U.S. Bank, National Assn. v. Bennett

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U.S. BANK NATIONAL ASSOCIATION, TRUSTEE v.
DALPHINE BENNETT ET AL.
(AC 42128)
Alvord, Prescott and Flynn, Js.
Syllabus
The plaintiff bank, B Co., sought to foreclose a mortgage on certain real
property owned by the defendant D, who filed special defenses and
counterclaims, alleging, inter alia, vexatious litigation. Specifically, D
alleged that a previous foreclosure action brought against D by B Co.’s
predecessor in interest, which concerned the same property, was dis-
missed in 2009 for failure to establish probable cause with respect to
the chain of custody of the loan, and that B Co.’s present action, without
evidence of loan assignment documents demonstrating probable cause
to bring the present action, constituted vexatious litigation, as the same
counsel who brought the prior foreclosure action also commenced B
Co.’s foreclosure action. The trial court granted B Co.’s motion for
summary judgment as to liability only on the complaint and on D’s
counterclaims and, subsequently, rendered judgment of strict foreclo-
sure. On appeal, D claimed, inter alia, that the trial court erred in conclud-
ing that her vexatious litigation counterclaim was barred by the statute
of limitations (§ 52-577). Held:
1. The trial court properly rendered summary judgment as to D’s vexatious
litigation counterclaim, as such claims may not be brought until the
underlying action that is the source of the alleged misconduct has con-
cluded in the claimant’s favor; contrary to D’s claim that her counter-
claim was centered on a combination of the dismissal of the 2009 foreclo-
sure action and the commencement of the present action, D’s vexatious
counterclaim was based on conduct occurring in the present foreclosure
action, and therefore, D’s counterclaim was premature, as it could not
be brought in the same action as that which D claimed was vexatious.
2. The trial court properly rendered summary judgment as to D’s abuse of
process counterclaim: although D alleged that genuine issues of material
fact existed regarding the court’s dismissal of the 2009 action for failure
to establish a proper chain of custody, the record revealed that the 2009
action was dismissed for dormancy, the trial court properly determined
that no genuine issues of material fact existed that the primary purpose
of B Co.’s filing of the present action was to prosecute a foreclosure
action and that B Co. was the owner of the note and the mortgage, and
D failed to provide any evidence to demonstrate that a genuine issue
of material fact existed as to whether B Co.’s primary purpose in filing
the foreclosure action was to accomplish a purpose for which such an
action was not designed; moreover, because abuse of process claims
require that the underlying litigation has been completed and, in the
present case, the counterclaim was raised in the action claimed to be
an abuse of process, the trial court properly determined that D’s abuse
of process counterclaim was premature, as the foreclosure action was
ongoing at the time the counterclaim was made.
3. D could not prevail on her claim that the trial court improperly relied on
B Co.’s uncontested evidence of the debt without holding an evidentiary
hearing, as the trial court was not required to hold a hearing where, as
here, there was no genuine contest as to the amount of the debt owed;
B Co. presented an affidavit of debt, a foreclosure worksheet and an
oath of appraisers with its motion for judgment of strict foreclosure, D
failed to file an objection nor referenced any evidence contesting the
amount of the debt, and although D requested a hearing, the request
lacked specificity in that it failed to state a basis for the objection, it
was not based on an articulated legal reason or fact, and the court had
already rendered summary judgment in favor of B Co. on D’s special
defenses and counterclaims at the time of the request for a hearing.
Argued September 16—officially released December 31, 2019
Procedural History
Action to foreclosure a mortgage on certain of real
property of the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford, where the defendant Money Market
Mortgage, LLC, et al. were defaulted for failure to plead;
thereafter, the named defendant filed counterclaims;
subsequently, the court, Dubay, J., granted the plain-
tiff’s motion for summary judgment as to liability on
the complaint and as to the counterclaims, and the
named defendant appealed to this court; thereafter, this
court granted, in part, the plaintiff’s motion to dismiss
the appeal; subsequently, the court, Dubay, J., rendered
a judgment of strict foreclosure, and the named defen-
dant filed an amended appeal. Affirmed.
Maria K. Tougas, for the appellant (named
defendant).
Zachary Grendi, for the appellee (plaintiff).
Opinion
FLYNN, J. The defendant Dalphine Bennett1 appeals
from the entry of a judgment of strict foreclosure in
favor of the plaintiff, U.S. Bank National Association
as trustee, successor in interest to Bank of America,
National Association, as trustee, successor by merger
to LaSalle Bank, National Association, as trustee for
Bear Stearns Asset Backed Securities Trust 2005-4,
Asset-Backed Certificates, Series 2005-4. The defendant
claims that the court improperly (1) granted the plain-
tiff’s motion for summary judgment as to the defen-
dant’s counterclaims alleging (a) vexatious litigation
and (b) abuse of process; and (2) failed to hold an
immediate hearing in damages following the entry of
summary judgment as to liability only, which violated
Practice Book § 17-50. We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s claims on appeal. In January,
2016, the plaintiff commenced a foreclosure action
against the defendant in which it alleged that a 2004
note was in default and that it sought to accelerate the
balance due on the note, to declare the note to be due
in full, and to foreclose on the mortgage securing the
note. The defendant filed an answer, special defenses,
and a two count counterclaim alleging vexatious litiga-
tion and abuse of process. The counterclaims centered
on a previous 2009 foreclosure action brought by Bank
of America on the same 2004 note against the same
defendant.
The plaintiff filed a motion for summary judgment
as to liability only on the foreclosure complaint and on
the counterclaims. The defendant filed an objection in
which she argued, inter alia, that genuine issues of
material fact exist as to her counterclaims. The defen-
dant attached to her motion a JDNO notice2 from the
2009 foreclosure action, which indicated that a show
cause hearing had been scheduled for March 18, 2013.
At the hearing in the 2009 action, a transcript of which
was also attached to the defendant’s motion, the court
had inquired as to the status of the case, and the plain-
tiff’s counsel had indicated that he was waiting on docu-
ments from Bank of America. In the 2009 action, the
court then ordered the matter dismissed. By an order
dated March 18, 2013, in the 2009 action the court stated:
‘‘Any motions to open the judgment must state in the
first paragraph that the matter needs to be referred
to the presiding judge. Motions to open will only be
considered by the court when the plaintiff moves for
judgment.’’
In the present action, on September 7, 2018, the court
granted the plaintiff’s motion for summary judgment
and entered judgment in favor of the plaintiff as to
liability on the foreclosure complaint and against the
defendant on her counterclaims. On September 20,
2018, the defendant appealed from the court’s decision
granting the plaintiff’s motion for summary judgement
as to liability only. The plaintiff filed a motion to dismiss
the appeal, arguing that the court’s decision rendering
summary judgment as to liability only on the foreclosure
complaint was not a final judgment and that the claims
on appeal from the judgment on the counterclaim were
frivolous. This court ordered the motion ‘‘granted as to
the portion of the appeal challenging the granting of
summary judgment as to liability only on the complaint
and denied as to any portion of the appeal challenging
the granting of summary judgment on the defendant’s
counterclaim.’’
On December 10, 2018, the plaintiff filed a motion
for a judgment of strict foreclosure. The defendant filed
a ‘‘motion for stay/objection to motion for judgment of
strict foreclosure’’ in which she requested a discretion-
ary stay pursuant to Practice Book § 61-11 (f) to the
extent that the pending appeal did not trigger the auto-
matic stay provisions of Practice Book § 61-1 (a). The
trial court denied the defendant’s motion and rendered
a judgment of strict foreclosure. The defendant, there-
after, amended her appeal, in which she challenged the
judgment of strict foreclosure and summary judgment
as to liability only.
I
The defendant first claims that the court improperly
granted the plaintiff’s motion for summary judgment as
to her counterclaims. We disagree.
We set forth our well established standard for
reviewing a grant of summary judgment. ‘‘Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . A material fact . . . [is] a fact which will
make a difference in the result of the case. . . . Finally,
the scope of our review of the trial court’s decision to
grant the [plaintiff’s] motion for summary judgment is
plenary.’’ (Internal quotation marks omitted.) Hurley v.
Heart Physicians, P.C., 278 Conn. 305, 314, 898 A.2d
777 (2006).
We now address in turn the defendant’s arguments
regarding the counterclaims.
A
The defendant argues that the court erred in
determining that her vexatious litigation counterclaim
was barred by the statute of limitations, General Stat-
utes § 52-577.3 We are not persuaded.
‘‘The cause of action for vexatious litigation permits
a party who has been wrongfully sued to recover dam-
ages. . . . [T]o establish a claim for vexatious litigation
at common law, one must prove want of probable cause,
malice and a termination of suit in the [counterclaim]
plaintiff’s favor.’’ (Citations omitted; internal quotation
marks omitted.) MacDermid, Inc. v. Leonetti, 158 Conn.
App. 176, 183, 118 A.3d 158 (2015).
In count one of the counterclaim in the present
action, alleging vexatious litigation, the defendant
alleged the following. During the 2009 foreclosure
action, she presented a 2013 letter to the court from
Bank of America, the plaintiff’s predecessor in interest,
demonstrating that Bank of America never held a mort-
gage on the property being foreclosed. The trial court
in the 2009 action entered an order requesting Bank of
America to ‘‘show cause’’ as to why it was entitled to
proceed on the merits. The case was dismissed with
prejudice, due to Bank of America’s lack of ability to
establish probable cause with respect to the chain of
custody of the loan. The same counsel who had repre-
sented Bank of America in the 2009 action, brought the
present foreclosure action in the name of U.S. Bank
National Association, as trustee, successor in interest
to Bank of America, National Association. In the present
foreclosure action, the plaintiff did not attach to the
operative complaint any loan assignment documents
demonstrating probable cause to bring suit. The defen-
dant alleged that the plaintiff’s commencement of the
present action, absent evidence of loan assignment doc-
uments demonstrating probable cause to bring the pres-
ent action, constitutes vexatious litigation.
In its decision in the present action, granting the
plaintiff’s motion for summary judgment as to liability
only, the court determined that the plaintiff had estab-
lished that no genuine issues of material fact existed,
that it was the owner of the note and mortgage, that
the defendant had defaulted on the note, and that the
conditions precedent to foreclosure had been satisfied.
The court noted that ‘‘[t]he plaintiff is the holder of the
note as the plaintiff is in physical possession of the
note endorsed in blank. . . . The mortgage was
assigned from Argent to Ameriquest, from Ameriquest
to Mortgage Electronics Registration Systems, Inc.
(MERS), and, prior to the commencement of the present
action, from MERS to the plaintiff. . . . Upon the
defendant’s default for failure to make monthly pay-
ments, the plaintiff satisfied the conditions precedent
to the enforcement of the mortgage and note by provid-
ing the defendant with a notice of default.’’
In the present action, the court agreed with the plain-
tiff’s argument that it was entitled to summary judgment
on the defendant’s vexatious litigation counterclaim
because the counterclaim was either time barred to the
extent it related to the 2009 action, or premature to the
extent that it related to the present action. The court
stated: ‘‘Inasmuch as the defendant’s vexatious litiga-
tion counterclaim is based on the present action, there
is no genuine issue of material fact that it is premature,
as such a claim requires termination of suit in the claim-
ant’s favor. Inasmuch as the defendant bases this claim
on the prior action, there is no genuine issue of material
fact that it is time barred, as the prior action was dis-
missed on March 18, 2013, and the defendant brought
the present counterclaim on December 5, 2017. Even
assuming that the maintenance of the prior action
served to toll the statute of limitations [§ 52-577] until
its dismissal, the present counterclaim was not brought
within three years of that date. Accordingly, the plaintiff
is entitled to judgment as a matter of law on the defen-
dant’s vexatious litigation counterclaim.’’
On appeal, the defendant essentially argues that her
vexatious litigation counterclaim is centered on a com-
bination of the dismissal of the 2009 action and the
commencement of the present action and, therefore, is
neither premature nor time barred. She contends that
the court misinterpreted the nature of her counterclaim,
as reflected by ‘‘conflicting statements’’ in the court’s
decision in which it concluded that the vexatious litiga-
tion counterclaim is time barred to the extent that it
was based on the prior 2009 action, and premature to
the extent that it was based on the present action. She
states that the counterclaim was based on the dismissal
of the 2009 action followed by the ‘‘recommencement’’
of the present action. She argues that the dismissal of
the 2009 action satisfies the ‘‘favorable termination’’
element of her vexatious litigation counterclaim. She
further argues that the statute of limitations should not
begin to run from the date of the favorable termination
of the 2009 action because under those circumstances,
the vexatious litigation claim would be ripe only after
the commencement of the second case in spite of that
termination. She contends that the trigger date for the
statute of limitations should instead be the date of com-
mencement of the second foreclosure action against
the same defendant after the favorable termination of
the first foreclosure action.
The defendant alleged in her counterclaim in the pres-
ent action that counsel for the plaintiff ‘‘knew or should
have known that it lacked the necessary evidence to
establish probable cause in the 2009 case and its com-
mencement of the [present] case despite this knowl-
edge, constitutes vexatious litigation.’’ Thus, it is clear
that the defendant alleged that conduct occurring in
the commencement of the present action is vexatious.
The defendant’s interpretation of the orders in the 2009
action provide a basis for her allegations concerning
the vexatious nature of the present action. Because the
defendant alleged that the filing of the present action
constituted part of the plaintiff’s vexatious conduct,
her counterclaim cannot be brought within the present
action. ‘‘Vexatious litigation claims may not be brought
until the underlying action that is the source of the
alleged misconduct has concluded. [U]nder Connecti-
cut law, a counterclaim alleging vexatious litigation may
not be brought in the same action as that which the
defendant claims is vexatious. . . . In suits for vexa-
tious litigation, it is recognized to be sound policy to
require the plaintiff to allege that prior litigation termi-
nated in his favor. This requirement serves to discour-
age unfounded litigation without impairing the presen-
tation of honest but uncertain causes of action to the
courts. . . . This favorable termination requirement is
an essential element of a vexatious litigation claim.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) MacDermid, Inc. v. Leonetti,
supra, 158 Conn. App. 183–84. The defendant’s vexa-
tious litigation counterclaim, therefore, is premature.
As such, we need not discuss her statute of limitations
argument and conclude that the court properly ren-
dered summary judgment as to the vexatious litiga-
tion counterclaim.
B
The defendant next argues that the court improperly
entered summary judgment on her abuse of process
counterclaim. We disagree.
‘‘An action for abuse of process lies against any per-
son using a legal process against another in an improper
manner or to accomplish a purpose for which it was
not designed. . . . Because the tort arises out of the
accomplishment of a result that could not be achieved
by the proper and successful use of process, the
Restatement Second (1977) of Torts, § 682, emphasizes
that the gravamen of the action for abuse of process
is the use of a legal process . . . against another pri-
marily to accomplish a purpose for which it is not
designed . . . .’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Mozzochi v. Beck,
204 Conn. 490, 494, 529 A.2d 171 (1987).
In her abuse of process counterclaim, the defendant
alleged that the continued prosecution of the present
action by the same law firm that brought the 2009 action
constituted an abuse of process because the present
plaintiff and its counsel knew or should have known,
based on the dismissal of the 2009 action, that it could
not prevail on the merits of the present action, which
was based on a subsequent assignment of the loan. In
its memorandum of decision, the court concluded that
‘‘the plaintiff’s exhibits demonstrate that there is no
genuine issue of material fact that it has filed this action
with the primary purpose of prosecuting a foreclosure
action. The exhibits submitted by the defendant in
opposition to the plaintiff’s motion for summary judg-
ment fail to raise a genuine issue of material fact as
to the plaintiff’s primary purpose in prosecuting such
action. Accordingly, the plaintiff is entitled to judgment
as a matter of law on the defendant’s abuse of pro-
cess counterclaim.’’
The defendant argues that genuine issues of material
fact exist regarding whether the court’s dismissal of
the 2009 action was for failure to establish a proper
chain of custody; whether the assignment of the note
and mortgage to the plaintiff following the dismissal of
the 2009 action was done in an attempt to circumnavi-
gate the court’s order in the 2009 action that required
the court’s permission to proceed; and whether the
plaintiff knew that the 2009 action was dismissed
because Bank of America could not establish the chain
of custody of the loan documents. We are not per-
suaded.
Contrary to the defendant’s assertion that the 2009
action was dismissed on the merits, the record reveals
that the 2009 action was dismissed for dormancy. The
JDNO notice, which was attached as an exhibit to the
defendant’s memorandum of law in opposition to the
plaintiff’s motion for summary judgment, states that the
2009 action was dismissed at the March 18, 2013 hear-
ing. The transcript of that hearing, which also was
attached as an exhibit, reveals that the court in the
2009 action asked Bank of America’s counsel: ‘‘The file
reflects that there’s been no pleading or action since
July, 2011, counsel. Do you know why that is?’’ The
plaintiff’s counsel responded, ‘‘we are waiting on docu-
ments from our client.’’ The court then dismissed the
2009 action.
Moreover, the court in the present action determined
that no genuine issues of material fact existed that the
primary purpose of the plaintiff’s filing of the present
action was to prosecute a foreclosure action, and that
the plaintiff was the owner of the note and mortgage.
The defendant submitted no evidence to the trial court
that raised a genuine issue of material fact that the
plaintiff’s primary purpose in filing the foreclosure
action was to accomplish a purpose for which such an
action is not designed. The defendant’s allegations in
her counterclaim and her speculative arguments made
on appeal do not suffice to show that the plaintiff used
the present foreclosure action for a purpose for which
such an action is not designed. ‘‘A party may not rely
on mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judg-
ment. . . . [T]he existence of the genuine issue of
material fact must be demonstrated by counteraffida-
vits and concrete evidence. . . . If the affidavits and
the other supporting documents are inadequate, then
the court is justified in granting the summary judgment,
assuming that the movant has met his burden of proof.
. . . When a party files a motion for summary judgment
and there [are] no contradictory affidavits, the court
properly [decides] the motion by looking only to the
sufficiency of the [movant’s] affidavits and other proof.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) Little v. Yale University, 92 Conn. App.
232, 234–35, 884 A.2d 427 (2005), cert. denied, 276 Conn.
936, 891 A.2d 1 (2006).
The court properly rendered summary judgment on
the abuse of process counterclaim for the additional
reason that the counterclaim is premature. ‘‘Although
abuse of process claims do not include favorable termi-
nation as an essential element, the cause of action is
still considered premature until the underlying litigation
has been completed. . . . In Larobina [v. McDonald,
274 Conn. 394, 407–408, 876 A.2d 522 (2005)] . . . our
Supreme Court concluded that an abuse of process
claim was properly dismissed as premature when the
underlying action was still pending. . . . In reaching
this conclusion, the court stated: Although we do not
suggest that success in the first action would be a pre-
requisite for an abuse of process claim . . . it is appar-
ent that the eventual outcome of that action and the
evidence presented by the parties therein would be
relevant in litigating an abuse of process claim. . . .
Moreover, allowing the [abuse of process] claim could
. . . effectively chill the vigorous representation of cli-
ents by their attorneys.’’ (Citation omitted; internal quo-
tation marks omitted.) MacDermid v. Leonetti, supra,
158 Conn. App. 184–85. In the present case, the counter-
claim was raised in the action claimed to be an abuse
of process and, thus, the action was ongoing at the time
the counterclaim was made. Therefore, as explained by
Larobina v. McDonald, supra, 407–408, and MacDermid
v. Leonetti, supra, 184–85, the abuse of process counter-
claim is premature.
For the foregoing reason we conclude that the court
properly rendered summary judgment on the defen-
dant’s abuse of process counterclaim.
II
The defendant last claims that the court’s entry of a
judgment of strict foreclosure was improper because
the court did not hold an immediate hearing in damages
pursuant to Practice Book § 17-50, following the entry
of summary judgment as to liability only. We disagree.
Following the court’s entry of summary judgment as
to liability, the plaintiff filed a motion for judgment of
strict foreclosure. The defendant did not file an objec-
tion to the plaintiff’s calculation of the debt, nor did
she file any counter affidavits or other evidence as to
the amount of the debt. Instead, the defendant filed a
‘‘motion for stay/objection to motion for judgment of
strict foreclosure.’’ At the January 2, 2019 hearing on
the motion for stay and the motion for judgment of
strict foreclosure, the defendant’s counsel stated, ‘‘we
would like to contest the debt and have a hearing on
same.’’ The court inquired, ‘‘[a]nd did you file any kind
of objection,’’ to which question the defendant’s counsel
answered, ‘‘[y]es. Well, I filed . . . for today an objec-
tion and a motion for stay, which I was under the
impression would be granted.’’ The plaintiff’s counsel
suggested that the defendant was using delay tactics.
The court noted that the case had been pending for
three years and denied the defendant’s request for a
hearing on the amount of the debt.
‘‘The standard of review of a judgment of foreclosure
by sale or by strict foreclosure is whether the trial court
abused its discretion. . . . In determining whether the
trial court has abused its discretion, we must make
every reasonable presumption in favor of the correct-
ness of its action. . . . Our 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.) GMAC Mortgage, LLC v. Ford, 144 Conn. App.
165, 186, 73 A.3d 742 (2015). ‘‘The interpretive construc-
tion of the rules of practice is to be governed by the
same principles as those regulating statutory interpreta-
tion. . . . The interpretation and application of a stat-
ute, and thus a Practice Book provision, involves a
question of law over which our review is plenary.’’ (Cita-
tions omitted; internal quotation marks omitted.) Wise-
man v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027(2010).
The defendant argues that the court erred in failing
to hold an immediate hearing in damages, as required
by Practice Book § 17-50, following the court’s denial
of the defendant’s motion for a discretionary stay fol-
lowing the entry of summary judgment as to liability
only. The defendant contends that the court was
required to hold a hearing in damages even though the
defendant had not filed additional documents con-
testing damages.4
Practice Book § 17-50 provides in relevant part: ‘‘A
summary judgment, interlocutory in character, may be
rendered on the issue of liability alone, although there
is a genuine issue as to damages. In such case the
judicial authority shall order an immediate hearing
before a judge trial referee, before the court, or before
a jury, whichever may be proper, to determine the
amount of the damages.’’ In relating the hearing require-
ment of Practice Book § 17-50 to the present case, we
note a basic tenet of statutory construction that we are
required to read Practice Book rules ‘‘together when
they relate to the same subject matter. . . . Accord-
ingly . . . we look not only [to] the provision at issue,
but also to the broader . . . scheme to ensure the
coherency of our construction.’’ (Internal quotation
marks omitted.) In re Jusstice W., 308 Conn. 652, 663,
65 A.3d 487 (2012).
Case law explains the relevant procedural framework
as follows: ‘‘Where a foreclosure defendant’s liability
has been established by summary judgment, all that
remains for the court to determine at the judgment
hearing is the amount of the debt and the terms of the
judgment.’’ GMAC Mortgage, LLC v. Ford, supra, 144
Conn. App. 186. Practice Book § 23-18 (a) provides that
in mortgage foreclosure cases ‘‘where no defense as to
the amount of the mortgage debt is interposed, such
debt may be proved by presenting to the judicial author-
ity the original note and mortgage, together with the
affidavit of the plaintiff or other person familiar with the
indebtedness, stating what amount, including interest
to the date of the hearing, is due, and that there is no
setoff or counterclaim thereto.’’ ‘‘A defense is that
which is offered and alleged by a party proceeded
against in an action or suit, as a reason in law or fact
why the plaintiff should not recover or establish what
he seeks. . . . In a mortgage foreclosure action, a
defense to the amount of the debt must be based on
some articulated legal reason or fact. . . . The case
law is clear that a defense challenging the amount of
the debt must be actively made in order to prevent the
application of § 23-18 (a). [A] mere claim of insufficient
knowledge as to the correctness of the amount stated
in the affidavit of debt is not a defense for purposes of
[§ 23-18 (a)]. . . . It is axiomatic that such a defense
may be raised by pleading a special defense attacking
the amount of the debt claimed, but it may also be raised
by objection, supported with evidence and arguments
challenging the amount of the debt, upon the attempted
introduction of the affidavit in court.’’ (Citations omit-
ted; internal quotation marks omitted.) Bank of
America, N.A. v. Chainani, 174 Conn. App. 476, 486,
166 A.3d 670 (2017).
In the present case, the amount of the debt submitted
by the plaintiff was uncontested. The plaintiff filed a
motion for judgment of strict foreclosure, an affidavit
of debt, a foreclosure worksheet, and an oath of apprais-
ers. The defendant did not raise a defense or counter-
claim regarding the amount of the mortgage debt. A
defense or a counterclaim does not affect the applicabil-
ity of Practice Book § 23-18 (a) unless it ‘‘actually chal-
lenges in some manner the amount of the debt alleged
by the plaintiff.’’ (Internal quotation marks omitted.)
Id., 478. Additionally, at the time of the hearing on the
motion for a judgment of strict foreclosure, the court
had granted summary judgment in favor of the plaintiff
as to the defendant’s special defenses and counter-
claims.
The defendant did not file an objection to the evi-
dence of the debt that was submitted by the plaintiff
in connection with its motion for a judgment of strict
foreclosure. The defendant neither submitted nor refer-
enced any evidence contesting the amount of the debt
in advance of or at the January 2, 2019 hearing on the
motion for a judgment of strict foreclosure. Although
the defendant made a request for a hearing as to the
debt, the request lacked specificity. The request did not
indicate the basis for the objection to the debt, namely,
whether the objection was squarely focused on the
amount of the debt or focused on matters ancillary to
the amount of the debt, such as whether the plaintiff
is the holder of the note and mortgage, which is a matter
of liability. Because the request for a hearing was not
based on some articulated legal reason or fact, Practice
Book § 23-18 (a) applies. See id., 486. Accordingly, the
court was not required to hold a hearing as to damages,
pursuant to Practice Book § 17-50, when no genuine
contest as to the amount of the debt existed. ‘‘Where
a defendant fails to raise a defense as to the amount
of the debt, the plaintiff may prove the debt by way of an
affidavit pursuant to Practice Book § 23-18.’’ (Footnote
omitted.) Bank of America, FSB v. Franco, 57 Conn.
App. 688, 694, 751 A.2d 394 (2000). In GMAC Mortgage,
LLC v. Ford, supra, 144 Conn. App. 186–87, the trial
court granted the mortgagee’s motion for a judgment of
strict foreclosure following its granting of the plaintiff’s
motion for summary judgment as to liability only. We
held in GMAC Mortgage that the trial court did not
abuse its discretion in declining to hold an evidentiary
hearing as to the amount of debt when the mortgagor
did not raise a challenge to the amount of the debt. Id.We conclude that the court’s decision not to hold an
evidentiary hearing as to the debt and, instead, to calcu-
late the debt on the basis of the plaintiff’s uncontested
evidence of debt was not improper.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
The complaint also named as defendants, the city of Hartford; Mark S.
Rosenblit, as executor of the estates of Ellen Rosenblit and Jack L. Rosenblit;
Money Market Mortgage, LLC; Preferred Financial Services, LLC; Greater
Hartford Police FCU also known as Greater Hartford Police Federal Credit
Union; and Louise Hunter. The plaintiff filed motions for default against
these defendants, which the court granted. We use the term defendant in
this opinion to refer to Bennett only.
2
‘‘The designation ‘JDNO’ is a standard notation used to indicate that a
judicial notice of a decision or order has been sent by the clerk’s office to
all parties of record. Such a notation raises a presumption that notice was
sent and received in the absence of a finding to the contrary.’’ (Internal
quotation marks omitted.) McTiernan v. McTiernan, 164 Conn. App. 805,
808 n.2, 138 A.3d 935 (2016).
3
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
4
The defendant also argues that the trial court abused its discretion by
not staying the entry of the award of damages and costs in this case until
the outcome of this appeal. We decline to review this claim because the
proper avenue through which to challenge the trial court’s denial of her
request for a stay is not on direct appeal, but rather by way of a motion
for review. Practice Book § 61-14 provides in relevant part: ‘‘The sole remedy
of any party desiring the court to review an order concerning a stay of
execution shall be by motion for review.’’ ‘‘Issues regarding a stay of execu-
tion cannot be raised on direct appeal.’’ (Internal quotation marks omitted.)
Housing Authority v. Morales, 67 Conn. App. 139, 140, 786 A.2d 1134 (2001).