Chase Home Finance, LLC v. Scroggin

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CHASE HOME FINANCE, LLC v. DANIEL SCROGGIN
(AC 39191)
Keller, Prescott and Bear, Js.
Syllabus
The plaintiff C Co. sought to foreclose a mortgage on certain real property
owned by the defendant, S, who was defaulted for failure to plead. The
trial court thereafter permitted C Co. to add as a defendant B Co., which
held a mortgage on the property securing a line of credit. Thereafter,
C Co. filed an amended complaint, to which S filed no objection. Count
one of the amended complaint sought foreclosure of C Co.’s mortgage
as in the original complaint, counts two through four concerned whether
B Co.’s mortgage should be equitably subrogated to C Co.’s mortgage,
and counts five and six alleged that S was unjustly and fraudulently
enriched as he continued to borrow against B Co.’s line of credit after
it was closed, all to C Co.’s loss and detriment. Subsequently, T Co. was
substituted as the plaintiff and filed a motion for judgment with respect
to counts two through six of the amended complaint and a motion for
a judgment of strict foreclosure as to count one. Without seeking leave
of the court to open the default entered against him, S filed an answer
to the amended complaint and objections to T Co.’s motions. The trial
court concluded that S’s answer was not operative because he did not
move to open the default entered against him five years previously and
had waited until after the motions for judgment were filed in order to
file a responsive pleading. The court, inter alia, rendered a judgment of
strict foreclosure in favor of T Co. On appeal to this court, S claimed
that the trial court improperly granted the motion for judgment of strict
foreclosure because that judgment was based on a default for failure
to plead in response to the original complaint, but C Co., thereafter,
had significantly amended the pleadings and added additional parties,
which extinguished the default. Held that, under the circumstances of
the present case, the trial court improperly failed to set aside the default
entered against S and abused its discretion by failing to give effect to
his answer to the amended complaint: the filing of an amended complaint
following a finding of default effectively extinguishes the default and
affords a defendant an opportunity to plead in response only when the
amendment reflects a substantial change to the pleadings in effect at
the time that the default was entered, and a comparison of the original
and amended complaints revealed that the amended complaint filed
following the default interjected new material factual allegations and
new legal theories in the case, which were not merely technical in nature
and concerned whether the line of credit extended by B Co. should be
considered as a prior or subsequent lien on the subject property and
whether S had engaged in fraudulent conduct or was unjustly enriched;
moreover, although a default acts as a judicial admission of the facts
set forth in a complaint, the default entered against S with respect to
the original complaint could not be interpreted to apply to the materially
new claims to which he was exposed as set forth in the amended
complaint, which included, but were not limited to, claims of fraud and
unjust enrichment on his part, and in light of the changes to T Co.’s
case that were reflected in the amended complaint, it was inequitable
for the court not to have considered the default entered against S to
have been extinguished.
(One judge dissenting)
Argued September 12—officially released December 19, 2017
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district
of Middlesex, where the defendant was defaulted for
failure to plead; thereafter, Bank of America National
Association was cited in as a defendant and the plaintiff
filed an amended complaint; subsequently, AJX Mort-
gage Trust 1 was substituted as the party plaintiff; there-
after, the court, Aurigemma, J., granted the substitute
plaintiff’s motion for judgment as to counts two through
six of the amended complaint; subsequently, the court
granted the substitute plaintiff’s motion for a judgment
of strict foreclosure and rendered judgment thereon,
from which the named defendant appealed to this court.
Reversed in part; further proceedings.
Michael J. Habib, with whom, on the brief, was
Thomas P. Willcutts, for the appellant (named
defendant).
Benjamin T. Staskiewicz, for the appellee (substi-
tute plaintiff).
Opinion
KELLER, J. The defendant, Daniel J. Scroggin also
known as Daniel F. Scroggin also known as Daniel
Scroggin, appeals from the judgment of strict foreclo-
sure rendered by the trial court in favor of the substitute
plaintiff, AJX Mortgage Trust 1, a Delaware Trust, Wil-
mington Savings Fund Society, F.S.B., Trustee.1 The
defendant claims that the court improperly granted the
plaintiff’s motion for judgment of strict foreclosure
because (1) the judgment was based upon a default for
failure to plead in response to the original complaint,
but the plaintiff’s predecessor in this action, thereafter,
had significantly amended the pleadings and added
additional parties to the action, and (2) by operation
of General Statutes § 52-121 (a),2 he was entitled to,
and did, file an answer prior to the hearing on the
plaintiff’s motion for judgment.3 We agree with the
defendant’s first claim. Accordingly, we reverse the
judgment of the trial court and remand the case to that
court for further proceedings.
The relevant procedural history is as follows. In
December, 2009, Chase commenced the present fore-
closure action against the defendant. In its original one
count complaint, Chase alleged, in relevant part, that
on July 20, 2007, the defendant executed a promissory
note in the amount of $217,500 in favor of Chase Bank
USA, N.A., and that the loan was secured by a mortgage
of the premises located at 25 Church Street in Portland,
which was owned by and in the possession of the defen-
dant. Chase alleged that the mortgage was recorded
on the Portland land records, that the mortgage was
assigned to it, and that it was the holder of the note
and mortgage. Chase alleged that beginning on July 1,
2009, the defendant failed to make installment pay-
ments of principal and interest required by the note
and that it had exercised its option to declare the entire
unpaid balance of the note (in the amount of
$214,939.97) due and payable to it. Chase further alleged
that several encumbrances of record were prior in right
to its mortgage interest, but that no interests were
claimed which were subsequent to its mortgage inter-
est. By way of relief, Chase sought, among other things,
a foreclosure of the mortgage and the immediate pos-
session of the subject premises.4
On June 7, 2010, Chase filed a motion for default for
failure to plead. On that same day, Chase filed a motion
for judgment of strict foreclosure and a finding that it
was entitled to possession of the subject premises. On
June 16, 2010, the clerk of the court granted the motion
for default but, at that time, the court did not rule on
the motion seeking a judgment of strict foreclosure.
On September 8, 2010, Chase filed a request for leave
to amend its complaint and attached a proposed
amended complaint. The defendant did not object.5 The
amended complaint consisted of six counts. The first
count brought against the defendant sought a foreclo-
sure and generally was consistent with the allegations
brought against the defendant in the original one count
complaint, except that in the amended complaint, Chase
alleged in relevant part: ‘‘On the aforementioned piece
of property, the following interests are claimed which
are subsequent to plaintiff’s said mortgage: A mortgage
in favor of . . . [Bank of America] in the original
amount of $100,000, dated 18, 2007, and recorded Febru-
ary 7, 2007 in . . . the Portland land records.’’
The second, third, and fourth counts of the amended
complaint were brought against Bank of America.6 In
these counts, Chase, among other things, raised a claim
of equitable subrogation with respect to Bank of Ameri-
ca’s mortgage interest in the subject property, which,
Chase alleged, was recorded prior to its own interest
in the property.7 In count two, Chase alleged in part
that ‘‘[the] plaintiff paid off, as proceeds of its mortgage
set forth herein, a mortgage prior in right to that of
[Bank of America] . . . intending to then obtain a first
mortgage on the property herein being foreclosed, and,
therefore, should be equitably subrogated to the posi-
tion of that prior mortgage.’’
In count three, Chase alleged in part: ‘‘The plaintiff,
by its agent or attorney, received a payoff letter on or
about July 23, 2007, and [the defendant] . . . executed
. . . Bank of America’s authorization to terminate the
line of credit and authorized the payment in full along
with the closing of a line of credit under . . . Bank of
America’s mortgage. . . . Subsequent thereto . . .
Bank of America . . . made further advances to [the
defendant] . . . after issuing this payoff letter and, as
a result, its mortgage should be equitably subrogated
to the interest of the plaintiff’s mortgage herein.’’
In count four, Chase alleged in part: ‘‘Bank of
America, through its actions in accepting funds after
the credit line was ordered closed, has unjustly
enriched itself.’’
Counts five and six of the amended complaint, both
of which were directed at the defendant, also are related
to Chase’s allegations with respect to Bank of America’s
mortgage interest in the subject property. In count five,
Chase alleged in part: ‘‘Authorizing the payoff of the
mortgage of . . . Bank of America, [the defendant]
. . . continued to obtain further borrowings against
said mortgage and, further [un]justly enriched himself,
all to [the] plaintiff’s loss and damage.’’ In count six,
Chase alleged in part: ‘‘After authorizing the plaintiff,
its agents, and/or attorneys to close the credit line con-
tained in . . . [Bank of America’s] mortgage, the
[defendant] . . . continued to obtain further funds pur-
suant to said credit line, either by fraud or mistake, all
to [the] plaintiff’s loss and damage.’’
At no time did the defendant move to set aside the
default for failure to plead entered on June 16, 2010.
On November 2, 2015, however, the defendant disclosed
a defense, stating that he ‘‘intend[ed] to challenge the
plaintiff’s alleged right and standing to foreclose upon
the subject mortgage.’’ On the same day, the defendant
filed an answer to Chase’s original complaint.
The plaintiff did not file a motion for default for
failure to plead against the defendant with respect to
the amended complaint. On November 24, 2015, how-
ever, the plaintiff filed a motion for judgment against
the defendant with respect to counts two, three, four,
five, and six of the amended complaint. On the same
day, the plaintiff moved that the court enter a judgment
of strict foreclosure and asked that separate law days
be assigned to the defendant, Middconn Federal Credit
Union, and Bank of America. Before the court consid-
ered the plaintiff’s motions, the plaintiff filed an
appraisal of the subject property, a foreclosure work-
sheet, an affidavit of debt, and an affidavit of attor-
ney’s fees.
On April 4, 2016, the defendant filed an answer to
the plaintiff’s amended complaint. In his answer to the
amended complaint, the defendant, among other things,
admitted portions of the allegations made in the first
count and, with respect to other portions of the first
count, left the plaintiff to its proof. Also, on April 4,
2016, the defendant filed an objection to the plaintiff’s
motion for judgment as to count six of the amended
complaint and an objection to the plaintiff’s motion for
judgment of strict foreclosure. On that date, the court
held a hearing on the plaintiff’s motion for judgment.
By order dated April 4, 2016, the court granted the
plaintiff’s motion for judgment with respect to counts
two, three, four, and five of the amended complaint,
but did not rule with respect to counts one or six of
the amended complaint.
Following the hearing, the plaintiff replied to the
defendant’s objection to its motion for judgment of
strict foreclosure, and the defendant filed a memoran-
dum of law in which he further articulated the reasons
underlying his objection to the motion for judgment of
strict foreclosure. At a hearing on April 18, 2016, the
parties appeared and presented additional arguments.
In support of his objection, the defendant argued that
(1) after Chase filed its motion for judgment of strict
foreclosure in 2010, it filed an amended complaint that
substantially changed the nature of the claims and cited
in Bank of America so that the plaintiff would be recog-
nized as a first mortgagee; (2) he answered the amended
complaint and was not defaulted with respect to the
amended complaint; and (3) any delays in the litigation
following the default entered in 2010 were occasioned
by the plaintiff and its predecessors, who did not act
in a timely manner. Essentially, the defendant argued
that the plaintiff had not sought or obtained a default
against him with respect to the amended complaint.
Additionally, the defendant relied on the fact that, pur-
suant to § 52-121 (a), he had filed a responsive pleading
with respect to the amended complaint prior to the
hearing on the plaintiff’s motion for judgment, and the
court should consider it as the operative answer.
The plaintiff argued that because the court did not
set aside the default entered in 2010, the defendant’s
answer and disclosed defense were inoperative. The
plaintiff emphasized that at no time did the defendant
ask the court to set aside the default and that nearly
six years had passed since it had been entered against
the defendant. Moreover, the plaintiff argued, any claim
that Chase’s request to amend its complaint somehow
extinguished the default was not persuasive because
the defendant did not object to the amended complaint
and did not timely replead after it had been filed. Addi-
tionally, the plaintiff argued, the amended complaint
did not substantially change the original one count com-
plaint against the defendant. The plaintiff argued that
‘‘the amended complaint was brought to allege addi-
tional counts against . . . Bank of America. There has
been no change to the foreclosure count whatsoever,
there is no prejudice shown to the defendant by the
amendment, nor does the defendant allege such
prejudice.’’
The court, having heard the parties’ arguments,
addressed the defendant as follows: ‘‘Well, in my view,
you should have moved to open a default. You didn’t.
I’ll allow them to go forward with their foreclosure.’’
Thereafter, when the defendant asked the court to
address the applicability of § 52-121 (a), the court
stated: ‘‘You didn’t move to [open] the default, waiting
five years. And you just can’t file an answer once a
motion for judgment has been filed.’’8 The court stated
its belief that the defendant’s actions ‘‘were solely for
the purpose of delay,’’ observing that the despite the
passage of five years, the defendant did not move to
open the default. The court granted the plaintiff’s
motion for judgment of strict foreclosure, set a law day
of May 23, 2016, and rendered judgment on count six
of the plaintiff’s amended complaint in the plaintiff’s
favor. This appeal followed.9
The defendant claims that the court improperly
granted the judgment of strict foreclosure because the
court’s judgment was based upon a default for failure to
plead in response to the original complaint, but Chase,
thereafter, had significantly amended the pleadings and
added additional parties to the action. We agree with
the defendant.
Although, in general terms, the defendant challenges
the court’s ruling granting the plaintiff’s motion for judg-
ment of strict foreclosure, a careful review of the defen-
dant’s brief reflects that the substance of this claim is
that under the circumstances that existed at the time
that it rendered judgment, ‘‘the trial court should have
permitted the defendant’s pleading to the plaintiff’s
amended allegations and opened the default, which was
[entered] as to the original complaint only.’’ The defen-
dant argues that, following the default entered with
respect to the original complaint, Chase, by filing the
amended complaint, materially changed the allegations
in the case by seeking equitable subrogation. Addition-
ally, the defendant observes, the party claiming a right
to foreclose upon the mortgage evolved from Chase
to the plaintiff. Following the filing of the amended
complaint, he disclosed a defense and answered both
complaints. The defendant argues that, in fairness to
him, the default should have been extinguished by the
filing of the amended complaint and that the court
should have given effect to his answer and disclosed
defense.
As is reflected in our recitation of the relevant proce-
dural history, the court did not prohibit the defendant
from filing an answer in response to the amended com-
plaint. The court, however, indicated that it would not
give any effect to the answers filed by the defendant to
the original and amended complaints (and, presumably,
the defendant’s disclosed defense) on the ground that
such filings were untimely, having been presented to
the court more than five years following the default.
The court observed, as well, that in the lengthy period
of time that ensued following the default, the defendant
did not move to set aside that default. To the extent
that the defendant argues that the court should have
‘‘opened the default,’’ his argument implies that the
court should have done so sua sponte.
‘‘In order for foreclosure cases to move as swiftly as
possible through our court system, it is imperative that
a defendant disclose any defenses to the mortgage debt
prior to the hearing. . . . The entry of a default consti-
tutes an admission by the [defaulted party] of the truth
of the facts alleged in the complaint.’’ (Citation omitted;
internal quotation marks omitted.) TD Banknorth, N.A.
v. White Water Mountain Resorts of Connecticut, Inc.,
133 Conn. App. 536, 545, 37 A.3d 766 (2012). Practice
Book § 17-33 (b) provides in relevant part that ‘‘the
effect of a default is to preclude the defendant from
making any further defense in the case so far as liability
is concerned . . . .’’ It also provides that ‘‘at or after
the time it renders the default, [the judicial authority]
. . . may also render judgment in foreclosure cases
. . . provided the plaintiff . . . also [has] made a
motion for judgment and provided further that any nec-
essary affidavits of debt or accounts or statements veri-
fied by oath, in proper form, are submitted to the judicial
authority.’’ Practice Book § 17-33 (b).
The abuse of discretion standard of review applies
to a court’s ruling on a motion to set aside a default;
Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998);
to a motion to strike a matter from a hearing in damages
list; Spilke v. Wicklow, 138 Conn. App. 251, 270, 53 A.3d
245 (2012), cert. denied, 307 Conn. 945, 60 A.3d 737
(2013); and to a ruling prohibiting a defendant from
filing pleadings with respect to an amended complaint.
Willamette Management Associates, Inc. v. Palczynski,
134 Conn. App. 58, 69, 38 A.3d 1212 (2012). In the present
case, the court made clear that it would not give effect
to the defendant’s answer and did not set aside the
default entered against him. This court previously has
applied the abuse of discretion standard to the type of
claim under consideration, one that involved a court’s
refusal to give effect to a defendant’s answer that was
filed following a default and the court’s refusal to set
aside a default. Richards v. Trudeau, 54 Conn. App.
859, 863, 738 A.2d 215 (1999).
‘‘[A] foreclosure action constitutes an equitable pro-
ceeding. . . . In an equitable proceeding, the trial court
may examine all relevant factors to ensure that com-
plete justice is done. . . . The determination of what
equity requires in a particular case, the balancing of
the equities, is a matter for the discretion of the trial
court. . . . This court must make every reasonable pre-
sumption in favor of the trial court’s decision when
reviewing a claim of abuse of discretion. . . . Our
review of the trial court’s exercise of legal discretion
is limited to the question of whether the trial court
correctly applied the law and could reasonably have
reached the conclusion that it did.’’ (Citations omitted;
internal quotation marks omitted.) Webster Bank v. Zak,
71 Conn. App. 550, 556–57, 802 A.2d 916, cert. denied,
261 Conn. 938, 808 A.2d 1135 (2002).
In analyzing the issue before us, we are guided by
principles set forth in two decisions of this court, Willa-
mette Management Associates, Inc. v. Palczynski,
supra, 134 Conn. App. 63–69, and Spilke v. Wicklow,
supra, 138 Conn. App. 265–72. In Willamette Manage-
ment Associates, Inc., a defendant in a breach of con-
tract action was defaulted for failure to plead.
Willamette Management Associates, Inc. v. Palczynski,
supra, 62. Subsequently, the court granted the plaintiff’s
motion to amend the writ of summons and complaint
to correct what it deemed to be a scrivener’s error,
specifically, a defective return date on the writ of sum-
mons. Id., 63. After the plaintiff filed an amended com-
plaint, the defendant filed an answer and special
defense. Id. At the hearing in damages, the court
declined to give effect to the answer because it was
filed following the default and the amended complaint
had not substantively changed the allegations brought
against the defendant. Id. Thereafter, the court rendered
judgment in the plaintiff’s favor. Id.
On appeal to this court, the defendant in Willamette
Management Associates, Inc., argued in relevant part
that, in light of the filing of the amended complaint, the
court erroneously had prohibited her from filing the
answer to the amended complaint. Id. In considering
whether the court abused its discretion, this court
appears to have focused on whether it was inequitable
for the court to have permitted the amendment but
not the responsive pleading thereto. In rejecting the
defendant’s claim, this court determined that because
the amended complaint did not reflect a substantial
change in the pleadings, it was not inequitable for the
court to have exercised its discretion in the manner
that it did. Id., 68–69. This court reasoned: ‘‘From all
appearances, the defect in the writ and summons had
nothing at all to do with . . . [the defendant’s] subse-
quent defaults, and there is, therefore, no equitable rea-
son why a technical amendment to the writ of summons
should create the opportunity to plead responsively.
The only change between the original complaint and
the amended complaint was the return date and the
date of the complaint. All substantive allegations in the
complaint remained precisely the same. The court did
not vacate its entry of a default against the defendant,
and the purpose of amending the complaint was solely
to remedy a typographical error. The defendant’s sub-
stantive rights were not affected by the amendment,
and she has not demonstrated prejudice. If the effect
of an amendment of a complaint so made is to substan-
tially change the cause of action originally stated, the
defendant is entitled to file new or amended pleadings
and present further evidence. Also, if the amendment
interjects material new issues, the adversary is entitled
to reasonable opportunity to meet them by pleading
and proof. . . . No change of any kind, and thus cer-
tainly not a substantial change, was made to the cause
of action in the present case.’’ (Citation omitted; internal
quotation marks omitted.) Id.
In Spilke v. Wicklow, supra, 138 Conn. App. 265–72,
this court relied on the rationale set forth in Willamette
Management Associates, Inc. After judgment was ren-
dered in favor of the plaintiff in Spilke, the defendants
in Spilke argued, in relevant part on appeal to this court,
that the trial court had abused its discretion by striking
the action against them from the trial list and failing to
open the default against them. Id., 265–66. The defen-
dants in Spilke relied on the fact that, after the court
had entered a default against them, the plaintiff filed
an amended complaint. Id. In Spilke, this court observed
that the issue in the case before it and Willamette Man-
agement Associates, Inc., ‘‘primarily was whether the
filing of an amended complaint after a finding of default
extinguished the default and allowed the defendant to
plead in response. In the present case, the plaintiff filed
four amended complaints after the defendants were
defaulted. . . . Although the complaints differed in
some respects from the original complaint, the substan-
tive allegations remained the same. . . . [W]e conclude
that the amendments worked no substantial change in
the cause of action and that the defendants have not
demonstrated any prejudice suffered.’’ Id., 270. This
court concluded that the court did not abuse its discre-
tion in denying the defendants’ motion to strike the
matter from the hearing in damages list or in denying
the defendants’ motion to set aside the default judg-
ment. Id., 270–72.
The analysis set forth in Willamette Management
Associates, Inc., and Spilke reflects that, in determining
whether the filing of an amended complaint following
a finding of default effectively extinguished the default
and afforded a defendant an opportunity to plead in
response, the dispositive inquiry is whether the amend-
ment reflected a substantial change to the pleadings in
effect at the time that the default was entered.10 In
Willamette Management Associates, Inc., this court,
citing Mazulis v. Zeldner, 116 Conn. 314, 317, 164 A.
713 (1933), stated that a primary consideration in this
inquiry was whether the amendment interjected ‘‘mate-
rial new issues’’ in the case. (Internal quotation marks
omitted.) Willamette Management Associates, Inc. v.
Palczynski, supra, 134 Conn. App. 69.
Although we have characterized our general inquiry
in these types of cases as a review of the trial court’s
exercise of discretion, there is no dispute in our deci-
sional law that, insofar as our review of the court’s
exercise of discretion requires us to interpret the plead-
ings, we do not afford the court discretion with respect
to this aspect of its ruling. As we have stated, ‘‘[t]he
interpretation of pleadings is always a question [of law]
for the court . . . . The modern trend, which is fol-
lowed in Connecticut, is to construe pleadings broadly
and realistically, rather than narrowly and technically.
. . . Although essential allegations may not be supplied
by conjecture or remote implication . . . the com-
plaint must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded, and do substantial
justice between the parties.’’ (Internal quotation marks
omitted.) American First Federal, Inc. v. Gordon, 173
Conn. App. 573, 584–85, 164 A.3d 776, cert denied, 327
Conn. 909, A.3d (2017). ‘‘Construction of pleadings
is a question of law. Our review of a trial court’s inter-
pretation of the pleadings therefore is plenary.’’ Kovacs
Construction Corp. v. Water Pollution & Control
Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert.
denied, 297 Conn. 912, 995 A.2d 639 (2010).
Our comparison of the original and amended com-
plaints readily reveals that the amended complaint filed
following the default interjected material new issues in
the case, thereby substantially changing the pleadings.
As set forth previously in this opinion, in contrast to
the original, one count complaint brought against the
defendant by Chase, the amended, six count complaint
subsequently brought by Chase raised the issue of
whether the line of credit held by Bank of America
should be considered as a prior or subsequent lien on
the subject property. The amended complaint contained
new counts in which the plaintiff sought equitably to
subordinate the interest of Bank of America to its mort-
gage interest, and two new counts directed at the defen-
dant. The original complaint, sounding in foreclosure,
invoked the court’s equitable powers. Count five of the
amended complaint sounded in unjust enrichment and
count six accused the defendant of engaging in fraudu-
lent conduct. The amended complaint, which was filed
by Chase, interjected new material factual allegations
and new legal theories on which the plaintiff relied.
The new material factual allegations and legal theo-
ries set forth in the amended complaint were not merely
technical in nature. In counts five and six of the
amended complaint, Chase alleged that the defendant
caused it ‘‘loss and damage’’ when he continued to draw
on Bank of America’s line of credit. In its prayer for
relief in the amended complaint, Chase sought, inter
alia, attorney’s fees, costs, and ‘‘such other relief . . .
as may be required.’’11 The amended complaint reason-
ably could be interpreted to seek monetary damages
for the fraud and unjust enrichment claims set forth in
counts five and six of the amended complaint, and, thus,
the amended complaint materially altered the nature
of the claims against the plaintiff. Because a default
acts as a judicial admission of the facts set forth in a
complaint, it is difficult to afford weight to the plaintiff’s
argument that the default entered with respect to the
original complaint could be interpreted to apply to the
materially new claims to which the defendant was
exposed as set forth in the amended complaint, which
included, but were not limited to, claims of fraud and
unjust enrichment on his part.12
In light of the changes to the plaintiff’s case that were
reflected in the amended complaint, it was inequitable
for the court not to have considered the default entered
in 2010 to have been extinguished.13 Thus, the court
should have considered the defendant’s answer to the
amended complaint as well as his disclosed defense.
Although it was appropriate for the court to have con-
sidered the lengthy period of time that followed the
entry of the default, it nonetheless abused its discretion
by failing to consider the effect of the amended com-
plaint upon that default. ‘‘If the effect of an amendment
of a complaint . . . is to substantially change the cause
of action originally stated, the defendant is entitled to
file new or amended pleadings and present further evi-
dence. Also, if the amendment interjects material new
issues, the adversary is entitled to reasonable opportu-
nity to meet them by pleading and proof.’’ Mazulis v.
Zeldner, supra, 116 Conn. 317.
In light of the foregoing analysis, the proper remedy
is to reverse the judgment of strict foreclosure and to
remand the case to the trial court for further proceed-
ings consistent with this opinion.
The judgment granting strict foreclosure is reversed
and the case is remanded for further proceedings con-
sistent with this opinion; the judgment is affirmed in
all other respects.
In this opinion PRESCOTT, J., concurred.
1
In December, 2009, the named plaintiff, Chase Home Finance, LLC
(Chase), commenced this action against the defendant, Daniel J. Scroggin
also known as Daniel F. Scroggin also known as Daniel Scroggin.
In September, 2010, Chase filed a motion to cite in Bank of America, N.A.
(Bank of America), as a third party defendant. The court granted this motion.
Subsequently, the plaintiff served Bank of America with an amended com-
plaint that alleged that Bank of America was a lien holder. In March, 2011,
Bank of America was defaulted for failure to appear. In January, 2012,
Middconn Federal Credit Union sought to be made a party defendant to the
action as a postjudgment lis pendens holder. The court granted the request.
Later, Middconn Federal Credit Union was defaulted for failure to plead
and failure to disclose a defense.
In June, 2012, Chase moved to substitute JPMorgan Chase Bank, N.A., as
plaintiff in the action. The court granted the motion. In June, 2014, JPMorgan
Chase Bank, N.A., moved to substitute Ventures Trust 2013-I-H-R by MCM
Capital Partners, LLC, its Trustee, as plaintiff in the action. The court granted
the motion. In July, 2015, Ventures Trust 2013-I-H-R by MCM Capital Partners,
LLC, its Trustee, moved to substitute AJX Mortgage Trust I, a Delaware
Trust, Wilmington Savings Fund Society, F.S.B., Trustee as plaintiff in the
action. The court granted the motion. Ultimately, the court rendered judg-
ment in favor of AJX Mortgage Trust I, a Delaware Trust, Wilmington Savings
Fund Society, F.S.B., Trustee and, in this opinion, we will refer to that entity
as the plaintiff, and we will refer to Daniel J. Scroggin also known as Daniel
F. Scroggin also known as Daniel Scroggin as the defendant.
2
General Statutes § 52-121 (a) provides: ‘‘Any pleading in any civil action
may be filed after the expiration of the time fixed by statute or by any rule
of court until the court has heard any motion for judgment by default or
nonsuit for failure to plead which has been filed in writing with the clerk
of the court in which the action is pending.’’
3
In light of our resolution of the plaintiff’s first claim, which is dispositive
of the appeal, we need not reach the merits of the second claim.
4
During parts of 2010, the defendant, with the court’s permission, partici-
pated in a foreclosure mediation program. In January, 2011, the mediator
issued a final report terminating mediation and referring the matter back
to the court.
5
Pursuant to Practice Book § 10-60 (a) (3), if the defendant did not object
to the proposed amended complaint within fifteen days, the amendment
was deemed to have been filed by the consent of the defendant.
6
On September 8, 2010, the plaintiff filed a motion to cite in Bank of
America as a party defendant on the ground that it ‘‘[had] an interest in this
action subsequent in right to that of the plaintiff, and therefore, is or may
be liable to the plaintiff, as set forth in the . . . amended complaint.’’ On
September 21, 2010, the court granted the motion. We observe that, in its
proposed amended complaint, the plaintiff alleged that Bank of America’s
mortgage lien was recorded prior to the time that it recorded its interest in
the subject property, but that Bank of America’s interest should be equitably
subrogated to its interest in the property.
7
We note that these allegations are somewhat confusing. In its brief to
this court, the plaintiff indicates that the changes reflected in the amended
complaint were because Chase sought equitable subrogation with respect
to Bank of America’s prior mortgage lien on the subject property. The
plaintiff states that the lien was related to an equity line of credit which
was paid off at the closing transaction between Chase and the defendant
on June 20, 2007, but that Bank of America never released its lien and
thereafter continued to advance funds to the defendant. We note that in its
complaint Chase used the term ‘‘equitable subrogation’’ but, in its brief, the
plaintiff uses the term ‘‘equitable subordination.’’
‘‘In mortgage law, [a] fundamental principle is that a mortgage that is
recorded first is entitled to priority over subsequently recorded mortgages
provided that every grantee has a reasonable time to get his deed recorded.
. . . This principle is referred to as the first in time, first in right rule. . . .
The doctrine of equitable subrogation provides an exception to the first in
time, first in right rule . . . .
‘‘Subrogation is a doctrine which equity borrowed from the civil law
and administers so as to secure justice without regard to form or mere
technicality. . . . It is broad enough to include every instance in which one
party pays a debt for which another is primarily answerable, and which, in
equity and good conscience, should have been discharged by the latter. It
is a legal fiction through which one who, not as a volunteer or in his own
wrong and where there are no outstanding and superior equities, pays the
debt of another, is substituted to all the rights and remedies of the other,
and the debt is treated in equity as still existing for his benefit. . . .
‘‘In numerous cases it has been held that one who advances money to
discharge a prior lien on real or personal property and takes a new mortgage
as security is entitled to be subrogated to the rights under the prior lien
against the holder of an intervening lien of which he was ignorant. . . .
The intention of the parties to the transaction is the controlling consider-
ation. . . . Ultimately, as our Supreme Court has noted, [t]he object of
[legal or equitable] subrogation is the prevention of injustice.’’ (Citations
omitted; internal quotation marks omitted.) AJJ Enterprises, LLP v. Jean-
Charles, 160 Conn. App. 375, 395–96, 125 A.3d 618 (2015).
8
The plaintiff argues that the court’s decision to disregard the defendant’s
answer was proper in light of Practice Book §§ 17-32 (b) and 17-42. Practice
Book § 17-32 (b) provides: ‘‘If a party who has been defaulted under this
section files an answer before a judgment after default has been rendered
by the judicial authority, the default shall automatically be set aside by
operation of law unless a claim for a hearing in damages or a motion for
judgment has been filed. If a claim for a hearing in damages or a motion
for judgment has been filed, the default may be set aside only by the judicial
authority. A claim for a hearing in damages or motion for judgment shall
not be filed before the expiration of fifteen days from the date of notice of
issuance of the default under this subsection.’’ Practice Book § 17-42 pro-
vides: ‘‘A motion to set aside a default where no judgment has been rendered
may be granted by the judicial authority for good cause shown upon such
terms as it may impose. As part of its order, the judicial authority may
extend the time for filing pleadings or disclosure in favor of a party who
has not been negligent. Certain defaults may be set aside by the clerk
pursuant to Sections 17-20 and 17-32.’’ As we will discuss further in this
opinion, this rationale does not apply when, as in the present case, subse-
quent to obtaining a default, the plaintiff files an amended pleading that
materially alters the claims.
9
The present appeal is from the strict foreclosure judgment entered on
count one of the amended complaint. The defendant has not appealed from
the judgment rendered against him on counts five or six of the amended com-
plaint.
10
This approach is consistent with 49 C.J.S. 300, Judgments § 263 (2009),
which provides: ‘‘Where the declaration or complaint is amended in a matter
of substance after the defendant has defaulted, the amendment opens the
case in default, and a valid default judgment cannot thereafter be entered
on the amended pleading unless the defaulting defendant is properly notified
of or served with the amended pleading and given an opportunity to plead,
and then fails to do so within the proper time, particularly when the damages
are increased in the amended petition. However, where the amendment is
not as to a matter of substance, but only as to an immaterial or formal
matter, notice or service of the amendment is not necessary before entering
judgment by default.
‘‘The filing of an amended complaint invalidates the original complaint,
for purposes of taking a default judgment.’’ (Footnotes omitted.)
11
Consistent with the prayer for relief set forth in the original complaint,
the prayer for relief in the amended complaint also sought: ‘‘(1) A foreclosure
of said mortgage.
‘‘(2) Immediate possession of the mortgaged premises.
‘‘(3) A deficiency judgment. . . .
‘‘(4) The appointment of a receiver to collect rents and profits accruing
from the premises.
‘‘(5) Reasonable attorney’s fees and costs.
‘‘(6) Such other relief and further equitable relief as may be required.’’
12
The plaintiff, while acknowledging that the changes made by way of
the amended complaint were not merely to address a scrivener’s error,
nonetheless argues that the amended complaint did not constitute a material
change in the action. At the time of oral argument before this court, the
plaintiff conceded that, if the changes that it made by means of the amended
complaint were material in nature, then, in light of its failure to obtain a
default with respect to the amended complaint, the court acted improperly
by granting the motion for judgment of strict foreclosure.
13
The dissent argues in part that because the defendant only has appealed
from the judgment rendered on the foreclosure count, there is no error to
consider because that particular count was not materially altered by virtue
of the amended complaint. Assuming, arguendo, that count one was not
materially altered by the allegation regarding Bank of America’s mortgage,
we respectfully suggest that the dissent appears to overlook the fact that,
by failing to consider the defendant’s answer, the court deprived the defen-
dant of an opportunity to extinguish the default on the foreclosure count,
which would have permitted him to defend the foreclosure action in
count one.