U.S. Bank National Assn., Trustee v. Blowers

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U.S. BANK NATIONAL ASSOCIATION, TRUSTEE v.
ROBIN BLOWERS ET AL.
(AC 39219)
Alvord, Prescott and Pellegrino, Js.
Syllabus
The plaintiff bank, as trustee, sought to foreclose a mortgage on certain
real property owned by the defendants P and B. Following the defendants
default on their mortgage payments, the plaintiff, through its loan servic-
ing agent, initiated loan modification negotiations with the defendants,
but the parties were unable to agree on a binding modification. There-
after, the plaintiff commenced a foreclosure action, and the parties
subsequently participated in a foreclosure mediation program but were
unable to reach an agreement. The defendants then filed an answer,
special defenses and counterclaims, claiming, inter alia, that during the
foreclosure mediation and loan modification negotiations, the plaintiff
hindered their ability to obtain a binding loan modification, thereby
unnecessarily increasing the amount that the plaintiff sought to recover
from the defendants, and that the plaintiff and its loan servicer failed
to conduct themselves in a manner that was fair, equitable and honest.
In response, the plaintiff filed a motion to strike the defendants’ special
defenses and counterclaims, which the trial court granted. Thereafter,
the trial court rendered a judgment of strict foreclosure, and P appealed
to this court. Held:
1. P could not prevail on his claim that the trial court improperly granted
the plaintiff’s motion to strike the defendants’ special defenses and coun-
terclaims:
a. The trial court properly determined that the special defenses did not
relate to the making, validity or enforcement of the subject note and
mortgage; all of the alleged improper conduct giving rise to the special
defenses took place during foreclosure mediation or the loan modifica-
tion negotiations and no binding modification was agreed on by the
parties, and contrary to P’s assertion that the transaction test set forth
in the applicable rule of practice (§ 10-10) applied to the special defenses,
that rule, which, in a foreclosure action, requires consideration of
whether a counterclaim has some reasonable nexus to the making,
validity or enforcement of the note or mortgage, does not mention
special defenses and applying it to them would be unnecessary and
duplicitous because the purpose of the rule is to permit the joinder of
closely related claims and special defenses, which, by their nature, must
be tried with the corresponding complaint.
b. The allegations in the defendants’ counterclaims were insufficient to
establish that the counterclaims had a reasonable nexus to the making,
validity or enforcement of the note or mortgage pursuant to the transac-
tion test; the allegations of the counterclaims related solely to the plain-
tiff’s conduct during the foreclosure mediation and the loan modification
negotiations, which did not demonstrate a sufficient nexus to the making,
validity or enforcement of the note or mortgage.
2. This court declined P’s request to diverge from well established legal
precedent and to adopt a transaction test in foreclosure actions that
does not include the requirement that special defenses and counter-
claims have a reasonable nexus to, or relate to, the making, validity or
enforcement of the note or mortgage; contrary to P’s contention that
the requirement is opposed to fundamental principles of equity jurispru-
dence, the requirement permits equitable considerations when justice
requires while simultaneously serving to promote judicial economy
through the swift and uncomplicated resolution of foreclosure proceed-
ings, and adopting the transaction test requested by P would lead to an
increase of special defenses and counterclaims in foreclosure actions
that would unnecessarily convolute and delay the foreclosure process
and would deter mortgagees from participating in mediation and loan
modification negotiations.
3. P could not prevail on his claim that, even if the making, validity or
enforcement requirement applied to counterclaims and special defenses,
the trial court erred by improperly limiting the scope of the term enforce-
ment; that court did not err in its interpretation of the term enforcement,
as the alleged conduct of the plaintiff did not relate to the enforcement
of the note or mortgage because it occurred during the foreclosure
mediation and loan modification negotiations, and no binding loan modi-
fication was reached between the parties that rendered the original note
and mortgage unenforceable.
4. P’s claim that the trial court made factual errors when assessing the
plaintiff’s motion to strike was unavailing; even if this court accepted
all of the allegations as true and viewed them in the light most favorable
to sustaining their legal sufficiency, the defendants failed to allege that
the parties agreed to a binding modification that affected the making,
validity or enforcement of the original note or mortgage, and, therefore,
the trial court did not err in finding that no binding loan modification
existed between the parties.
(One judge dissenting)
Argued May 16—officially released October 31, 2017
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., brought to
the Superior Court in the judicial district of Hartford,
where the defendant Farmington Valley Landscape,
LLC, et al. were defaulted for failure to appear; there-
after, the defendant C&I Solutions, LLC, was defaulted
for failure to plead; subsequently, the named defendant
et al. filed counterclaims; thereafter, the named defen-
dant et al. withdrew the counterclaims in part; subse-
quently, the court, Dubay, J., granted the plaintiff’s
motion to strike the special defenses and counter-
claims; thereafter, the court, Wahla, J., granted the
plaintiff’s motion for judgment on the counterclaims;
subsequently, the court, Peck, J., granted the plaintiff’s
motion for summary judgment as to liability; thereafter,
the court, Wahla, J., granted the plaintiff’s motion for
a judgment of strict foreclosure and rendered judgment
thereon, from which the defendant Mitchell Piper
appealed to this court. Affirmed.
P. Solange Hilfinger-Pardo, certified legal intern,
with whom were Jeffrey Gentes and, on the brief,
Anderson Tuggle, Noah Kolbi-Molinas and Emily
Wanger, certified legal interns, for the appellant (defen-
dant Mitchell Piper).
Pierre-Yves Kolakowski, with whom, on the brief,
was Zachary Bennett Grendi, for the appellee
(plaintiff).
Opinion
PELLEGRINO, J. In this mortgage foreclosure action,
the defendant Mitchell Piper,1 appeals from the judg-
ment of strict foreclosure rendered by the trial court
in favor of the plaintiff, U.S. Bank National Association,
as Trustee for the Holders of the First Franklin Mort-
gage Loan Trust Mortgage Pass-Through Certificates,
Series 2005-FF10. On appeal, Piper claims that the court
improperly granted the plaintiff’s motion to strike the
defendants’ special defenses and counterclaims. Specif-
ically, he contends that the court improperly required
the special defenses to directly relate to and the coun-
terclaims to have a sufficient nexus to the making, valid-
ity, or enforcement of the note and mortgage. Instead,
Piper argues, the court should have applied a ‘‘straight-
forward version of the transaction test with allowances
for equitable considerations’’ to both the special
defenses and counterclaims. Additionally, Piper claims
that even if the court did not err in applying the making,
validity, or enforcement requirement, the counterclaims
and special defenses should have survived a motion to
strike under a broad reading of the term ‘‘enforcement.’’
Finally, Piper claims that the court erred in its determi-
nations that no binding modification to the defendants’
loan existed, that, if such modification existed, the
defendants defaulted on the loan, and that all of the
plaintiff’s alleged misconduct took place during foreclo-
sure mediation. We disagree with Piper contentions
and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The defendants executed a promis-
sory note, dated August 2, 2005, in which they promised
to pay First Franklin division of National City Bank of
Indiana the principal sum of $488,000. To secure the
note, the defendants mortgaged their interest in their
property located at 129 Stagecoach Road in Avon. The
mortgage was assigned to the plaintiff on September
1, 2005.
In February, 2014, the plaintiff commenced this
action to foreclose the mortgage on the subject prop-
erty. In its complaint, the plaintiff alleged that the defen-
dants defaulted under the terms of their note and
mortgage, that the plaintiff exercised its option to
declare the entirety of the balance due, and that, despite
due demand, the defendants failed to pay the balances
due and owing. The parties subsequently participated
in a foreclosure mediation program but were unable to
reach an agreement. On April 17, 2015, the defendants
filed an answer, three special defenses and three coun-
terclaims. The counterclaims sounded in negligence;
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.; and unjust
enrichment. The special defenses sounded in equitable
estoppel, unjust enrichment, and unclean hands. On
July 17, 2015, the plaintiff filed a motion to strike the
defendants’ special defenses and counterclaims, which
was granted by the court on December 28, 2015. There-
after, the court rendered a judgment of strict foreclo-
sure. This appeal followed. Additional facts will be set
forth as necessary.
‘‘Our standard of review is undisputed. Because a
motion to strike challenges the legal sufficiency of a
pleading and, consequently, requires no factual findings
by the trial court, our review of the court’s ruling on
[a motion to strike] is plenary. . . . A party wanting
to contest the legal sufficiency of a special defense [or
counterclaim] may do so by filing a motion to strike.
The purpose of a special defense is to plead facts that
are consistent with the allegations of the complaint
but demonstrate, nonetheless, that the plaintiff has no
cause of action. . . . In ruling on a motion to strike,
the court must accept as true the facts alleged in the
special defenses and construe them in the manner most
favorable to sustaining their legal sufficiency.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Brasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9,
12–13, 779 A.2d 198 (2001).
I
We first address Piper’s claim that the court improp-
erly struck the defendants’ special defenses, namely,
equitable estoppel and unclean hands.2 Piper contends
that the court failed to apply properly the transaction
test when reviewing the special defenses. Instead, he
argues, the court improperly narrowed the transaction
test by requiring the defendants’ special defenses to
relate to the making, validity, or enforcement of the
note or mortgage.
The following additional facts are relevant to this
claim. Shortly after the defendants defaulted on their
mortgage payments in January, 2010, a servicing agent
for the plaintiff reached out to the defendants offering
a ‘‘rate reduction.’’ After the defendants successfully
completed a three month trial modification period, how-
ever, the plaintiff withdrew its offer to modify the loan.
The plaintiff continued to offer loan modifications, but
no offers resulted in a final, binding modification to the
defendants’ mortgage. Following the defendants’ failure
to cure the debt, the plaintiff commenced this foreclo-
sure action.
In their answer, special defenses, and counterclaims
filed on April 17, 2015, the defendants claimed, in rele-
vant part, that throughout the foreclosure mediation
and loan modification negotiation period, the plaintiff
hindered their ability to obtain a proper loan modifica-
tion. As a result, the defendants claimed, the amount
that the plaintiff sought to recover from them in connec-
tion with the foreclosure action unnecessarily
increased. Additionally, the defendants claimed that the
plaintiff and its servicing agent failed to conduct them-
selves in a manner that was fair, equitable, and honest
during the mediation and loan modification negotia-
tion period.
We begin by setting forth the relevant legal principles.
‘‘In addition to challenging the legal sufficiency of a
complaint or counterclaim, our rules of practice provide
that a party may challenge by way of a motion to strike
the legal sufficiency of an answer, including any special
defenses contained therein . . . .’’ (Internal quotation
marks omitted.) GMAC Mortgage, LLC v. Ford, 144
Conn. App. 165, 179–80, 73 A.3d 742 (2013). ‘‘The pur-
pose of a special defense is to plead facts that are
consistent with the allegations of the complaint but
demonstrate, nonetheless, that the plaintiff has no
cause of action.’’ (Internal quotation marks omitted.)
TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn. App.
322, 326, 71 A.3d 541 (2013). ‘‘A motion to strike does
not admit legal conclusions. . . . Conclusions of law,
absent sufficient alleged facts to support them, are sub-
ject to a motion to strike. The trial court may not seek
beyond the complaint for facts not alleged, or necessar-
ily implied . . . .’’ (Citations omitted.) Fortini v. New
England Log Homes, Inc., 4 Conn. App. 132, 134–35,
492 A.2d 545, cert. dismissed, 197 Conn. 801, 495 A.2d
280 (1985).
‘‘Historically, defenses to a foreclosure action have
been limited to payment, discharge, release or satisfac-
tion . . . or, if there had never been a valid lien. . . . A
valid special defense at law to a foreclosure proceeding
must be legally sufficient and address the making, valid-
ity or enforcement of the mortgage, the note, or both.
. . . Where the plaintiff’s conduct is inequitable, a court
may withhold foreclosure on equitable considerations
and principles. . . . [O]ur courts have permitted sev-
eral equitable defenses to a foreclosure action. [I]f the
mortgagor is prevented by accident, mistake or fraud,
from fulfilling a condition of the mortgage, foreclosure
cannot be had . . . . Other equitable defenses that our
Supreme Court has recognized in foreclosure actions
include unconscionability . . . abandonment of secu-
rity . . . and usury.’’ (Citation omitted; internal quota-
tion marks omitted.) LaSalle National Bank v.
Freshfield Meadows, LLC, 69 Conn. App. 824, 833–34,
798 A.2d 445 (2002).
In the present case, neither of the defendants’ special
defenses at issue directly attacks the making, validity, or
enforcement of the note or mortgage. See CitiMortgage,
Inc. v. Rey, 150 Conn. App. 595, 603, 92 A.3d 278, cert.
denied, 314 Conn. 905, 99 A.3d 635 (2014). All events
giving rise to the special defenses took place during
the loan modification negotiation period or during fore-
closure mediation. This court previously has held that
alleged improper conduct occurring during mediation
and modification negotiations lacked ‘‘any reasonable
nexus to the making, validity or enforcement of the
mortgage or note . . . .’’ U.S. Bank National Assn. v.
Sorrentino, 158 Conn. App. 84, 97, 118 A.3d 607, cert.
denied, 319 Conn. 951, 125 A.3d 530 (2015). By contrast,
if the modification negotiations ultimately result in a
final, binding, loan modification, and the mortgagee
subsequently breaches the terms of that new modifica-
tion, then any special defenses asserted by the mort-
gagor in regard to that breach would relate to the
enforcement of the mortgage. In the present case, how-
ever, no binding modification was ever agreed upon by
the parties. Accordingly, the special defenses raised by
the defendants do not relate to the making, validity, or
enforcement of the note or mortgage.
Piper attempts to circumvent the fact that the defen-
dants’ special defenses do not relate to the making,
validity, or enforcement of the note or mortgage by
arguing that the broader transaction test set forth in
Practice Book § 10-10 applies to their special defenses.
Section 10-10 provides, in relevant part, that ‘‘[i]n any
action for legal or equitable relief, any defendant may
file counterclaims against any plaintiff . . . provided
that each such counterclaim . . . arises out of the
transaction or one of the transactions which is the sub-
ject of the plaintiff’s complaint . . . .’’ This section is
‘‘a common-sense rule designed to permit the joinder
of closely related claims where such joinder is in the
best interests of judicial economy.’’ (Internal quotation
marks omitted.) JP Morgan Chase Bank, Trustee v.
Rodrigues, 109 Conn. App. 125, 131, 952 A.2d 56 (2008).
Section 10-10 makes no mention of special defenses
and explicitly states that it applies to counterclaims.
Further, because the purpose of the rule is to permit
the joinder of closely related claims that meet the trans-
action test, this purpose could not possibly be furthered
when the rule is applied to special defenses. ‘‘The pur-
pose of a special defense is to plead facts that are
consistent with the allegations of the complaint but
demonstrate, nonetheless, that the plaintiff has no
cause of action.’’ (Internal quotation marks omitted.)
Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705, 807
A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291
(2002). Special defenses, by their very nature, must be
tried with the corresponding complaint, so the transac-
tion test set forth in § 10-10 would be unnecessary and
duplicitous as applied to special defenses. Accordingly,
the transaction test does not apply, and the court prop-
erly granted the motion to strike the defendants’ spe-
cial defenses.
II
We next address Piper’s claim that the trial court
improperly struck the defendants’ counterclaims by
requiring the counterclaims to have a sufficient nexus
to the making, validity, or enforcement of the note or
mortgage.
‘‘A plaintiff can [move to strike] a . . . counter-
claim.’’ Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d
716 (1978). ‘‘A counterclaim has been defined as a cause
of action existing in favor of a defendant against a
plaintiff [that] a defendant pleads to diminish, defeat
or otherwise affect a plaintiff’s claim and also allows
a recovery by the defendant. . . . In other words, a
counterclaim is a cause of action . . . on which the
defendant might have secured affirmative relief had he
sued the plaintiff in a separate action.’’ (Citation omit-
ted; internal quotation marks omitted.) Historic Dis-
trict Commission v. Sciame, 152 Conn. App. 161, 176,
99 A.3d 207, cert. denied, 314 Conn. 933, 102 A.3d 84
(2014).
‘‘[T]his court [has] clarified that a proper application
of Practice Book § 10-10 in a foreclosure context
requires consideration of whether a counterclaim has
some reasonable nexus to, rather than directly attacks,
the making, validity or enforcement of the mortgage or
note.’’ U.S. Bank National Assn. v. Sorrentino, supra,
158 Conn. App. 96. ‘‘[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.) CitiMortgage, Inc. v. Rey, supra, 150 Conn.
App. 606.
In the present case, the defendants failed to assert
factual allegations underlying their counterclaims that
had a reasonable nexus to the making, validity, or
enforcement of the note or mortgage. The defendants’
counterclaims, like their special defenses discussed
previously in part I of this opinion, were based upon
similar factual allegations derived solely from the plain-
tiff’s conduct during postdefault mediation and loan
modification negotiations.3 Because the defendants
failed to show how this conduct had a sufficient nexus
to the making, validity, or enforcement of the note or
mortgage, the court properly struck the counterclaims
pursuant to Practice Book § 10-10.
III
Piper nonetheless hopes to prevail on his claims on
appeal by asking this court to diverge from decades of
legal precedent and to abolish the requirement that
counterclaims and special defenses have a sufficient
nexus to, or relate to, the making, validity, or enforce-
ment of the note or mortgage, in favor of a ‘‘straightfor-
ward version of the transaction test.’’ He argues that
the current legal standard for counterclaims and special
defenses in foreclosure proceedings ‘‘stands opposed
to . . . fundamental principles of equity jurispru-
dence.’’ We do not agree with Piper’s contention and
decline to abandon the current standard.4
Piper attempts to characterize the court’s application
of the making, validity, or enforcement requirement as
a rigid barrier to the assertion of viable special defenses
and counterclaims. His claim, however, overlooks the
fact that equitable considerations may be taken into
account in foreclosure proceedings.
On the contrary, our courts have allowed exceptions
to the making, validity, or enforcement requirement
where traditional notions of equity would not be served
by its strict application. For example, in Thompson v.
Orcutt, 257 Conn. 301, 777 A.2d 670 (2001), our Supreme
Court reversed this court’s determination that a special
defense of unclean hands did not apply where the plain-
tiff’s fraudulent conduct occurred in a separate bank-
ruptcy proceeding that was not strictly related to the
making, validity, or enforcement of the note or mort-
gage. In reversing this court’s decision, the Supreme
Court observed that the plaintiff would not have had
the legal authority to bring the foreclosure action
against the defendants but for its fraudulent conduct
during the bankruptcy proceeding. Id., 313–14. The
court noted, ‘‘[b]ecause the doctrine of unclean hands
exists to safeguard the integrity of the court . . .
[w]here a plaintiff’s claim grows out of or depends upon
or is inseparably connected with his own prior fraud,
a court of equity will, in general, deny him any relief,
and will leave him to whatever remedies and defenses at
law he may have.’’ (Citations omitted; internal quotation
marks omitted.) Id., 310.
Piper’s contention in the present case that the mak-
ing, validity, or enforcement requirement ‘‘stands
opposed to . . . fundamental principles of equity juris-
prudence,’’ therefore, is misguided. The requirement
serves to promote judicial economy through the swift
and uncomplicated resolution of foreclosure proceed-
ings while simultaneously allowing for equitable consid-
erations when justice so requires. If we were to dispose
of the requirement and adopt the defendants’ ‘‘straight-
forward’’ transaction test, it would lead to a flood of
counterclaims and special defenses in foreclosure cases
that would unnecessarily convolute and delay the fore-
closure process. Further, automatically allowing coun-
terclaims and special defenses in foreclosure actions
that are based on conduct of the mortgagee arising
during mediation and loan modification negotiations
would serve to deter mortgagees from participating in
these crucial mitigating processes. Accordingly, we
decline Piper’s invitation to depart from the subject
making, validity, or enforcement requirement for coun-
terclaims and special defenses in the foreclosure
context.5
IV
Piper next claims that, even if this court were to
determine that the making, validity, or enforcement
requirement applies to the defendants’ counterclaims
and special defenses, the trial court erred by improperly
limiting the scope of the term ‘‘enforcement.’’ Specifi-
cally, he contends that under a proper reading of the
term ‘‘enforcement,’’ conduct that occurred during the
loan modification negotiation process and foreclosure
mediation can meet the making, validity, or enforce-
ment requirement even where no binding modification
was reached. We do not agree with his interpretation
of the term ‘‘enforcement.’’
As discussed in parts I and II of this opinion, our
courts have determined that conduct occurring during
loan modification negotiations and foreclosure media-
tion does not give rise to a valid counterclaim or special
defense in a foreclosure action unless such conduct
affects the making, validity, or enforcement of the origi-
nal note or mortgage. See U.S. Bank National Assn. v.
Sorrentino, supra, 158 Conn. App. 97.6 In the present
case, the plaintiff’s alleged conduct does not relate to
the enforcement of the note or mortgage because no
binding modification was reached between the parties
that rendered the original note and mortgage unenforce-
able. Accordingly, the trial court did not err in its inter-
pretation of the term ‘‘enforcement,’’ and the
defendants’ counterclaims and special defenses were
properly stricken.
V
Finally, Piper claims that the trial court made factual
errors when assessing the plaintiff’s motion to strike,
and that these errors amounted to an abuse of discre-
tion.7 Specifically, he asserts that the court erred in
finding that (1) no binding loan modification existed
between the parties, (2) if a modification did exist, the
defendants defaulted on it, and (3) all of the plaintiff’s
alleged misconduct took place during the foreclosure
mediation. Further, Piper argues that because the court
relied on these factual findings in granting the plaintiff’s
motion to strike the defendants’ special defenses and
counterclaims, the alleged factual errors constitute an
abuse of discretion. We are not persuaded.
A motion to strike requires no factual findings by the
trial court. Larobina v. McDonald, 274 Conn. 394, 400,
876 A.2d 522 (2005). ‘‘We take the facts to be those
alleged in the complaint that has been stricken and we
construe the complaint in the manner most favorable
to sustaining its legal sufficiency. . . . If facts provable
in the complaint would support a cause of action, the
motion to strike must be denied.’’ Kumah v. Brown,
127 Conn. App. 254, 259, 14 A.3d 1012, aff’d, 307 Conn.
620, 58 A.3d 247 (2011).
In the present case, the court was not required to
make factual determinations, and, therefore, our review
of this claim is plenary. See Brasso v. Rear Still Hill
Road, LLC, supra, 64 Conn. App. 12. Accordingly, we
look to the allegations of the defendants’ pleadings,
construed in the manner most favorable to sustaining
their legal sufficiency, to determine if the allegations
are legally sufficient counterclaims or special defenses.
Id., 13.
The defendants’ answer, special defenses, and coun-
terclaims filed on April 17, 2015, alleged that ‘‘[i]n April,
2012, [the] defendants contacted the state banking com-
mission, which intervened on [the] defendants’ behalf,
resulting in an immediate modification being received.’’
Piper argues that the court improperly construed this
allegation as failing to establish that a binding loan
modification occurred between the parties. As a result,
he argues, the court improperly determined that the
defendants’ allegations failed to meet the making, valid-
ity, or enforcement requirement. The defendants, how-
ever, never alleged that a binding modification existed
between the parties. Instead, they merely alleged that
the banking commission ‘‘intervened’’ on their behalf,
resulting in an ‘‘immediate modification being
received.’’ (Emphasis added.) Nowhere do the defen-
dants allege that the parties agreed to this modification
and therefore that it was final and binding on them.
Even if this court were to accept all of the allegations
as true and viewing them in the light most favorable to
sustaining their legal sufficiency, the defendants failed
to properly allege that there was a binding modification
to their loan that affected the making, validity, or
enforcement of the original note or mortgage.
In regard to Piper’s remaining contentions, namely,
(1) the court’s reference to the defendants’ default on
any modification if such modification existed, and (2)
the court’s statement that all of the defendants’ allega-
tions against the plaintiff were based on facts occurring
during foreclosure mediation, we do not agree that
there was any error. The court made these references
in dicta, and, accordingly, the references did not affect
the court’s ultimate determination to grant the plaintiff’s
motion to strike. On the basis of our plenary review of
the pleadings, we conclude that the trial court properly
granted the plaintiff’s motion to strike.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion ALVORD, J., concurred.
1
Robin Blowers, Farmington Valley Landscape, LLC, Land Rover Capital
Group, C&I Solutions, LLC, and Viking Fuel Oil Company, Inc., also were
named as defendants but are not parties to this appeal. For convenience,
we refer in this opinion to Piper and Blowers as the defendants and individu-
ally by name where appropriate.
2
The defendants withdrew their unjust enrichment special defense and
counterclaim on September 16, 2015.
3
The counterclaims asserted by the defendants include negligence and a
violation of CUTPA. In support of their negligence claim, the defendants
alleged that the plaintiff: (1) erroneously informed the defendants’ insurance
company of false information resulting in a cancellation of their insurance
policy, (2) arrived late to mediation sessions, (3) provided conflicting infor-
mation to the defendants during mediation, and (4) took years to evaluate
the defendants’ request for a loan modification due to the plaintiff’s duplica-
tive and changing requests for information.
In support of their CUTPA claim, the defendants alleged that the plaintiff:
(1) repeatedly requested duplicative and unnecessary documentation
updates during modification negotiations, (2) communicated false informa-
tion to the defendants’ insurance carrier, and (3) made material misrepresen-
tations to the defendants throughout the loan modification negotiation
process.
4
Further, we do not have the power to change existing precedent set by
our Supreme Court and by other panels of this court. ‘‘As an intermediate
court of appeal, we are unable to overrule, reevaluate, or reexamine control-
ling precedent of our Supreme Court.’’ (Internal quotation marks omitted.)
State v. Fuller, 158 Conn. App. 378, 387 n.6, 119 A.3d 589 (2015). Moreover,
‘‘it is axiomatic that one panel of this court cannot overrule the precedent
established by a previous panel’s holding.’’ Samuel v. Hartford, 154 Conn.
App. 138, 144, 105 A.3d 333 (2014).
5
We note that mortgagors are not without a remedy for the alleged repre-
hensible postdefault conduct of mortgagees. Aside from the ability of a trial
court in a foreclosure action to deny a mortgagee the relief sought on
equitable grounds; see Thompson v. Orcutt, supra, 257 Conn. 310; a mort-
gagor is not precluded from bringing a separate action for damages caused
by such conduct.
6
For example, in EMC Mortgage Corp. v. Shamber, Superior Court, judicial
district of Tolland, Docket No. CV-07-5001252-S (November 12, 2009), the
court struck the defense of breach of the implied covenant of good faith
and fair dealing where the alleged breach occurred as a result of a postdefault
‘‘repayment agreement.’’ The court reasoned that the defense was legally
insufficient because the defendants failed to allege that the repayment
agreement modified the provisions of the note or mortgage or that it rendered
them invalid or unenforceable. .
7
We note that discretion plays no part in the granting or denial of a motion
to strike. A motion to strike presents the court solely with a question of
law over which our review is plenary. See Melanson v. West Hartford, 61
Conn. App. 683, 687, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d
595 (2001).