Citimortgage, Inc. v. Rey

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CITIMORTGAGE, INC. v. MIGDALIA REY
(AC 35539)
Lavine, Sheldon and Bishop, Js.
Argued February 20—officially released June 3, 2014
(Appeal from Superior Court, judicial district of New
Haven, Maronich, J.)
Renata Strause and Christian Mott, law student
interns, with whom were J. L. Pottenger, Jr., Jeffrey
Gentes, and, on the brief, Nathan J. Robinson and Lev
Menand, law student interns, for the appellant
(defendant).
Donald E. Frechette, with whom was Tara L. Trifon,
for the appellee (plaintiff).
Opinion
BISHOP, J. This appeal calls upon the court to decide
whether, in a residential foreclosure action in which
the parties have participated in court-sponsored for-
bearance mediation and in which a final forbearance
agreement has been reported to the court, a defendant
may counterclaim for damages allegedly caused by the
plaintiff’s subsequent pursuit of the foreclosure com-
plaint in an alleged breach of the forbearance
agreement. Because, in the particular factual and proce-
dural circumstances of this case, we answer that ques-
tion in the affirmative, we reverse the judgment of the
trial court.
In this residential foreclosure action, the defendant,
Migdalia Rey, appeals from the judgment rendered
against her on the basis of her claim that the trial court
incorrectly struck all counts of her counterclaim
because, in the court’s view, it did not relate to the
making, validity or enforcement of the mortgage or note
on which this foreclosure action is based.
The following procedural overview and undisputed
factual underlayment set the context for our analysis.
By complaint dated June 2, 2008, the plaintiff, CitiMort-
gage, Inc., as a mortgage assignee and holder of the
associated promissory note, sought to foreclose on a
residential home mortgage secured by property owned
by the defendant on the basis of its claim that she was
in default on the promissory note she had executed
in favor of the original mortgagee, The Connecticut
National Bank. In response, the defendant appeared and
filed a petition to participate in the court’s foreclosure
mediation process, and in conjunction with that peti-
tion, made application, pursuant to General Statutes
§ 49-31f, for protection and a stay of the foreclosure
action. Pursuant to these requests by the defendant, the
matter was referred to the court-sponsored foreclosure
mediation program for possible resolution.1 On Novem-
ber 24, 2008, the court’s foreclosure mediator, Karen
Zarkades, filed a document captioned, ‘‘Mediator’s Final
Report’’ with the court, which indicated that the matter
had been settled. As to disposition, the report indicated
that the action was to be withdrawn ‘‘within 90 days,
or dismissed by the Court after successful completion
of three (3) payments under the parties’ Forbearance
Plan.’’ On November 7, 2008, before the filing of this
report by Zarkades, the parties had executed a docu-
ment captioned, ‘‘Stipulated Special Forbearance
Agreement,’’ which contained several recitals dealing,
inter alia, with the parties’ anticipation that the foreclo-
sure action would be put on hold pending the defen-
dant’s fulfillment of the obligations undertaken
pursuant to the stipulation, the total amount of the
debt, the three monthly payments to be made by the
defendant, and a provision requiring the defendant to
either pay the loan in full or resubmit updated financial
information to the plaintiff by February 1, 2009, for a
review of further loss mitigation options. The defendant
made the three monthly payments as required by the
stipulation and thereafter recommenced making
monthly payments in the amount required by the under-
lying promissory note.2
Notwithstanding the filing of this mediation report
and for reasons not readily apparent from a review of
the record, the plaintiff sought to continue with the
foreclosure litigation by reclaiming its motion for a
judgment of strict foreclosure on October 26, 2009, and
again on December 14, 2009. The defendant, in turn,
filed her answer, three special defenses, and a five count
counterclaim on March 12, 2010. Generally, in her
answer, the defendant asserted that she was not in
default on the note on the basis of her claim that she had
complied fully with the terms of the parties’ forbearance
agreement. By way of special defense, the defendant
alleged that: (1) she had made payments pursuant to
the terms of the parties’ forbearance agreement and
that, by accepting those payments, the plaintiff had
waived its rights to declare her in default on the note
and to foreclose in the mortgage; (2) by pursuing the
defendant in contravention to the terms of the forbear-
ance agreement the plaintiff was acting with unclean
hands and thus was not entitled to the equitable remedy
of foreclosure; and (3) the plaintiff’s pursuit of the rem-
edy of foreclosure constituted a breach of its duty of
acting in good faith and fair dealing. By way of a coun-
terclaim, the defendant alleged that the plaintiff’s pur-
suit of the remedy of foreclosure in contravention of
the terms of the parties’ forbearance agreement: (1)
constituted a breach of contract; (2) was negligent;
(3) negligently inflicted emotional distress on her; (4)
constituted a breach of its duty of good faith and fair
dealing; and (5) was a violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq.
On January 25, 2011, the plaintiff moved for summary
judgment on liability. In support of its motion, the plain-
tiff attached an affidavit, which set forth the details
of the parties’ forbearance agreement and contained
allegations regarding the manner in which the defen-
dant purportedly had not fully complied with its terms.
In short, the plaintiff argued in its motion for summary
judgment that it was entitled to a judgment on liability
not only on the basis of the original note and mortgage,
but also on the basis of the defendant’s alleged failure
to fulfill her duties under the forbearance agreement.3
Thereafter, on April 23, 2012, the plaintiff withdrew
its foreclosure complaint.4 Subsequently, on October
25, 2012, the plaintiff moved to strike the defendant’s
counterclaim as legally insufficient. Specifically, the
plaintiff argued, inter alia, that: (1) the defendant’s
counterclaim should be stricken because it did not
relate to the making, validity or enforcement of the
note or mortgage; (2) the plaintiff had not breached the
foreclosure agreement; (3) the defendant’s claim for
negligence should be stricken because the plaintiff
owed the defendant no duty of care; and (4) the defen-
dant’s claim of breach of the covenant of good faith
and fair dealing should be stricken because the defen-
dant had failed to prove that the plaintiff acted in bad
faith. In granting the plaintiff’s motion to strike, the
court stated as follows: ‘‘While courts have recognized
equitable defenses in foreclosure actions, they have
generally only been considered proper when they attack
the making, validity or enforcement of the lien, rather
than some act or procedure of the lienholder. . . . The
rationale behind this is that counterclaims and special
defenses which are not limited to the making, validity
or enforcement of the note or mortgage fail to assert any
connection with the subject matter of the foreclosure
action and as such do not arise out of the same transac-
tion as the foreclosure action. . . . Eastern Savings
Bank v. Mara, Superior Court, judicial district of Stam-
ford-Norwalk, Docket No. CV-05-4006305 (June 5, 2006)
(Dooley, J.). The court finds that insofar as all the allega-
tions of [the defendant’s] five count counterclaim arise
from the execution and performance of the forbearance
agreement they are not related to the making, validity
or enforcement of the note [or] mortgage. For the fore-
going reasons, the plaintiff’s motion to strike the defen-
dant the [defendant’s] counterclaims in their entirety
is hereby GRANTED.’’ (Internal quotation marked omit-
ted.) Thereafter, on motion of the plaintiff, the court
rendered judgment in favor of the plaintiff on all counts
of the defendant’s counterclaim. This appeal followed.
At the outset, we note that the parties are in dispute
concerning our standard of review. The plaintiff claims
that because the central question in this appeal is
whether the court correctly applied the transaction test
set forth in Practice Book § 10-10,5 which is applicable,
generally, to counterclaims, our review should be defer-
ential. To be sure, numerous opinions of this court and
our Supreme Court support the proposition that a trial
court’s determination of whether a particular counter-
claim fits within the parameters of Practice Book § 10-
10 requires a reviewing court only to assess whether,
in coming to its conclusions, the court abused its discre-
tion. See, e.g., Wallingford v. Glen Valley Associates,
Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983) (‘‘[t]he
transaction test is one of practicality, and the trial
court’s determination as to whether the test has been
met ought not to be disturbed except for an abuse
of discretion’’ [internal quotation marks omitted]). The
defendant, on the other hand, claims that our review
should be plenary given that the central question raised
in this appeal is whether the court utilized the correct
legal test in its analysis of the counterclaim’s legal viabil-
ity and not whether the court abused its discretion in
its application of the correct criteria. We agree with
the defendant in this regard. From our review of the
court’s decision, it is not apparent that the court consid-
ered the parameters of Practice Book § 10-10 in decid-
ing to strike the counterclaim. To the contrary, the
court expressly fastened its decision on whether the
counterclaim met the ‘‘making, validity and enforce-
ment’’ standard generally applicable to legal defenses
in foreclosure actions. Because the defendant’s claim
that the court utilized the incorrect test raises a question
of law, our review is plenary. See Wells Fargo Bank of
Minnesota, N.A. v. Morgan, 98 Conn. App. 72, 78, 909
A.2d 526 (2006).
We begin our analysis with a consideration of
whether the court applied the legally correct test in
assessing the viability of the counterclaim. As noted,
the court struck the counterclaim on the basis that it
did not relate to the making, validity or enforcement
of the original note and mortgage. Although we are
aware that the ‘‘making, validity or enforcement test’’
has been employed by courts in assessing the viability
of special defenses and counterclaims in foreclosure
cases, and we acknowledge that the tests can be inter-
twined, we believe that the proper test to be utilized
when assessing the legal viability of a counterclaim is
set forth in Practice Book §10-10, and is commonly
referred to as the ‘‘transaction test.’’ Although that test,
in the foreclosure context, may incorporate a consider-
ation of whether a counterclaim has a sufficient nexus
to the making, validity or enforcement of the note and
mortgage, it does not limit a viable counterclaim to
those that directly challenge the making, validity or
enforcement of a note or mortgage.
To be sure, a review of decisional law regarding the
proper test for assessing the applicability of defenses
and counterclaims in foreclosure actions does not pro-
vide complete clarity. Close scrutiny reveals, however,
that even when courts utilize the phrase, ‘‘making, valid-
ity or enforcement,’’ in assessing the viability of both
special defenses and counterclaims, courts require that
a viable legal defense directly attack the ‘‘making, valid-
ity or enforcement’’ while, in assessing counterclaims,
courts have required only that the subject of the coun-
terclaims have a sufficient connection to the making,
validity or enforcement of the note and mortgage to
pass the transaction test. For example, in Morgera v.
Chiappardi, 74 Conn. App. 442, 813 A.2d 89 (2003), this
court applied the transaction test to a counterclaim in
a foreclosure action in which the defendant had claimed
that she had entered into the subject loan transaction
only as part of a package in which the plaintiff had
made false representations regarding other properties
he had conveyed to the defendant at the same time.
In reversing the trial court, this court held that the
counterclaim had arisen from the same transaction as
the subject mortgage and note because there was an
adequate nexus between the transactions. Id., 458–59.
This court opined: ‘‘In addition, insofar as the court’s
posture permitted the defendant to do so, the concate-
nation of circumstances engendered by the plaintiff’s
fraudulent misrepresentations made for a reasonable
nexus between the counterclaim and his conduct in
inducing the defendant’s making of the note and mort-
gage on the property . . . hence raising serious ques-
tions about their validity and enforcement.’’ Id., 452.
With similar reasoning but leading to a different out-
come, in Mechanics Savings Bank v. Townley Corp.,
38 Conn. App. 571, 572–73, 662 A.2d 815 (1995), a junior
encumbrancer filed special defenses and counterclaims
alleging that the plaintiff mortgagee had breached
agreements with him regarding property other than the
subject property, this court noted that the trial court
had stricken the special defenses on the ground that
they did not address the making, validity or enforce-
ment of the notes and mortgages that were the subject
of the complaint. The trial court also struck the counter-
claims because the agreements upon which they rested
were ‘‘transactions separate and distinct from the sub-
ject of the complaint.’’ Id., 573.
Similarly, in Southbridge Associates, LLC v. Garo-
falo, 53 Conn. App. 11, 17, 728 A.2d 1114, cert. denied,
249 Conn. 919, 733 A.2d 229 (1999), this court found
that the trial court properly granted summary judgment
where the defendant had filed both special defenses
and counterclaims on the basis that the special defenses
failed to attack the making, validity or enforcement of
the subject notes and mortgages and that the counter-
claims did not arise out of the transactions that were
the subject of the plaintiff’s complaint. Applying the
same analysis, this court in JP Morgan Chase Bank,
Trustee v. Rodrigues, 109 Conn. App. 125, 952 A.2d 56
(2008), upheld the decision of the trial court striking
the defendants’ counterclaims. As to the counterclaim
seeking damages for emotional distress, this court
opined: ‘‘In the present case, the defendants’ allegations
related to the conduct of the plaintiff that occurred after
the execution of the mortgage note and with respect to
documents other than the mortgage note. The disparity
between the subject matter of the plaintiffs’ complaint
and that of the defendants’ counterclaim warranted the
court’s conclusion that the counterclaim did not arise
from the same transaction.’’ Id., 133. As to the counter-
claim alleging a CUTPA violation, the court agreed that
it should be stricken on the basis that it did not relate
to the making, validity or enforcement of the mortgage
note and, thus, also did not arise out of the same transac-
tion as the complaint. Id., 133–35.
We acknowledge that this latter language, regarding
the making, validity or enforcement of the note, could
be construed to state that for a counterclaim in a fore-
closure action to be legally viable, it must directly attack
the making, validity or enforcement of the subject mort-
gage or note. We find more persuasive the essential
conclusion of Morgera, Rodrigues, and similar deci-
sions, that such a counterclaim must simply have a
sufficient relationship to the making, validity or
enforcement of the subject note or mortgage in order
to meet the transaction test as set forth in Practice
Book § 10-10 and the policy considerations it reflects.
Our view is buttressed by this court’s opinion in South
Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.
App. 540, 970 A.2d 760, cert. denied, 293 Conn. 932, 981
A.2d 1076 (2009), in which it was confronted with a
counterclaim in a legal posture it found similar to the
counterclaims in Rodrigues. The court in Lindquist
opined, in regard to the similarities between the two
cases: ‘‘Likewise, in the present case, the transaction
underlying the complaint involves the transfer of an
interest in land, while the transactions underlying the
stricken counts of the counterclaim involve interactions
between the plaintiff and the defendant that occurred
well after the transfer took place. Therefore, the court
did not abuse its discretion in finding that the stricken
counts involved issues of fact and law different from
those in the complaint and that bringing the counter-
claim as a separate action would not involve a substan-
tial duplication of effort by the parties and the courts.’’
(Internal quotation marks omitted.) Id., 548.
We conclude, accordingly, that in assessing the legal
viability of counterclaims to a foreclosure action, the
court should employ the transaction test set forth in
Practice Book § 10-10, and that although this test may
require an assessment of whether the counterclaim in
question relates to the making, validity or enforcement
of the subject note and mortgage, there can be such a
nexus even though the counterclaim may not directly
attack the making, validity or enforcement of the mort-
gage and note which form the basis of the foreclo-
sure complaint.
We turn now to a consideration of the transaction
test. Practice Book § 10-10 provides in pertinent part:
‘‘In any action for legal or equitable relief, any defendant
may file counterclaims against any plaintiff . . . pro-
vided that each such counterclaim . . . arises out of
the transaction or one of the transactions which is the
subject of the plaintiff’s complaint.’’ In assessing the
legal viability of a counterclaim and, in particular,
whether it arises from the same transaction as the com-
plaint, we have not required a complete identity of
issues. Rather, the claims must have a sufficient close-
ness that the trial of the complaint and counterclaim
will not imperil judicial economy. For example, in Ceci
Bros., Inc. v. Five Twenty-One Corp., 81 Conn. App.
419, 423 n.3, 840 A.2d 578, cert. denied, 268 Conn. 922,
846 A.2d 881 (2004), this court concluded, in the particu-
lar facts: ‘‘Because the two agreements, one alleged in
the plaintiff’s amended complaint and the other alleged
in the defendant’s counterclaim, were intertwined, the
counterclaim in this case was proper.’’ As this court
has previously observed: ‘‘Our Supreme Court has
instructed that the [r]elevant considerations in
determining whether the transaction test has been met
include whether the same issues of fact and law are
presented by the complaint and the [counter]claim and
whether separate trials on each of the respective claims
would involve a substantial duplication of effort by
the parties and the courts.’’ (Internal quotation marks
omitted.) South Windsor Cemetery Assn., Inc. v. Lind-
quist, supra, 114 Conn. App. 547. Further, our Supreme
Court has stated: ‘‘Where the underlying purposes of
[Practice Book § 10-10], to wit, judicial economy, avoid-
ance of multiplicity of litigation, and avoidance of piece-
meal disposition of what is essentially one action, are
thwarted rather than served by the filing of a cross
claim, the cross claim may properly be expunged.’’
(Internal quotation marks omitted.) Wallingford v. Glen
Valley Associates, Inc., supra, 190 Conn. 161. In
assessing this test, this court has opined: ‘‘The transac-
tion test is one of practicality, and the trial court’s
determination as to whether that test has been met
ought not to be disturbed except for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) South Wind-
sor Cemetery Assn., Inc. v. Lindquist, supra, 546.
In the procedural posture we face in the present case,
however, we are not in a position to assess whether
the court abused its discretion in deciding whether the
subject counterclaim met the transaction test of Prac-
tice Book § 10-10 because it is apparent from the record
that the court did not employ the transaction test.
Rather, as noted, the court concluded that because the
counterclaim did not attack the making, validity or
enforcement of the note or mortgage, the claim, as such,
did not arise out of the same transaction as the subject
of the complaint. In coming to this conclusion, the court
made no assessment of the relationship between the
forbearance agreement and the enforceability of the
mortgage or note; nor did the court assess whether
permitting the counterclaim to go forward would have
fulfilled or thwarted the aims of judicial economy.
Although we could remand this appeal in order to
require the trial court to make an explicit assessment
in accord with the provisions of Practice Book § 10-10,
we are able to decide the issue now because resolution
of the issue requires no additional fact finding and also
because both parties have fully briefed the issue. There-
fore, we conclude that ‘‘a final resolution of the defen-
dant’s appeal will best serve the interests of judicial
economy.’’ (Internal quotation marks omitted.) Collins
v. Anthem Health Plans, Inc., 275 Conn. 309, 332, 880
A.2d 106 (2005).
The question to decide is whether the subject of the
defendant’s counterclaim is sufficiently intertwined
with the complaint that it arises from the same transac-
tion. In this instance, it would be an abuse of discretion
to answer that question in the negative. Unlike the fac-
tual circumstances of JP Morgan Chase Bank, Trustee
v. Rodrigues, supra, 109 Conn. App. 127–28, in which
the defendants filed a counterclaim alleging that the
plaintiff had forced them into entering into another
agreement notwithstanding an earlier forbearance
agreement, the forbearance agreement we confront in
the case at hand was entered into between the parties
during this litigation and in regard to the subject note
and mortgage. Here, the defendant does not claim that
the forbearance agreement modified the terms of the
original mortgage and note, but, rather, that the forbear-
ance agreement should have restrained the plaintiff’s
pursuit of the equitable remedy of foreclosure. That
distinction separates this case from Rodrigues, where,
as noted, the defendant had claimed damages resulting
from the plaintiff’s failure to adhere to an extrinsic
agreement. Id. Unlike Rodrigues, the defendant in the
case at hand claims that the plaintiff had entered into an
agreement to forbear from pursuing foreclosure, thus
directly implicating the plaintiff’s right, in equity, to
seek the remedy of a judgment by foreclosure.
Also, as pointed out by the defendant, the plaintiff, in
reasserting its right to pursue the remedy of foreclosure,
affirmed the existence of the forbearance agreement
and alleged, as partial justification for its pursuit, that
the defendant had failed to comply with terms of the
forbearance agreement. In that manner, as noted, the
plaintiff incorporated the forbearance agreement into
the enforceability of the original note and mortgage.6
Furthermore, in seeking summary judgment, the plain-
tiff directly invoked the terms and conditions of the
forbearance agreement in asserting its right to proceed
to a judgment of foreclosure. Thus, by its own pleading,
the plaintiff has confirmed the nexus between the
enforcement of the note and mortgage and the terms
and conditions of the parties’ forbearance agreement.
In regard to the risk of duplication, a criterion for the
application of the transaction rule embodied in Practice
Book § 10-10, there can be no risk that proceeding on
the counterclaim in this foreclosure action would cause
a duplication of litigation as the foreclosure litigation
has been concluded by withdrawal.
Finally, there are reasons well grounded in public
policy and consistent with the equitable nature of fore-
closure, to find that a mortgagee who enters into a
forbearance agreement during foreclosure litigation
with a qualified residential borrower should not be per-
mitted to pursue the remedy of foreclosure when the
borrower has fully complied with its terms. Accord-
ingly, a lender who wrongfully pursues the remedy of
foreclosure in violation of the terms of a foreclosure
forbearance agreement it has negotiated in the midst
of litigation may be liable for any harm it causes to a
borrower for its failure to forbear as promised. If there
is no potential for consequences to a lender who deter-
mines, unilaterally, to violate the terms of a forbearance
agreement reached through the aegis of the court-man-
dated foreclosure forbearance mediation program, the
program itself may sink into irrelevance and ultimate
disuse. Surely the General Assembly did not envision
such an outcome in the creation of the foreclosure
forbearance mediation program.
In this instance, we conclude that the court incor-
rectly struck the defendant’s counterclaim because,
contrary to the court’s conclusion, it squarely meets
the transaction test. Furthermore, the advancement of
the counterclaim in this instance would enhance and
not detract from the goals of judicial economy and the
avoidance of duplicative litigation.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The court’s foreclosure mediation program was created pursuant to
General Statutes § 49-31m, which requires the creation of such a program
in each judicial district in actions to foreclose mortgages on residential
real property. Section 49-31m provides in relevant part: ‘‘Such foreclosure
mediation shall (1) address all issues of foreclosure, including, but not
limited to, reinstatement of the mortgage, assignment of law days, assign-
ment of sale date, restructuring of the mortgage debt and foreclosure by
decree of sale . . . .’’ General Statutes § 49-31f, captioned ‘‘Application for
protection from foreclosure action. Qualifications. Court determination of
eligibility. Stay of foreclosure action,’’ sets forth the criteria for referral of
residential foreclosure actions to court-sponsored mediation.
2
The parties are in dispute as to whether the defendant fully complied
with the terms of the forbearance agreement. The plaintiff claims that the
agreement called for an acceleration of the note, requiring the defendant
to pay the loan in full or submit additional financial information to the
plaintiff by February 1, 2009. The defendant, on the other hand, claims that
the requirement in the agreement that she pay the loan in full by a certain
date meant only that, once she had made three required monthly payments,
the agreement required her to resume monthly payments in accord with
the tenor of the original note until it was paid in full. In resolving the issues
on appeal, we need not and, indeed, should not attempt to resolve this fact-
laden dispute as to the meaning of the language and intent of the parties
regarding the forbearance agreement.
3
The affidavit contained several paragraphs concerning the forbearance
agreement. Of note, the affidavit alleged, in part, that: ‘‘Section 6a of the
Agreement states that if after the payments made by borrower as referenced
in Section 3 of the Agreement, the loan is still delinquent, the borrower
must make arrangements prior to the expiration of the terms contained in
Section 3 to cure the delinquency. Section 7 of the Agreement states that
if the parties are unable to agree to a resolution for the remaining delinquency
amount, the Plaintiff may proceed with its foreclosure action, without further
notice. Section 9 of the Agreement states that the Plaintiff will not discon-
tinue the pending foreclosure action until the borrower’s account is current.’’
(Emphasis in original.)
4
The reasons for the substantial gaps in time between filings cannot be
readily explained by reference to the record. It is apparent, however, that
at some juncture, the defendant was successful in restructuring and reinstat-
ing the underlying debt, thus nullifying the need, from the plaintiff’s optic,
of pursuing the foreclosure litigation.
5
Practice Book § 10-10 provides: ‘‘Supplemental pleadings showing mat-
ters arising since the original pleading may be filed in actions for equitable
relief by either party. In any action for legal or equitable relief, any defendant
may file counterclaims against any plaintiff and cross claims against any
codefendant provided that each such counterclaim and cross claim arises
out of the transaction or one of the transactions which is the subject of the
plaintiff’s complaint; and if necessary, additional parties may be summoned
in to answer any such counterclaim or cross claim. A defendant may also
file a counterclaim or cross claim under this section against any other party
to the action for the purpose of establishing that party’s liability to the
defendant for all or part of the plaintiff’s claim against that defendant.’’
6
In assessing the viability of the counterclaim under the transaction test,
we assume the accuracy of the allegations the counts contain. In doing so,
we have and offer no opinion as to whether those accusations can stand the
test of proof in an evidentiary setting in which their accuracy is not assumed.