to take absolute title to the property, a remedy in rem, and to pursue
any remaining debt through the procurement of a deficiency judgment,
a remedy in personam; moreover, because a deficiency judgment was
the exclusive procedure by which the plaintiff could obtain a remedy
in personam from the defendants in the context of strict foreclosure,
and because the trial court’s order requiring the defendants to reimburse
the plaintiff for future taxes and insurance premiums was a remedy in
personam insofar as it operated on the defendants personally with
respect to other property owned by them and settled a dispute by
imposing a personal liability or obligation on them in favor of the plain-
tiff, the trial court’s order was improper.
2. This court declined to consider the defendants’ claim that the trial court
should have been disqualified due to certain statements that called that
court’s impartiality into question; the defendants’ disqualification claim
was not properly before this court, as the defendants failed to raise the
issue at trial or on appeal before the Appellate Court, and the issue was
beyond the scope of the certified question.
Argued October 21, 2019—officially released August 20, 2020**
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 Stamford-Norwalk, where the case was tried to
the court, Hon. Kevin Tierney, judge trial referee, who,
exercising the powers of the Superior Court, rendered
judgment of strict foreclosure, from which the named
defendant et al. appealed to the Appellate Court; there-
after, the court, Hon. Kevin Tierney, judge trial referee,
granted the plaintiff’s motion for reimbursement of
property taxes and insurance premiums, and the named
defendant et al. filed an amended appeal with the Appel-
late Court; subsequently, the Appellate Court, Lavine,
Mullins and Mihalakos, Js., affirmed the judgment of
the trial court, and the named defendant et al., on the
granting of certification, appealed to this court.
Reversed in part; judgment directed.
Ridgely Whitmore Brown, for the appellants (named
defendant et al.).
Brian D. Rich, for the appellee (plaintiff).
Jeffrey Gentes, John L. Pottenger, Jr., and Serena
Candelaria, Adrian Gonzalez, Amy Hausmann,
Natasha Khan and Srinath Reddy Kethireddy, law stu-
dent interns, filed a brief for the Housing Clinic of the
Jerome N. Frank Legal Services Organization as ami-
cus curiae.
Opinion
McDONALD, J. In this certified appeal, we must
decide whether a trial court may order a mortgagor to
reimburse a mortgagee for the mortgagee’s ongoing
advancements of property taxes and insurance premi-
ums during the pendency of an appeal from a judgment
of strict foreclosure. The defendants Roger Essaghof
and Katherine Marr-Essaghof1 appeal from the judg-
ment of the Appellate Court affirming the trial court’s
order requiring that the defendants reimburse the plain-
tiff, JPMorgan Chase Bank, National Association, for
property tax and insurance premium payments
advanced by the plaintiff during the pendency of this
appeal. The defendants’ principal claim is that the
Appellate Court incorrectly concluded that the trial
court’s order was a valid exercise of its equitable author-
ity. We conclude that the trial court abused its discre-
tion because the relief it ordered is inconsistent with
the remedial scheme available to a mortgagee in a strict
foreclosure. Accordingly, we reverse the judgment of
the Appellate Court insofar as it upheld the trial court’s
order directing the defendants to reimburse the plaintiff
for property taxes and insurance premiums. We affirm
the Appellate Court’s judgment in all other respects.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. In
May, 2006, the defendants executed an adjustable rate
promissory note in favor of Washington Mutual Bank,
F.A.; see footnote 1 of this opinion; in the original,
principal amount of $1.92 million. JPMorgan Chase
Bank, National Assn. v. Essaghof, 177 Conn. App. 144,
146–47, 171 A.3d 494 (2017). The loan was secured by
a mortgage deed, executed by both defendants, on resi-
dential property located in Weston. See id., 147. Approx-
imately two years later, the defendants executed a loan
modification and defaulted on the loan shortly there-
after by failing to make payments. Id., 148–49. In Sep-
tember, 2008, the plaintiff acquired Washington Mutual
and its assets, including the defendants’ loan. Id., 149.
The plaintiff commenced this foreclosure action in
March, 2009. Id. In November, 2015, after a seven day
bench trial, the court rendered a judgment of strict
foreclosure in favor of the plaintiff. See id., 149–50. The
court found that the total debt was more than $3.2
million while the fair market value of the property was
$1.65 million and set the law days. The defendants
timely appealed to the Appellate Court, claiming that
the trial court erred in rejecting two of their special
defenses; see id., 146, 151; and the automatic appellate
stay went into effect pursuant to Practice Book § 61-
11 (a).
In early 2016, with the appeal pending and the defen-
dants still living at the property, the plaintiff moved for
the trial court to terminate the appellate stay under
Practice Book § 61-11 (d) or, in the alternative, to invoke
its equitable authority and order the defendants to reim-
burse the plaintiff for future property taxes and insur-
ance premiums that the plaintiff would advance during
the pendency of the appeal. Id., 150 and n.4. On Febru-
ary 23, 2016, the court denied the motion to terminate
the stay but granted the requested equitable relief. Id.
The court reasoned that, between March, 2010, and
January, 2016, the plaintiff had paid more than $330,000
in property taxes and insurance premiums to protect
both its security interest in the property and the priority
of its mortgage loan. The court noted that the tax and
insurance payments, however, had always been the
defendants’ responsibility and would continue to be—
regardless of the outcome of the pending foreclosure
appeal. It further noted that the defendants’ obligation
to pay the taxes and insurance premiums was not con-
tested in the foreclosure litigation, and the obligation
could neither affect nor be affected by the outcome of
the appeal. At a hearing on the plaintiff’s motion, the
trial court explained: ‘‘[I]t’s not fair that the [defendants]
can live in this house and not pay the real estate taxes
that they’re obligated to [pay] when they win this
appeal. It’s not fair that they live in this house and not
pay the insurance on the house that they’re living in.
When they win the appeal, they have to pay it.’’ The
court further explained: ‘‘It’s not fair that he has to have
his obligations that are his when he wins the appeal or
he loses the appeal be paid by somebody else. Where
do we get that as a law? How can I stand for that? How
can I allow that to happen?’’
The court’s order applied prospectively. That is, it
did not require the defendants to pay the insurance
premiums and real estate taxes that had accrued from
the time of default; it only required the defendants to
reimburse the plaintiff for real estate taxes that it paid
in January, 2016, and, on an ongoing basis, for all future
property tax and insurance payments until the end of
the litigation. The court established the following pay-
ment and reimbursement arrangement: the plaintiff
would pay the real estate taxes and insurance premiums
and submit proof of payment to the defendants. The
defendants would then have thirty days to reimburse the
plaintiff. If the defendants did not comply, the plaintiff
could seek sanctions against either or both defendants,
including, but not limited to, a finding of contempt. At
the hearing, the court acknowledged that it could not
hold the defendants in contempt if they were unable
to pay but suggested that, if they did have the ability
to pay, the court could jail the defendants as an incen-
tive to do so. The defendants subsequently amended
their pending appeal in the Appellate Court to challenge
the February 23, 2016 order on the ground that it was
an abuse of discretion because it carried the threat of
imprisonment for failure to pay a debt, the ‘‘equivalent
to the re-creation of [a] debtors’ prison.’’ (Internal quota-
tion marks omitted.) JPMorgan Chase Bank, National
Assn. v. Essaghof, supra, 177 Conn. App. 150, 160.
The Appellate Court rejected each of the defendants’
claims related to the special defenses and affirmed the
trial court’s judgment of strict foreclosure. Id., 146, 151,
163. That court also held that the trial court’s order
relating to tax and insurance premium reimbursements
was not an abuse of discretion. Id., 162. The Appellate
Court reasoned that the trial court’s payment order was
a matter of the court’s broad equitable discretion, and
it could not ‘‘conceive of any abuse of discretion on
the part of the trial court . . . in determining that a
balancing of the equities justified ordering the defen-
dants to pay for expenses that they would have been
required to pay no matter the outcome of this case.’’
(Footnote omitted.) Id.
We thereafter granted the defendants’ petition for
certification to appeal, limited to the following issue:
‘‘Did the Appellate Court properly affirm the judgment
of the trial court ordering the defendants to reimburse
the plaintiff for property taxes and homeowners insur-
ance premiums in violation of the provisions of General
Statutes § 49-14 pertaining to deficiency proceedings?’’
JPMorgan Chase Bank, National Assn. v. Essaghof,
328 Conn. 915, 180 A.3d 962 (2018).
Although we granted the defendants’ petition limited
to the one issue, on appeal, the defendants raise two
claims: (1) the Appellate Court improperly affirmed the
trial court’s order to reimburse the plaintiff for taxes
and insurance premiums because, in a strict foreclo-
sure, a trial court may award money damages only in
a deficiency judgment pursuant to § 49-14; and (2) this
court should vacate the judgment in its entirety and
order a new trial before a different judge because cer-
tain statements the trial court made at a hearing on
February 8, 2016, call into question the trial court’s
impartiality, requiring its disqualification under rule
2.11 of the Code of Judicial Conduct.2 We agree with
the defendants that the trial court’s order constituted
an abuse of discretion because it does not fit within
the remedial scheme available to a mortgagee in a strict
foreclosure. We decline to consider the merits of the
defendants’ second claim because the defendants did
not raise the disqualification issue before the trial court
or the Appellate Court, and because it is outside the
scope of the certified question. Accordingly, we reverse
in part the judgment of the Appellate Court.
I
We first consider whether the trial court’s order
requiring the defendants to reimburse the plaintiff for
tax and insurance premium advancements was a valid
exercise of the court’s equitable authority. The defen-
dants argue that, although a court generally has broad
equitable discretion in a foreclosure proceeding, mone-
tary payments are legal, not equitable, relief and must
be awarded only in accordance with the procedure for
deficiency judgments set forth in § 49-14. The plaintiff
disagrees and contends that the trial court’s order was
a valid exercise of the court’s equitable authority.
This court reviews the exercise of a trial court’s equi-
table powers for an abuse of discretion. See, e.g., Presi-
dential Village, LLC v. Phillips, 325 Conn. 394, 407,
158 A.3d 772 (2017); see also MTGLQ Investors, L.P.
v. Egziabher, 134 Conn. App. 621, 624, 39 A.3d 796
(2012) (‘‘[o]ur review of a trial court’s exercise of the
legal discretion vested in it is limited to the questions
of whether the trial court correctly applied the law and
could reasonably have reached the conclusion that it
did’’ (internal quotation marks omitted)). ‘‘Although we
ordinarily are reluctant to interfere with a trial court’s
equitable discretion . . . we will reverse where we find
that a trial court acting as a court of equity could not
reasonably have concluded as it did . . . or to prevent
abuse or injustice.’’ (Internal quotation marks omitted.)
Presidential Village, LLC v. Phillips, supra, 407.
We begin with well established background princi-
ples regarding the foreclosure of a mortgage. ‘‘A note
and a mortgage given to secure it are separate instru-
ments, executed for different purposes . . . .’’ (Inter-
nal quotation marks omitted.) Hartford National
Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441
A.2d 593 (1981). ‘‘Upon a mortgagor’s default on an
underlying obligation, the mortgagee is entitled to pur-
sue . . . its remedy at law for the amount due on the
note, its remedy in equity to foreclose on the mortgage,
or both remedies in one consolidated cause of action.’’
JP Morgan Chase Bank, N.A. v. Winthrop Properties,
LLC, 312 Conn. 662, 673, 94 A.3d 622 (2014). ‘‘[T]he
extent of the recovery . . . should not in any event
exceed the amount of the debt.’’ (Internal quotation
marks omitted.) Hartford National Bank & Trust Co.
v. Kotkin, supra, 581–82.
A mortgage foreclosure is a proceeding in rem; Atlas
Garage & Custom Builders, Inc. v. Hurley, 167 Conn.
248, 252, 355 A.2d 286 (1974); its purpose is to extinguish
the mortgagor’s equity of redemption and vest absolute
title to the property in the mortgagee. See JP Morgan
Chase Bank, N.A. v. Winthrop Properties, LLC, supra,
312 Conn. 673. A judgment in rem ‘‘creates no personal
liability but operates only on the res which is the subject
of the litigation . . . .’’ 50 C.J.S. 792, Judgments § 1385
(2009); see also Zellen v. Second New Haven Bank, 454
F. Supp. 1359, 1363 (D. Conn. 1978) (‘‘the generally
accepted definition of a proceeding in rem is ‘a proceed-
ing to determine the right in specific property, against
all the world, equally binding on everyone’ ’’); Hodge v.
Hodge, 178 Conn. 308, 313, 422 A.2d 280 (1979) (‘‘an
action in rem is an action brought to enforce or protect
a [preexisting] interest in particular property’’ (internal
quotation marks omitted)). An action at law on the note,
by contrast, is a proceeding in personam because it
‘‘imposes a personal liability or obligation on one person
in favor of another’’ and ‘‘does not directly affect the
status of the res . . . .’’ 49 C.J.S. 44, Judgments § 12
(2009); see also Zellen v. Second New Haven Bank,
supra, 1363 (‘‘[t]he object of an in personam action is
to obtain a judgment against a person rather than to
obtain a judgment determining the status and disposi-
tion of property’’); Garner’s Dictionary of Legal Usage
(3d Ed. 2011) p. 461 (‘‘[a]n action is in personam when
its purpose is to determine the rights and interests of
the parties themselves in the subject matter of the
action . . . [and] an action is in rem when the court’s
judgment determines the title to property and the rights
of the parties, not merely among themselves, but also
against all persons at any time claiming an interest in
the property at issue’’).
A foreclosure is ‘‘peculiarly an equitable action, and
the court may entertain such questions as are necessary
to be determined in order that complete justice may
be done.’’ Hartford Federal Savings & Loan Assn. v.
Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). The
court’s discretion, however, is not unlimited. ‘‘The law
governing strict foreclosure lies at the crossroads
between the equitable remedies provided by the judi-
ciary and the statutory remedies provided by the legisla-
ture. . . . In exercising its equitable discretion . . .
the court must comply with mandatory statutory provi-
sions that limit the remedies available to a foreclosing
mortgagee.’’ (Citations omitted; footnote omitted.) New
Milford Savings Bank v. Jajer, 244 Conn. 251, 256–57,
708 A.2d 1378 (1998).
‘‘Historically, a foreclosure proceeding was an abso-
lute bar to further action on the mortgage debt. In
M’Ewen v. Welles, 1 Root [Conn.] 202, 203 (1790), the
[court] enunciated that ‘[i]f [the mortgagee] choose[s]
to take the land and to make it his own absolutely,
whereby the mortgagor is totally divested of his equity
of redemption, the debt is thereby paid and discharged:
And if it eventually proves insufficient to raise the sum
due, it is the mortgagee’s own fault, and at his risk.’
Starting in 1835, a succession of statutes established a
mortgagee’s right to a judgment for the deficiency when
the value of the property proves inadequate to satisfy
the mortgage debt in full.’’ Factor v. Fallbrook, Inc., 25
Conn. App. 159, 161–62, 593 A.2d 520, cert. denied, 220
Conn. 908, 597 A.2d 332 (1991). The modern versions
of these statutes are General Statutes §§ 49-1 and 49-
14. We discuss each in turn.
Section 49-1 provides in relevant part that ‘‘[t]he fore-
closure of a mortgage is a bar to any further action
upon the mortgage debt, note or obligation against the
person or persons who are liable for the payment
thereof . . . .’’ Under § 49-1, ‘‘a judgment of strict fore-
closure extinguishes all rights of the foreclosing mort-
gagee on the underlying note, except those enforceable
through the use of the deficiency judgment procedure
delineated in . . . § 49-14.’’ First Bank v. Simpson, 199
Conn. 368, 370, 507 A.2d 997 (1986). More specifically,
with the exception of a deficiency judgment under § 49-
14, § 49-1 precludes a mortgagee from ‘‘pursu[ing] per-
sonal remedies against the mortgagors with respect to
their personal obligations’’ on the mortgage debt.
(Emphasis omitted.) New Milford Savings Bank v.
Jajer, supra, 244 Conn. 265.
Section 49-14 (a) is a limited exception to this bar
on further action following a strict foreclosure,3 and it
provides that, ‘‘[a]t any time within thirty days after the
time limited for redemption has expired, any party to
a mortgage foreclosure may file a motion seeking a
deficiency judgment. . . . At [the deficiency hearing]
the court shall hear the evidence, establish a valuation
for the mortgaged property and shall render judgment
for the plaintiff for the difference, if any, between such
valuation and the plaintiff’s claim. The plaintiff in any
further action upon the debt, note or obligation, shall
recover only the amount of such judgment.’’ A defi-
ciency judgment is a remedy in personam; see W. Cook,
‘‘The Powers of Courts of Equity,’’ 15 Colum. L. Rev.
37, 52 (1915); see also Bank of Stamford v. Alaimo,
31 Conn. App. 1, 5, 622 A.2d 1057 (1993) (plaintiff in
foreclosure action ‘‘who intends to bring a deficiency
judgment authorized by . . . § 49-14 must allege facts
sufficient, not only to justify the decree of foreclosure
on the mortgage, but to support a judgment in perso-
nam against the particular defendant or defendants
against whom a deficiency judgment will be sought’’
(emphasis added; footnote omitted)); and ‘‘any defi-
ciency judgment sought in connection with the foreclo-
sure arises from the contractual relationship between
the parties to the promissory note.’’ JP Morgan Chase
Bank, N.A. v. Winthrop Properties, LLC, supra, 312
Conn. 674. Accordingly, a deficiency judgment, in light
of § 49-1, is ‘‘the only available means of satisfying a
mortgage debt when the security is inadequate to make
the foreclosing plaintiff whole.’’ First Bank v. Simpson,
supra, 199 Conn. 371; see 1 D. Caron & G. Milne, Con-
necticut Foreclosures (10th Ed. 2020) § 10-5:1, pp. 705–
706. In other words, a deficiency judgment is the only
procedure by which a court may order a mortgagor to
pay money to a mortgagee in the context of a strict
foreclosure.
Although §§ 49-1 and 49-14 are not implicated until
the law days have run, the statutes operate within, and
must be consistent with, the larger remedial scheme. ‘‘It
is our adjudicatory responsibility to find the appropriate
accommodation between applicable judicial and statu-
tory principles. . . . [C]ourts must . . . [ensure] that
the body of the law—both common and statutory—
remains coherent and consistent.’’ (Internal quotation
marks omitted.) New Milford Savings Bank v. Jajer,
supra, 244 Conn. 257. To that end, the fact that the
statutes do not apply until after the law days have run
does not mean that a mortgagee seeking a strict foreclo-
sure may subvert the remedial scheme by receiving
monetary payments before the law days have run. Were
we to permit such a practice during the pendency of
a mortgagor’s appeal, there would be little principled
reason that a mortgagee could not also ask a court to
order the payment of property insurance premiums or
real estate taxes—or even monthly installments of prin-
cipal and interest—as a condition to the mortgagor’s
asserting a defense to a foreclosure. We are aware of
no statutory or common-law authority that would
authorize such a pendente lite order. Unlike in the sum-
mary process context, in which the legislature has
authorized courts to order use and occupancy payments
during the pendency of an eviction action; see General
Statutes § 47a-26b; or during the appeal of an eviction
action; see General Statutes § 47a-35a; there is no simi-
lar statutory framework in the foreclosure context.
‘‘Where the legislature has taken action in an area, [this
court] generally interpret[s] the legislature’s failure to
take similar action in a closely related area as indicative
of a decision not to do so.’’ Bell Atlantic NYNEX Mobile,
Inc. v. Commissioner of Revenue Services, 273 Conn.
240, 255, 869 A.2d 611 (2005).
In sum, once a mortgagee elects to pursue a strict
foreclosure against the mortgagor, it is limited to a
specific statutory process by which it may seek to be
made whole. First, the mortgagee receives title to the
property that secures the note—a remedy in rem. Then,
if the debt exceeds the value of the property, the mort-
gagee may seek to recover the difference from the mort-
gagor in a deficiency judgment pursuant to § 49-14—
a remedy in personam. A deficiency judgment is the
exclusive procedure by which a mortgagee in a strict
foreclosure may obtain a remedy in personam from a
mortgagor.
We now apply these principles to the facts of this
case. The plaintiff filed a one count complaint against
the defendants, seeking to foreclose on the property;
there was no second count alleging breach of contract
relating to the promissory note. By pursuing the foreclo-
sure, the plaintiff elected its remedy in equity: to take
absolute title to the property, a remedy in rem, and to
pursue any remaining debt in the context of a deficiency
judgment, the only process through which it could
receive a remedy in personam from the defendants.
After a bench trial, the court rendered a judgment of
strict foreclosure, and the defendants appealed. While
the appeal was pending, the trial court ordered the
defendants to reimburse the plaintiff for all future tax
and insurance premium advancements through the end
of the litigation. The question, then, is whether the trial
court’s order constitutes a remedy in rem or a remedy
in personam.
At least two aspects of the trial court’s order make
clear that it was a remedy in personam. First, unlike a
judgment in rem, the order did not ‘‘[operate] only on
the res . . . .’’ 50 C.J.S., supra, p. 792. To the contrary,
it operated on the defendants personally with respect
to other property owned by them, by requiring them to
pay over money under threat of contempt. Put simply,
the order did not involve the question of who was enti-
tled to the property. Thus, it did not operate on the res
at all, let alone operate only on the res.
Second, like a judgment in personam, the payment
order settled a dispute by ‘‘impos[ing] a personal liabil-
ity or obligation on [the defendants] in favor of [the
plaintiff].’’ 49 C.J.S., supra, p. 44. The order involved
personal liability because it required the defendants to
pay money from their personal funds to the plaintiff.
Although it is true that the order did not create this
liability—indeed, the taxes and insurance premiums
were the defendants’ responsibility independent of the
order—the threatened consequence for failure to pay
was also personal: the defendants could be held in con-
tempt of court for defying a court order, and the trial
court suggested that they could be jailed as an incentive
to pay. There is no more personal a liability than the
physical confinement of one’s body. See W. Cook, supra,
15 Colum. L. Rev. 52 (‘‘To levy on a man’s property, sell
it, pass title to it to a purchaser, and pay the proceeds
to the plaintiff . . . is very obviously to do a fundamen-
tally different thing from ordering the defendant to do
an act and putting him in jail for contempt if he does
not obey; and the phrases in rem and in personam
probably express this as well as any others. . . . [A]s
a punishment for not doing something and for the pur-
pose of persuading him to do it, the court deals directly
with the physical person of the defendant, as distin-
guished from dealing with his property.’’).
Furthermore, as the plaintiff advances the taxes and
insurance premiums, the payments become part of the
mortgage debt; see General Statutes § 49-2 (a) (‘‘[p]re-
miums of insurance, taxes and assessments paid by the
mortgagee . . . are a part of the debt due the mort-
gagee or lienor’’); Lewis v. Culbertson, 124 Conn. 333,
336, 199 A. 642 (1938) (‘‘[mortgage debt includes] . . .
[p]remiums of insurance, taxes and assessments paid
by the mortgagee’’ (internal quotation marks omitted));
Desiderio v. Iadonisi, 115 Conn. 652, 654–55, 163 A.
254 (1932) (‘‘[the mortgagee] is entitled to have the
security for the debt preserved against loss or diminu-
tion in value by reason of obligations owed by the mort-
gagor . . . for taxes and the like . . . and if [the mort-
gagee] discharges such obligations [itself], [it] may tack
them to the mortgage debt’’);4 and, as discussed, the
mortgagee in a strict foreclosure may recover mortgage
debt only in the context of a deficiency judgment. See
General Statutes §§ 49-1 and 49-14. Because a deficiency
judgment is a remedy in personam, payments that are
properly recoverable only as part of a deficiency judg-
ment are most logically also classified as in personam.
Accordingly, we conclude that the trial court’s order
constitutes a remedy in personam, which, because it
took place outside the context of a deficiency judgment,
was impermissible.
The plaintiff contends that, in Desiderio v. Iadonisi,
supra, 115 Conn. 652, we endorsed the relief that the
trial court ordered in the present case. In Desiderio,
we noted—in dictum—that a mortgagee has a right
‘‘to have the value of [its] security preserved until the
foreclosure has become absolute or the property is sold
. . . [and, if] payment of taxes is necessary to preserve
the security or any part of it from being taken to satisfy
them, the court may order their payment by the receiver
. . . .’’ Id., 656. Setting aside the fact that we held that
it was not error for the trial court to decline to order
the receiver to pay the taxes; see id., 657; the principle
we noted in that case differs from the relief the court
ordered in the present case.
There is a difference between ordering a receiver to
pay taxes from funds that it has collected and ordering
the mortgagor to reimburse the mortgagee for taxes
and insurance premiums, which renders Desiderio
inapposite. A receiver acts as an agent or arm of the
court. See, e.g., New Haven Savings Bank v. General
Finance & Mortgage Co., 174 Conn. 268, 270, 386 A.2d
230 (1978). It takes in rent and income generated by the
property and uses the money to manage the property.
Although the mortgagor might ultimately be entitled to
funds taken in by the receiver, the money is in the
possession of the court, and the court can order it
to be distributed ‘‘as justice and equity require . . . .’’
Desiderio v. Iadonisi, supra, 115 Conn. 655. To be sure,
regardless of whether a receiver is involved, it is the
responsibility of the mortgagor, not the mortgagee, to
pay the taxes and insurance premiums. The salient ques-
tion is what remedies or mechanisms are available to
the mortgagee to ensure that payment is made. In a
foreclosure in which a receiver has been collecting
income generated by the property, and in which the
preservation of the mortgagee’s security depends on
payment of the taxes, it falls within the equitable author-
ity of the court to order the receiver to pay the taxes
from rents it has collected. But, in the circumstances
of the present case, the court’s equitable authority is
limited by the remedial scheme available in a strict
foreclosure, which precludes a remedy in personam
outside the context of a deficiency judgment.5
The plaintiff further contends that, under this court’s
decision in Jajer, § 49-1 does not preclude a mortgagee’s
‘‘continuing access to equitable foreclosure proceed-
ings’’ following the foreclosure of a mortgage. New Mil-
ford Savings Bank v. Jajer, supra, 244 Conn. 267. Spe-
cifically, the plaintiff argues that the court’s order is
purely a matter of equity arising out of the mortgage,
and, as such, it is the kind of equitable order that Jajer
permits. We disagree.
In Jajer, we explained that, following the foreclosure
of a mortgage, § 49-1 ‘‘expressly bar[s] an in personam
remedy . . . .’’ Id., 266. That is, the statute precludes
the mortgagee from ‘‘pursu[ing] personal remedies
against the mortgagors with respect to their personal
obligations’’ on the mortgage debt. (Emphasis in origi-
nal.) Id., 265. It does not, however, preclude a mortgagee
from pursuing further remedies in rem. See id., 266–67.
Properly understood, Jajer permits a mortgagee’s ‘‘con-
tinuing access to equitable foreclosure proceedings’’;
id., 267; but limits the remedies available in those pro-
ceedings—remedies in rem are permissible, whereas
remedies in personam are not. Jajer itself illustrates
the difference. In that case, the mortgagee foreclosed
a mortgage in which the property comprised three par-
cels of land. Id., 253. Due to a scrivener’s error, the
foreclosure complaint referred to only two of the three
parcels, and the mortgagee did not discover its mistake
until after a judgment of strict foreclosure was ren-
dered, the law days passed, and it acquired title to
parcels one and two. See id. Because the mortgage had
already been foreclosed, the mortgagee could no longer
recover personally—i.e., seek a remedy in personam—
from the mortgagors. See id., 267 n.25. But, because
§ 49-1 does not prohibit a mortgagee from seeking a
remedy in rem in a further equitable foreclosure pro-
ceeding, the mortgagee could pursue a foreclosure to
obtain title to parcel three. See id., 266–67.
In the present case, although the trial court issued
its order as a matter of its equitable discretion, the relief
it ordered was, as we have explained in this opinion,
undoubtedly in personam. Thus, the trial court’s order
was improper.
We conclude that, when the defendants defaulted on
their payment obligations, and the plaintiff elected strict
foreclosure as its remedy, the plaintiff chose a remedial
scheme that prescribes a specific and exclusive process
by which it could be made whole. At the conclusion of
this process, assuming the defendants do not redeem,
their equity of redemption will be extinguished by the
passing of the law days, and absolute title to the prop-
erty will vest in the plaintiff. If the debt exceeds the
value of the property, the plaintiff may then pursue the
difference from the defendants in a deficiency proceed-
ing pursuant to § 49-14. The deficiency judgment is the
only procedure available to the plaintiff to recover its
mortgage debt, including payments advanced to pay
real estate taxes and property insurance, in excess of
the value of the property. The trial court’s order direct-
ing the defendants to make monetary payments to the
plaintiff outside of a deficiency judgment was an abuse
of discretion.
II
The defendants next argue, in a footnote spanning
the last two pages of their brief, that the trial court
violated rule 2.11 of the Code of Judicial Conduct by
making certain statements that call into question the
court’s impartiality. Specifically, the defendants con-
tend that the trial court’s repeated references to ‘‘bolo-
gna sandwiches’’—evidently, a reference to being jailed
for contempt—call for this court to vacate the judgment
and remand the case for a new trial before a different
judge. The plaintiff argues that the defendants have
abandoned any claim that the trial court should have
been disqualified because the defendants did not raise
the disqualification issue before the Appellate Court,
and it is outside the scope of the certified question.
At a hearing on February 8, 2016, the trial court dis-
cussed, among other things, consequences that could
arise if the defendants were to defy a court order to
reimburse the plaintiff for tax and insurance premiums.
After acknowledging that the court could not punish
the defendants if they could not afford the payments,
the court went on to discuss what could happen if
the defendants declined to make the payments despite
being able to do so. In that context, the following collo-
quy took place:
‘‘The Court: . . . [I]f he doesn’t have money . . .
then there’s no punishment that I can enter.
‘‘[The Plaintiff’s Counsel]: Right.
‘‘The Court: But the other punishment would be to
tell them about bologna sandwiches. You know what—
you know what the reference to bologna sandwiches
[is]?
‘‘[The Plaintiff’s Counsel]: I don’t, Your Honor.
***
‘‘The Court: Well, Mr. Brown, tell him what [the refer-
ence] to bologna sandwich[es] is.
‘‘[The Defendants’ Counsel]: That’s the only meat you
get in jail.
‘‘The Court: That’s the only food that you get down-
stairs.
‘‘[The Plaintiff’s Counsel]: Oh.
‘‘The Court: When you go downstairs, that’s what you
get, you get bologna sandwiches.
***
‘‘The Court: You don’t get a choice of mayonnaise
or mustard, either. You just get the bologna with the
sandwich. That’s it.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: You get something to drink. It’s called
bologna sandwiches. And we’ll give him bologna sand-
wiches, and then he sits down there . . . . I’m not
going to put [Katherine Marr-Essaghof] in jail; I’ll put
[Roger Essaghof] in jail first. Okay. And then he sits
down there, and she’s upstairs, so she can make the
telephone calls to get the money.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: Or to get the proof that he doesn’t have
any money, and then, after being down there at 11
o’clock in the morning, and he has his bologna sand-
wich, [at] 3:30 in the afternoon, we come back, and we
have a hearing. If it’s a Friday afternoon hearing, it’s
going to be a little dicey because the marshal is going
to be knocking at the door, saying, van’s leaving, we’re
going up to North Avenue, we’ve got to—you’ve got
to make a—let’s go, make a decision. So, I’ll make a
decision.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: You get a hot meal for that night though.
‘‘[The Plaintiff’s Counsel]: No, bologna.
‘‘The Court: No, you sleep in a gym . . . on North
Avenue.’’
The defendants concede that the disqualification
issue was not raised at trial or presented to the Appel-
late Court. The issue is also beyond the scope of the
certified question. Accordingly, although we do not con-
done this colloquy, we decline to consider the merits
of the defendants’ claim.6 See, e.g., Grimm v. Grimm,
276 Conn. 377, 393, 886 A.2d 391 (2005) (‘‘a claim that
has been abandoned during the initial appeal to the
Appellate Court cannot subsequently be resurrected by
the taking of a certified appeal to this court’’), cert.
denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815
(2006); State v. Robert H., 273 Conn. 56, 86, 866 A.2d
1255 (2005) (declining to consider claim because it was
not preserved for appeal and because it ‘‘exceed[ed]
the scope of the certified question’’); Gillis v. Gillis,
214 Conn. 336, 343, 572 A.2d 323 (1990) (‘‘[i]t is a well
settled general rule that courts will not review a claim
of judicial bias on appeal unless that claim was properly
presented to the trial court via a motion for disqualifica-
tion or a motion for mistrial’’).
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to reverse the trial court’s order directing the defen-
dants to reimburse the plaintiff for property taxes and
homeowners insurance premiums and to remand the
case to that court for the purpose of setting a new law
day; the judgment of the Appellate Court is affirmed in
all other respects.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** August 20, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
As noted by the Appellate Court in JPMorgan Chase Bank, National
Assn. v. Essaghof, 177 Conn. App. 144, 171 A.3d 494 (2017), ‘‘[t]he plaintiff,
JPMorgan Chase Bank, National Association, acquired Washington Mutual
Bank, F.A., the originator of the note and mortgage from which this foreclo-
sure action arises. Washington Mutual Bank, F.A., also held a junior lien
with respect to the mortgage that was foreclosed in this action . . . .’’ Id.,
146 n.1. As a result, JPMorgan Chase Bank, National Association, formerly
known as Washington Mutual Bank, F.A., also was named as a defendant
in this action. The defendant JPMorgan Chase Bank, National Association,
however, was defaulted for failure to appear and is not a party to this appeal.
Accordingly, we refer to Roger Essaghof and Katherine Marr-Essaghof, col-
lectively, as the defendants, and individually by name where appropriate.
2
Details of the February 8, 2016 hearing are set forth in part II of this opin-
ion.
3
General Statutes § 49-28 provides the exception to § 49-1 for a deficiency
judgment following a foreclosure by sale.
4
Section 9 of the mortgage deed executed by the parties in the present
case similarly provides in relevant part: ‘‘Any amounts disbursed by [l]ender
under this Section 9 shall become additional debt of [b]orrower secured by
this [s]ecurity [i]nstrument. These amounts shall bear interest at the [n]ote
rate from the date of disbursement and shall be payable, with such interest,
upon notice from [l]ender to [b]orrower requesting payment.’’
5
The plaintiff also notes that a couple of trial court cases have ordered
similar relief, including Mun v. Doria, Docket No. CV-XX-XXXXXXX-S, 2008
WL 2967039 (Conn. Super. July 11, 2008), and Norwich Savings Society v.
Caldrello, Docket No. 512204, 1994 WL 174214 (Conn. Super. April 26, 1994).
Neither of these cases is persuasive. In both Mun and Caldrello, the only
authority the courts cite in support of their orders is the broad discretion
available to a court, given the equitable nature of a foreclosure. See Mun
v. Doria, supra, *2; Norwich Savings Society v. Caldrello, supra, *4. Neither
court considered the statutory limitations on equitable discretion that we
discuss in this opinion.
6
The defendants also suggest that the trial court’s references to ‘‘bologna
sandwiches’’ were improper ‘‘given the fact that [Roger Essaghof] is a Persian
Jew.’’ We see nothing in the record to support the suggestion that the
references to ‘‘bologna sandwiches’’ were motivated by Roger Essaghof’s
identity as a Persian Jew. At oral arguments before this court, the defendants’
counsel was asked how he knew what the trial court meant in referring to
‘‘bologna sandwiches.’’ He replied: ‘‘It’s commonly known to be—bologna
sandwiches means you’re going to a—either civil or criminal contempt. In
fact . . . back when I was a good deal younger, I had a civil contempt where
I found out what a . . . bologna sandwich was. So, yes, it’s a reference,
and it’s understood . . . .’’ Given that (1) the defendants acknowledge that
‘‘bologna sandwiches’’ is a known, long-standing reference to being held in
contempt, (2) the trial court made the references while discussing contempt
as the consequence for noncompliance with a court order, and (3) there is
otherwise no indication in the record that the trial court was biased against,
or even aware of, Roger Essaghof’s identity as a Persian Jew, we see no
basis from which to infer that the trial court’s comments were related in
any way to his identity.