Ocwen Loan Servicing, LLC v. Sheldon

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OCWEN LOAN SERVICING, LLC v.
SANDRA A. SHELDON ET AL.
(AC 43704)
Bright, C. J., and Alexander and Suarez, Js.
Syllabus
The plaintiff, O Co., sought to foreclose a mortgage on certain real property
owned by the defendants, S and J. S and J originally signed a promissory
note to G Co., secured by a mortgage on the property, and further
agreed to participate in a ‘‘bisaver program,’’ through which they made
a payment to G Co. every two weeks via a direct withdrawal by G Co.
from S’s checking account. G Co. ceased withdrawing payments in 2008,
and reported S and J, who had neither requested nor authorized the
cessation, as delinquent to several credit reporting agencies, which
severely damaged S and J’s credit. S and J thereafter reached an oral
agreement with G Co., pursuant to which G Co. agreed to ‘‘restore’’
their credit. G Co. did not restore their credit, S and J ceased to make
additional payments, and G Co. resumed reporting S and J as delinquent
to the credit agencies. Subsequently, G Co. assigned the note to O Co.
S and J asserted several special defenses to the foreclosure action,
including unclean hands. Thereafter, P Co. was substituted as the plain-
tiff. The trial court concluded that S and J had satisfied their burden of
proof on their special defense of unclean hands and rendered judgment
in their favor, finding that they had equitable title to the property. On
P Co.’s appeal to this court, held:
1. The trial court’s finding that G Co. did not restore S and J’s credit was
not clearly erroneous: the court credited J’s testimony that G Co. never
sent letters to the credit reporting agencies in order to correct its error
and restore S and J’s credit, which supported the finding that G Co. did
not restore their credit, and the court was not required to credit evidence
submitted by P Co., including three letters that P Co. claimed demon-
strated that G Co. had restored S and J’s credit; moreover, this court
declined to review P Co.’s unpreserved claim that the court relied on
J’s testimony in contravention of the best evidence rule, as P Co. did
not object to J’s testimony that G Co. and O Co. failed to restore S and
J’s credit, and J’s testimony that G Co. did not send letters to the credit
reporting agencies was based on his firsthand observations.
2. The trial court properly balanced the equities in concluding that P Co.’s
legal title to the property was unenforceable after finding for S and J
on their special defense of unclean hands.
a. The trial court properly applied the doctrine of unclean hands: the
court concluded that G Co.’s failure to take payments from S and J and
to restore S and J’s credit after erroneously reporting them to be in
default caused their credit to be destroyed; moreover, the court’s findings
that G Co.’s conduct was wilful and that S and J came to the court with
clean hands were not clearly erroneous, as G Co. voluntarily reported
S and J’s nonpayment, caused by G Co.’s failure to withdraw payments,
to the credit reporting agencies, and the court credited J’s testimony
that G Co. failed to send letters to restore S and J’s credit; furthermore,
the court’s finding that S and J’s economic downfall was caused by G
Co. was not clearly erroneous, as evidence presented linked S and J’s
economic difficulties to G Co.’s actions in failing to restore their credit,
including J’s testimony that G Co. had not attempted to restore S and
J’s credit but, instead, had continued to report nonpayment to the credit
reporting agencies for more than ten years, and P Co.’s argument that
the ruination of S and J’s credit was unconnected to G Co.’s error in
failing to withdraw the payments was based on the incorrect premise
that G Co. had acted to restore S and J’s credit.
b. The trial court did not abuse its discretion in determining that a
reasonable balancing of the equities weighed in favor of S and J’s equita-
ble title to the property: the court considered all relevant factors and
found that S and J’s economic downfall was a greater inequity than their
failure to make a payment on the note in more than ten years; moreover,
the remedy ordered by the court did not eliminate S and J’s obligations
under the note or hold that P Co. may not pursue its legal remedy to
enforce the note, but merely held that P Co. was not entitled to the
equitable remedy of foreclosure.
Argued February 10—officially released October 5, 2021
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendants, and for other relief,
brought to the Superior Court in the judicial district
of Windham, where PHH Mortgage Corporation was
substituted as the plaintiff; thereafter, the case was
tried to the court, Hon. Leeland J. Cole-Chu, judge trial
referee; judgment for the defendants, from which the
substitute plaintiff appealed to this court. Affirmed.
Jordan W. Schur, for the appellant (substitute plain-
tiff).
Opinion
ALEXANDER, J. In this foreclosure action, the substi-
tute plaintiff, PHH Mortgage Corporation, appeals from
the judgment of the trial court rendered in favor of the
defendants, Sandra A. Sheldon and James J. Sheldon.
On appeal, the substitute plaintiff claims that, in con-
cluding that the defendants prevailed on their special
defense of unclean hands, the court (1) made a clearly
erroneous factual finding that a predecessor of the sub-
stitute plaintiff failed to ‘‘restore’’ the defendants’ credit
following its own error, and (2) improperly determined
that the balancing of the equities prevented foreclosure.
We disagree and, accordingly, affirm the judgment of
the trial court.
The following facts, as found by the trial court, and
procedural history are relevant. On September 24, 2007,
the defendants signed a promissory note in which they
promised to pay $182,000, plus interest, to GMAC Mort-
gage, LLC (GMAC). The note was secured by a mortgage
to Mortgage Electronic Registration Systems, Inc.
(MERS),1 as nominee for GMAC. Part of the property
that is the subject of the mortgage and this foreclosure
action is located in Killingly (Killingly property). The
other portion of the property is located in Foster, Rhode
Island. Only a foreclosure on the Killingly property was
sought in the present case.
Shortly after the note was executed, the defendants
accepted GMAC’s offer of a ‘‘ ‘bisaver program’ ’’
wherein payments would be made on the loan every
two weeks by direct withdrawal from Sandra Sheldon’s
checking account. In or about August, 2008, for reasons
that remain unexplained, GMAC ceased withdrawing
the biweekly payments as the defendants had author-
ized it to do. The substitute plaintiff and GMAC admitted
that the nonpayment of the loan was GMAC’s fault. The
court determined that there was no evidence that, had
GMAC continued to withdraw the authorized biweekly
payments, there would have been any interruption in
the defendants’ payments. Although the missed pay-
ments were a result of GMAC’s failure to withdraw
those payments, GMAC, nevertheless, reported the
absence of the payments to several credit reporting
agencies. The court found that, as a result, the defen-
dants’ credit was ‘‘damaged quickly’’ and eventually was
‘‘destroyed.’’ Soon after GMAC stopped withdrawing
the payments and began reporting the resultant missed
payments as a default on the part of the defendants,
James Sheldon’s credit cards were cancelled. Because
James Sheldon needed at least one open credit card
account for travel related expenses in order to fulfill
the duties of his employment in multistate construction
management, he could not continue such work, and his
income dropped dramatically.
The defendants filed complaints with the Rhode
Island Department of Business Regulation, Division of
Banking (department) in 2008 and 2009. An officer with
the department told GMAC that it ‘‘ ‘screwed up and you
gotta fix it.’ ’’ Bryan Duggan, a GMAC representative,
acknowledged GMAC’s error in failing to withdraw the
loan payments, but GMAC continued to send regular
reports to credit reporting agencies that the defendants
were in default. On July 14, 2009, an oral agreement
was reached between the defendants and GMAC,
wherein the defendants agreed to bring the loan current
and make three additional regular monthly payments,
and GMAC agreed to restore the defendants’ credit. The
defendants satisfied the October, 2008 through July,
2009 loan payments in July, 2009, and made three addi-
tional mortgage payments, with the last one being in
December, 2009. James Sheldon testified that, because
the defendants did not believe that GMAC had per-
formed its obligation to restore their credit, they made
no additional mortgage payments thereafter. As a result
of the defendants’ refusal to make additional mortgage
payments, GMAC resumed reporting to credit agencies
by early 2010, that the defendants were delinquent in
their mortgage payments.
On August 20, 2010, GMAC assigned the mortgage to
Ocwen Loan Services, LLC (Ocwen). Although James
Sheldon explained the situation to Ocwen, it refused
to do anything to restore the defendants’ credit or to
take into account the effect that GMAC’s errors had on
the defendants’ credit and income. Ocwen continued
to send reports of the defendants’ nonpayment of the
mortgage to credit reporting agencies. At least one
credit reporting agency reported the defendants as hav-
ing no credit rating at all, which fact prevented them
from obtaining a Veterans Administration refinancing
loan.
In 2017, Ocwen commenced this foreclosure action
against the defendants.2 In its amended complaint,
Ocwen alleged that the defendants had defaulted on
their mortgage payment due on November 1, 2009, and
every month thereafter. Ocwen alleged that, as a result,
it had elected to accelerate the balance due on the
note and to foreclose on the mortgage on the Killingly
property. The defendants, who were self-represented
throughout the proceedings in the trial court, filed an
answer and asserted special defenses, including
unclean hands.3 Ocwen assigned the note and mortgage
to the substitute plaintiff and filed a motion to substitute
PHH Mortgage Corporation as the plaintiff, which was
granted by the court.4
Following trial, the court issued a memorandum of
decision on October 18, 2019, in which it concluded
that the defendants had satisfied their burden of proof
of their special defense of unclean hands. The court
credited James Sheldon’s testimony. It determined that
the defendants’ original default was GMAC’s fault due
to its failure to take biweekly mortgage payments and
that GMAC reported, without justification, these non-
payments to credit reporting agencies as the defen-
dants’ fault. The court further found that GMAC failed
to restore the defendants’ credit, thereby causing the
defendants’ credit to be destroyed, and rendering James
Sheldon unable to continue his career in multistate
construction management.
In balancing the equities, the court found for the
defendants on the issue of liability and concluded that
the substitute plaintiff’s legal title to the property was
unenforceable. It found that the defendants had equita-
ble title subject to legal title being quieted in them by
agreement or by a separate action. This appeal fol-
lowed.5 Following the filing of the present appeal, the
substitute plaintiff filed a motion for articulation, which
the trial court granted. Additional facts will be set forth
as necessary.
Because the substitute plaintiff’s claims on appeal
center on the unclean hands doctrine, we note at the
outset the following relevant legal principles. ‘‘Our juris-
prudence has recognized that those seeking equitable
redress in our courts must come with clean hands. The
doctrine of unclean hands expresses the principle that
where a plaintiff seeks equitable relief, he must show
that his conduct has been fair, equitable and honest
as to the particular controversy in issue. . . . For a
complainant to show that he is entitled to the benefit
of equity he must establish that he comes into court
with clean hands. . . . The clean hands doctrine is
applied not for the protection of the parties but for the
protection of the court. . . . It is applied . . . for the
advancement of right and justice. . . . The party seek-
ing to invoke the clean hands doctrine to bar equitable
relief must show that his opponent engaged in wilful
misconduct with regard to the matter in litigation. . . .
The trial court enjoys broad discretion in determining
whether the promotion of public policy and the preser-
vation of the courts’ integrity dictate that the clean
hands doctrine be invoked.’’ (Internal quotation marks
omitted.) Monetary Funding Group, Inc. v. Pluchino,
87 Conn. App. 401, 407, 867 A.2d 841 (2005).
I
The substitute plaintiff first claims that the court’s
finding that GMAC did not restore the defendants’ credit
is clearly erroneous. It argues that the defendants ‘‘pre-
sented no credible evidence that [the] credit reporting
was not corrected as agreed.’’ (Emphasis in original.)
We are not persuaded.
‘‘[W]hen reviewing findings of fact, we defer to the
trial court’s determination unless it is clearly erroneous.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Under the clearly erroneous standard of review,
a finding of fact must stand if, on the basis of the
evidence before the court and the reasonable inferences
to be drawn from that evidence, a trier of fact reason-
ably could have found as it did.’’ (Internal quotation
marks omitted.) Wells Fargo Bank, N.A. v. Lorson, 183
Conn. App. 200, 210, 192 A.3d 439, cert. granted, 330
Conn. 920, 193 A.3d 1214 (2018).
The substitute plaintiff challenges the court’s deci-
sion to credit James Sheldon’s testimony that GMAC
did not restore his credit. Specifically, it argues that
James Sheldon did not testify as to what GMAC failed
to do to restore his credit, but testified only that GMAC
failed to fix his credit ‘‘to my satisfaction and my wife’s
satisfaction.’’ James Sheldon did not, as the substitute
plaintiff contends, testify that GMAC failed to restore
his credit only because it did not fix his credit to his
undefined ‘‘satisfaction.’’ His testimony was that GMAC
did not restore his credit at all because it did not send
letters to credit reporting agencies in order to correct
its mistake and restore the defendants’ credit. He testi-
fied that he brought the loan current and made the
additional loan payments as requested by GMAC, but
that GMAC ‘‘never followed through.’’6 James Sheldon
testified that GMAC did not send letters to the credit
reporting agencies, questioning, ‘‘[W]hy would they not
do this? It corrects everything. And really maybe eight,
fifty cent stamps is all it’s gonna cost ’em, that’s all.
GMAC didn’t do it . . . .’’ He further stated that, ‘‘when
Ocwen had the chance, they didn’t feel like generating
eight letters either . . . .’’ James Sheldon argued that,
as of July 31, 2009, he never again heard from the execu-
tive officers at GMAC despite that ‘‘[i]t’s probably eight
letters, three credit bureaus and five creditors, and they
just walked away.’’7 The court, as was within its prov-
ince to do, credited the testimony of James Sheldon
that GMAC did not restore his credit. See Gianetti v.
Norwalk Hospital, 304 Conn. 754, 772–73, 43 A.3d 567(2012) (it is within province of trier of fact to weigh
evidence presented and determine credibility).
The substitute plaintiff contends that James Shel-
don’s two credit denial letters from 2019, which were
admitted as full exhibits at trial, had no bearing on
the status of the defendants’ credit in 2009, but rather
related to the defendants’ failure to make any payments
in the following eight years. Regardless of whether
these credit denial letters relate to GMAC’s failure to
restore the defendants’ credit, James Sheldon’s testi-
mony supports the court’s finding that GMAC did not
restore the defendants’ credit. See, e.g., Wells Fargo
Bank, N.A. v. Lorson, supra, 183 Conn. App. 210 (finding
of fact is clearly erroneous when there is no evidence
in record to support it).
The substitute plaintiff argues that the court’s factual
finding, in reliance on James Sheldon’s testimony, was
clearly erroneous because the uncontroverted docu-
mentary evidence proved that GMAC met its obligation
to restore the defendants’ credit rating. In particular,
the substitute plaintiff relies on three letters that it
claims show that GMAC had restored the defendants’
credit in accordance with the verbal agreement. The
first letter, which was dated July 27, 2009, and which
was addressed to the defendants from Duggan, stated
that GMAC ‘‘sent an amendment to the four credit
reporting agencies for the [September, 2008] through
[the June, 2009] payments. These payments will reflect
as paid within the month due. The credit report will
reflect no late payments since the loan origination in
[September, 2007].’’ (Emphasis added.) The letter fur-
ther stated that the defendants ‘‘may use this letter for
verification, should you need to provide a potential
credit grantor with proof that this correction is in [prog-
ress].’’ A second letter, dated July 31, 2009, sent from
Duggan to the defendants, stated that the $13,544.06
that was received on July 23, 2009, was applied to the
October, 2008 through July, 2009 payments and that ‘‘the
credit has been amended to reflect no late payments
on the account. A letter will be sent under separate
cover to be used for potential creditors.’’ (Emphasis
added.) In a third letter, dated March 13, 2012, to the
department, Duggan stated that GMAC had ‘‘received
complaints filed with your office by the [defendants]
in 2008 and 2009,’’ and that ‘‘[i]n [July, 2009], [the defen-
dants] remitted funds to satisfy the [October, 2008]
through [July, 2009] payments. . . . A recent review of
the information reported by the credit bureaus reflects
no late payments on the account prior to August 1,
2009, which was the agreement reached . . . .’’
The substitute plaintiff contends that the July 27,
2009 letter informs the defendants that credit reporting
amendments were sent to the credit reporting agencies
and that the credit reporting would be corrected to
show the loan as paid from September, 2008 through
July, 2009. The substitute plaintiff contends that the
July 31, 2009 letter confirms the removal of the negative
credit reporting for the defendants and that the March
12, 2012 letter further demonstrates that the defendants’
credit was restored upon receipt of the defendants’
three payments. It further argues that the department
must have agreed that GMAC met its obligation to the
defendants because it took no further action on the
defendants’ complaint.
The court was not convinced that the letters to which
the substitute plaintiff directs our attention demon-
strated that GMAC had restored the defendants’ credit.
It determined that, in the letters, GMAC only ‘‘claimed
to send correcting credit reports to credit reporting
agencies, but all that the evidence shows it actually
did is to place the burden of fixing their credit on the
defendants: it gave the defendants a letter acknowledg-
ing its error and saying the defendants could use it to
try to restore their credit.’’ The court stated that,
‘‘[a]part from submitting GMAC correspondence using
the word ‘amendment’ instead of ‘correction,’ the [sub-
stitute] plaintiff offered no direct evidence of any such
‘amendment .’ . . .’’ In its articulation, the court stated,
‘‘[T]he evidence showed that GMAC claimed that it sent
‘corrective credit reporting’ . . . not that it actually did
so.’’ 8 It was within the province of the court not to
credit the letters and the testimony of the substitute
plaintiff’s witness as having established that GMAC had
restored the defendants’ credit and instead to credit
the testimony of James Sheldon that GMAC and its
successors in interest never restored the defendants’
credit rating.
The substitute plaintiff argues that, in accordance
with the best evidence rule, the defendants should have
produced credit reports to refute the letters it pre-
sented, which demonstrated that the defendants’ credit
had been restored. It contends that in light of the defen-
dants’ failure to do so, the court should have concluded
that GMAC had restored the defendants’ credit. The
substitute plaintiff misunderstands the best evidence
rule. The rule does not prevent the court from relying
on evidence that has been admitted before it. Instead,
it is a ground on which a party may rely to object to
the admission of evidence because other evidence is
preferable. See State v. Carter, 151 Conn. App. 527,
537–38, 95 A.3d 1201 (2014), appeal dismissed, 320
Conn. 564, 132 A.3d 729 (2016). Significantly, the substi-
tute plaintiff did not object to James Sheldon’s testi-
mony that GMAC and Ocwen failed to restore the defen-
dants’ credit rating. Thus, its claim that the court should
not have relied on this evidence because it was not the
best evidence of whether GMAC performed its obliga-
tion to restore the defendants’ credit rating was not
properly preserved and, therefore, is unreviewable. See,
e.g., State v. Warren, 83 Conn. App. 446, 451, 850 A.2d
1086 (unpreserved evidentiary claims are not review-
able on appeal), cert. denied, 271 Conn. 907, 859 A.2d
567 (2004). In any event, we note that the rule, neverthe-
less, is inapplicable. ‘‘[T]he best evidence rule requires
a party to produce an original writing, if it is available,
when the terms of that writing are material and must be
proved.’’ (Emphasis omitted; internal quotation marks
omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 452,
802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d
861 (2002); see also E. Prescott, Tait’s Handbook of
Connecticut Evidence (6th Ed. 2019) § 10.1.2, p. 697
(‘‘The Best Evidence Rule is a rule of preference, not
one of exclusion. Thus, it prefers proof by the original
document but will accept oral evidence if necessary.’’).
The disputed issue regarding whether GMAC restored
the defendants’ credit was not something that was
reduced to a writing. Rather, James Sheldon’s state-
ments that GMAC did not send letters to his credit
agencies is based on his firsthand observations. ‘‘Where
one testifies to what he has seen or heard, such testi-
mony is primary evidence regardless of whether such
facts are reduced to writing.’’ (Internal quotation marks
omitted.) Coelm v. Imperato, 23 Conn. App. 146, 150,
579 A.2d 573, cert. denied, 216 Conn. 823, 581 A.2d
1054 (1990).
We also reject the argument of the substitute plaintiff
that the department concluded that GMAC had met
its obligation to fix the defendants’ credit rating. The
absence of evidence before the court regarding the out-
come of the defendants’ complaint that was filed with
the department does not indicate whether or how it
resolved the complaint. Although the court could have
drawn the inference the plaintiff advocates for on
appeal, it was not required to do so. James Sheldon,
whose testimony the court credited, explained that he
followed the advice of the department and entered into
an agreement with GMAC but that GMAC never fol-
lowed through in sending the letters to restore his
credit.
We will not second-guess the court’s decision to
credit James Sheldon’s testimony or its decision not to
credit GMAC’s representation in the letters of what
steps it purportedly took to restore the defendants’
credit. See Gianetti v. Norwalk Hospital, supra, 304
Conn. 772–73 (appellate court must defer to fact finder’s
assessment of credibility). For the foregoing reasons,
we conclude that the court’s finding that GMAC did not
restore the defendants’ credit is not clearly erroneous.
II
The substitute plaintiff next claims that the court
improperly balanced the equities in concluding that its
legal title was unenforceable after finding for the defen-
dants on their special defense of unclean hands. We
are not persuaded.
A
This claim contains various subarguments in which
the substitute plaintiff challenges the court’s underlying
factual findings and legal application of the unclean
hands doctrine. Our standard of review is as follows.
‘‘[A]pplication of the doctrine of unclean hands rests
within the sound discretion of the trial court. . . . The
exercise of [such] equitable authority . . . is subject
only to limited review on appeal. . . . The only issue on
appeal is whether the trial court has acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
[the trial court’s] action. . . . Whether the trial court
properly interpreted the doctrine of unclean hands,
however, is a legal question distinct from the trial
court’s discretionary decision whether to apply it. . . .
[T]he question of whether the clean hands doctrine may
be applied to the facts found by the court is a question
of law. . . . We must therefore engage in a plenary
review to determine whether the court’s conclusions
were legally and logically correct and whether they
are supported by the facts appearing in the record.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) Monetary Funding Group, Inc. v.
Pluchino, supra, 87 Conn. App. 406.
1
The substitute plaintiff contends that the court
improperly determined that it engaged in misconduct
despite the defendants ‘‘hav[ing] not shown fraud or
other inequitable or illegal conduct on the part of [the]
plaintiff . . . .’’ It contends, citing LaSalle National
Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824,
798 A.2d 445 (2002) (LaSalle), that ‘‘[s]ituations where
the plaintiff refused to accept payments postcom-
mencement of foreclosure [were] not deemed unclean
hands by this [c]ourt.’’
In LaSalle, this court concluded that the unclean
hands doctrine was not applicable where the plaintiff
bank did not accept payments, which had been made
by the defendant after indebtedness was accelerated
due to the defendant’s default, because it was not
required to do so pursuant to the note or mortgage.
LaSalle National Bank v. Freshfield Meadows, LLC,
supra, 69 Conn. App. 835–36. Those facts are markedly
different from the facts in the present case, wherein it
was GMAC’s failure to withdraw the authorized pay-
ments from Sandra Sheldon’s bank account and where
GMAC, prior to default, ruined the defendants’ credit
as a result. There is no rigid formula for what constitutes
misconduct, rather, to constitute misconduct it must
be ‘‘of such a character as to be condemned and pro-
nounced wrongful by honest and fair-minded people
. . . .’’ (Internal quotation marks omitted.) Thompson
v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). In
our exercise of plenary review, we determine that the
court properly applied the doctrine of unclean hands
to the facts of the present case when it determined that
GMAC failed to take loan payments from the defendants
and failed to restore the defendants’ credit after it erro-
neously reported the defendants’ to be in default,
thereby causing the defendants’ credit to be destroyed.
2
The substitute plaintiff next argues that the court’s
finding that its conduct was wilful was clearly errone-
ous. We disagree.
‘‘Whether a party’s conduct is wilful is a question of
fact. . . . The term has many and varied definitions,
with the applicable definition often turn[ing] on the
specific facts of the case and the context in which it
is used. . . . As we previously have observed . . . wil-
ful has been defined [as] voluntary; knowingly; deliber-
ate . . . [i]ntending the result which actually comes to
pass; designed; intentional; purposeful; not accidental
or involuntary . . . or with indifference to the natural
consequences. . . . Wilful misconduct has also been
defined as intentional conduct that is deemed highly
unreasonable or indicative of bad faith.’’ (Citations
omitted; internal quotation marks omitted.) Cathedral
Green, Inc. v. Hughes, 174 Conn. App. 608, 622–23, 166
A.3d 873 (2017).
We conclude that the court’s finding was not clearly
erroneous. Wilfulness reasonably can be inferred from
GMAC’s voluntary act of reporting to credit reporting
agencies the nonpayment of the mortgage that was
caused by GMAC’s own failure to withdraw the mort-
gage payments from Sandra Sheldon’s checking
account and its subsequent failure to restore the defen-
dants’ credit. See 19 Perry Street, LLC v. Unionville
Water Co., 294 Conn. 611, 623, 987 A.2d 1009 (2010)
(intent may be inferred from conduct and circum-
stances).
3
The substitute plaintiff next argues that the court’s
finding that the defendants came to the court with clean
hands is clearly erroneous. Specifically, it contends that
the defendants’ actions indicate that they came to the
court with unclean hands because they ‘‘unilaterally
demand[ed]’’ GMAC to satisfy the verbal agreement to
their own undefined ‘‘ ‘satisfaction’ ’’ standard and
failed to make any loan payments for more than a
decade. It contends that it is clear that the defendants
came to the court with unclean hands because they
‘‘made a complaint to the [department], and nothing
happened. It is clear that the [department] found that
the complaint had no merit . . . .’’ We are not per-
suaded.
As we have detailed in part I of this opinion, James
Sheldon testified that GMAC did not restore his credit
because GMAC declined to send correction letters to
credit reporting agencies and that the absence of evi-
dence regarding the outcome of the defendants’ com-
plaint against GMAC with the department does not indi-
cate that their claim against GMAC was without merit.
We conclude that the substitute plaintiff has not demon-
strated that the court’s finding that the defendants came
to the court with clean hands was clearly erroneous.
4
The substitute plaintiff next argues that the court
erred in finding that the defendants’ economic downfall
was caused by GMAC’s actions. It contends that the
defendants’ loan was current as of November, 2009,
that the defendants’ credit was restored as of July, 2009,
and, therefore, that the defendants’ failure to obtain
new credit cards after July, 2009, and the defendants’
economic difficulties from 2009 through 2020, was out-
side the control of the substitute plaintiff. We are not
persuaded.
The court found that, ‘‘[q]uickly after those negative
credit reports began, and because of them—that is,
because GMAC stopped taking the defendants’ pay-
ments and started reporting as their default what was
GMAC’s fault—all [of] [James] Sheldon’s credit cards
were cancelled.’’ The court determined that there was
no evidence contradicting James Sheldon’s testimony
that, after GMAC stopped taking the automatic
biweekly payments, it reported, without justification,
the resulting nonpayments to credit reporting agencies
as defaults, and that those reports ‘‘eviscerated the
defendants’ credit and caused [James] Sheldon to be
unable to continue his career in multistate construction
management.’’
There was evidence linking the defendants’ economic
difficulties to the actions of GMAC in failing to restore
the defendants’ credit. James Sheldon testified that
GMAC failed to restore his credit by not sending letters
of correction to the credit reporting agencies. He further
testified that he followed the advice of an agent with
the department, who had advised him, ‘‘[D]o not make
another payment until such time as you’ve straightened
this out.’’ He explained that he tried to contact GMAC
and, later, Ocwen to resolve the situation, but that it
was ‘‘impossible’’ because ‘‘they never made any effort
to reach a resolution’’ and that they ‘‘didn’t wanna talk,’’
but said they would ‘‘pass it up the chain,’’ and no one
would discuss the matter because information concern-
ing this issue was not in the file. He testified that ‘‘the
most important thing that we do was to get our credit
restored. GMAC was responsible for the destruction of
that.’’ He stated that, even during the time frame
wherein GMAC was ‘‘investigating the mortgage, GMAC
kept sending that little note to the credit bureau saying
[he was] not paying his mortgage. I needed that off the
books. They agreed to do it . . . if I brought the
account up to date, gave them three extra payments to
cover the period of time that it would take . . . for the
credit bureaus to actually get the paperwork entered
into the system. I agreed to that.’’ He further testified
that his credit rating was destroyed and that ‘‘[n]owhere
did anybody think that . . . for ten years, they would
continue to report . . . no, he didn’t make his mort-
gage payment this month.’’
The substitute plaintiff’s argument that the ruination
of the defendants’ credit is unconnected to GMAC’s
actions in failing to take the biweekly payments under
the bisaver program is based on the incorrect premise
that GMAC had restored the defendants’ credit as of
July, 2009. As the court found, GMAC did not restore
the defendants’ credit. It reasonably can be inferred
from James Sheldon’s testimony that GMAC’s failure
to restore the defendants’ credit led to and caused the
defendants’ financial ruin. The court determined that
‘‘the degree of the defendants’ financial ruin caused by
GMAC long before this action began has increased over
the life of this action by the length of time the defen-
dants have suffered the effects of GMAC’s unjustified
and unremedied ruin of their credit [and] their financial
reputation . . . .’’ The court further reasoned that it
regarded Duggan’s July 27, 2009 letter, in which he
stated that GMAC sent an ‘‘amendment’’ to credit
reporting agencies for the September, 2008 through
June, 2009 payments, as an admission ‘‘of the foresee-
able damage to the defendants’ credit: any credit
reporting company, or actual or prospective creditor
relying on such company’s report on the defendants,
would dismiss the defendants’ credit on seeing a report
of ten months [of] failure to pay their mortgage.’’ The
court drew reasonable inferences from the evidence in
this regard. In light of the foregoing, we conclude that
the court’s finding that GMAC’s act in reporting its own
failure to take the authorized biweekly payments GMAC
as defaults caused the defendants’ financial ruin was
not clearly erroneous.
B
The substitute plaintiff’s final claim is that the court
did not properly balance the equities when it ‘‘wiped
out [the substitute plaintiff’s] lien based on oral testi-
mony that lacked documentary proof to show that the
credit was not corrected or documentary evidence that
[the substitute plaintiff] somehow caused [the defen-
dants’] 2019 credit denials. The flimsy evidence offered
by [the] [d]efendants does not equal or justify wiping
out a consensual lien and giving the [d]efendants a free
house. None of the above factors appear[s] to have
been considered by the [c]ourt.’’ We disagree.
‘‘This court will reverse a trial court’s exercise of its
equitable powers only if it appears that the trial court’s
decision is unreasonable or creates an injustice. . . .
[E]quitable power must be exercised equitably . . .
[but] [t]he determination of what equity requires in a
particular case, the balancing of the equities, is a matter
for the discretion of the trial court.’’ (Internal quotation
marks omitted.) Thompson v. Orcutt, 70 Conn. App.
427, 435, 800 A.2d 530, cert. denied, 261 Conn. 917, 806
A.2d 1058 (2002). ‘‘How a court balances the equities
is discretionary but if, in balancing those equities, a trial
court draws conclusions of law, our review is plenary.’’
(Internal quotation marks omitted.) New Breed Logis-
tics, Inc. v. CT INDY NH TT, LLC, 129 Conn. App. 563,
571, 19 A.3d 1275 (2011).
As we have previously explained in this opinion, the
court’s findings that GMAC did not restore the defen-
dants’ credit and that GMAC’s misconduct led to the
defendant’s economic difficulties were not clearly erro-
neous. See parts I and II A of this opinion. The substitute
plaintiff cannot prevail on its argument that the court
improperly balanced the equities because it credited
James Sheldon’s testimony, which the substitute plain-
tiff argues is ‘‘flimsy.’’ It was in the court’s province to
do so. See Gianetti v. Norwalk Hospital, supra, 304
Conn. 772–73.
The substitute plaintiff, nevertheless, contends that,
even if the court properly credited James Sheldon’s
testimony, it ‘‘was not entitled to wipe clear a
$308,380.43 loan obligation . . . .’’9 The court, how-
ever, is permitted, in the exercise of its discretion, to
withhold the remedy of foreclosure based on equitable
considerations and principles. See U.S. Bank National
Assn. v. Blowers, 332 Conn. 656, 671, 212 A.3d 226(2019). ‘‘[E]quitable remedies are not bound by formula
but are molded to the needs of justice.’’ (Internal quota-
tion marks omitted.) McKeever v. Fiore, 78 Conn. App.
783, 788, 829 A.2d 846 (2003). ‘‘[T]he trial court enjoys
broad discretion in considering whether to grant a mort-
gagee the remedy of foreclosure for the default of a
mortgage loan.’’ ARS Investors II 2012-1 HVB, LLC v.
Crystal, LLC, 324 Conn. 680, 685, 154 A.3d 518 (2017).
We find no merit in the substitute plaintiff’s claim
that the court failed to consider multiple factors in
its favor, such as the defendants not having paid the
mortgage in more than a decade. The court’s articula-
tion makes clear that it considered all relevant factors
and rejected the substitute plaintiff’s argument that the
balancing of the equities weighed in its favor. The court
stated in its articulation that, ‘‘[i]mplicitly, the [substi-
tute] plaintiff claims that the court, its findings of fact
notwithstanding, should have concluded that the defen-
dants not making a mortgage payment in more than
ten years is the greater inequity than the [substitute]
plaintiff’s predecessor destroying the defendants’
credit, in turn destroying [James] Sheldon’s career and
earning capacity and the defendants’ ability to pay the
mortgage. Implicitly, the [substitute] plaintiff argues
that, given the facts found by the court, the defendants
should lose more than they, due to GMAC’s and [the]
successor mortgagor Ocwen’s conduct in credit
reporting, have already lost: they should lose their
home, too. The court rejected that analysis of the equi-
ties of the present case.’’
In its memorandum of decision, the court reasoned
that ‘‘the defendants have suffered the effects of
GMAC’s unjustified and unremedied ruin of their credit,
their financial reputation; and by the length of time they
have endured the burden and stress of this foreclosure
action, which the court finds, to the extent retrospective
prognostications may be considered in equity, would
have been unnecessary had GMAC, in whose shoes the
plaintiff and its principal stand, promptly repaired the
damages it unjustifiably caused to the defendants’
credit.’’ (Footnote omitted.)
Finally, we note that the remedy ordered by the court
does not ‘‘wipe clear’’ the defendants’ obligation under
the note. The court did not hold that the substitute
plaintiff may not pursue its legal remedy to enforce the
note. Instead, it held that the plaintiff is not entitled to
the equitable remedy of foreclosure. See JP Morgan
Chase Bank, N.A. v. Winthrop Properties, LLC, 312
Conn. 662, 674, 94 A.3d 622 (2014) (‘‘[u]nlike the equita-
ble nature and aims of foreclosure, a claim on the note
at law is grounded in contract, and is enforceable as
between the parties to that contract—the debtor and
the creditor, as well as persons who succeed to those
obligations or rights by transfer or assignment’’).
On the basis of the court’s factual findings of inequita-
ble misconduct by GMAC and its successor, Ocwen,
we conclude that the court properly acted within its
discretion when it determined that a reasonable balanc-
ing of the equities weighed in favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘MERS does not originate, lend, service, or invest in home mortgage
loans. Instead, MERS acts as the nominal mortgagee for the loans owned
by its members. The MERS system is designed to allow its members, which
include originators, lenders, servicers, and investors, to assign home mort-
gage loans without having to record each transfer in the local land recording
offices where the real estate securing the mortgage is located.’’ (Internal
quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 119 Conn.
App. 570, 572 n.2, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d
564 (2010).
2
The record reflects that at or around the time that the mortgage was
assigned to Ocwen, it also was ‘‘referred to foreclosure.’’ Nevertheless, the
foreclosure action that is the subject of this appeal was not instituted until
September, 2017. James Sheldon testified that this delay caused the defen-
dants additional harm and that he made several requests that if Ocwen was
going to foreclose on the property it do so quickly so that the matter could
be resolved and the defendants’ credit standing could be restored in a timely
fashion. The court, in its memorandum of decision, stated that it found
James Sheldon’s testimony ‘‘credible and, in essence, accepts it.’’
3
Although the substitute plaintiff makes a passing reference in its appellate
brief to the defendants’ unclean hands defense being ‘‘unstated,’’ it does
not challenge the court’s construction of the defendants’ narrative special
defenses as including a claim that the plaintiff acted with unclean hands.
Furthermore, to the extent that the substitute plaintiff’s passing reference
to the defense being unstated could be construed as an argument that
the court should not have considered such a defense because it was not
specifically pleaded by the defendants, we note that ‘‘in light of the court’s
inherent equitable powers in a foreclosure action . . . [a trial court may
properly] consider the equitable doctrine of unclean hands without it being
specifically pleaded.’’ McKeever v. Fiore, 78 Conn. App. 783, 789, 829 A.2d
846 (2003).
4
The substitute plaintiff took the note subject to all defenses that could
be asserted by the defendants, including equitable defenses. See Bank of
America, N.A. v. Aubut, 167 Conn. App. 347, 371, 143 A.3d 638 (2016).
5
The defendants failed to file an appellee’s brief as ordered by this court.
This court, therefore, ordered the appeal to be considered on the basis of
the substitute plaintiff’s brief and the record, as defined by Practice Book
§ 60-4.
6
The court noted that, despite the arguable lack of consideration for the
verbal agreement, it was GMAC’s responsibility to restore the defendants’
credit whether or not the defendants resumed payments.
7
Because James Sheldon made these statements when he was not under
oath during the testimony of the plaintiff’s sole witness, the court interpreted
his statements as clarifying his position to the court.
8
The substitute plaintiff argues its sole witness, Peter Killinger, an analyst
in its foreclosure department, testified, in reference to the July 31, 2009
letter, that GMAC restored James Sheldon’s credit because ‘‘[w]ell, it says
here that they did.’’ Although the court did not specifically mention this
portion of Killinger’s testimony, it implicitly rejected Killinger’s interpreta-
tion that the letter established this correction and instead credited James
Sheldon’s testimony that GMAC did not restore the defendants’ credit.
9
The court noted that the amount of the debt was in dispute and that it
was not necessary to find the amount of the debt because that issue was
not actually litigated at trial. We note that the original promissory note was
for $182,000.