GMAT Legal Title Trust 2014-1, U.S. Bank, National Assn. v. Catale

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GMAT LEGAL TITLE TRUST 2014-1, U.S. BANK,
NATIONAL ASSOCIATION AS LEGAL TITLE
TRUSTEE v. VITO CATALE ET AL.
(AC 44132)
Bright, C. J., and Alvord and Prescott, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendants M and V. The plaintiff filed a motion for summary
judgment along with three affidavits averring, respectively, to the out-
standing debt, the fair market value of the property, and additional facts
relevant to the motion for summary judgment. The plaintiff then filed
an application for a prejudgment remedy to attach potential proceeds
that V could obtain as a result of the adjudication or settlement of an
unrelated pending civil action in which he was the plaintiff. The parties
reached an agreement, which was approved by the trial court, pursuant
to which the plaintiff agreed to defer a hearing on its prejudgment
remedy application until the unrelated action was resolved and the
defendants agreed to notify the plaintiff of any judgment or settlement
of the unrelated action and further agreed not to dispose of any assets
identified in the plaintiff’s application. That following year, asserting
that the defendants violated their agreement by failing to inform the
plaintiff of the settlement of the unrelated action, the plaintiff filed what
it deemed to be an ex parte application for a prejudgment remedy, which
referenced the affidavits filed in connection with its motion for summary
judgment and also attached an affidavit from an officer of its loan
servicing company, averring facts in support of its allegation that exi-
gency necessitated the granting of a prejudgment remedy. Without con-
ducting a hearing, but after reviewing the objections filed by the defen-
dants, the trial court granted the ex parte application, and the defendants
appealed to this court. Held:
1. The trial court properly exercised jurisdiction over the application for a
prejudgment remedy because the application was not defective with
respect to the affidavits provided: the affidavit attached to the plaintiff’s
application and those that it incorporated by reference contained facts
intending to establish probable cause that the plaintiff would prevail in
obtaining a foreclosure judgment against the defendants, including a
right to recover an amount greater than or equal to the amount of the
prejudgment remedy that it sought; moreover, the applicable statute
(§ 52-578e) does not require that affidavits in support of a prejudgment
remedy be directly attached to the application itself nor does it bar a
party from incorporating by reference affidavits that were already a part
of the record and were available to the trial court and all parties.
2. The defendants’ claim that, even if the trial court had jurisdiction, it
improperly acted on the application without providing the defendants
with a prompt postattachment hearing as due process required was
moot: subsequent to the filing of this appeal, the trial court granted
summary judgment as to the defendants’ liability on the mortgage note
and rendered a judgment of strict foreclosure in favor of the plaintiff,
establishing that there was probable cause for a prejudgment remedy,
that insufficient equity in the property existed to cover the total debt
owed by the defendants to the plaintiff, and that the deficiency exceeded
the prejudgment remedy in place; accordingly, any remand for a hearing
regarding probable cause and any opportunity to be heard regarding
the amount of the prejudgment remedy would be meaningless and could
provide no practical relief to the defendants.
Argued November 17, 2021—officially released July 12, 2022
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Bellis, J., approved
the parties’ stipulated agreement regarding adjudication
of the plaintiff’s application for a prejudgment remedy;
thereafter, the court, Spader, J., granted the plaintiff’s
ex parte amended application for a prejudgment rem-
edy, from which the named defendant et al. appealed
to this court; subsequently, RMS Series Trust 2020-1
was substituted as the plaintiff; thereafter, the court,
Radcliffe, J., rendered judgment of strict foreclosure.
Affirmed in part; appeal dismissed in part.
Douglas R. Steinmetz, with whom, on the brief, was
Maximino Medina, Jr., for the appellants (named
defendant et al.).
Paul N. Gilmore, for the appellee (substitute plain-
tiff).
Opinion
PRESCOTT, J. In this residential mortgage foreclo-
sure action, the defendants Vito Catale and Maria
Catale1 appeal from the trial court’s granting of an
amended ‘‘ex parte’’ application for a prejudgment rem-
edy (ex parte application)2 filed by the original plaintiff,
GMAT Legal Title Trust 2014-1, U.S. Bank, National
Association as Legal Title Trustee.3 The defendants
claim that the court improperly granted the plaintiff’s
ex parte application because (1) certain statutorily
required affidavits either were missing or insufficient
and, therefore, the court lacked jurisdiction over the
ex parte application, and (2) even if the court had juris-
diction over the ex parte application, the court deprived
the defendants of due process by granting it without
providing the defendants with a postattachment hearing
at which they would have had an opportunity to chal-
lenge both whether probable cause existed to order a
prejudgment remedy and in what amount.
As to the first claim, we conclude that the court
properly exercised jurisdiction over the application for
prejudgment remedy. As to the second claim, we con-
clude that, even if we agreed with the defendants that
they were entitled to an opportunity to be heard at a
postattachment hearing despite the challenges posed
during the early stages of the COVID-19 pandemic,4 no
practical relief can be afforded to them by ordering a
hearing at this time because, during the pendency of
this appeal, the court rendered a final judgment in the
underlying foreclosure action in favor of the plaintiff
that conclusively established both probable cause for
the granting of a prejudgment remedy and that the plain-
tiff likely would be entitled to a deficiency judgment
that would far exceed the amount of the prejudgment
remedy ordered. In other words, under the unique cir-
cumstances present here, the defendants have failed to
demonstrate how they would benefit from a postattach-
ment hearing and, therefore, the remainder of their
arguments on appeal have been rendered moot. Accord-
ingly, we affirm the judgment of the court.5
The record reveals the following undisputed facts
and procedural history. In August, 2017, the plaintiff
commenced the underlying action to foreclose a mort-
gage on residential property in Monroe owned by the
defendants.6 In July, 2018, following the termination of
foreclosure mediation proceedings, the defendants filed
their answer and special defenses. The plaintiff there-
after filed a motion to strike the special defenses and,
later, a motion for summary judgment as to liability
on the note. In support of the motion for summary
judgment, the plaintiff filed an affidavit of debt dated
September 6, 2018, in which a loan servicing officer
with knowledge of the account averred in relevant part
that, as of that date, the outstanding balance due on
the underlying note was $974,809.77. The plaintiff also
filed an affidavit from a real estate appraiser averring
that the fair market value of the property as of October
16, 2018, was $516,000. Finally, the plaintiff filed a third
affidavit that averred to additional facts relevant to the
summary judgment motion.
On February 14, 2019, shortly after the initial argu-
ment on its pending motions,7 the plaintiff filed an appli-
cation for a prejudgment remedy along with a motion
for disclosure of property and assets. The stated pur-
pose of the application was to attach potential proceeds
that Vito Catale might obtain as a result of the adjudica-
tion or settlement of an unrelated pending civil action
in which he was the plaintiff (Catale action). See Catale
v. DiGennaro, Superior Court, judicial district of Fair-
field, Docket No. CV-XX-XXXXXXX-S. The plaintiff’s appli-
cation for a prejudgment remedy incorporated by refer-
ence the affidavits that it previously had filed with the
court in support of its motion for summary judgment
and alleged that these affidavits established that proba-
ble cause existed that the plaintiff would be entitled to
a deficiency judgment in the foreclosure matter in an
amount equal to or greater than $458,000. The defen-
dants filed a request for a hearing to contest the applica-
tion, checking a box on the form response that they
claimed ‘‘a defense, counterclaim, set-off, or exemp-
tion.’’
The parties subsequently reached a stipulated agree-
ment regarding adjudication of the application for pre-
judgment remedy. The court approved the agreement
and made it an order of the court on March 13, 2019. The
agreement provided in relevant part that the plaintiff
agreed to defer a hearing on its application for prejudg-
ment remedy and the defendants’ objection thereto until
after a resolution of the Catale action. In exchange, the
defendants agreed not to dispose of any assets identi-
fied in the prejudgment remedy application, including
any future settlement proceeds, and to promptly notify
the plaintiff when a judgment or settlement was reached
in the Catale action. The parties further agreed to coop-
erate with each other and to make best efforts to coordi-
nate with the trial court to schedule a hearing on the
application for prejudgment remedy as soon as possible
after a resolution of the Catale action.
On June 1, 2020, the plaintiff filed the ex parte applica-
tion that is the focus of the present appeal.8 The ex
parte application again incorporated by reference the
affidavits that the plaintiff had filed in support of its
motion for summary judgment and that were referenced
in its earlier application for a prejudgment remedy. The
plaintiff also attached several exhibits, including an affi-
davit from an officer of its loan servicing company that
averred facts in support of the plaintiff’s new allegations
that exigency necessitated the granting of an ex parte
prejudgment remedy.
According to the plaintiff’s ex parte application, the
defendants intentionally violated the March 13, 2019
stipulated order by failing to notify it of a settlement
that purportedly had been reached in the Catale action.
One of the exhibits attached to the ex parte application
was a transcript from a court-ordered mediation session
in the Catale action in which the parties discuss the
terms of an alleged settlement agreement with the
court.9 The plaintiff asserted in its ex parte application
that there was a reasonable likelihood that the defen-
dants (1) were about to remove property from the state,
(2) were about to fraudulently dispose of some of this
property, and (3) had fraudulently hidden or withheld
money, property or effects. The plaintiff noted in its
memorandum of law in support of the ex parte applica-
tion that ‘‘[t]he reason for the ex parte process in this
matter is to dispense with the preattachment hearing
requirement, as there are grounds for ex parte process.
The stipulated order enjoins the defendant[s] from
transferring, pledging, hypothecating or otherwise dis-
posing of the target asset until after a hearing can be
held, the [prejudgment remedy] application is decided
and the plaintiff thereafter has ten days to effectuate
the prejudgment remedy order. Therefore, the applica-
tion is being e-filed in such a way that the defendant[s]
actually will receive notice of the application. There
still is need for prompt judicial action, though, as the
defendant[s] already [are] in violation of the stipulated
order.’’
With its ex parte application, the plaintiff also filed
a caseflow request form that indicated that it had
informed the defendants of the ex parte application and
that they had not consented to it. Later that same day,
the court issued an order granting the caseflow request
and stating: ‘‘The court will consider the amended appli-
cation ex parte.’’
The following day, June 2, 2020, the defendants filed
a motion asking the court to vacate its order granting
the plaintiff’s caseflow request to consider the applica-
tion ‘‘ex parte . . . .’’ They argued that ‘‘[t]he applica-
tion raise[d] factual issues [that could not] be resolved
on the papers’’ and that ‘‘[e]x parte consideration under
the circumstances [was] unwarranted and inconsistent
with the defendants’ due process rights.’’ The court
later denied that motion, stating: ‘‘The court gave con-
sideration to due process concerns and limited its [pre-
judgment remedy] to real property and, essentially, a
lien on settlements in other cases which were basically
agreed to by counsel that the funds should be held in
escrow previously in this case. The court will consider
expanding or reducing upon the [prejudgment remedy]
after a disclosure of assets is completed and further
proceedings occur.’’
Also on June 2, 2020, and prior to any action by the
court on the ex parte application, the defendants filed
a response to the application itself. Specifically, the
defendants objected to the application ‘‘being given ex
parte consideration,’’ disputed that any final agreement
had been reached in the Catale action, and requested
an evidentiary hearing ‘‘when the court may do so
safely, given the COVID-19 procedures and limitations
now in place.’’ The defendants did not claim that the
court lacked jurisdiction over the application due to
the plaintiff’s failure to attach copies of all supporting
affidavits directly to the ex parte application rather than
incorporating some by reference. The defendants, later
that same day, filed a ‘‘supplemental objection’’ to
which they attached an affidavit by Vito Catale’s attor-
ney in the Catale action.
On June 2, 2020, the court, Spader, J., issued an order
granting the ex parte application without conducting a
hearing but on due consideration of the defendants’
papers offered in objection. Specifically, the court’s
order stated in relevant part: ‘‘From an examination
of the amended application (motion), and the original
application, and filings in this matter, affidavits in sup-
port of the amended application and giving due consid-
eration to the defendants’ amended answer and special
defenses as set forth and the objection they filed, with
its exhibit A, it is found that there is probable cause
to sustain the validity of the plaintiff’s claim, and that
the application should be granted ex parte because of
the inconsistencies alleged to have been set forth before
Judge Arnold indicating that the matters bearing docket
number FBT-CV-XX-XXXXXXX-S and FBT-CV-XX-XXXXXXX-
S had been settled and the e-mails from the defendants’
counsel in this matter alleging that they have not been.
The previous agreements of the parties, approved by
Judge Bellis at docket [entry] #174, clearly involved
these other matters and any proceeds thereunder being
held in escrow and granting this motion further ensures
that all counsel understand that agreement. The court
finds, based upon the contents of the amended applica-
tion and the e-mails attached thereto, that there is a
reasonable likelihood that the defendants are about to
remove property from this state and/or dispose of it
and/or fraudulently hide or withhold property or money
(such as the settlement proceeds, when and if received)
to prevent the satisfaction of the plaintiff’s debts should
they prevail herein.
‘‘Therefore, it is hereby ordered that the plaintiff may
attach to the value of $458,000: [1] any and all real
property of the defendants and [2] potential receipt of
funds/settlements from lawsuits.
‘‘The request for the disclosure of assets is also
approved. [Although] it is unclear when the examina-
tion incident to the same could occur in court, if counsel
cannot agree to a date to do so within their own offices,
the court should be advised and will schedule this for
a date as soon as practicable, although as an officer of
the court, the defendants’ attorney is expected to try
to accomplish this examination prior to the resumption
of court operations, if practicable. When such opera-
tions resume, the court will consider future filings of
the defendants relating to this motion.
‘‘[Although] the court is not allowing the seizure of
bank accounts in relation to this motion because of the
inability of the court to have an immediate hearing and
due process concerns, it will be evident in the disclosure
of assets if funds are being transferred solely to avoid
the plaintiff’s debts and a future plaintiff’s motion will
be considered following such disclosure.’’ (Emphasis
added; footnote omitted.) The defendants timely filed
the present appeal on June 9, 2020.10
During the pendency of the appeal, further proceed-
ings have occurred that have a bearing on our consider-
ation of the issues raised on appeal.11 First, although
at the time of oral argument of the present appeal it
remained hotly contested as to whether any settlement
had been reached in the Catale action at the time the
court acted on the ex parte application, the parties now
agree that settlement documents were signed by the
parties in the Catale action on October 7, 2021, and
that matter has been withdrawn. Furthermore, in the
underlying foreclosure action, the court first rendered
summary judgment as to liability in favor of the plaintiff
and subsequently rendered a judgment of strict foreclo-
sure in favor of the plaintiff, finding that the fair market
value of the property, as stipulated by the parties, was
$685,000; and that the updated amount of debt owed
by the defendants was $1,119,846.02, not including
attorney’s fees and costs. The defendants have filed a
separate appeal from the judgment of foreclosure.12
I
The defendants first claim that the court lacked juris-
diction to grant the plaintiff’s ex parte application due
to the plaintiff’s failure to attach directly to the ex parte
application affidavits that were required by statute and
were necessary to establish probable cause that the
plaintiff would obtain a judgment in its favor. The plain-
tiff argues that (1) its application was not defective
with respect to the affidavits provided and (2) even if
we agreed with the defendants’ claim, such a defect
did not implicate or deprive the court of jurisdiction
or authority to award a prejudgment remedy under the
circumstances. We agree with the plaintiff on both
accounts.13
We begin with our standard of review and other rele-
vant legal principles. ‘‘A determination regarding a trial
court’s subject matter jurisdiction is a question of law
over which we [generally] exercise plenary review. . . .
Subject matter jurisdiction involves the [court’s power]
to adjudicate the type of controversy presented by the
action before it. . . . [A] court lacks discretion to con-
sider the merits of a case over which it is without
jurisdiction . . . . The subject matter jurisdiction
requirement may not be waived by any party, and also
may be raised by a party, or by the court sua sponte,
at any stage of the proceedings, including on appeal.
. . . In determining whether a court has subject matter
jurisdiction, however, we indulge every presumption
in favor of jurisdiction.’’ (Citations omitted; internal
quotation marks omitted.) Reinke v. Sing, 328 Conn.
376, 382, 179 A.3d 769 (2018). The proper scope of a
court’s statutory authority also presents a question of
law over which our review is plenary. See Tarro v.
Mastriani Realty, LLC, 142 Conn. App. 419, 431, 69
A.3d 956, cert. denied, 309 Conn. 912, 69 A.3d 308 (2013),
and cert. denied, 309 Conn. 912, 60 A.3d 309 (2013).
‘‘The power of the court to hear and determine, which
is implicit in jurisdiction, is not to be confused with
the way in which that power must be exercised in order
to comply with the terms of the statute.’’ (Internal quota-
tion marks omitted.) Amodio v. Amodio, 247 Conn. 724,
728, 724 A.2d 1084 (1999).
‘‘The remedy of attaching and securing a defendant’s
property to satisfy a potential judgment in favor of the
plaintiff is unknown to the common law and is purely
a statutory vehicle.’’ Glanz v. Testa, 200 Conn. 406, 408,
511 A.2d 341 (1986). ‘‘The law governing prejudgment
remedies is codified in General Statutes §§ 52-278a
through 52-278n.’’ Goodwin v. Pratt, 10 Conn. App. 618,
620, 524 A.2d 1168 (1987). General Statutes § 52-278e
contains the procedures by which a plaintiff may obtain
a prejudgment remedy ex parte without a preattach-
ment hearing.14
Section 52-278e (a) provides that the court may order
a prejudgment remedy without the usual hearing pro-
vided for in General Statutes §§ 52-278c and 52-278d on
the filing of an affidavit averring facts sufficient to show
that (1) probable cause exists that a judgment in an
amount greater than or equal to the prejudgment rem-
edy sought will be rendered in favor of the plaintiff and
(2) exigent circumstances warrant immediate action
because the defendant is about to remove from the
state or fraudulently hide or transfer money or other
property that could be used to satisfy that judgment.
In order to comport with federal constitutional due
process requirements; see Connecticut v. Doehr, 501
U.S. 1, 17–18, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991);
the statute requires some predicate showing by the
plaintiff that there is a need for exigency and further
guarantees a defendant, on request, an opportunity for a
prompt postattachment hearing at which the defendant
will have an opportunity to challenge the bases for the
prejudgment remedy.15
In other words, ‘‘[§] 52-278e (a) sets forth two require-
ments that must be satisfied before a court can allow
the issuance of an ex parte prejudgment remedy. . . .
[Furthermore, a] defendant against whom an ex parte
prejudgment remedy has been issued may move to dis-
solve or modify the attachment by following the proce-
dures set forth in § 52-278e (d). . . . Upon such a
motion, the trial court shall proceed to hold a hearing
. . . . If the court determines at such hearing requested
by the defendant that there is probable cause that judg-
ment will be rendered in the matter in favor of the
plaintiff and . . . that there is probable cause to
believe [the exigency ground asserted in the plaintiff’s
application] exists, the prejudgment remedy granted
shall remain in effect. If the court determines there is
no probable cause to believe that a judgment will be
rendered in the matter in favor of the plaintiff or [no
exigency] ground exists, the prejudgment remedy shall
be dissolved.’’ (Citations omitted; internal quotation
marks omitted.) State v. Sunrise Herbal Remedies, Inc.,
296 Conn. 556, 569, 2 A.3d 843 (2010).
It is well established that ‘‘prejudgment remedies are
in derogation of the common law and, therefore, [our]
prejudgment remedy statutes must be strictly construed
. . . .’’ Feldmann v. Sebastian, 261 Conn. 721, 726, 805
A.2d 713 (2002). The statutes, however, also codify
some degree of flexibility in their application, presum-
ably due to the fact that prejudgment remedies may
be sought and obtained at any time during litigation,
including, as in the present case, during the pendency
of an action or even postjudgment. See Gagne v. Vac-
caro, 80 Conn. App. 436, 451–54, 835 A.2d 491 (2003)
(prejudgment remedy may be sought and ordered post-
judgment to protect plaintiff’s interest in judgment
while awaiting outcome of appeal), cert. denied, 268
Conn. 920, 846 A.2d 881 (2004). General Statutes § 52-
278h expressly provides in relevant part that an applica-
tion for prejudgment remedy may be filed ‘‘at any time
after the institution of the action, and the forms and
procedures provided therein shall be adapted accord-
ingly.’’ (Emphasis added.) Trial courts, thus, must be
afforded some flexibility in the statutory procedures to
the extent necessary to further the goals of the prejudg-
ment remedy statutes. Consequently, the failure to
strictly comply with all statutory requirements does not
automatically implicate the subject matter jurisdiction
of a court. See, e.g., Fort Trumbull Conservancy, LLC
v. New London, 282 Conn. 791, 818–19 and n.16, 925
A.2d 292 (2007) (failure to comply with venue provision
in statute did not implicate subject matter jurisdiction in
same manner as failure to follow statutorily prescribed
time limitations in absence of clear expression of con-
trary legislative intent). Rather, more often, a failure to
comply with statutory requirements will implicate only
the court’s authority to act in accordance with the stat-
ute, not the court’s subject matter jurisdiction. See
Amodio v. Amodio, supra, 247 Conn. 728 (‘‘[a]lthough
related, the court’s authority to act pursuant to a statute
is different from its subject matter jurisdiction’’).
Because the defendants argue that this court’s deci-
sion in Lauf v. James, 33 Conn. App. 223, 635 A.2d 300(1993), is controlling with respect to their ‘‘jurisdic-
tional’’ claim, we briefly turn to a discussion of that
case. The plaintiff in Lauf initiated a civil action against
the defendant alleging that he had sexually assaulted
her on various occasions. See id., 224–25. With her
complaint, the plaintiff filed an application for a pre-
judgment remedy seeking to attach real property of the
defendant in the amount of $500,000. Id. The plaintiff
attached to her application ‘‘what purported to be an
affidavit of the plaintiff averring to the facts contained
in the complaint. This affidavit had been faxed to the
plaintiff in California where she signed it and then faxed
it back to her attorney in Connecticut. Upon receipt
of the faxed affidavit, the attorney took the plaintiff’s
acknowledgement over the telephone.’’ Id., 225. At a
hearing on the prejudgment remedy, the defendant
moved to dismiss or strike the application because,
according to the defendant, due to the manner in which
it was acknowledged, the purported affidavit was not,
in fact, an affidavit and, thus, did not satisfy statutory
requirements. Id. The trial court denied the motion and
later granted the application for prejudgment remedy.
Id., 225–26. The defendant appealed. Id., 224.
This court reversed the decision of the trial court
granting the application for the prejudgment remedy.
Id. Although the court used somewhat imprecise lan-
guage in Lauf, it recognized the distinction between
the court’s subject matter jurisdiction and what we now
commonly refer to as the court’s authority to act, stating
that ‘‘[t]here are three separate elements of the jurisdic-
tion of a court: jurisdiction over the person, jurisdiction
over the subject matter, and jurisdiction to render the
particular judgment.’’ (Emphasis added.) Id., 226. The
court indicated that the controlling issue on appeal was
‘‘whether an affidavit must be submitted along with an
application for prejudgment remedy in order for the
trial court to order and conduct a hearing on an applica-
tion for a prejudgment remedy.’’ Id. It further stated
that the plaintiff had conceded during oral argument
of the appeal ‘‘that the purported affidavit did not consti-
tute an affidavit and that [the Appellate Court] should
proceed as if there had been no affidavit submitted
with the application for prejudgment remedy.’’ (Empha-
sis added.) Id. After concluding that the court had both
subject matter jurisdiction and personal jurisdiction
over the application, it turned to whether the court
nevertheless lacked ‘‘jurisdiction’’ to grant the prejudg-
ment remedy application, which we construe to mean
whether the court had statutory authority over the appli-
cation. Id., 226–27.
The court held that a party seeking a prejudgment
remedy must comply with the requirements of the pre-
judgment remedy statutes and that ‘‘one of the prerequi-
sites to the granting of such a remedy is that the plaintiff
or some competent person sign an affidavit stating facts
sufficient to establish probable cause that judgment
will be rendered in the matter in favor of the plaintiff.’’
(Internal quotation marks omitted.) Id., 227–28. The
court concluded: ‘‘Because, as conceded by the plaintiff,
we are to decide this case as if no affidavit had been
filed with the application, we conclude that the plaintiff
failed to comply with the requirements of . . . § 52-
278c. Therefore, the trial court did not have jurisdiction
to issue the order granting the prejudgment remedy.’’
(Emphasis added; footnote omitted.) Id., 228.
Turning to the facts of the present case, we begin by
noting that the court plainly has jurisdiction over the
underlying foreclosure action in which the ex parte
application was filed. More importantly, we are not
persuaded that the holding in Lauf compels the out-
come sought by the defendants. This is not a case in
which the plaintiff outright failed to provide any affida-
vits in support of the prejudgment remedy application.
The plaintiff directly attached one affidavit to its ex
parte application in support of its assertion that the
defendants were about to remove from the state, trans-
fer, or otherwise hide proceeds from the settlement of
the Catale action. The plaintiff also incorporated by
reference other affidavits that it previously had filed in
support of its motion for summary judgment. Those
affidavits contained facts intended to establish probable
cause that the plaintiff would prevail in obtaining a
foreclosure judgment against the defendants, including
a right to recover a deficiency judgment in an amount
equal to or greater than the $458,000 prejudgment rem-
edy it sought. Although the defendants claim that the
application for prejudgment remedy was statutorily
defective because all of the affidavits offered were not
directly attached to the application itself, they have
cited to no statutory language or any other authority,
nor have we found any, that would support us extending
the holding in Lauf and concluding that an affidavit
in support of a prejudgment remedy must be directly
attached to the application itself rather than incorpo-
rated by reference to an earlier pleading.
Nothing in the statutory language of § 52-278e can
be read to bar a party from meeting its obligation to
provide a supporting affidavit by incorporating by refer-
ence an affidavit that is already a part of the record
and available to the court and all parties. The Federal
Rules of Civil Procedure expressly permit an exhibit
attached to a pleading to be adopted and incorporated
by reference in any later pleading or motion. Fed. R.
Civ. P. 10 (c).16 We see no reason why a different rule
should apply in the courts of this state. In fact, it would
serve little purpose to require a plaintiff to attach to its
application affidavits that the court already has before it
and that had previously been served on the defendants.
In sum, we are not convinced that the plaintiff failed
to comply with the requirements of the prejudgment
remedy statutes by incorporating by reference some of
the affidavits provided in support of its application.
Accordingly, we conclude that the court both had sub-
ject matter jurisdiction over the application and that
the application was not defective, such that it deprived
the court of statutory authority to adjudicate it. We
therefore reject the defendants’ claim to the contrary.
II
The defendants next claim that, even if the court had
jurisdiction over the ex parte application, it improperly
acted on it without providing the defendants with a
prompt postattachment hearing as due process requires.
For the following reasons, we conclude that this claim
and all of its related arguments are now moot.
‘‘Mootness presents a circumstance wherein the issue
before the court has been resolved or had lost its signifi-
cance because of a change in the condition of affairs
between the parties. . . . Since mootness implicates
subject matter jurisdiction . . . it can be raised at any
stage of the proceedings. . . . A case becomes moot
when due to intervening circumstances a controversy
between the parties no longer exists. . . . An issue is
moot when the court can no longer grant any practical
relief. . . . Whenever a claim of lack of jurisdiction is
brought to the court’s attention, it must be resolved
before the court can proceed. . . . The test for
determining mootness of an appeal is whether there is
any practical relief this court can grant the appellant.
. . . [I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . If no practical relief
can be afforded to the parties, the appeal must be dis-
missed.’’ (Internal quotation marks omitted.) Federal
Deposit Ins. Corp. v. Caldrello, 79 Conn. App. 384, 390,
830 A.2d 767 (2003).
The gravamen of the defendants’ remaining nonjuris-
dictional arguments is that their rights to due process
were violated because they were not afforded any mean-
ingful opportunity to be heard regarding probable cause
to support a prejudgment remedy. Subsequent to the
filing of the current appeal, however, the court granted
summary judgment as to the defendants’ liability on the
mortgage note and later rendered a judgment of strict
foreclosure in favor of the plaintiff in the underlying
action. It is axiomatic that the probable cause standard
is lower than that required to demonstrate proof by a
preponderance of the evidence, the standard needed to
obtain a judgment in a foreclosure matter. See TES
Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943
A.2d 406 (2008); GMAC Mortgage, LLC v. Ford, 144
Conn. App. 165, 176, 73 A.3d 742 (2013). Because the
plaintiff has prevailed on the merits of its action, this
conclusively has established that there is probable
cause for a prejudgment remedy, and any remand for
a hearing regarding probable cause would, at this stage
of the proceedings, be meaningless. Moreover, as we
have already indicated, the existence of an appeal from
the foreclosure judgment does not affect this conclu-
sion.
Similarly, the judgment rendered establishes that
insufficient equity in the property exists to cover the
total debt owed by the defendants to the plaintiff and
that this deficiency exceeds the $458,000 prejudgment
remedy now in place. Accordingly, any opportunity to
be heard regarding the amount of the existing prejudg-
ment remedy could provide no practical relief to the
defendants and would amount to nothing more than a
waste of judicial resources.17 As previously stated in
footnote 13 of this opinion, nothing in our analysis
should be viewed as deterring the defendants from seek-
ing a modification or dissolution of the existing prejudg-
ment remedy, if such action is deemed warranted, by
filing an appropriate motion with the trial court.
The judgment is affirmed with respect to that portion
of the appeal challenging the trial court’s jurisdiction
over the plaintiff’s ex parte application for prejudgment
remedy; the remainder of the appeal is dismissed as
moot.
In this opinion the other judges concurred.
1
The foreclosure complaint named the following parties as additional
defendants by virtue of an interest held in the mortgaged property subse-
quent in right to that of the plaintiff: Mortgage Electronic Registration Sys-
tems, Inc., as nominee for WMC Mortgage Corp.; WMC Mortgage Corp.;
Cavalry SPV I, LLC; Advanced Radiology Consultants, LLC; the Department
of Revenue Services; and Connecticut Distributors, Inc. None of these addi-
tional defendants is participating in the present appeal and, thus, all refer-
ences to the defendants in this opinion are to the Catales only.
2
As we discuss more fully in footnote 8 of this opinion, the ‘‘ex parte’’
designation used by the plaintiff on the application is somewhat of a misno-
mer given that the defendants filed a response to the application that the
court considered prior to acting on the ex parte application.
3
During the pendency of this appeal, the note, the mortgage and all rights
to the prejudgment remedies were transferred to RMS Series Trust 2020-1,
which was subsequently substituted as the plaintiff and appellee.
4
It is unnecessary to provide a detailed list or a timeline of the actions
taken by the Judicial Branch and the Executive Branch to minimize the
spread of COVID-19 and their effect on court proceedings. It will suffice to
note that, at the time of the filing of the application for prejudgment remedy
that is the subject of the present appeal, the Superior Court was scheduling
and hearing only matters that the Judicial Branch deemed ‘‘Priority 1 Busi-
ness Functions.’’ Statement from Judge Patrick L. Carroll III, Chief Court
Administrator (March 12, 2020), available at https://www.jud.ct.gov/
HomePDFs/StatementChiefCourtAdministratorCarroll0320.pdf (last visited
June 28, 2022). Among those matters listed on the Judicial Branch website
as constituting ‘‘Priority 1 Business Functions’’ were ‘‘[e]x parte motions
. . . .’’ Id. It is unnecessary in resolving this appeal to determine whether
‘‘ex parte motions’’ included ex parte applications for prejudgment remedies.
5
On the day that the appeal was assigned for oral argument, the plaintiff
filed a motion to dismiss the appeal as moot because, at that time, the court
had rendered summary judgment as to liability in favor of the plaintiff,
which, according to the plaintiff, established probable cause and would
allow the plaintiff to obtain a new prejudgment remedy. The defendants
later filed an opposition to that motion. In light of our disposition of the
appeal, no further action is necessary on that motion.
6
A prior action to foreclose the mortgage was initiated in 2011, but that
action was dismissed on dormancy grounds in January, 2017. See Consumer
Solutions, LLC v. Catale, Superior Court, judicial district of Fairfield, Docket
No. CV-XX-XXXXXXX-S (January 23, 2017).
7
The record shows that, although the motions initially were argued before
the court, Bruno, J., on January 30, 2019, they were not acted on and later
were assigned for reargument before Judge Spader over an objection by
the defendants on the ground that the plaintiff had not timely sought reassign-
ment pursuant to Practice Book § 11-19 (b). Following reargument, the court
granted the motion to strike with respect to all special defenses except for
one that alleged a lack of subject matter jurisdiction, which the court indi-
cated it would consider in ruling on the motion for summary judgment. As
to the motion for summary judgment, the court decided that, although it
‘‘believe[d] that the plaintiff has successfully set forth its prima facie case,’’
it could not ‘‘fully adjudicate the motion [for summary judgment] at this
time [because] the defendants have fifteen days in which to file a new
pleading after this granting of the motion to strike pursuant to Practice
Book § 10-44.’’ It instructed that, ‘‘[i]f the defendants replead, the plaintiff
should reclaim its motion for summary judgment supplemented with addi-
tional responses to the new pleading.’’ The defendants timely filed an
amended answer and special defenses. The plaintiff again moved to strike
the special defenses, which, during the pendency of the present appeal, the
court again granted with the exception of the one challenging the court’s
subject matter jurisdiction. On April 16, 2021, the court granted summary
judgment as to liability only in favor of the plaintiff, indicating that it ‘‘will
review the balance due and the form of the judgment at the time the plaintiff
moves for strict foreclosure.’’ The plaintiff filed a motion for a judgment of
strict foreclosure on September 1, 2021.
8
The plaintiff chose to title the ex parte application ‘‘Amended Application
(Motion)—Now Ex Parte—For Prejudgment Remedy.’’ We are not convinced
that this title accurately reflects the true nature of the amended application
in this case. ‘‘Ex parte’’ is commonly understood to mean ‘‘[d]one or made
at the instance and for the benefit of one party only, and without notice
to, or argument by, anyone having an adverse interest . . . .’’ Black’s Law
Dictionary (11th Ed. 2019) p. 722. As the procedural history that follows
makes clear, the defendants not only received notice and a copy of the ex
parte application, but they also filed a written response that was considered
by the court prior to it acting on the merits of the ex parte application.
Nevertheless, whether the application properly may be construed as ‘‘ex
parte’’ has no bearing on our analysis or on the resolution of the present
appeal.
9
The parties did not agree on whether a settlement was in fact reached
at that time such that the defendants’ obligation to work with the plaintiff
to obtain a hearing on the as yet unadjudicated initial application for a
prejudgment remedy was triggered. The defendants maintained that only a
framework of a potential settlement agreement had been reached at the
time the plaintiff filed the ex parte application and that such framework
‘‘expressly encompassed numerous material substantive conditions prece-
dent . . . which never happened.’’ In its initial decision granting the ex
parte application, the court made note that the record contained conflicting
evidence regarding whether a settlement was reached, and the court made
no definitive finding one way or the other. In its contemporaneous ruling
on the defendants’ objection to the ex parte application, however, the court
appears to have found that there was in fact a settlement agreement. Because
our resolution of this appeal does not turn on whether a valid settlement,
in fact, ever existed prior to the court granting the ex parte application, we
need not resolve the ambiguous record regarding this issue. We note only
that the Catale action undisputedly has since been resolved.
10
Although orders pertaining to prejudgment remedies are ordinarily, by
their nature, interlocutory rulings, General Statutes § 52-278l (a) deems
certain prejudgment remedy rulings to be final judgments for purposes of
appellate jurisdiction. Any such appeal, however, must be taken ‘‘within
seven days of the rendering of the order from which the appeal is to be
taken.’’ General Statutes § 52-278l (b).
11
On February 8, 2022, we ordered the parties, sua sponte, to file simultane-
ous supplemental briefs apprising us of ‘‘any and all relevant proceedings,
filings, or other developments’’ in the underlying action and the Catale action
that had ‘‘occurred since oral argument of the present appeal and the filing
of the [plaintiff’s] motion to dismiss [the appeal as moot]’’ and addressing,
inter alia, ‘‘the legal or factual significance, if any, of the same on this court’s
consideration of whether the present appeal, or any of the claims raised
therein, should be dismissed as moot . . . .’’
12
The fact that the defendants have taken an appeal from the final judg-
ment of foreclosure does not affect our conclusion in this opinion that the
judgment of foreclosure, whether affirmed or reversed, vitiates any argument
that there was a lack of probable cause that the plaintiff would obtain a
judgment in its favor, as would have been necessary to grant a prejudgment
remedy. Proceedings to enforce or carry out a judgment may be stayed
while an appeal is pending. See Practice Book § 61-11. Until a judgment is
overturned on appeal, however, it is still presumed valid and a conclusive
adjudication of the parties’ rights. See State v. Andino, 173 Conn. App. 851,
874–75 n.12, 162 A.3d 736 (rejecting claim that Appellate Court judgment
is not binding precedent while appeal from judgment is pending before our
Supreme Court), cert. denied, 327 Conn. 906, 170 A.3d 3 (2017).
13
‘‘[T]he court’s authority to act pursuant to a statute is different from
its subject matter jurisdiction.’’ Amodio v. Amodio, 247 Conn. 724, 728, 724
A.2d 1084 (1999). Although it is not entirely clear from their briefing whether
the defendants claim that the court lacked subject matter jurisdiction or
only statutory authority to act with respect to the prejudgment remedy, in
either case, if true, the prejudgment remedy arguably would be void ab
initio and the defendants arguably would be entitled to a remand directing
the court to vacate the prejudgment remedy. By contrast, as discussed in
part II of this opinion, the remainder of the defendants’ arguments on appeal
do not directly implicate either the court’s jurisdiction or authority to act
but, rather, challenge the court’s decision not to afford the defendants a
prompt postattachment hearing at which they presumably would have had
an opportunity to present evidence necessary to rebut whether probable
cause existed for the ex parte prejudgment remedy as well as the amount
of such remedy. If we agreed with the defendants regarding these remaining
arguments, the appropriate remedy would not be an order vacating the
existing prejudgment remedy outright, but a remand for a hearing in accor-
dance with due process to determine whether the prejudgment remedy in
place should be maintained. We are unconvinced that any practical relief
can flow from such a remand and believe a new hearing regarding the
existing prejudgment remedy would, at this juncture, also be a waste of
judicial resources. Nothing in our resolution of the present appeal should
be viewed as preventing either party from moving the trial court for an
appropriate modification or dissolution of the existing prejudgment remedy.
14
General Statutes § 52-278e provides in relevant part: ‘‘(a) The court or
a judge of the court may allow the prejudgment remedy to be issued by an
attorney without hearing as provided in sections 52-278c and 52-278d upon
the filing of an affidavit sworn to by the plaintiff or any competent affiant
setting forth a statement of facts sufficient to show that there is probable
cause that a judgment in the amount of the prejudgment remedy sought,
or in an amount greater than the amount of the prejudgment remedy sought,
taking into account any known defenses, counterclaims or set-offs, will be
rendered in the matter in favor of the plaintiff and that there is reasonable
likelihood that the defendant (1) has hidden or will hide himself so that
process cannot be served on him or (2) is about to remove himself or his
property from this state or (3) is about to fraudulently dispose of or has
fraudulently disposed of any of his property with intent to hinder, delay or
defraud his creditors or (4) has fraudulently hidden or withheld money,
property or effects which should be liable to the satisfaction of his debts.
‘‘(b) If a prejudgment remedy is issued pursuant to this section, the plaintiff
shall include in the process served on the defendant a notice and claim
form, in such form as may be prescribed by the Office of the Chief Court
Administrator . . . .
‘‘(c) The notice and claim form required by subsection (b) of this section
shall contain (1) the name and address of any third person holding property
of the defendant who is subject to garnishee process preventing the dissipa-
tion of such property, and (2) a statement of the procedure set out in
subsection (d) of this section for requesting a hearing to move to dissolve
or modify the prejudgment remedy.
‘‘(d) A defendant may move to dissolve or modify a prejudgment remedy
allowed pursuant to this section by any proper motion or by return to the
Superior Court of a signed claim form that indicates, by the checking of a
box on the claim form, whether the claim is an assertion of a defense,
counterclaim, set-off or exemption, an assertion that any judgment that may
be rendered is adequately secured by insurance, an assertion that the amount
of the prejudgment remedy is unreasonably high, a request that the plaintiff
be required to post a bond to secure the defendant against any damages
that may result from the prejudgment remedy, or a request that the defendant
be allowed to substitute a bond for the prejudgment remedy.
‘‘(e) The court shall proceed to hold a hearing and determine any motion
made under subsection (d) of this section not later than seven business
days after its filing. If the court determines at such hearing requested by
the defendant that there is probable cause that judgment will be rendered
in the matter in favor of the plaintiff and, if the plaintiff has relied on a
ground set forth in subsection (a) of this section, that there is probable
cause to believe such ground exists, the prejudgment remedy granted shall
remain in effect. If the court determines there is no probable cause to believe
that a judgment will be rendered in the matter in favor of the plaintiff or,
if a ground set forth in subsection (a) of this section was relied on, to believe
such ground exists, the prejudgment remedy shall be dissolved. An order
shall be issued by the court setting forth the action it has taken. . . .’’
15
The predecessor to the current version of § 52-278e permitted the court
to allow an ex parte prejudgment remedy without requiring any initial show-
ing of exigent circumstances warranting such relief. See Connecticut v.
Doehr, supra, 501 U.S. 18 (holding ‘‘Connecticut provision before us, by
failing to provide a preattachment hearing without at least requiring a
showing of some exigent circumstance, clearly falls short of the demands
of due process’’ (emphasis added)).
16
Rule 10 (c) of the Federal Rules of Civil Procedure provides: ‘‘A state-
ment in a pleading may be adopted by reference elsewhere in the same
pleading or in any other pleading or motion. A copy of a written instrument
that is an exhibit to a pleading is a part of the pleading for all purposes.’’
17
The defendants raise a number of arguments as to why their claims are
not moot, all of which we have considered and determine lack sufficient
merit to warrant any extended discussion. They further argue that, even if
their claims are moot, we should review them under the ‘‘capable of repeti-
tion, yet evading review’’ exception to the mootness doctrine. See Loisel v.
Rowe, 233 Conn. 370, 382, 660 A.2d 323 (1995). We are not persuaded that
the defendants have established that this exception to the mootness doctrine
is applicable under the circumstances of this case. See id. The defendants
also argue that their creditors’ may be affected with respect to their priority
to recover funds subject to the prejudgment remedy order and that some
practical relief might flow to them as a result of our review of the remaining
claims on appeal. The defendants have no standing, however, to assert and
rely on rights and interests of third parties to overcome mootness. See
Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347–48, 780 A.2d 98 (2001)
(‘‘[w]here . . . the harms asserted to have been suffered directly by a [party]
are in reality derivative of injuries to a third party, the injuries are not direct
but are indirect, and the [party] has no standing to assert them’’). The
question is whether any practical relief may be granted to the parties, and
we answer that question in the negative.