Prejudgment Proceedings in Foreclosures - 1
Connecticut Judicial Branch
Connecticut Judicial Branch
Connecticut Judicial Branch
Law Libraries
Connecticut Judicial Branch
Connecticut Judicial Branch
Law Libraries
Law Libraries
Law Libraries
Law Libraries
Copyright © 2023, Judicial Branch, State of Connecticut. All rights reserved.
Prejudgment Proceedings in
Connecticut Mortgage Foreclosures
A Guide to Resources in the Law Library
Table of Contents
Introduction .................................................................................................... 3
Section 1: Mediation ......................................................................................... 4
Section 2: Connecticut’s Emergency Mortgage Assistance Act .............................. 10
Table 1: Reinstatement ............................................................................... 15
Table 2: Deed in Lieu of Foreclosure: Texts & Treatises ................................... 17
Table 3: Short Sales - Texts & Treatises ........................................................ 19
Section 3: Application for Protection from Foreclosure......................................... 20
Figure 1: Application for Protection from Foreclosure ....................................... 24
Figure 2: Objection to Application for Protection from Foreclosure ..................... 26
Table 4: Unreported Connecticut Cases - Application for Protection from
Foreclosure ................................................................................................ 28
Section 4: Defenses to Foreclosure ................................................................... 33
Figure 3: Special Defense and Counterclaim to Foreclosure .............................. 50
Table 5: LaSalle National Bank v. Freshfield Meadows, LLC .............................. 51
Table 6: Disclosure of Defense ..................................................................... 53
Table 7: Standing to Foreclose a Mortgage ..................................................... 55
Section 5: Bankruptcy and Foreclosure ............................................................. 59
Prepared by Connecticut Judicial Branch, Superior Court Operations,
Judge Support Services, Law Library Services Unit
lawlibrarians@jud.ct.gov
2023 Edition
Prejudgment Proceedings in Foreclosures - 2
Treated Elsewhere
• Foreclosure of Mortgages in Connecticut (Including Strict Foreclosure,
Foreclosure by Sale, Foreclosure by Market Sale and Loss Mitigation)
• Postjudgment Proceedings in Connecticut Mortgage Foreclosures (Including
Deficiency Judgment, Redemption, Motion to Open Judgment, Appeals,
Execution of Ejectment, Tenant Issues)
• Foreclosure of Condominium Liens in Connecticut
• Mechanic’s Liens in Connecticut (Section 7. Foreclosure of Mechanic’s Lien)
• Collection of Delinquent Property Taxes in Connecticut (Section 1. Foreclosure
of Tax Liens)
These guides are provided with the understanding that they represent only a
beginning to research. It is the responsibility of the person doing legal research to
come to his or her own conclusions about the authoritativeness, reliability, validity,
and currency of any resource cited in this research guide.
View our other research guides at
https://jud.ct.gov/lawlib/selfguides.htm
This guide links to advance release opinions on the Connecticut Judicial Branch website
and to case law hosted on Google Scholar and Harvard’s Case Law Access Project.
The online versions are for informational purposes only.
References to online legal research databases refer to in-library use of these
databases. Remote access is not available.
Connecticut Judicial Branch Website Policies and Disclaimers
https://www.jud.ct.gov/policies.htm
Prejudgment Proceedings in Foreclosures - 3
Introduction
A Guide to Resources in the Law Library
• Mediation: “. . . no judgment of strict foreclosure nor any judgment ordering a
foreclosure sale shall be entered in any action subject to the provisions of this
subsection and instituted by the mortgagee to foreclose a mortgage on residential
real property . . . unless: A) The mediation period set forth in subsection (a) of
section 49-31n has expired or has otherwise terminated, whichever is earlier,
and, if fewer than eight months has elapsed from the return date at the time of
termination, fifteen days have elapsed since such termination and any pending
motion or request to extend the mediation period has been heard and denied by
the court, or (B) the mediation program is not otherwise required or available.
Nothing in this subdivision shall affect any motion made or any default or
judgment entered on or before June 30, 2011.” Conn. Gen. Stat. § 49-31l
(f)(2)(A) (2023).
• Reinstatement: “Request for payoff statement or reinstatement payment
statement. (a) A mortgagee shall, upon written request of the mortgagor or the
mortgagor’s attorney or other authorized agent provide a payoff statement or
reinstatement payment statement in writing to the person requesting the payoff
statement or reinstatement payment statement on or before the date specified in
such request, provided such request date is at least seven business days after
the date of receipt of the written request.” Conn. Gen. Stat. § 49-10a (2023).
• Defenses: “...‘Historically, the defenses available in a foreclosure action have
been limited to payment, discharge, release, satisfaction or invalidity of a lien.’ . .
. In recognition that a foreclosure action is an equitable proceeding, however,
several courts have recently allowed allegations of mistake, accident, fraud,
equitable estoppel, CUTPA, laches, breach of the implied covenant of good faith
and fair dealing, and refusal to agree to a favorable sale...to a third party as
defenses to a foreclosure action. . . . ‘Foreclosure is an equitable action,
permitting the trial court to examine all matters to ensure that complete justice
may be done. . . . Thus, the determination of what equity requires in a particular
case . . . is a matter for the discretion of the trial court.’ (Citations omitted;
internal quotation marks omitted.)” Farmers & Mechanics Bank v. Santangelo,
Superior Court, Judicial District of Middlesex at Middletown, No. 67481, (Dec, 8,
1995) (1995 Conn. Super. LEXIS 3442) (1995 WL 779034)
• Bankruptcy: “The filing of a petition under any chapter of the Bankruptcy Code
automatically stays all actions against the debtor, including foreclosure actions.
11 U.S.C § 362 (a) (5).” Roy v. Beilin, Superior Court, Judicial District of
Danbury, No. 31 50 57 (Sep. 8, 1997) (1997 WL 583838).
Prejudgment Proceedings in Foreclosures - 4
Section 1: Mediation
A Guide to Resources in the Law Library
SCOPE:
DEFINITIONS:
Prejudgment Proceedings in Foreclosures - 5
STATUTES:
OLR RESEARCH
REPORTS:
COURT RULES:
STANDING
ORDERS:
FORMS:
You can visit your
local law library or
search the most
recent statutes and
public acts on the
Connecticut
General Assembly
website to confirm
that you are using
the most up-to-
date statutes.
Office of Legislative
Research reports
summarize and
analyze the law in
effect on the date of
each report’s
publication. Current
law may be different
from what is
discussed in the
reports.
Amendments to the
Practice Book (Court
Rules) are published
in the Connecticut
Law Journal and
posted online.
Official Judicial
Branch forms are
frequently updated.
Please visit the
Official Court
Webforms page for
the current forms.
Prejudgment Proceedings in Foreclosures - 6
CASES:
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 7
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 8
PAMPHLETS:
TEXTS &
TREATISES:
You can contact us
or visit our catalog
to determine which
of our law libraries
own the treatises
cited.
References to online
databases refer to
in-library use of
these databases.
Prejudgment Proceedings in Foreclosures - 9
STATISTICS:
Prejudgment Proceedings in Foreclosures - 10
Section 2: Connecticut’s Emergency Mortgage
Assistance Act
A Guide to Resources in the Law Library
AGENCY:
• Connecticut Housing Finance Authority, 999 West Street,
Rocky Hill, CT 06067-4005. 860-721-9501 or 1-844-CT1-
HOME (toll free). Conn. Gen. Stat. § 8-244 (2023).
STATUTES:
• Conn. Gen. Stat. (2023)
Chapter 134. Connecticut Housing Finance Authority Act
§ 8-265cc. Definitions.
§ 8-265dd. Emergency mortgage assistance payment
program. Foreclosure of eligible mortgage.
§ 8-265ee. Notice to mortgagee of foreclosure. Meeting
or conference with mortgagee or consumer
credit counseling agency.
§ 8-265ff. Eligibility for emergency mortgage or lien
assistance payments. Application for loan.
Disclosure of assets by mortgagor.
Determination of eligibility by the authority.
§ 8-265gg. Monthly payments by authority and
homeowner. Periodic review of financial
circumstances. Modification to amount of
payment. Emergency lien assistance
payments by authority. Foreclosure of lien.
§ 8-265hh. Repayment agreement.
§ 8-265ii. Adoption of procedures.
§ 8-265kk. Establishment of component program.
Notification to participating homeowners of
unavailability of funds.
OLR RESEARCH
REPORTS:
• Mortgage Modification Programs in Connecticut, Michelle
Kirby, Connecticut General Assembly, Office of Legislative
Research Report, 2013-R-0075 (February 5, 2013).
You can visit your
local law library or
search the most
recent statutes and
public acts on the
Connecticut General
Assembly website to
confirm that you are
using the most up-
to-date statutes.
Office of Legislative
Research reports
summarize and
analyze the law in
effect on the date of
each report’s
publication
Prejudgment Proceedings in Foreclosures - 11
FORMS:
• 2 Connecticut Foreclosures: An Attorney’s Manual of
Practice and Procedure, 13th ed., by Denis R. Caron &
Geoffrey K. Milne, Connecticut Law Tribune, 2023
Chapter 18: State and Federal Foreclosure Relief
Programs
§ 18-3:2 The Notice Requirement
o Mortgagee’s Emergency Mortgage Assistance Notice
to Mortgagor, pp. 261-264
§ 18-3:3 The Affidavit Requirement
o Mortgagee’s Affidavit of Compliance with the
Emergency Mortgage Assistance Program, pp. 264-
266
o Affidavit of Non-Applicability of the Emergency
Mortgage Assistance Act, pp. 266
§ 18-3:6 Consequences of Borrower’s Default
o Affidavit of Mortgagor’s Default under the
Emergency Mortgage Assistance Program, pp. 272-
273
CASES:
• For summaries of recent CT Supreme and Appellate Court
foreclosure cases, see our foreclosure section on our
Newslog at:
http://jud.ct.gov/LawLib/LawLibNews/Default.aspx?CatID=14
• Bayview Loan Servicing, LLC v. Gallant, 209 Conn. App.
185, 268 A. 3d 119 (2021). “The defendant Real M. Gallant
[1] appeals from the judgment of foreclosure by sale [2]
rendered by the trial court and from the court's denial of his
motion to dismiss this foreclosure action, which had been
commenced by the original plaintiff, Bayview Loan
Servicing, LLC (Bayview), the assignee of a note and
mortgage that had been executed by the defendant with
respect to certain real property located in Brooklyn. The
defendant claims that (1) the trial court, after holding an
evidentiary hearing on the motion to dismiss, improperly
determined that the substitute plaintiff, U.S. Bank Trust,
N.A., as trustee for LSF9 Master Participation Trust (U.S.
Bank), has standing to maintain this action, even though
the original note was not produced in court, and that the
requirements of General Statutes § 42a-3-309, which
governs lost instruments, had been satisfied because ‘all
reasonable attempts’ had been made to locate the lost note
before a lost note affidavit was created,[3] and (2) a fraud
was perpetrated on the trial court, which necessitates a
reversal of the foreclosure judgment. We disagree and
affirm the judgment of the trial court.”
• Jerry Saglimbeni v. David G. Muirhead et al., Superior
Court, Judicial District of Litchfield at Torrington, No. CV-
206025159-S (March 10, 2021) (2021 WL 1118520) (70
Conn. L. Rptr. 561). “[…] the plaintiff has not proven that
the mortgage is in non-monetary default because Muirhead
has committed waste by allowing numerous liens to be
levied against the premises. The plaintiff does not provide,
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 12
and the court has not separately found, any legal basis for
the plaintiff's proposition that the placement of liens against
property that are subsequent in right to a mortgage
amounts to waste. The complaint also does not allege that
Muirhead committed waste, nor does it even allege that the
commission of waste constitutes a non-monetary default.
Therefore, the plaintiff has not carried his burden of proof in
this regard.”
• Keybank, NA v. Yazar, 206 Conn. App. 625, 261 A. 3d 9,
“[…] a foreclosure action in which the EMAP notice
requirement applies; see footnote 5 of this opinion; must
stand on its own EMAP notice. Such a rule is implicit in the
statutory provision that no mortgagee intending to foreclose
on an eligible mortgage ‘may commence a foreclosure of
[such] mortgage prior to mailing such notice.’ General
Statutes § 8-265ee(a). Such a statutory condition aligns
with the purpose of § 8-265ee(a), which is to provide a
mortgagor with notice of the mortgagee's intent to foreclose
and of certain mortgage relief that might assist him or her,
in a prelitigation forum, in resolving the alleged delinquency
or other default. In short, in the context of a case in which
the EMAP notice requirement applies, when a mortgagee's
initial in-court attempt to foreclose results in a dismissal of
a foreclosure action, such that it must commence a
foreclosure anew, § 8-265ee(a) requires the mailing of a
new EMAP notice in order to commence a subsequent
foreclosure action.”
• M&T Bank v. Wolterstorff, et. al., Superior Court, Judicial
District of Stamford, No. FST-CV-16-6029152-S (September
10, 2018) (2018 WL 4655926) (67 Conn. L. Rptr. 45).
“Compliance with the requirement of the Emergency
Mortgage Assistance Program Act that prior to the
commencement of a mortgage foreclosure action…the
mortgagee be given written notification of the right to
participate in the Program, CGS sec. 8-265ee(a), is a
subject-matter jurisdictional requirement”.
• Aurora Loan Services, LLC v. Bracey, Superior Court,
Judicial District of Torrington, No. LLI-CV-11-6005113-S
(October 16, 2017) (2017 WL 5505584) (65 Conn. L. Rptr.
392). “The provision of the federal 2005 Bankruptcy Abuse
Prevention & Consumer Protection Act eliminating the
normal automatic bankruptcy stay for a debtor’s third
petition filed within a one-year period prevents the stay
from even coming into existence…no action by a mortgagee
is necessary to eliminate the stay for a mortgagor’s third
petition within one year.”
• Washington Mutual Bank v. Coughlin, 168 Conn. App. 278,
287, 145 A. 3d 408 (2016). “The defendants' sole claim on
appeal is that the court improperly denied their motion to
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 13
dismiss the foreclosure action by concluding that
‘compliance with [EMAP] is not a jurisdictional matter which
requires the granting of the motion.’ They allege that,
because the original plaintiff failed to provide them with
proper notice in accordance with § 8–265ee, which they
maintain was a statutory prerequisite to filing the present
foreclosure action, the trial court lacked subject matter
jurisdiction over the action and should have granted their
motion to dismiss. The plaintiff's principal response is that it
is unnecessary in the present case to consider whether the
defendants received proper notice or whether compliance
with § 8–265ee is a jurisdictional prerequisite to the filing of
a foreclosure action because it is apparent from the record
that the defendants were not entitled to the EMAP notice.
According to the plaintiff, because its predecessor sought to
foreclose a mortgage that did not encumber property that
was the defendants' ‘principal residence’ at the time the
action was commenced, § 8–265ee is inapplicable and we
should affirm the court's denial of the motion to dismiss on
that basis. We agree with the plaintiff.”
• People’s United Bank v. Wright, Superior Court, Judicial
District of Stamford/Norwalk at Stamford, No. FST-CV10-
6004126-S (Mar. 30, 2015) (2015 WL 1919303) (60 Conn.
L. Rptr. 69). “This mortgage foreclosure case requires the
court to determine whether the notice provisions contained
in G.S. §§ 8–265dd(b) and 8–265ee(a) are subject matter
jurisdictional and if so, whether the plaintiff in this action
has proved compliance with those requirements. These
issues arose on the first day of trial as a result of the
defendants filing a motion to dismiss asserting
noncompliance with these provisions. . . . At the outset,
the court notes the difference in the prohibitory language
between §§ 8–265dd(b) and 8–265ee(a). In the former, a
foreclosure judgment is only forbidden unless an § 8–
265ee(a) notice has been given whereas in the latter, ‘no ...
mortgage may commence a foreclosure of a mortgage prior
to mailing such notice.’ (Emphasis added.) Thus, the
legislature has not only forestalled a foreclosure judgment
unless there has been compliance but in a subsequent
section it has prohibited even the commencement of the
action. It is well established that an action is commenced by
service of process. Rios v. CCMC Corp., 106 Conn.App. 810,
820 (2008). Thus, any foreclosure writ of summons and
complaint served on a mortgagor before or without
compliance with the notice requirement would be a nullity. .
. . this court concludes that the notice requirement is
subject matter jurisdictional and therefore strict compliance
is required. The court must now proceed to determine
whether the notice requirement of Sec. 8–265ee(a) has
been satisfied. . . . Based upon the foregoing analysis the
court finds that the plaintiff has failed to meet its burden of
proof that it complied with the notice requirement contained
in §§ 8–265dd and 8–265ee by sending to the defendants
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 14
by certified or registered mail their mandated notice.
Accordingly, this action is dismissed for lack of subject
matter jurisdiction.”
• Thomaston Savings Bank v. Hardisty, Superior Court,
Judicial District of Litchfield at Litchfield, No. CV-09-
5006672S (Sep. 13, 2010) (2010 WL 4072018).
“Specifically, the defendants argue in their third special
defense that the plaintiff, by failing to comply with § 8-
265ee, has not satisfied a necessary condition precedent to
bringing the foreclosure action. In the defendants'
opposition to the present motion they argue that the action
was commenced prior to the expiration of the sixty-day
period required by the statute. Further, they argue that
disclosure was inadequate, as it failed to notify the
defendants of their right to a face-to-face conference and
only stated the defendants had thirty days to respond to the
notice …. The defendants' third special defense is not
sufficient to defeat the plaintiff's motion for summary
judgment.”
TEXTS &
TREATISES:
• 2 Connecticut Foreclosures: An Attorney’s Manual of
Practice and Procedure, 13th ed., by Denis R. Caron &
Geoffrey K. Milne, Connecticut Law Tribune, 2023
Chapter 18: State and Federal Foreclosure Relief
Programs
§ 18-3 The Emergency Mortgage Assistance
Program ("EMAP")
§ 18-3:1 Which Mortgages Fall Within the Scope
of EMAP?
§ 18-3:2 The Notice Requirement
§ 18-3:3 The Affi davit Requirement
§ 18-3:4 What Happens if the Homeowner
Applies for Assistance?
§ 18-3:5 Implementing EMAP
§ 18-3:6 Consequences of Borrower's Default
§ 18-3:7 Coordination With Other Aspects of the
Act
• A Practical Guide to Residential Real Estate Transactions
and Foreclosures in Connecticut, 2d ed., by Christian R.
Hoheb, Editor, Massachusetts Continuing Legal Education,
Inc., 2021 (also available on Westlaw).
Chapter 8. Preforeclosure Issues
§ 8.2.3. The Emergency Mortgage Assistance
Program
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 15
Table 1: Reinstatement
Reinstatement
• Conn. Gen. State § 49-10a. “Request for payoff statement or
reinstatement payment statement. (a) A mortgagee shall, upon written
request of the mortgagor or the mortgagor’s attorney or other authorized
agent provide a payoff statement or reinstatement payment statement in
writing to the person requesting the payoff statement or reinstatement
payment statement on or before the date specified in such request, provided
such request date is at least seven business days after the date of receipt of
the written request. If the request is made in connection with a default, the
mortgagor’s attorney may make such written request directly to the
mortgagee, provided such written request contains a representation that the
person requesting the payoff statement or reinstatement payment statement is
the mortgagor’s attorney and that the mortgagor has authorized the request.
(b) If the mortgagee fails to provide the payoff statement or reinstatement
payment statement on or before such request date, the mortgagee shall not be
entitled to the payment of any interest on the mortgage loan which is secured
by such mortgage which accrues after the expiration of such request date. If
the mortgagee provides the payoff statement or reinstatement payment
statement to the person requesting such statement after the expiration of such
request date, interest on the mortgage loan which accrues after the receipt of
the payoff statement or the reinstatement payment statement by the person
who has requested it shall again be payable. The burden of proof shall be on
the mortgagor with respect to the receipt by the mortgagee of the mortgagor’s
request for a payoff statement or a reinstatement payment statement of the
mortgage loan, and thereafter shall be on the mortgagee with respect to the
receipt of the payoff statement or reinstatement payment statement by the
mortgagor or the mortgagor’s attorney or other authorized agent.
(c) The mortgagee shall not impose any fee or charge for the first payoff
statement or reinstatement payment statement requested within a calendar
year, unless the mortgagor or the mortgagor’s attorney or other authorized
agent requests expedited delivery of such statement, agrees to pay a fee for
such expedited delivery and the statement is provided by the agreed upon
date.
(d) For the purposes of this section, ‘reinstatement payment statement’ means
a statement setting forth the total sum owed by a mortgagor to a mortgagee,
which, if paid, will cause the loan to be reinstated, provided any other
contractual conditions for reinstatement are satisfied.
(e) Nothing in this section shall create an obligation on the part of the
mortgagee to provide a reinstatement payment statement if a right to cure the
payment default and reinstate the mortgage loan does not exist under the
mortgage loan documents or at law.”
You can visit your local law library or search the most recent statutes and public acts on the
Connecticut General Assembly website to confirm that you are using the most up-to-date statutes.
Prejudgment Proceedings in Foreclosures - 16
Texts, Treatises & Encyclopedias
• 1 Connecticut Foreclosures: An Attorney’s Manual of Practice and Procedure,
13th ed., by Denis R. Caron & Geoffrey K. Milne, Connecticut Law Tribune,
2023.
Chapter 1. Preliminary Considerations
§ 1.6 Reinstatement
§ 1-6:1 Reinstatement Letters Not a Basis for a Defense to
Foreclosure
• Connecticut Lawyers’ Deskbook: A Reference Manual, 3d ed., LawFirst
Publishing, 2008.
Chapter 17. Real Property Foreclosure In Connecticut
Reinstatement, pp. 408-411
• 55 Am Jur 2d Mortgages, Thomson West, 2020 (Also available on Westlaw).
E. Reinstatement of Mortgage; Vacating Discharge or Release
§ 389. Constraints upon reinstatement
§ 390. Proceeding to set aside discharge of mortgage
§ 391. Applicable rules of equity
§ 392. Persons subject to action
§ 393. Laches and limitations
§ 394. Discharge without authority
§ 395. Mistake of fact or law
§ 396. Inadvertent, accidental, or unintentional release
§ 397. Ignorance of intervening rights
§ 398. Fraud
Each of our law libraries own the Connecticut treatises cited. You can contact us or visit our catalog to
determine which of our law libraries own the other treatises cited or to search for more treatises.
References to online databases refer to in-library use of these databases. Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 17
Table 2: Deed in Lieu of Foreclosure: Texts & Treatises
Deed in Lieu of Foreclosure
SEE ALSO:
• Foreclosure of Mortgages in Connecticut
section 4: Judgment of Loss Mitigation
TREATISES:
• Connecticut Foreclosures: An Attorney’s Manual of Practice and
Procedure, 13th ed., by Denis R. Caron & Geoffrey K. Milne,
Connecticut Law Tribune, 2023
Chapter 8: Foreclosure by Market Sale and Judgment of
Loss Mitigation
§ 8-5 Types of Relief Afforded
§ 8-5:2 Deed in Lieu of Foreclosure
§ 8-5:4 General Statutes § 49-30t–Modifications and
Deeds in Lieu
Chapter 18: State and Federal Foreclosure Relief Programs
§ 18-5.7 Mediation Can Consider Short Sale and Deed-in-
Lieu Options
§ 18-6:2 Conveyance Tax Exemption for Deed in Lieu of
Foreclosure
Chapter 34: Deeds in Lieu of Foreclosure: Lender Concerns
and Title Issues
§ 34-1 Introduction
§ 34-2 Lenders’ Concerns
§ 34-2:1 Consideration
§ 34-2:2 Effect of Unaccepted Tender of Deed
§ 34-2:3 “Clogging” the Equity of Redemption
§ 34-2:4 Merger of Title
§ 34-2.5 Deed Absolute
§ 34-2:6 Bankruptcy
§ 34-2:6.1 Preference
§ 34-2:6.2 Fraudulent Transfers
§ 34-2:7 Effect of the Uniform Fraudulent Transfer Act
§ 34-2.8 Conveyance Tax
§ 34-2:8.1 New Exemption for Principal Residence
§ 34-2:8.2 Calculating the Tax on Non-Exempt
Deeds in Lieu of Foreclosure
§ 34-3 Title Issues
§ 34-3:1 Lender Title Issues
§ 34-3:1.1 Consideration
§ 34-3:1.2 “Clogging”
§ 34-3:1.3 Merger
§ 34-3:1.4 Deed Absolute
§ 34-3:2 Insuring Good-Faith Purchasers
§ 34-3:2.1 Common Law Issues
§ 34-3:2.2 Bankruptcy Issues
§ 34-4. Conclusion
• A Practical Guide to Residential Real Estate Transactions and
Foreclosures in Connecticut, 2d ed., by Christian R. Hoheb,
Editor, Massachusetts Continuing Legal Education, Inc., 2021
(also available on Westlaw).
Each of our law
libraries own the
Connecticut
treatises cited. You
can contact us or
visit our catalog to
determine which of
our law libraries
own the other
treatises cited or
to search for more
treatises.
References to
online databases
refer to in-library
use of these
databases. Remote
access is not
available.
Prejudgment Proceedings in Foreclosures - 18
Chapter 10. Title Issues in Foreclosure Practice
§ 10.9. Deeds in Lieu of Foreclosure
• Connecticut Standards of Title, Connecticut Bar Association,
1999, rev. to November 11, 2013.
Chapter XVIII. Release of Mortgages, Assignment of Rents,
Lis Pendens and Financing Statements
Standard 8.1. Effect of Deed In Lieu of Foreclosure from
Mortgagor to Mortgagee – The Doctrine of Merger
• 4 Powell on Real Property, by Richard R. Powell, Matthew
Bender, 1989, with 2022 supplement (Also available on Lexis)
Chapter 37. Mortgages and Mortgage Foreclosures
§ 37.44. Deed in Lieu of Foreclosure
[1]—Introduction
[2]—Factors Considered in Determining Whether an
Absolute Conveyance is to be a Mortgage
[3]—Effect of a Decree that an Absolute Conveyance is
a Mortgage
[4]—Possible Disadvantages of a Deed in Lieu of
Foreclosure
[5]—Procedures
§ 37.45. Foreclosure—Deed in lieu of Foreclosure—Federal
Income Tax Effects
[1]—In general
[2]—The Mortgagee Creditor
[a] Foreclosure and Purchase by Independent Third
Party
[b] Foreclosure and Purchase by Mortgagee-Creditor
[c] Deed in Lieu of Foreclosure
[3]—The Mortgagor Debtor
[a] Foreclosure and Purchase by Creditor or
Independent Third Party
[b] Deed in Lieu of Foreclosure
• The Foreclosure Survival Guide, 8th ed., Amy Loftsgordon,
Nolo, 2021.
Chapter 8. If You Decide to Leave Your House
Offer the Lender a Deed in Lieu of Foreclosure…p. 193
Will the Lender Accept a Deed in Lieu?...p. 193
Fannie Mae and Freddie Mac Deeds in Lieu of
Foreclosure…p. 194
LAW
REVIEWS:
• Dennis R. Caron, Connecticut Deeds in Lieu of Foreclosure:
Lender Concerns and Title Issues, 64 Connecticut Bar Journal
433 (1990)
Public access to law review databases is available on-site at each of our law libraries.
Each of our law
libraries own the
Connecticut
treatises cited. You
can contact us or
visit our catalog to
determine which of
our law libraries
own the other
treatises cited or
to search for more
treatises.
References to
online databases
refer to in-library
use of these
databases. Remote
access is not
available.
Prejudgment Proceedings in Foreclosures - 19
Table 3: Short Sales - Texts & Treatises
Short Sales
SEE ALSO: Foreclosure of Mortgages in Connecticut
section 4: Judgment of Loss Mitigation
• Short Sales, Michelle Kirby, Connecticut General Assembly, Office of
Legislative Research, 2013-R-0400 (November 25, 2013).
• State Requirements For Debt Negotiators in Short Sale Negotiations,
Michelle Kirby, Connecticut General Assembly, Office of Legislative
Research, 2013-R-0083 (February 5, 2013).
• Connecticut Foreclosures: An Attorney’s Manual of Practice and Procedure,
13th ed., Denis R. Caron & Geoffrey K. Milne, Connecticut Law Tribune,
2023.
Chapter 18: State and Federal Foreclosure Relief Programs
§ 18-5:7 Mediation Can Consider Short Sale and Deed-in-Lieu as
Options
§ 18-6:1 Conveyance Tax Exemption for Short Sale
Chapter 8. Foreclosure by Market Sale and Judgment of Loss Mitigation
§ 8-5. Types of Relief Afforded
§ 8-5:3 Short Sale
§ 8-5:5 General Statutes § 49-30u–Short Sale
• Short Sales: Frequently Asked Questions, Connecticut Fair Housing Center
• Las Ventas Cortas: Preguntas Comunes, (Short Sales: Frequently Asked
Questions in Spanish), Connecticut Fair Housing Center
• The Foreclosure Survival Guide, 8th ed., Amy Loftsgordon, Nolo, 2021.
Chapter 8. If You Decide to Leave Your House
Sell the House in a Short Sale…p. 184
Advantages of a Short Sale…p. 185
Disadvantages of a Short Sale…p. 185
Will You Be Able to Negotiate a Short Sale?...p.187
Each of our law libraries own the Connecticut treatises cited. You can contact us or visit our catalog to
determine which of our law libraries own the other treatises cited or to search for more treatises.
References to online databases refer to in-library use of these databases. Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 20
Section 3: Application for Protection from
Foreclosure
A Guide to Resources in the Law Library
SCOPE:
Bibliographic resources relating to the Connecticut’s Protection
from Mortgage Foreclosure Act.
DEFINITIONS:
• Conn. Gen. Stat. (2023)
§ 49-31d. Definitions. For the purposes of sections 49-
31d to 49-31i, inclusive:
(1) “Unemployed person” means a person who is
unemployed for purposes of chapter 567.
(2) “Homeowner” means a person who has an ownership
interest in residential real property secured by a
mortgage which is the subject of a foreclosure action,
and who has owned and occupied such property as his
principal residence for a continuous period of not less
than two years immediately preceding the
commencement of such foreclosure action.
(3) “Restructured mortgage debt” means the adjustment
by a court of a mortgage debt to give protection from a
foreclosure action.
(4) “Protection from foreclosure” means a court-ordered
restructuring of a mortgage debt designed to eliminate
an arrearage in payments on such debt and to provide a
period not to exceed six months during which foreclosure
is stayed.
(5) “Lender” means any person who makes or holds
mortgage loans in the ordinary course of business and
who is the holder of any first mortgage on residential real
estate which is the subject of a foreclosure action.
(6) “Underemployed person” means a person whose
earned income during the twelve-month period
immediately preceding the commencement of the
foreclosure action is (A) less than fifty thousand dollars
and (B) less than seventy-five per cent of his average
annual earned income during the two years immediately
preceding such twelve-month period.
STATUTES:
• Conn. Gen. Stat. (2023)
Title 49. Mortgages and Liens
§ 49-31d. Definitions.
§ 49-31e. Application for protection from foreclosure.
§ 49-31f. Application for protection from foreclosure
action. Qualifications. Court determination of
eligibility. Stay of foreclosure action.
You can visit your
local law library or
search the most
recent statutes and
public acts on the
Connecticut General
Assembly website.
Prejudgment Proceedings in Foreclosures - 21
§ 49-31g. Restructuring of mortgage debt by court.
§ 49-31h. Partial payment by homeowner mandated by
court as condition for granting restructuring
order.
§ 49-31i. Determination of restructured mortgage debt.
Limitations on amount of mortgage debt
following restructuring. Computation of new
mortgage debt.
§ 49-31j. Regulations.
OLR RESEARCH
REPORTS:
• Mortgage Foreclosure-Unemployed Homeowners, George
Coppolo, Connecticut General Assembly, Office of
Legislative Research Report, 2002-R-0363 (March 22,
2002).
• Foreclosure Notification Requirements Applicable to
Connecticut Landlords, Connecticut General Assembly,
Office of Legislative Research Report, 2020-R-0219
(September 2, 2020)
REGULATIONS:
• Regulations of Connecticut State Agencies §§ 49-31j-1 to
49-31j-9
§ 49-31j-1. Definitions
§ 49-31j-2. Notice
§§ 49-31j-3 to 49-31j-4. Repealed, February 9, 2009
§ 49-31j-5. Composite interest rate
§§ 49-31j-6 to 49-31j-9. Repealed, February 9, 2009
FORMS:
• Connecticut Foreclosures: An Attorney’s Manual of Practice
and Procedure, 7th ed., by Denis R. Caron & Geoffrey K.
Milne, Connecticut Law Tribune, 2017 (CD only)
Unofficial Forms
Form 6-028. Application for Protection from
Foreclosure
RECORDS &
BRIEFS:
• Connecticut Supreme Court Records and Briefs, May/June
1998. Shawmut Mortgage Company v. Wheat, 245 Conn.
744, 717 A2d 664 (1998).
Application for protection from foreclosure, Figure 1
Objection to application for protection from foreclosure
action, Figure 2
CASES:
• For summaries of recent CT Supreme and Appellate Court
foreclosure cases, see our foreclosure section on our
Newslog at:
http://jud.ct.gov/LawLib/LawLibNews/Default.aspx?CatID=14
Office of Legislative
Research reports
summarize and
analyze the law in
effect on the date of
each report’s
publication. Current
law may be different
from what is
discussed in the
reports.
You can visit your
local law library or
browse the
Connecticut
eRegulations System
on the Secretary of
the State website to
check if a regulation
has been updated.
Prejudgment Proceedings in Foreclosures - 22
• Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322,
323-324 & 327, 933 A.2d 1143, 1144 & 1146 (2007). “…
the defendant claims that, in denying the application, the
trial court improperly relied on § 49-31j-4 of the
Regulations of Connecticut State Agencies because that
section: (1) exceeds the statutory authority conferred on
the banking commissioner under General Statutes (Rev. to
2005) § 49-31j; and (2) violates the separation of powers
doctrine under the state constitution because it purports to
limit the court's broad discretion over foreclosure
proceedings….Because the trial court never provided any
reason for its denial of the defendant's application, the
record is inadequate to review the claim. We therefore do
not know whether the trial court denied the application
because of the regulation or for another reason, such as the
defendant’s ineligibility for relief. ‘Under these
circumstances, the plaintiff should have filed a motion for
articulation to preserve an adequate record for review.’ ”
• Savings Bank Life Ins. Co. v. Linthicum, 43 Conn. App. 467,
683 A.2d 737, 739 (1996). “We agree with the plaintiff that
the denial of an application for protection from foreclosure
under General Statutes § 49-31f is not immediately
appealable.” (p. 468)
“The purpose of an application for protection from
foreclosure under § 49-31f is to grant the defendant an
opportunity for the restructuring of the mortgage debt.
General Statutes § 49-31g. If the application is approved,
the foreclosure action is stayed for the restructuring period,
pursuant to § 49-31f (f).” (p. 469)
• Citicorp Mortgage, Inc. v. Conant, 54 Conn. App. 529, 534,
736 A.2d 928, 931 (1999). "We agree, in this case, that the
trial court did not abuse its discretion when it denied the
defendants’ application. Its findings that the defendants'
visions of their future earnings were speculative, that they
had no equity in the mortgaged property, that their
financial situation would make it unlikely that they would be
able to make timely payments on the restructured
mortgage and that the plaintiff would be prejudiced by a
restructuring of the mortgage were based on the evidence
before it. We conclude, therefore, that the trial court
properly denied the defendants' application for protection
from foreclosure."
• Shawmut Mortgage Co. v. Wheat, 245 Conn. 744, 754-755,
717 A.2d 664, 670 (1998). “…we conclude that the
defendant, as an individual who never previously has been
employed, is not an ‘unemployed person’ within the
meaning of §49-31d (1) and, therefore, may not qualify for
protection from mortgage foreclosure under the mortgage
act.”
• See also Table 4: Unreported Connecticut decisions
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 23
TEXTS &
TREATISES:
• 2 Connecticut Foreclosures: An Attorney’s Manual of
Practice and Procedure, 13th ed., by Denis R. Caron &
Geoffrey K. Milne, Connecticut Law Tribune, 2023
Chapter 18: State and Federal Foreclosure Relief
Programs
§ 18-1 Protection From Foreclosure Act
§ 18-1.1 Legislative History
§ 18-1:2 What Mortgages are Subject to the Act?
§ 18-1:3 Who Qualifies to Invoke Protection Under
the Act?
§ 18-1:4 How is the Act’s Protection Invoked?
§ 18-1:5 What Factors Does the Court Consider?
§ 18-1:6 When is the Debt Restructured?
§ 18-1:7 How is the Debt Restructured?
§ 18-1:7.1 The Role of Projected Interest
§ 18-1:7.2 The Role of Real Property Taxes
§ 18-1:7.3 The Role of Court Costs, Legal Fees
and Other Sums
§ 18-1:8 What Takes Place During the Restructuring
Period?
§ 18-1:9 How is Interest Handled?
§ 18-1:10 How is the Prevailing Rate Computed?
§ 18-1:11 Notice Requirement Eliminated
§ 18-1:12 Time Limitations for Invoking Protection
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 24
Figure 1: Application for Protection from Foreclosure
RET. JANUARY 12, 1993 : SUPERIOR COURT
SHAMUT MORTGAGE COMPANY : J.D. OF STAMFORD/
VS. : NORWALK
MARY C. WHEAT : AT STAMFORD
: JANUARY 25, 1993
APPLICATION FOR PROTECTION FROM FORECLOSURE
The Defendant, Mary C. Wheat, being the owner of the premises which
are the subject of the above-referenced foreclosure action, hereby make
application to this Honorable Court for protection! From foreclosure, pursuant to
the provisions of C.G.S. sections 49-31d through 49-31j, and represent as
follows:
a) that Mary C. Wheat is a homeowner as defined in section 49-31d, having
owned and occupied the subject property as her principal residence for a continuous
period of not less than two years immediately preceding the commencement of this
action;
b) that the mortgage sought to be foreclosed is a first mortgage upon the
subject property and the Plaintiff, holder of said mortgage, is a lender as defined in
the act;
c) that neither Mary C. Wheat, nor Clayton E. Wheat, her husband who also
signed the Note, have had a foreclosure action commenced against their in the past
seven years; and
d) that both Mary C. Wheat, and Clayton E. wheat are unemployed/under
employed as defined in the act . . . .
ORAL ARG. REQ.
TESTIMONY REQ.
Prejudgment Proceedings in Foreclosures - 25
WHEREFORE, the applicant moves as follows:
I) That the Court determine her eligibility for protection from foreclosure
II) That the Court Order the Restructuring of the mortgage debt and establish
a restructuring period for the elimination of the arrearage on said debt; and
III) That further prosecution of the foreclosure be stayed during the
restructuring period.
THE DEFENDANT, Mary C. Wheat
By___________________________
Name
Address
Juris No.
Telephone No.
ORDER
The forg oing Application, having been heard, is HEREBY ORDERED:
GRANTED/DENIED
BY THE COURT,
____________________________________
Judge/Clerk
Certification
This is to certify that a true copy of the foregoing Application has been mailed this
25th day of
January 1993 to all parties, and counsel of record.
________________________________________________
Commissioner of the Superior Court
Prejudgment Proceedings in Foreclosures - 26
Figure 2: Objection to Application for Protection from Foreclosure
NO. CV-93 0128882 S : SUPERIOR COURT
SHAWMUT MORTGAGE COMPANY D/R/A
CONNECTICUT NATIONAL MORTGAGE COMPANY : J.D. OF STAMFORD/
VS. : NORWALK
MARY C. WHEAT A/K/A, ET AL. : AT STAMFORD
: APRIL 28, 1993
OBJECTION TO APPLICATION FOR PROTECTION
FROM FORECLOSURE ACTION
The plaintiff in the above-entitled action hereby objects to the defendant,
MARY C. WHEAT's Application for Protection from Foreclosure under Connecticut
General Statutes 49-31d through 49-31j et seq. and in support thereof states the
following:
1. There is no likelihood that the mortgagors will be able to make timely
payments on the restructured mortgage commencing at the end of the
restructuring period.
2. The restructured payments would be in the approximate amount of
$7,084.97 per month, if restructured as of March 1, 1993, and the
mortgagors' monthly income is only $9,520.33.
3. The restructured payments do not take into account the living expenses of
the mortgagors, including but not limited to $300.00 per week for nursing
care.
ORAL ARGUMENT IS REQUESTED
TESTIMONY IS REQUIRED
Prejudgment Proceedings in Foreclosures - 27
WHEREFORE, plaintiff moves that its Objection to Application for Protection be
sustained and the Application denied.
PLAINTIFF
By
____________________________
Name
Address
Phone number
Juris number
Its Attorneys
ORDER
The fo re g oin g Obj e ct ion having been presented to this Court, it is hereby
Ordered:
SUSTAINED/OVERRULED.
BY THE COURT
_____________________________
Judge/Clerk
Prejudgment Proceedings in Foreclosures - 28
Table 4: Unreported Connecticut Cases - Application for Protection
from Foreclosure
Unreported Connecticut Decisions
Application for Protection from Foreclosure
In general
• “The burden of showing eligibility for relief under the Act remains
on the defendants, and the legislature has built into the Act
eligibility standards to ensure that, if restructuring is allowed, the
lender will ultimately receive the substantial equivalent of full
payment under the existing note.” Virtual Bank v. Cassidy,
Superior Court, Judicial District of Stamford-Norwalk at
Stamford, No. CV08-5007288S (Apr. 15, 2009) (47 Conn. L.
Rptr. 560) (2009 WL 1312627).
• “The court having reviewed the evidence and the statutory
criteria found in General Statutes 49-31d through 49-31i finds
the following:
1. The mortgage being foreclosed is a residential first mortgage
which has been the principal residence of the defendants for
more than two years.
2. The homeowners have not had a prior foreclosure action
commenced against them in the past seven years.
3. The defendants have not received emergency mortgage
assistance.
4. The court finds the defendants to be underemployed and/or
unemployed persons as defined by the statutes.
5. The court finds the value of the property to be $240,000.00.
6. The court finds the new principal balance as of June 1, 2004 to
be $172,287.07, which is computed by adding 28 days of per
diem interest at a rate of $45.43 per day which equals
$1,262.04, to the balance of $171,028.03 provided by the
plaintiff. The court finds the monthly payment at a variable
interest rate of 11.95% for a period of 318 months to be
$1,779.31. The first payment is due on June 1, 2004 and each
month thereafter in arrears. The defendants shall in addition
continue to pay any escrows previously collected under the terms
of the mortgage.
7. The court finds the debt to be less than 90% of the property's
value.
8. All other conditions of the mortgage and promissory note,
including any escrows, shall remain in effect.
9. The court finds the defendants have sufficient income to make
the new payments.
The court notes there are subsequent encumbrancers whose
debt exclusive of accrued interest is in excess of $55,000.00.
None of these encumbrancers have objected to this application
Prejudgment Proceedings in Foreclosures - 29
and in the court's opinion would benefit from the reinstatement
of this mortgage.
The defendants' application for relief is granted, further action
on this mortgage is stayed for six months in accordance with
General Statute 49-31g, and the mortgage is ordered
reinstated.” Long Beach Mortgage Company v. Belmonte,
Superior Court, Judicial District of Litchfield at Litchfield, No. CV
04-0092102 (May 4, 2004) (37 Conn. L. Rptr. 14) (2004 WL
1098812).
Homeowner
• “Thus, the court concludes that the term ‘homeowner,’ as defined
in § 49-31d(2), is limited to one who has legal title, and, as
Neola Wood is the sole record owner of the property in this
foreclosure action, James E. Wood, a mortgagor, does not have
the requisite ownership interest to qualify as a homeowner under
the foreclosure moratorium act.” Home Loan & Investment Bank
v. Wood, Superior Court, Judicial District of Fairfield at
Bridgeport, No. CV 03-0399404 S (Jul. 8, 2003) (35 Conn. L.
Rptr. 108) (2003 WL 21718382).
Untimely filing
• “In this action the return date was September 30, 2003. General
Statute 49-31e(b) requires the homeowner to file for protection
within 25 days of the return date which would have been October
26, 2003. The application here was not filed until February 20,
2004 long past the statutory period.
Accordingly the court finds due to the untimely filing of the
application for protection the Defendants' application is denied.”
Country Wide Home Loans, Inc. v. Barth, Superior Court, Judicial
District of Litchfield at Litchfield, No. CV03-0091545 (Mar. 8,
2004) (2004 WL 574797).
• “The statute at issue simply does not provide for any extensions
of the time period stated therein, and as it is in derogation of the
common law, such statutes are to be strictly construed. As
another judge noted in denying a motion for extension of time to
file such an application in a different foreclosure case, ‘Statutory
time period requirements set out in Connecticut General Statutes
§ 49-31e(b) [are] mandatory. When a statute creates a remedy
which does not exist at common law, all the statutory
requirements must be complied with for the statutory remedy to
be granted.’ Wachovia Bank v. Braunstein, No. 4003225 (J.D. at
New London, Devine, J.), citing Fleet Bank Association, As
Assignee of FDJC, As Receiver of the Connecticut Bank and Trust
Company, N.A. v. Shirley Holmes et al., No. CV-91-0399662S
(J.D. at Hartford, Satter, J.) [5 Conn. L. Rptr. 532].” Wells Fargo
Bank, N.A., as Trustee v. John H. Harrington, Superior Court,
Judicial District of Fairfield at Bridgeport, No. CV 07-5010723 S
(March 31, 2009) (47 Conn. L. Rptr. 473) (2009 WL 1140876).
Restructured
debt
• “The court finds that the defendant is ineligible for protection
from foreclosure under the provisions of Conn. Gen. Stat. §§ 49-
31i(b). Under that statute, assuming the applicant is otherwise
Prejudgment Proceedings in Foreclosures - 30
eligible for the protection from foreclosure afforded by 49-31f,
the court cannot grant the application if the amount of the
restructured debt would be ninety per cent or less of the fair
market value of the property. At present, through June 30, 2003,
based on the unopposed submissions of the plaintiff, the debt
stands at over $87,000, and the fair market value of the property
at 255 Oak Street, Waterbury, is $80,000.” National City
Mortgage Co. v. Minnis, Superior Court, Judicial District of
Waterbury at Waterbury, No. CV 03-0176969 (July 16, 2003)
(2003 WL 21771764).
• “According to the applicant's own financial affidavit…the
outstanding mortgage debt is $262,799.98 and the fair market
value of the premises is $261,000, leaving the applicant with
negative equity. Under § 49-31i(b), the amount of the debt at
the end of the restructuring period, which cannot exceed six
months by virtue of § 49-31g(b), must be less than ninety
percent of the fair market value, viz. $261,000. Ninety percent of
$261,000 equals $234,900. Subtracting $234,900 from the
current mortgage debt of $262,799.98 yields a difference of
almost $27,900.
This $27,900 difference would have to be paid down within the
maximum six-month restructuring period, i.e. at a rate of around
$4,650 per month in order to decrease the mortgage debt to
ninety percent of the fair market value. Under § 49-31h, during
the restructuring period the applicant's payments cannot exceed
twenty-five percent of her net income which she estimated will be
$928.89 per week, leaving a maximum monthly payment of only
around $930 when $4,650 is needed. Clearly, it is mathematically
impossible for the applicant to satisfy all the necessary conditions
attendant to the foreclosure protection statutory restructuring
scheme. For these reasons, the application is denied.” Rockville
Bank v. Messino, Superior Court, Judicial District of Tolland at
Rockville, No. TTD-CV-085002921-S (July 30, 2008) (2008 WL
3916041).
Unemployed
person
• “Likewise, the foreclosure moratorium act ‘was designed as a
temporary mortgage moratorium for unemployed workers;
(emphasis in original; internal quotation marks omitted) id., 752;
and was intended “only to help persons who are experiencing
temporary economic difficulties." (Emphasis in original.) Id., 753.
In fact, “the legislature had in mind only persons who are
experiencing temporary employment-related losses or decreases
in earned income as beneficiaries when it enacted the
[foreclosure moratorium] act.’ (Emphasis added.) Id.
In the present case, according to the defendants…Wood ‘has
not worked in many years, is of an age where she can collect
Social Security Benefits, and . . . is too ill currently to work . . .’
(Defendants' Supplemental Memorandum, p. 4.) Like the plaintiff
in Shawmut Mortgage Co. v. Wheat supra, 245 Conn. 753…Wood
‘presently is not experiencing a temporary employment-related
Prejudgment Proceedings in Foreclosures - 31
decrease in earned income,’ and she does not qualify, therefore,
as an ‘unemployed person’ within the meaning of the foreclosure
moratorium act.” Home Loan & Investment Bank v. Wood,
Superior Court, Judicial District of Fairfield at Bridgeport, No. CV
03-0399404-S (Jul. 8, 2003) (35 Conn. L. Rptr. 108) (2003 WL
21718382).
Filing
Defenses
• “The plaintiff's first argument is that all of the defendant's special
defenses should be stricken because the defendant has waived
her right to file special defenses by filing an application for
protection from foreclosure action pursuant to General Statutes
§§ 49-31d et seq. In support of its argument, the defendant cites
to General Statutes § 49-31f(g), which provides that ‘[n]o
homeowner who files a defense to any action for foreclosure shall
be eligible to make application for protection from such
foreclosure pursuant to the provisions of this section.’
A literal reading of the language of General Statutes § 49-31f(g)
demonstrates simply that a homeowner who files a special
defense in a foreclosure action is prevented from thereafter filing
an application for protection under the section. The plaintiff's
argument, however, seeks to obtain a converse result. Thus, the
plaintiff has taken the position that once an application is filed
under that section, the homeowner may not subsequently file a
special defense in a foreclosure action. This converse reading of
the statute is incorrect. The filing of an application for protection
under General Statutes §§ 49-31d et seq. does not vitiate a
homeowner's right to file special defenses in a foreclosure action
after an application for protection has been filed. See Bancboston
Mortgage Corp. v. McCormack, Superior Court, judicial district of
Hartford-New Britain at Hartford, Docket No. 503184 (January
14, 1992, Satter, S.T.R., 8 CSCR 257) … The defendant's first
argument, therefore, is without merit.” Berkeley Fed. Bk. & Trust
v. Phillips, Superior Court, Judicial District of Fairfield at
Bridgeport, No. CV-94-0317957-S (Jan. 24, 1996) (1996 WL
57060).
Filing
Requirements
• “Also, he has failed to supply the court with a financial affidavit
as required by General Statutes § 49-31f(a). Without an affidavit,
the court is unable to determine his eligibility as unemployed or
underemployed person, General Statutes § 49-31f(a), nor can it
make the other financial evaluations required by the statutes,
such as whether he is likely to make timely payments on a
restructured mortgage commencing at the end of the
restructuring period, General Statutes § 49-31f(a), or whether he
is capable of eliminating the arrearage, General Statutes § 49-
31g, or what partial payments can be made during the
restructuring period. General Statutes § 49-31h.” Deutsche Bank
National Trust Co. v. Granger et al., Judicial District of New
Britain at New Britain, No. HHB-CV-08-5007914-S (May 19,
2009) (2009 WL 1706906).
Prejudgment Proceedings in Foreclosures - 32
• “Although the affidavit of the…defendants is insufficient, they
have filed a timely petition for relief under the Act, and there is
Superior Court precedent for giving them another chance to
provide more detailed information in affidavit form so as to
comply with the ‘financial affidavit’ requirement of the Act. In
Bednarz, supra, the court denied the application for relief
‘without prejudice,’ giving the applicants fifteen days ‘to refile
with proper financial background.’ Also, in US Bank National Ass'n
v. Bozzi, Docket No. CV07-6000652S, Superior Court, Judicial
District of Stamford-Norwalk at Stamford, (February 6, 2008,
Nadeau, J.) the court denied an application for protection under
the Act but without prejudice to a new filing by a date certain
nineteen days after the court's decision, saying, ‘That it is within
the court's discretion to deny the defendant's motion without
prejudice is underscored by the notion that a foreclosure action is
a equitable proceeding.’ (Citations [all from this judicial district]
omitted.) Id. Fn.2.
The court is inclined in the exercise of equitable discretion to
follow the above-cited precedent and allow the…defendants
another opportunity to meet the ‘financial affidavit’ requirement
of the Act.” Virtual Bank v. Cassidy, Superior Court, Judicial
District of Stamford-Norwalk at Stamford, No. CV08-5007288S
(Apr. 15, 2009) (47 Conn. L. Rptr. 560) (2009 WL 1312627).
Prejudgment Proceedings in Foreclosures - 33
Section 4: Defenses to Foreclosure
A Guide to Resources in the Law Library
SCOPE:
• Bibliographic resources relating to defenses to a foreclosure
action including equitable defenses.
DEFINITIONS:
• "At common law, the only defenses to an action of this
character would have been payment, discharge, release or
satisfaction; White v. Watkins, 23 Ill. 480; or, if there had
never been a valid lien.” Petterson v. Weinstock, 106 Conn.
436, 441, 138 A. 433, 435 (1927).
• “So, if the mortgagor is prevented by accident, mistake or
fraud, from fulfilling a condition of the mortgage, foreclosure
cannot be had; 1 Pomeroy’s Equity Jurisprudence (4
th
Ed.) §
162; Wilcox v. Allen, 36 Mich. 160; Bell v. Romaine, 30 N.J.
Eq. 24; Bennett v. Stevenson, 53 N.Y. 508; and this equitable
consideration has long been recognized in this State. Doty v.
Whittlesey, 1 Root, 310; Crane v. Hanks, 1 Root, 468;
Bridgeport Savings Bank v. Eldredge, 28 Conn. 556; Bostwick
v. Stiles, 35 Conn. 195, 198.” Petterson v. Weinstock, 106
Conn. 436, 442, 138 A. 433 (1927).
• “. . . our courts have permitted several equitable defenses to a
foreclosure action . . . . Other equitable defenses that our
Supreme Court has recognized in foreclosure actions include
unconscionability; Hamm v. Taylor, supra, 180 Conn. 494-96;
abandonment of security; Glotzer v. Keyes, 125 Conn. 227,
233, 5 A.2d 1 (1939); and usury. Atlas Realty Corp. v. House,
120 Conn. 661, 669-70, 83 A. 9 (1936), overruled in part on
other grounds, Ferrigno v. Cromwell Development Associates,
244 Conn. 189, 202, 708 A.2d 1371 (1998).” Southbridge
Assoc. v. Garofalo, 53 Conn. App. 11, 15-16, 728 A.2d 1114,
1117 (1999).
• “...‘Historically, the defenses available in a foreclosure action
have been limited to payment, discharge, release, satisfaction
or invalidity of a lien.’ Connecticut National Bank v. Grella
Family Investment Partnership, Superior Court, judicial district
of Fairfield at Bridgeport, Docket No. 292814 (August 19,
1993, Leheny, J.), citing Petterson v. Weinstock, 106 Conn.
436, 441, 138 A. 433 (1927); Hans L. Levi, Inc. v. Kovacs,
Superior Court, judicial district of Litchfield, Docket No. 56101
(November 4, 1991, Pickett, J., 5 CTLR 260). In recognition
that a foreclosure action is an equitable proceeding, however,
several courts have recently allowed allegations of mistake,
accident, fraud, equitable estoppel, CUTPA, laches, breach of
the implied covenant of good faith and fair dealing, and
refusal to agree to a favorable sale to a third party as
defenses to a foreclosure action. See Great Western Bank v.
McNulty, Superior Court, judicial district of Stamford-Norwalk
at Stamford, Docket No. 139799 (March 16, 1995, D'Andrea,
Prejudgment Proceedings in Foreclosures - 34
J.); National Mortgage Co. v. McMahon, Superior Court,
judicial district of New Haven, Docket No. 349246 (February
18, 1994, Celotto, J., 9 CSCR 300). ‘Foreclosure is an
equitable action, permitting the trial court to examine all
matters to ensure that complete justice may be done. . . .
Thus, the determination of what equity requires in a particular
case . . . is a matter for the discretion of the trial court.’
(Citations omitted; internal quotation marks omitted.) Federal
Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 773, 657
A.2d 668 (1995).” Farmers & Mechanics Bank v. Santangelo,
Superior Court, Judicial District of Middlesex at Middletown,
No. 67481, (Dec, 8, 1995) (1995 Conn. Super. LEXIS 3442)
(1995 WL 779034)
• “In exercising its equitable discretion, however, the courts
must comply with mandatory statutory provisions that limit
the remedies available to a foreclosing mortgagee.” New
Milford Savings Bank v. Jajer, 244 Conn. 251, 256-257, 708
A.2d 1378, 1382 (1998).
STATUTES:
• Conn. Gen. Stat. (2023)
Chapter 668. Nondepository Financial Institutions
§ 36a-486. Licenses required. Exemptions. Prohibited
advertisements. Violations. Temporary authority to act
as mortgage loan originator.
§ 36a-488. Mortgage lender, mortgage correspondent
lender, mortgage broker, mortgage loan originator,
loan processor, underwriter and lead generator
licenses. Requirements.
Chapter 669. Regulated activities
§ 36a-746 Short title: Connecticut Abusive Home Loan
Lending Practices Act.
Uniform Commercial Code, Article 3, Negotiable Instruments
§ 42a-3-303. Value and consideration.
Chapter 821. Land Titles
§ 47-5. Requirements re conveyances of land. Conveyance
pursuant to power of attorney.
§ 47-17. Records of documents as notice of equitable
rights.
Chapter 821b. Validation of Conveyance Defects
§ 47-36aa. Validations re conveyancing defects of
instrument recorded after January 1, 1997,
insubstantial defects, defects re power of attorney,
defects re conveyance by fiduciary.
Chapter 846. Mortgages
§ 49-4a. Open-end mortgages, United States or its
instrumentalities and certain banks authorized to hold.
Chapter 847. Liens
§ 49-36. Liens limited; apportionment; payments to
original contractor.
Chapter 906. Postjudgment Procedures
§ 52-380i. Foreclosure of lien when plaintiff holds
mortgage.
You can visit your
local law library or
search the most
recent statutes and
public acts on the
Connecticut General
Assembly website to
confirm that you are
using the most up-
to-date statutes.
Prejudgment Proceedings in Foreclosures - 35
PAMPHLETS:
• Representing Yourself in Foreclosure: A Guide for Connecticut
Homeowners, Connecticut Fair Housing Center, 11th ed., pp.
23-24
FORMS:
• 3A Connecticut Practice Series, Civil Practice Forms, 4
th
ed., by
Joel M. Kaye and Wayne D. Effron, Thomson West, 2008, with
2022 supplement (Also available on Westlaw).
Form 705.7. Special defense and counterclaim to
foreclosure: mistake, fraud or accident in failure to make
payment. Figure 3.
CASES:
Supreme and Appellate Court:
• For summaries of recent CT Supreme and Appellate Court
foreclosure cases, see our foreclosure section on our Newslog
at: http://jud.ct.gov/LawLib/LawLibNews/Default.aspx?CatID=14
• Rockstone Capital, LLC v. Caldwell, 206 Conn. App. 801, 261
A.3d 1171 (2021). “In the present case, the trial court found
that the defendant lacked business acumen; the closing was
rushed because the defendant was on her lunch break; the
defendant was unrepresented at the closing; neither Caldwell
nor Caldwell's attorneys explained the settlement agreement
or the mortgage to the defendant; and the documents for the
defendant to sign were folded back so that only the signature
page was exposed. We conclude that these findings are
insufficient to render the settlement agreement procedurally
unconscionable.”
• Cenatiempo v. Bank of America, NA, 333 Conn. 769, 777, 219
A. 3d 767 (2019). “The essence of the plaintiffs' argument on
appeal is that the trial court improperly struck their complaint
‘largely because [the trial court] reached the wrong
conclusions with respect to the public policy implications of
allowing them to proceed.’ It is the plaintiffs' position that
HAMP, RESPA, the 2011 federal consent order, the national
mortgage settlement, and this state's foreclosure mediation
statutes form a comprehensive policy framework that supports
the imposition of liability under CUTPA and under a negligence
claim. More specifically, the plaintiffs contend that the
foregoing programs and policies prescribe the defendant's
obligations, including the speed and accuracy with which
mortgage servicers must evaluate customer loan workout
applications. The defendant's conduct in contravention of
those obligations, the plaintiffs contend, was immoral,
unethical, oppressive, and unscrupulous, and, as such,
violated CUTPA. Additionally, the plaintiffs assert that the
totality of the circumstances weigh in favor of allowing them
to proceed on their negligence claim. Finally, the plaintiffs
assert that the trial court did not consider the negligence per
se aspects of their negligence claim and contend that the
negligence count also should not have been stricken on the
basis of that theory.
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 36
We reverse the judgment of the trial court insofar as it granted
the defendant's motion to strike the CUTPA count but affirm
insofar as it struck the negligence count of the complaint.”
• U.S. Bank N.A., Trustee v. Blowers, 332 Conn. 656, 665, 212
A.3d 226 (2019). “At its essence, the defendant's position is
that, given the equitable nature of a foreclosure action, a
mortgagee's misconduct that hinders a mortgagor's efforts to
cure a default, such as through obtaining a modification
agreement, and adds to the mortgagor's debt while the
mortgagor is making such good faith efforts, is a proper basis
for special defenses or counterclaims in that action. Although
the defendant suggests that the standard test set forth in our
rules of practice should be the sole measure of legal
sufficiency, he contends that such misconduct sufficiently
relates to enforcement of the note or mortgage if the making,
validity, or enforcement test is applied. We conclude that the
Appellate Court's judgment must be reversed.”
• Deutsche Bank National Trust Company, Trustee v. Bliss et al.,
159 Conn. App. 483, 497-498, 124 A3d 890, 899-900 (2015).
“At trial, the defendant alleged as a special defense and
attempted to demonstrate that the note and mortgage were
unenforceable because prior to engaging in the mortgage loan
transaction with the defendant, and before the note and
mortgage were executed on April 27, 2006, the initial lender,
Long Beach Mortgage Company, had surrendered its
Connecticut license as a mortgage lender. Also, the defendant
alleged that ‘[w]hen Long Beach Mortgage Company engaged
in the business of making [a] mortgage . . . loan to [her] . . .
without a license, that conduct was a violation of public policy
and, consequently, the debt and note along with the mortgage
being foreclosed in this action that putatively secures the debt
and note are all unenforceable.’ The plaintiff, in reply, argued
that the loan was enforceable because, at times relevant,
Long Beach Mortgage Company was a subsidiary of a bank
operating under federal banking laws and, because federal
banking regulations preempt state licensing laws, it was of no
consequence to the present case that Long Beach Mortgage
Company was not licensed under state law.
In its memorandum of decision, the court stated as an
initial matter that it was not in dispute that, at the time of the
origination of the loan, Long Beach Mortgage Company ‘was
not licensed to make loans under Connecticut banking statutes
and indeed had surrendered its license to do so a few months
earlier.’ The court stated that the issue raised by the
defendant could be narrowed ‘to the determination of whether
federal banking regulations preempt state banking laws and
especially those relating to licenses for organizations in the
mortgage loan business.’’’
• GMAC Mortgage, LLC v. Eric M. Ford et al., 144 Conn. App.
165, 181-182, 73 A3d 742 (2013). “The ‘special defense’
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 37
asserted by the defendant in his original answer amounted to
an acknowledgement that he had quitclaimed his interest in
the subject property to a third party prior to the
commencement of the action. As a mortgagor, the defendant
held only equitable title to the property, sometimes referred to
as the equity of redemption. See Ocwen Federal Bank, FSB v.
Charles, 95 Conn. App. 315, 323, 898 A.2d 197, cert. denied,
279 Conn. 909, 902 A.2d 1069 (2006). His act of quitclaiming
that interest to a third party did not implicate the making,
validity or enforcement of the note or mortgage, nor establish
one of the aforementioned equitable defenses. The defendant
remained liable for repayment of the note despite the
quitclaim deed to a third party, who took title subject to the
mortgage and any potential foreclosure. The asserted special
defense failed as a matter of law, and no amount of
repleading would have remedied that legal defect.”
• Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401,
413, 867 A.2d 841, 850 (2005). “In the present case, the
court determined that the plaintiff acted with unclean hands
and engaged in an unconscionable transaction. The conduct of
the plaintiff, therefore, was unfair, oppressive and
unscrupulous, and constituted a violation of CUTPA.”
• Homecomings Financial Network, Inc. v. Starbala, 85 Conn.
App. 284, 289, 857 A.2d 366, 369 (2004). “ . . . the defense
of payment is a legally sufficient defense in a foreclosure
action, and whether payment was tendered is a question of
fact appropriately decided by the trier of fact.”
• Franklin Credit Management Corp. v. Nicholas, 73 Conn. App.
830, 838, 812 A.2d 51, 57 (2002). “In a mortgage foreclosure
action, ‘[t]o make out its prima facie case, [the foreclosing
party] had to prove by a preponderance of the evidence that it
was the owner of the note and mortgage and that [the
mortgagee] had defaulted on the note.’ Webster Bank v.
Flanagan, 51 Conn. App. 733, 750-51, 725 A.2d 975 (1999)
. . .
Franklin Credit alleged, among other things, that it is the
owner of the note and that the note was in default. In
response, the defendant asserted the special defense that
‘[t]he debt subject of the lawsuit was discharged and released,
including as evidenced by Form 1099 issued by [Franklin
Credit's] predecessor to the right, title and interest in the debt
instruments.’”
• LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.
App. 824, 832-833, 798 A.2d 445, 450 (2002). “The
defendant next claims that the court improperly granted the
plaintiff's summary judgment motions despite the special
defenses that it had raised. Specifically, the defendant argues
that summary judgment should not have been granted based
on (1) the implied covenant of good faith and fair dealing, (2)
the doctrine of unclean hands, (3) the common-law duty of
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 38
good faith and fair dealing, (4) the doctrine of
unconscionability and (5) the doctrine of equitable estoppel.
We will address each special defense in turn.” See Table 5.
• Webster Bank v. Oakley, 265 Conn. 539, 577, 830 A2d 139,
163 (2003). “In light of these well reasoned opinions in the
closely analogous factual context of insurance policies, we
conclude that Title III of the ADA regulates a lender’s
provision of access to its mortgage loans, which are the goods
and services that it offers, but does not regulate the content
of those loan agreements. Thus, although a lender like the
plaintiff may not refuse to provide equal access to its
mortgage policies on the basis of the disabilities of potential
mortgagors, it was not required to alter the otherwise
universally applicable terms or conditions of its mortgage
policies to accommodate the disabilities of borrowers such as
the defendant.”
• F.D.I.C. v. Altholtz, 4 F. Supp.2d 80 (1998) (D. Conn.).
Discussion of statute of frauds, breach of covenant of good
faith and fair dealing. Defense of unclean hands.
• New England Savings Bank v. Bedford Realty Corp., 246 Conn.
594, 607, 717 A.2d 713, 720 (1998). “The problem of proving
a debt that has been assigned several times is of great
importance to mortgage lenders and financial institutions.”
• Mechanics & Farmers Savings Bank, FSB v. Delco
Development Co., 43 Conn. Supp. 408, 414, 656 A.2d 1075,
1080 (1993). “The principle that a bank’s violation of
regulatory provisions in making a loan neither precludes
recovery on the loan nor provides a defense, unless
specifically provided by statute, has been well established for
well over 100 years.” affirmed at 232 Conn. 594 (1995)
• Petterson v. Weinstock, 106 Conn. 436, 138 A. 433, 435
(1927). “At common law, the only defenses to an action of
this character would have been payment, discharge, release
or satisfaction . . . or, if there had never been a valid lien.” (p.
441)
“So, if the mortgagor is prevented by accident, mistake or
fraud, from fulfilling a condition of the mortgage, foreclosure
cannot be had.” (p. 442)
Superior Court:
• U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation
Trust v. John Kinison Et Al., Superior Court, Judicial District of
Litchfield at Torrington, No. CV17-6016000-S (May 2, 2019)
(2019 WL 2602562) (68 Conn. L. Rptr. 514). “The essence of
Anderson's special defense is that she contests the order of
priority. This purported special defense, therefore, does not
defeat liability, for priority is not an element of a prima facie
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 39
case of foreclosure. Bank of New York v. Conway, supra, 50
Conn.Sup. 193-94. Furthermore, this purported special
defense does not affect the making, validity or enforcement of
the underlying note or mortgage, modified or otherwise
because even if this special defense were permitted, it would
only affect the order of payment in a foreclosure by sale or
affect which liens survive foreclosure. GMAC Mortgage, LLC v.
Ford, supra, 144 Conn.App. 181. Moreover, Practice Book §
23-17(a) specifically indicates that any objection to the order
of law days is to be disputed through the procedural vehicle of
a motion to determine priorities. This motion must be filed and
adjudicated before a judgment of strict foreclosure enters. Id.;
J&E Investment Co., LLC v. Athan, supra, 131 Conn.App. 483.
Where foreclosure by sale is likely or ordered, a subsequent
mortgagee can file a motion to determine priorities after
judgment has entered. Moran v. Morneau, supra, 140
Conn.App. 224 n.7. Anderson's special defense is, accordingly,
legally insufficient.”
• Spectrum Stamford, LLC v 400 Atlantic Title, LLC, Superior
Court, Judicial District of Stamford, No. FST-CV-18-6034655-S
(October 18, 2018) (2019 WL 2142051). “The counterclaims
are stated in two counts. The first count alleges that the
plaintiff's predecessor breached its obligation of good faith and
fair dealing and that the plaintiff as successor in interest is
liable for the breach of the obligation to negotiate in good faith
with the defendant for a definitive loan modification. The
second count of the counterclaim alleges that the plaintiff's
predecessor, and more particularly its agent, tortiously
interfered with the defendant's business relationship with its
major tenant.”
• FEC Enterprises LLC v. Lin Mare, LLC, Superior Court, Judicial
District of Hartford, No. HHD-CV-15-6060522S (February 5,
2018) (2018 WL 1177011). “The exhibits do not support the
defendant's contention that the parties reached a final,
binding, loan modification in 2015. Because the agreement
concerns property and is for more than $50,000, the
agreement must conform to the statute of frauds. General
Statutes § 52–550. Exhibit 1 does not identify any party other
than Forrest E. Crisman, Jr. and FEC Enterprises, LLC, specify
the subject property, or include the essential terms of the
agreement. Specifically, the document lacks vital payment
information, such as when monthly payments would
commence and whether the payments would go towards
principal or interest.”)
• JP Morgan Chase Bank v Syed, Superior Court, Judicial District
of Hartford, No. HHD-CV-13-6041948-S (January 2, 2018)
(2018 WL 632179). “In this foreclosure action, the substitute
plaintiff Christiana Trust, A Division of Wilmington Savings
Fund Society, FSB, as Trustee for Normandy Mortgage Loan
Trust, Series 2013–18, moves for summary judgment in its
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 40
favor as to liability. The defendant Sonia Syed opposes the
motion ‘on the grounds that there exists disputes of material
fact, namely that the Plaintiff took assignment of the loan
through a fraudulent endorsement.’”
• Pacific Union Financial, LLC v. McKinney, Superior Court of
New Britain, No. HHB-CV-16-6031874-S (December 20, 2017)
(2017 WL 7038408). “The motion has been coded in the court
file as a ‘motion to open judgment,’ however, and the court
will treat it as such. The self-represented defendant is entitled
to challenge the jurisdiction of the court to enter judgment in
the first place even after the law day has come and gone. That
claim, that the plaintiff lacked standing to sue the defendant,
is clearly raised in the motion and is a defect of subject matter
jurisdiction, which must be resolved even though title has
vested in the plaintiff. Highgate Condominium Ass'n v. Miller,
supra, 129 Conn.App. 435.”
• Wells Fargo Bank, N.A. v. DeQuattro, Superior Court of
Bridgeport, No. FBT-CV-16-6056445-S (November 27, 2017)
(2017 WL 6601801). “The defendants memorialized their
agreement by executing an Adjustable Rate Mortgage Note
(the note) and an Open–End Mortgage Deed (the mortgage).
On or before July 15, 2015, and since then, the plaintiff
became the party entitled to collect the debt and enforce the
mortgage. Months later, the defendants defaulted on the note.
On August 30, 2017, the plaintiff filed a motion for summary
judgment on the ground that it has established a prima facie
case of liability in this foreclosure action. The plaintiff also
claims a deficiency judgment and other relief, including a
judgment awarding it attorney’s fees and costs incurred in the
prosecution of this action.”
• Deutsche Bank National Trust Co. v. Pinto, Superior Court of
Waterbury, No. UWY-CV-13-6017507-S (August 31, 2017)
(2017 WL 4633842). The plaintiff counters the factual claim of
a modification with two legal claims. First, that modification of
the mortgage note is not a proper special defense because it
does not attack the making, validity or enforcement of the
lien. The second legal claim raises the application of the
statute of frauds, as there is no allegation of a written
agreement to modify the mortgage loan, originally in the
principal amount of $365,000. This allegation of an oral
modification of the mortgage note therefore violates the
$50,000 limit for loan agreements, as well as a transaction
involving an interest in real property. General Statutes § 52–
550.”
• Caires v. JP Morgan Chase NA, Superior Court, Judicial District
of Stamford, No. FST-CV-09-6002651-S (April 5, 2017) (2017
WL 2541858). “Once the plaintiff establishes standing, it is the
defendant's burden of proof to establish facts that show this
court has lack of subject matter jurisdiction by proving the
claims set forth in the Motion to Dismiss. Defendant's standard
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 41
of proof in that regard is the civil standard of proof; fair
preponderance of the evidence. Deutsche Bank National Trust
Company as Trustee et al. v. Juchneiwich et al., Superior
Court, judicial district of Stamford/Norwalk at Stamford,
Docket No. FST CV 16–6028759 S (February 27, 2017,
Tierney, J.T.R.). In this case the moving party in the Motion to
Dismiss is the plaintiff who commenced this litigation in 2009
and he is the defendant in the October 21, 2010 Counterclaim.
Therefore, this court has used the given names of the parties
instead of the usual designations of plaintiff and defendant.
The above citation of general law assumes that the plaintiff is
the foreclosing party, wherein in this litigation the defendant is
the foreclosing party.”
• JP Morgan Chase Bank, N.A. et al. v. Robert J. Virgulak et al.,
Superior Court, Judicial District of Stamford, No. FST-CV13-
6017120-S (November 10, 2016) (2016 WL 719650063)
(Conn. L. Rptr. 359). “The . . . third count purports to state a
claim that [the defendant] has been unjustly enriched by
living at the property since 1996 without making adequate
payments on the promissory note.
The motion to strike the unjust enrichment count is
premised on the contention that the claim is barred by the six-
year statute of limitations applicable to simple and implied
contracts found at General Statutes §52-576(a). . . .
A right of recovery under the doctrine of unjust enrichment
is essentially equitable . . . Although courts in equitable
proceedings may look by analogy to the statute of
limitations to determine whether, in the interests of
justice, a particular action should be heard, they are by no
means obliged to adhere to those time limitations.
Rossman v. Morasco, 115 Conn. App. 234, 256 (2009) [citing]
Vertex, Inc. V. Waterbury, 278 Conn. 557, 573 (2006) . . .
. . . the motion to strike the third count is denied.”
• Nationstar Mortgage, LLC v. Marcio Demelo, Superior Court,
Judicial District of Fairfield at Bridgeport, No. FBT-CV15-
6050091-S (2016 WL 8468078) (December 22, 2016). “‘The
court finds that a violation of the FDCPA is not a valid defense
to a foreclosure action.’ . . . the FDCPA addresses a creditor’s
collection practices rather than the making, validity or
enforcement of the note or mortgage.’ . . . ‘A foreclosure
action is not the collection of a debt, and thus does not trigger
the notice provision of the FDCPA.’” (Internal citations
omitted.)
• HSBC Bank USA, National Association Trustee v. Leckey et al.,
Superior Court, Judicial District of New Haven, No. NNH-CV14-
6047103 (July 20, 2016) (62 Conn. L. Rptr. 700) (2016 WL
4497606). “The defendants have submitted affidavits and
other documents in support of the fact that while Wells Fargo,
the original lender and still the loan servicer, is obliged to
participate in loss mitigation efforts on behalf of distressed
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 42
homeowners, HSBC, as trustee of a securitized trust, does not
participate in such programs, is not required to do so, and in
fact denied the benefits of such programs to the defendants.
The defendants claim that this goes to the enforcement of the
note, LaSalle National Bank v. Shook, supra, that such
conduct on the part of the plaintiff is unfair, and that the court
ought to take such conduct into consideration in determining
whether to permit the plaintiff to proceed with this foreclosure
action.
The plaintiff argues that because the real estate trust was
created before the MHA programs were enacted, the real
estate trust could not have been created with the intent of
being a repository of loan documents for the purpose of
avoiding the MHA process. The court, however, places no
reliance on the argument of the defendants that the transfer
of the note was done solely for that purpose. Rather, in the
court's view, it would be sufficient to create a triable issue if
the defendants could demonstrate that avoiding the MHA
programs or other loss mitigation efforts was the effect of the
transfer. A trial court could then determine if, under the
totality of the circumstances, the plaintiff should be permitted
to foreclose.
The court is aware that it is usually the case that special
defenses and counterclaims alleging a breach of an implied
covenant of good faith and fair dealing are not equitable
defenses to a mortgage foreclosure. See New Haven Savings
Bank v. LaPlace, 66 Conn.App. 1, 10, 783 A.2d 1174 (2001.)
However, where there is a question of whether the lender had
an obligation to afford the defendants an opportunity to
modify their loan obligation, the court may determine that the
avoidance such obligation ought equitably to affect the
enforcement of the note.”
• Bank of America, N.A. v. Voog, Superior Court, Judicial District
of Danbury, No. DBD-CV-12-6008819-S (July 23, 2015) (60
Conn. L. Rptr. 652) (2015 WL 4965858). “The defendant's
primary argument against summary judgment concerns the
signature of Sjolander on the note. The defendant assails the
propriety of the signature as the product of a ‘robo-signer’ and
maintains that it is insufficient to substantiate the transfer of
the note from Countrywide to the plaintiff. The plaintiff cites
the uncertified deposition transcript as an example of
Sjolander's involvement in the endorsement of other notes
and argues that the details of Sjolander's endorsement of the
note in the present case will be obtained when she is deposed.
The defendant's argument is unavailing, however, because
under the Uniform Commercial Code, as adopted in the
General Statutes, he has admitted to the authenticity of
Sjolander's signature, as well as her authority to make it,
based upon the following.
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 43
General Statutes § 42a–3–308(a) provides in relevant
part: ‘In an action with respect to an instrument, the
authenticity of, and authority to make, each signature on the
instrument is admitted unless specifically denied in the
pleadings ...’ (Emphasis added.) “ ‘In the absence of such
specific denial the signature stands admitted, and is not in
issue.’ A.L.I., Uniform Commercial Code [ (14th Ed.1995) ] §
3–308, official comment 1.” Cadle Co. v. Ginsburg, 51
Conn.App. 392, 406, 721 A.2d 1246 (1998), cert. denied, 247
Conn. 963, 724 A.2d 1125 (1999). In Deutsche Bank National
Trust Co. v. Shivers, 52 Conn.Sup. 358, 359–60, 48 A.3d 143
(2010) [49 Conn. L. Rptr. 679], aff'd, 136 Conn.App. 291, 44
A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012), a
foreclosure action, the defendant opposed the plaintiff's
motion for summary judgment in part by challenging the
authenticity of certain signatures on the note as well as the
authority of the signatory to make the signatures. The trial
court rejected the argument, noting that if the defendant
‘wished to assail [the signatory's] authority to act, § 42a–3–
308(a) makes it incumbent upon him to deny that authority
“specifically” in a pleading. Id., at 360. The court concluded
that due to the defendant's failure ‘to proceed in accordance
with this statutory provision,’ § 42a–3–308(a) relieved the
plaintiff of any burden to produce additional evidence to
support the authenticity of the signatures or the authority of
the signatory to endorse the note. Id.
The defendant in the present case filed an answer in which
he admitted signing the note and being the owner in
possession of the premises while, at the same time, pleading
insufficient knowledge as to the complaint's remaining
allegations. The note bearing Sjolander's signature was
attached to the complaint. The defendant's answer pleaded no
special defenses, and he did not specifically deny the
authenticity of Sjolander's signature or her authority to make
it. Therefore, the defendant admitted the propriety of the
signature under the plain terms of § 42a–3–308(a).”
• People’s United Bank v. Estate of Jones, Superior Court,
Judicial District of Waterbury at Waterbury, No. CV12-
6014130S (May 28, 2013) (2013 WL 330721556) (Conn. L.
Rptr. 224). “Equitable estoppel may be a valid special defense
in a foreclosure action. See Barasso v. Rear Still Hill Road,
LLC, 81 Conn.App. 798, 805, 842 A.2d 1134 (2004).
‘Equitable estoppel is a doctrine that operates in many
contexts to bar a party from asserting a right that it otherwise
would have but for its own conduct . . . In its general
application, we have recognized that [t]here are two essential
elements to an estoppel — the party must do or say
something that is intended or calculated to induce another to
believe in the existence of certain facts and to act upon that
belief, and the other party, influenced thereby, must actually
change his position or do some act to his injury which he
otherwise would not have done.’ (Citations omitted; internal
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 44
quotation marks omitted.) Glazer v. Dress Barn, Inc., 274
Conn. 33, 60, 873 A.2d 929 (2005).” (p. 1)
“The limitation on special defenses in foreclosures to those
relating to the ‘making, validity or enforcement’ of the note
and mortgage, on its face, appears applicable to inequitable
post-execution actions by creditors, as the very language of
this phrase encompasses the ‘enforcement’ of notes and
mortgages, which would inevitably occur after a mortgage
closing. Furthermore, ‘while this construction of “making,
validity or enforcement” has been utilized by Superior Court
judges for well over a decade . . . it has not been adopted by
our Supreme Court . . . It is also noted that some Superior
Court judges have rejected a construction of “making, validity
or enforcement” that prevents a court from considering post-
execution conduct of the mortgagee.’ (Citation omitted.)
Liberty Bank v. New London Limited Partnership, Superior
Court, judicial district of New London, Docket No. CV 06
4005236 (May 1, 2007, Devine, J.) (43 Conn. L. Rptr. 326,
328); see Connecticut Community Bank, N.A. v. Six Hundred
Twenty-Three Steamboat, LLC, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV 12 6013283 (February
15, 2013, Mintz, J.).” (p. 2)
• Thomaston Savings Bank v. Hardisty, Superior Court,
Judicial District of Litchfield at Litchfield, No. CV-09-5006672S
(Sep. 13, 2010) (2010 WL 4072018). “In the third special
defense, the defendants allege that the plaintiff failed to
comply with § 8-265ee. The foreclosing party must
demonstrate that all conditions precedent to foreclosure, as
mandated by the note and mortgage, have been satisfied. See
Bank of America, FSB v. Hanlon, 65 Conn. App. 577, 581, 783
A.2d 88 (2001). ‘While courts have recognized equitable
defenses in foreclosure actions, they have generally only been
considered proper when they attack the making, validity or
enforcement of the lien, rather than some act or procedure of
the lienholder . . . The rationale behind this is that
counterclaims and special defenses which are not limited to
the making, validity or enforcement of the note or mortgage
fail to assert any connection with the subject matter of the
foreclosure action and as such do not arise out of the same
transaction as the foreclosure action . . . Moreover, courts
have held that defenses to foreclosure are recognized when
they attack the note itself rather than some behavior of the
mortgagor.’ (Citations omitted; internal quotation marks
omitted.) Eastern Savings Bank FSB v. Mara, Superior Court,
judicial district of Stamford-Norwalk at Stamford, Docket No.
CV 05 4006305 (June 5, 2006, Dooley, J.); see also
Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11,
16, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d
229 (1999) (upholding the decision of the trial court that the
‘special defense . . . did not attack the making, validity or
enforcement of the note and mortgage and thus raised no
issue of material fact that would warrant a trial’).”
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 45
• BAC Home Loans Servicing, L.P. v. Presutti, Superior Court,
Judicial District of Hartford at Hartford, No. HHD CV09-
5029746S (April 8, 2010) (49 Conn. L. Rptr. 609) (2010 WL
1883681). “…the allegations that the Plaintiff entered into a
loan mortgage modification which it refused to honor, are
sufficient to support a CUTPA claim.”
• Hooie v. Webster Bank, Superior Court, Judicial District of
Middlesex at Middletown, No. CV 000093117 (June 12, 2003)
(35 Conn. L. Rptr. 91) (2003 WL 21525116). Unjust
enrichment in a strict foreclosure action.
WEST KEY
NUMBERS:
• Mortgages # 1701. Defenses to Foreclosure
DIGESTS:
• Dowling’s Digest: Mortgages §§ 20-24
§ 20. Foreclosure
§ 21. ⎯In general
§ 22. ⎯Right to foreclose; Defenses
§ 23. ⎯ ⎯In general
§ 24. ⎯ ⎯Particular cases
• Phillips’ Digest: Mortgages §§ 20-22
§ 20. Foreclosure
§ 21. ⎯In general
§ 22. ⎯Right to foreclose; Defenses
ENCYCLOPEDIAS:
• 54A Am Jur 2d Mortgages, Thomson West, 2020 (Also
available on Westlaw)
II. Requisites and Validity
A. In General
§ 10. Creation; generally
§ 12. Validity; generally
§ 13. Unconscionability of mortgage, generally
§ 14. Modification of mortgage
B. Consideration
§ 15. Consideration for mortgage, generally
§ 16. Failure of consideration for mortgage
§ 17. Application of consideration received for
mortgage
C. Execution
§ 18. Execution of mortgage generally
§ 19. Signatures; forgeries
§ 20. Acknowledgment
D. Delivery and Acceptance
§ 23. Delivery and acceptance of mortgage
§ 24. Delivery of mortgage by less than all mortgagors
§ 25. Determination of whether mortgage delivered
E. Effect of Fraud Undue Influence, or Duress
F. Property and Interests Subject to Mortgage
• 55 Am Jur 2d Mortgages, Thomson West, 2020 (Also available
on Westlaw)
Encyclopedias and
ALRs are available in
print at some law
library locations and
accessible online at
all law library
locations.
Online databases are
available for
in-library use.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 46
5. Defenses; Limitations and Laches; Setoff and
Counterclaim
a. In General
§ 611. Defenses, generally
§ 612. Usurious interest rate
§ 613. Tender during foreclosure; necessity of
including costs and attorney’s fees
b. Limitations and Laches
§ 614. Generally; right to interpose defense
§ 615. Limitation statute applicable
§ 616. Installment mortgages
§ 617. Effect of acceleration provision
§ 618. Bar of debt as barring mortgage
§ 619. Bar of debt as barring mortgage – Deed
absolute intended as mortgage
c. Extension or Revival of Limitation Period
§ 620. Generally
§ 621. Mortgagor’s nonresidence or absence from
state
§ 622. Part payment, new promise, or
acknowledgment
§ 623. Sufficiency; proof
§ 624. Where there is an acceleration clause
§ 625. Effect upon junior encumbrancers
§ 626. Extension of time for payment; giving new
obligation
§ 627. Effect of act of person other than mortgagor
§ 628. Effect of statutes requiring memorandum of
payment, or renewal or extension agreement,
to be placed on record
§ 629. Persons protected
§ 630. Effect of knowledge or recognition of mortgage
d. Setoff, Recoupment, and Counterclaim
§ 631. Generally
§ 632. In suits to foreclose purchase-money
mortgages
§ 633. Barred claims
• 59 CJS Mortgages, Thomson West, 2019 (Also available on
Westlaw)
IX. Validity of Mortgages
§ 175. Generally
§ 176. Mental capacity
§ 177. Mistake
§ 178. Fraud
§ 179. Fraud – Fraud practice on mortgagor
§ 180. Fraud – Reliance
§ 181. Fraud – Misrepresentation of material fact
§ 182. Duress
§ 183. Duress – Arrest, criminal prosecution, or threats
thereof
§ 184. Undue influence
§ 185. Illegality
§ 186. Partial invalidity
Encyclopedias and
ALRs are available in
print at some law
library locations and
accessible online at
all law library
locations.
Online databases are
available for
in-library use.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 47
§ 187. Right to contest validity
§ 188. Right to contest validity – Estoppel or waiver
§ 189. Right to contest validity – Ratification of invalid
mortgage
§ 190. Evidence as to validity
§ 191. Evidence as to validity – Admissibility
§ 192. Evidence as to validity – Weight and sufficiency of
evidence
§ 193. Questions of law and fact
TEXTS &
TREATISES:
• 1 Connecticut Foreclosures: An Attorney’s Manual of Practice
and Procedure, 13th ed., by Denis R. Caron & Geoffrey K.
Milne, Connecticut Law Tribune, 2023
Chapter 1: Preliminary Considerations
§ 1.6 Reinstatement
§ 1-6:1 Reinstatement Letters Not a Basis for a
Defense to Foreclosure
Chapter 6. Defenses to foreclosure
§ 6-1. Introduction
§ 6-2. Common Law Defenses
§ 6-2:1 Payment
§ 6-2:2 Duress
§ 6-2:3 Release
§ 6-2:4 Lack of consideration
§ 6-2:5 Fraud in factum
§ 6-2:6 Fraud
§ 6-2:7 Negligent Misrepresentation
§ 6-2:8 Accord and Satisfaction
§ 6-2:9 Abandonment of Security
§ 6-2:10 Breach of Loan Modification Agreement
§ 6-2:10.1 Oral Modification Agreements
§ 6-2:11 No Fiduciary Duty between Lender and a
Borrower
§ 6-2:12 Res Judicata and Collateral Estoppel
§ 6-2:13 Failure to Pay Rent as a Defense to a
Commercial Mortgage Foreclosure
§ 6-2:14 Robo-Signing
§ 6-3. State Statutory Law Defenses
§ 6-3:1 Usury
§ 6-3:2 Connecticut Unfair Trade Practices Act
(CUTPA)
§ 6-3:3 Connecticut Abusive Home Loan Lending
Practices Act
§ 6-3:4 Defective Mortgage Instrument
§ 6-3:5 Unlicensed Lender
§ 6-3:6 Connecticut Protection from Foreclosure Act
§ 6-3:7 Payoff Letter
§ 6-3:8 Loan to Person only Secondarily Liable –
Connecticut General Statutes § 49-4a)
§ 6-3:9 The Marshalling Statute – Connecticut
General Statutes § 52-380i
§ 6:3:10 Payment to Contractor – re Mechanic’s Lien
Foreclosure
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 48
§ 6-3:11 Conditions Precedent Under the Loan
Documents
§ 6-3:12 Failure to Release Mortgage
§ 6-3:13 Sovereign Immunity
§ 6-3:14 Statute of Limitations
§ 6-3:14.1 Limitation on Suit Against Guarantor
§ 6-3:15 Homestead Exemption
§ 6-3:16 Conn. Gen. Stat. § 52-588 as a Defense
§ 6-3:17 Death of a Party and § 52-600
§ 6-4. Federal Law Defenses
§ 6-4:1 Fair Debt Collection Practices Act
§ 6-4:2 Truth in Lending
§ 6-4:3 RESPA
§ 6-4:4 The Dodd-Frank Wall Street Reform and
Consumer Protection Act
§ 6-5 Equitable Defenses
§ 6-5:1 The Clean Hands Doctrine
§ 6-5:2 Meeting of the Minds
§ 6-5:3 Breach of Implied Covenant of Good Faith
and Fair Dealing
§ 6-5:4 Unconscionability
§ 32-5:4.1. Interest Rate as Unconscionable
§ 6-5:5 Equitable Estoppel
§ 6-5:6 Equitable Subrogation
§ 6-5:7 Bad Faith Settlement Practices
§ 6-5:8 Laches
§ 6-5:9 Laches
§ 6-6 Counterclaims
§ 6-7 Jury Verdicts
• Pleadings and Pretrial Practice: A Deskbook for Connecticut
Litigators, by Jeanine M. Dumont, 1998
VI. Answers, Special Defenses, Counterclaims, Setoffs and
Other Pleadings
2. Special Defenses
f. Special Defenses in Foreclosures, pp. 82-84
• Connecticut Lawyers’ Deskbook: A Reference Manual, 3d ed.,
LawFirst Publishing, 2008.
Chapter 17, Real Property Foreclosure in Connecticut
“Contested Matters,” pp. 418-419
• Foreclosures and Mortgage Servicing Including Loan
Modifications, National Consumer Law Center, 5th ed., 2014
Chapter 8. Legal Defenses to Home Foreclosures
§ 8.1. Introduction
§ 8.2. Introduction to the Foreclosure Process
§ 8.3. Procedural Defenses
§ 8.4. Due Process Challenges to Foreclosure by Power
of Sale
§ 8.5. Foreclosure of a Deed of Trust
§ 8.6. Enforceability of Due on Sale Contract Provisions
§ 8.7. Using Equitable Grounds to Prevent a
Foreclosure
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 49
§ 8.8. State and Local Mediation Programs
§ 8.9. Judicial Enforcement of Conference and
Mediation Statutes
§ 8.10. Finding an Obligation to Negotiate in Good Faith
in the Absence of a Foreclosure Conference or
Mediation Program
§ 8.11. Protections from Foreclosure Available under
the Servicemembers Civil Relief Act
Chapter 9. Defending Foreclosures by Challenging Unfair
Lending Practices
§ 9.1. Introduction
§ 9.2. Common Types of Misconduct
§ 9.3. Raising Origination Misconduct to Stop a
Foreclosure - Substantive Claims and Defenses
§ 9.4. Unfair and Deceptive Acts and Practices (UDAP)
Statutes
§ 9.5. Truth in Lending Act Claims
§ 9.6. Real Estate Settlement Procedures Act (RESPA)
§ 9.7. Fair Lending Statutes
§ 9.8. Civil RICO
§ 9.9. SAFE Act Licensing
§ 9.10. State High-Cost Mortgage Statutes
§ 9.11. Fraud or Misrepresentation
§ 9.12. Fiduciary Duty
§ 9.13. Unconscionability
§ 9.14. Usury
§ 9.15. Other Defenses
§ 9.16. Raising Origination-Related Claims and
Defenses Against Assignees
• Foreclosure Defense: A Practical Litigation Guide, 2nd Ed.,
Rebecca A. Taylor, American Bar Association, 2020.
Chapter 19. Affirmative Defenses
Plaintiff’s Motion to Strike Affirmative Defenses
Deceptive and Unfair Trade Practices and Subprime
Loans
The Truth in Lending Act
Home Owner’s Equity Protection Act
Real Estate Settlement Procedures Act
Qualified Written Requests
Fraud
Failure to Comply with Conditions Precedent
Payment
Counterclaims
Class-Action Complaint
• Mortgage Servicing and Loan Modifications, National Consumer
Law Center, 1st ed., 2019.
Chapter 3. Servicing Requirements Under the Real Estate
Settlement Procedures Act
Chapter 5. State Law Servicing Claims
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 50
Figure 3: Special Defense and Counterclaim to Foreclosure
Special Defense and Counterclaim to Foreclosure; Mistake,
Fraud or Accident in Failure to Make Payment
SPECIAL DEFENSES
1. The non payment of the installment of principal and interest described in
the plaintiff's complaint and the resulting default was due to mistake (or fraud
or accident) in that (describe facts which resulted in non payment ).
2. The defendant has offered to and is now willing to pay the installment
which is past due or is willing to deposit it in court for the use of the plaintiff.
COUNTERCLAIM
Paragraphs 1 and 2 of the defendant's Special Defense are hereby made
paragraphs 1 and 2 of this counterclaim.
The defendant claims judgment
1. That foreclosure of the plaintiff's mortgage be denied.
2. That the defendant be permitted to pay the plaintiff the installment or
deposit the same in court for the plaintiff's use.
3. That upon such payment or deposit the defendant be relieved of any
default which may have occurred by reason of his failure to pay the installment
when due and of any forfeiture which might ensue by reason of such default.
(P.B.1963, Form 334; see 106 Conn. 436.)
Prejudgment Proceedings in Foreclosures - 51
Table 5: LaSalle National Bank v. Freshfield Meadows, LLC
LaSalle National Bank v. Freshfield Meadows, LLC,
69 Conn. App. 824, 798 A.2d 445 (2002)
Implied covenant
of good faith and
fair dealing
“We recently stated that ‘special defenses and counterclaims
alleging a breach of an implied covenant of good faith and fair
dealing . . . are not equitable defenses to a mortgage
foreclosure.’ New Haven Savings Bank v. LaPlace . . . 66 Conn.
App. [1,] 10; see also Southbridge Associates, LLC v. Garofalo . .
. 53 Conn. App. [11,] 16-19. Even if a breach of the implied
covenant of good faith and fair dealing were an equitable defense
to a mortgage foreclosure, the clear language of the mortgage
and the note fails to support the defendant's claim that the
plaintiff breached such an implied covenant.” p. 835.
Unclean hands
“The defendant next claims that the court improperly rendered
summary judgment despite the plaintiff's having unclean hands
for refusing to accept future payments. That claim is without
merit.
‘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. . . . Unless the plaintiff's conduct is of such
a character as to be condemned and pronounced wrongful by
honest and fair-minded people, the doctrine of unclean hands
does not apply.’ (Internal quotation marks omitted.) Thompson
v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).
As we stated in part IV A, the plaintiff did not have an obligation
to renegotiate the terms of the agreement upon the event of the
defendant's default; nor did the plaintiff have to accept payment
after the indebtedness was accelerated due to the default.
Accordingly, because the plaintiff's conduct was not of ‘such a
character as to be condemned and pronounced wrongful by
honest and fair-minded people,’; id.; there is no genuine issue of
material fact that the clean hands doctrine does not apply.” pp.
835-836.
Common-law
duty of good
faith and fair
dealing
“ ‘The common-law duty of good faith and fair dealing implicit in
every contract requires that neither party [will] do anything that
will injure the right of the other to receive the benefits of the
agreement. . . . Essentially it is a rule of construction designed to
fulfill the reasonable expectations of the contracting parties as
they presumably intended.’ (Internal quotation marks omitted.)
Elm Street Builders, Inc. v. Enterprise Park Condominium Assn.,
Inc., 63 Conn. App. 657, 665, 778 A.2d 237 (2001). As we
discussed in part IV A, a reading of the unambiguous language of
the mortgage and note negates any claim that the plaintiff did
Prejudgment Proceedings in Foreclosures - 52
not comply with the common-law duty of good faith and fair
dealing.” p. 836
Doctrine of
Unconscionability
“Because unconscionability is judged at the time of the making of
the contract, and the defendant's claim rests on alleged actions
taken by the plaintiff subsequent to the making of the contract,
the doctrine of unconscionability is not applicable to this case.” p.
837.
Doctrine of
equitable
estoppel
“ ‘Our Supreme Court . . . stated, in the context of an equitable
estoppel claim, that [t]here are two essential elements to an
estoppel: the party must do or say something which is intended
or calculated to induce another to believe in the existence of
certain facts and to act upon that belief; and the other party,
influenced thereby, must actually change his position or do
something to his injury which he otherwise would not have done.
Estoppel rests on the misleading conduct of one party to the
prejudice of the other. In the absence of prejudice, estoppel does
not exist.’ (Internal quotation marks omitted.) SKW Real Estate
Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56
Conn. App. 1, 8, 741 A.2d 4 (1999), cert. denied, 252 Conn.
931, 746 A.2d 793 (2000); see also 2 B. Holden & J. Daly,
Connecticut Evidence (2d Ed. 1988) § 60b, p. 365 & (Cum. Sup.
2001) pp. 385-86.
In its appellate brief, the defendant has failed to state how it was
misled by the plaintiff's conduct. Without a showing that the
defendant was misled, its argument that the doctrine of equitable
estoppel should have precluded the court from rendering
summary judgment has no basis.” p. 838.
Once you have identified useful cases, it is important to update the cases before you rely on them.
Updating case law means checking to see if the cases are still good law. You can contact your local law
librarian to learn about the tools available to you to update cases.
Prejudgment Proceedings in Foreclosures - 53
Table 6: Disclosure of Defense
Disclosure of Defense
DEFINITIONS:
• “In order for foreclosure cases to move as swiftly as possible
through our court system, it is imperative that a defendant
disclose any defenses to the mortgage debt prior to the
hearing. In the present case, the defendants' failure to disclose
a defense in a timely manner barred them from later
contesting liability at the foreclosure hearing. Accordingly, we
conclude that the trial court properly refused to allow the
defendants to present evidence of any defense to liability.”
Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d
493, 495 (1991).
COURT RULE:
• Disclosure of Defense
“In any action to foreclose or to discharge any mortgage or
lien or to quiet title, or in any action upon any written
contract, in which there is an appearance by an attorney for
any defendant, the plaintiff may at any time file and serve in
accordance with Sections 10-12 through 10-17 a written
demand that such attorney present to the court, to become a
part of the file in such case, a writing signed by the attorney
stating whether he or she has reason to believe and does
believe that there exists a bona fide defense to the plaintiff’s
action and whether such defense will be made, together
with a general statement of the nature or substance of such
defense. If the defendant fails to disclose a defense within ten
days of the filing of such demand in any action to foreclose a
mortgage or lien or to quiet title, or in any action upon any
written contract, the plaintiff may file a written motion that a
default be entered against the defendant by reason of the
failure of the defendant to disclose a defense. If no disclosure
of defense has been filed, the judicial authority may order
judgment upon default to be entered for the plaintiff at the
time the motion is heard or thereafter, provided that in either
event a separate motion for such judgment has been filed. The
motions for default and for judgment upon default may be
served and filed simultaneously but shall be separate
motions.” Connecticut Practice Book § 13-19 (2023).
FORMS:
• Connecticut Foreclosures: An Attorney’s Manual of Practice and
Procedure, Denis R. Caron & Geoffrey K. Milne, 7th ed., 2017
CD only
Unofficial forms
6-007. Demand for Disclosure of Defense
• 3A Connecticut Practice Series, Civil Practice Forms, 4
th
ed., by
Joel M. Kaye and Wayne D. Effron, Thomson West, 2008, with
2020-2021 supplement (Also available on Westlaw)
Demand for Disclosure of Defense – Form S-1, pp. 196-197
(see also pocket part)
Amendments to
the Practice Book
(Court Rules) are
published in the
Connecticut Law
Journal and posted
online.
Prejudgment Proceedings in Foreclosures - 54
Motion for Default for Failure to Disclose Defense – Form S-
2, pp. 197-198 (see also pocket part)
Motion for Judgment upon Default for Failure to Disclose
Defense – Form S-2-A, p. 198
• Connecticut Lawyers’ Deskbook: Forms Index, Dennis P.
Anderson, Denis R. Caron & Geoffrey K. Milne, 2d ed., 2000
Chapter XIV. Real Property Foreclosure In Connecticut
“Demand for Disclosure of Defense”
“Motion for Default for Failure to Disclose a Defense”
CASES:
• First New Haven National Bank v. Rowan, 2 Conn. App. 114,
116, 476 A.2d 1079, 1081 (1984). “Since these defendants
were not represented by an attorney, the disclosure of defense
was correctly expunged. Practice Book 236 [now 13-19].”
TEXTS AND TREATISES
• 1 Connecticut Foreclosures: An Attorney’s Manual of Practice and Procedure, 13th
ed., by Denis R. Caron & Geoffrey K. Milne, Connecticut Law Tribune, 2023.
§ 5-2:3.3 Default for Failure to Disclose Defense
• LexisNexis Practice Guide: Connecticut Civil Pretrial Practice, 2022 ed. by
Margaret Penny Mason, Editor, LexisNexis, 2022 (also available on Lexis
Advance)
Chapter 10. Discovery
§ 10.14. Disclosure of Defense
• Connecticut Practice Series, Connecticut Superior Court Civil Rules, by Wesley W.
Horton, 2022-2023 ed., Thomson West, 2023 (also available on Westlaw).
Authors’ Comments following § 13-19
• A Practical Guide to Residential Real Estate Transactions and Foreclosures in
Connecticut, 2d ed., by Christian R. Hoheb, Editor, Massachusetts Continuing
Legal Education, Inc., 2021 (also available on Westlaw).
Chapter 9. Foreclosure Procedure from Complaint Through Sale
§ 9.2.2. Disclosure of Defense
• West’s Connecticut Rules of Court Annotated, 2023 ed., Thomson West, 2023
(also available on Westlaw).
Notes of Decisions following § 13-19
• A Practical Guide to Discovery and Depositions in Connecticut, 2nd ed., by Sara
R. Simeonidis, Editor, Massachusetts Continuing Legal Education, Inc., 2021.
Chapter 11. Other Discovery Rules and Devices
§ 11.4. Disclosure of Defense
Once you have identified useful cases, it is important to update the cases before you rely on them.
Updating case law means checking to see if the cases are still good law. You can contact your local law
librarian to learn about the tools available to you to update cases.
You can contact us or visit our catalog to determine which of our law libraries own the treatises cited.
References to online databases refer to in-library use of these databases.
Prejudgment Proceedings in Foreclosures - 55
Table 7: Standing to Foreclose a Mortgage
Standing to Foreclose a Mortgage
HSBC Bank USA,
National
Association
Trustee
v. Leckey et al.,
Superior Court,
Judicial District
of New Haven,
No. NNH-CV14-
6047103 (July
20, 2016) (62
CLR 700) (2016
WL 4497606).
• “The defendants claim that HSBC has no standing to
maintain this action because the loan was transferred from
Wells Fargo to the current plaintiff HSBC in violation of a
pooling and servicing agreement between those two
entities. The identical issue was rejected in Wells Fargo v.
Strong, 149 Conn. App. 384 (2014). In Strong, the
Appellate Court ruled that any such violation did not
implicate the standing of the plaintiff to bring the action.
Accordingly, this claim of the defendants fails.”
Deutsche Bank
National Trust
Co. v.
Thompson,
Superior Court,
Judicial District
of Hartford, No.
HHD-CV09-
5027964S
(August 29,
2016) (63 Conn.
L. Rptr. 15)
(2016 WL
5415643).
• “Although the plaintiff has established that it is presently
the holder of the note by providing the court with the
original endorsed note, the critical issue before the court is
whether the plaintiff had standing to bring a foreclosure
action at the time the action is commenced. In other words,
the plaintiff must present evidence to show that it had
possession of the note at the time the action was
commenced.
The plaintiff has failed to meet its burden. Neither the
undated endorsement in blank nor the assignments of the
mortgage that are dated after the commencement of the
action are evidence that the plaintiff had possession of the
note at the time of the commencement of the action. The
plaintiff has failed to submit any other admissible evidence,
such as an affidavit, that would show when it had acquired
the note. Although the plaintiff contends that it is presently
the holder of the note and rightly may foreclose the
mortgage, ‘[t]hat argument . . . is beside the point. The
relevant question is when the plaintiff became the holder.’
(Emphasis added.) Deutsche Bank National Trust Co. v.
Bialobrzeski, supra, 123 Conn. App. 799 n. 11.
Thus, the plaintiff has failed to show that it has standing
because it has failed to satisfy its burden to present
evidence that it had possession of the note at the time the
action was commenced.
For the foregoing reasons, the defendant’s motion to
dismiss is granted.”
Prejudgment Proceedings in Foreclosures - 56
Chase Home
Finance, LLC v.
Fequiere, 119
Conn. App. 570,
575, 989 A2d
606 (2010).
• "‘Standing is the legal right to set judicial machinery in
motion. One cannot rightfully invoke the jurisdiction of the
court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause of
action, or a legal or equitable right, title or interest in the
subject matter of the controversy.’ . . . Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).
‘Standing [however] is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substantive
rights. Rather it is a practical concept designed to ensure
that courts and parties are not vexed by suits brought to
vindicate nonjusticiable interests and that judicial decisions
which may affect the rights of others are forged in hot
controversy, with each view fairly and vigorously
represented.’ . . . Fleet National Bank v. Nazareth, 75 Conn.
App. 791, 793-94, 818 A.2d 69 (2003).”
Equity One, Inc.
v. Shivers, 310
Conn. 119, 136,
74 A3d 1225
(2013).
• “[U]nder the facts and circumstances presented, the
defendant has not demonstrated that he was entitled to a
full evidentiary hearing on the issue of the plaintiff’s
standing. It is apparent that the trial court reviewed the
pertinent documents at the hearing on November 24, 2008,
and at other hearings prior thereto, and that those
documents fully support the trial court’s determination,
predicated on the plaintiff’s status as the holder of the note,
that the plaintiff had standing to commence this action.”
J.E. Robert
Company, Inc.
v. Signature
Properties, LLC,
et al., 309 Conn.
307, 310-311 &
327-328, 71 A3d
492 (2013).
• “Specifically, we must determine whether a loan servicer for
the owner and holder of a note and mortgage can have
standing in its own right to institute a foreclosure action
against the mortgagor as a transferee of the holder’s rights
under the Uniform Commercial Code (UCC), General
Statutes §§ 42a-3-203 and 42a-3-301.”
• “In light of our conclusion that a loan servicer need not be
the owner or holder of the note and mortgage in order to
have standing to bring a foreclosure action if it otherwise
has established the right to enforce those instruments, we
now turn to the fact specific question of whether J.E. Robert
constituted a transferee entitled to enforce the note as a
nonholder with the rights of the holder, LaSalle. We answer
this question in the affirmative.”
Washington
Mutual Bank,
F.A. v. Walpuck,
134 Conn. App.
446, 447, 43
A3d 174, 174-
175 (2012).
• “The defendant claims that the plaintiff, Washington Mutual
Bank, F.A., did not have standing to take title to the
property because, having been acquired by JP Morgan
Chase Bank, N.A., prior to the court’s approval of the sale,
the plaintiff did not exist at that time. As the trial court
held, this court’s opinion in Dime Savings Bank of
Wallingford v. Arpaia, 55 Conn. App. 180, 738 A.2d 715
(1999), is dispositive of the defendant’s claim. In that case,
Prejudgment Proceedings in Foreclosures - 57
this court held that an assignee has the option to pursue
litigation in its own name or in the name of its assignor. Id.,
184. Accordingly, the defendant’s claim must fail.”
Kennedy
Funding, Inc. v.
Greenwich
Landing, LLC,
135 Conn. App.
58, 59-60, 43
A3d 664 (2012).
• “In RMS Residential Properties, LLC v. Miller, 303 Conn.
224, 228–33, 32 A.3d 307 (2011), our Supreme Court held
that, pursuant to General Statutes § 49-17, the holder of a
negotiable promissory note secured by a mortgage has
standing to bring a foreclosure action against the maker of
the note, even before assignment of the mortgage to the
holder. The principal issue in this appeal is whether, as the
trial court held, such a holder has standing to bring a
foreclosure action even if the holder is described in the
promissory note as an agent for a number of identified
principals. We affirm the judgment of the court.”
RMS Residential
Properties, LLC
v. Miller et al.,
303 Conn. 224,
229-230 & 237-
238, 32 A3d
307, 313 & 317
(2011).
• “Whether § 49-17 provides a holder of a note secured by a
mortgage with standing to bring a foreclosure action is an
issue of first impression for this court. The Appellate Court
has, however, consistently answered this question in the
affirmative. See, e.g., HSBC Bank USA, N.A. v. Navin, 129
Conn. App. 707, 22 A.3d 647 (2011). We agree. Section 49-
17 permits the ‘person entitled to receive the money
secured’ by a mortgage to foreclose on the mortgage, even
when the mortgage has not yet been assigned to him. The
defendant contends that only the owner of the debt, not a
mere holder of the note, is entitled to foreclose on a
mortgage. The plaintiffs agree, but further contend that a
holder of the note is presumed to be the owner of the debt,
and unless the defendant rebuts that presumption, a holder
of the note is entitled to foreclose the mortgage. We agree
with the plaintiffs.”
• “The defendant contends that MERS, because it was not the
original lender, was not the party secured by the mortgage,
and accordingly could not validly be named mortgagee. The
mortgage, however, plainly discloses that MERS was named
mortgagee as nominee for the original lender, Finance
America, LLC. Accordingly, the real nature of the transaction
was properly and sufficiently disclosed. The defendant does
not contest that the original lender could create the
mortgage interest to secure the debt, and then assign it to
MERS. Accordingly, the defendant’s contention is that the
lender may not accomplish in one recorded transaction that
which it could undisputedly achieve in two. The mortgage
makes clear that MERS is named mortgagee by the lender.
MERS holds mortgages, given in good faith for the purpose
of securing a debt, for the security of creditors. To hold such
mortgages void would be to frustrate the intentions of both
mortgagors and mortgagees. Accordingly, we conclude that
Prejudgment Proceedings in Foreclosures - 58
a mortgage is not void, ab initio, by virtue of the naming of
a nominee of the disclosed lender as mortgagee.”
• “Our statement in RMS Residential Properties, LLC v. Miller,
supra, 303 Conn. 231-32, that ‘a holder of a note is
presumed to be the owner of the debt, and unless the
presumption is rebutted, may foreclose the mortgage under
§ 49-17,’ was not intended to suggest that mere proof that
someone other than the party seeking to foreclose is the
owner of the note will require dismissal for lack of standing.
Rather, under such circumstances, the burden would shift
back to the plaintiff to demonstrate that the owner has
vested it with the right to receive the money secured by the
note. To the extent that our statement in RMS Residential
Properties, LLC, can be read otherwise, it is hereby
overruled.” J.E. Robert Company, Inc. v. Signature
Properties, LLC, et al., 309 Conn. 307, 325 – footnote 18,
71 A3d 492 (2013).
LAW REVIEWS:
Supreme Court Resolves Some Hot Foreclosure Issues, 23
Connecticut Lawyer 3, (2012)
– discusses the significance of RMS Residential Properties
LLC v. Miller
Once you have identified useful cases, it is important to update the cases before you rely on them.
Updating case law means checking to see if the cases are still good law. You can contact your local law
librarian to learn about the tools available to you to update cases.
Public access to law review databases is available on-site at each of our law libraries.
Prejudgment Proceedings in Foreclosures - 59
Section 5: Bankruptcy and Foreclosure
A Guide to Resources in the Law Library
SCOPE:
• Bibliographic resources relating to the effect of bankruptcy
on an action for foreclosure.
DEFINITIONS:
• “Upon the filing of a bankruptcy petition by a mortgagor
under Title 11 of the United States Code, any judgment
against the mortgagor foreclosing the title to real estate by
strict foreclosure shall be opened automatically without
action by any party or the court, provided, the provisions of
such judgment, other than the establishment of law days,
shall not be set aside under this subsection, provided no
such judgment shall be opened after the title has become
absolute in any encumbrancer or the mortgagee, or any
person claiming under such encumbrancer or mortgagee.
The mortgagor shall file a copy of the bankruptcy petition,
or an affidavit setting forth the date the bankruptcy petition
was filed, with the clerk of the court in which the
foreclosure matter is pending. Upon the termination of the
automatic stay authorized pursuant to 11 USC 362, the
mortgagor shall file with such clerk an affidavit setting forth
the date the stay was terminated.” Conn. Gen. Stat. § 49-
15(b) (2023).
• Automatic stay: “is one of the fundamental debtor
protections provided by the bankruptcy laws. It gives the
debtor a breathing spell from his creditors. It stops all
collection efforts, all harassment, and all foreclosure
actions.” H.R. Rep. No. 595, 95th Cong., 2d Sess. 340-42
(1977), 1978 U.S. Code Cong. & Admin. News 5787, 5963,
6296-97, (emphasis added).
• “The filing of a petition under any chapter of the
Bankruptcy Code automatically stays all actions against the
debtor, including foreclosure actions. 11 U.S.C § 362 (a)
(5).” Roy v. Beilin, Superior Court, Judicial District of
Danbury, No. 31 50 57 (Sep. 8, 1997) (1997 WL 583838).
• Stay continues: “(2) the stay of any other act under
subsection (a) of this section continues until the earliest
of—
(A) the time the case is closed;
(B) the time the case is dismissed; or
(C) if the case is a case under chapter 7 of this title
concerning an individual or a case under chapter 9, 11,
12, or 13 of this title, the time a discharge is granted or
denied.” 11 U.S.C § 362 (c) (2).
Prejudgment Proceedings in Foreclosures - 60
STATUTES, U.S.C.
• 11 United States Code
§ 362. Automatic stay
§ 522. Exemptions
§ 541. Property of the estate
COURT RULES:
• Claim for Statutory Exemption or Stay by Reason of
Bankruptcy
“When a claim for a statutory exemption or stay
by reason of bankruptcy is filed, it shall be accompanied
by an affidavit setting forth the date the bankruptcy petition
was filed, the district of the bankruptcy court in which it
was filed and the address, the name of the bankruptcy
debtor and the number of the bankruptcy case.
When the stay has been relieved or terminated, the
plaintiff, the person filing the petition, or any other
interested party shall file with the court a copy of the relief
or termination of stay issued by the bankruptcy court.” CT
Practice Book § 14-1 (2023 ed.)
FORMS:
• Collier on Bankruptcy, 16th ed, by Alan N. Resnick and
Henry J. Sommer, with 2023 supplement.
Volume 18, Pt. CS6 – Modifying, Maintaining and
Enforcing the Automatic Stay
§ CS6.22 Setting Aside Foreclosure Sale Made in
Violation of the Automatic Stay
Form No. CS6.22-1 Complaint by Debtor to Set
Aside Foreclosure Sale Made in Violation of the
Automatic Stay; 11 U.S.C. § 362
Form No. CS6.22-2 Findings of Fact and
Conclusions of Law; Foreclosure Sale Violative of
Automatic Stay; 11 U.S.C. § 362
Form No. CS6.22-3 Judgment Setting Aside
Foreclosure Sale in Violation of Automatic Stay; 11
U.S.C. § 362
CASES:
• For summaries of recent CT Supreme and Appellate Court
foreclosure cases, see our foreclosure section on our
Newslog at:
http://jud.ct.gov/LawLib/LawLibNews/Default.aspx?CatID=14
• US Bank, National Association as Trustee v. Perkins,
Superior Court, Judicial District of Danbury at Danbury, No.
DBD-CV-12-6010846-S (August 2, 2021) (2021 WL
3727810) (71 Conn. Law Rptr. 285). “…[T]his court must
also consider the relationship of § 49-15(b) with other
provisions of the General Statutes governing foreclosures,
relevant rules of practice and related provisions of the
federal bankruptcy code, to determine whether an
application of the plain meaning of the statute would yield
You can visit your
local law library,
search the most
recent U.S. Code on
the U.S. Code
website.
Amendments to the
Practice Book (Court
Rules) are published
in the Connecticut
Law Journal and
posted online.
Official Judicial
Branch forms are
frequently updated.
Please visit the
Official Court
Webforms page for
the current forms.
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 61
absurd and unworkable results. In the present action, the
court concludes that it would.”
• Seminole Realty, LLC v. Sekretaev, 192 Conn. App. 405,
425, 218 A.3d 198 (2019). “The question at the heart of
this appeal is the effect of the bankruptcy court's
suspension of the plaintiff's in rem relief for sixty days. We
conclude that the bankruptcy court's suspension of the
plaintiff's in rem relief extended the law day for sixty days
and, therefore, title vested in the plaintiff on October 16,
2018, due to the defendant's failure to redeem. See
Provident Bank v. Lewitt, 84 Conn. App. 204, 206–209, 852
A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 580
(2004); see also 11 U.S.C. § 108 (b). The trial court,
therefore, did not abuse its discretion on November 28,
2018, by overruling the defendant's objection to the
execution of ejectment or by denying his emergency motion
for a stay.”
• Bank of New York Mellon v. Acker, Superior Court, Judicial
District of Fairfield at Bridgeport, No. CV-186070436-S
(May 1, 2019), (68 Conn. Law Rptr. 511) (2019 WL
2439040). “Until the Appellate Court has the opportunity,
itself, to reconsider Shivers, this Court is bound to apply its
ruling in matters before it. Accordingly, the Court must
decline to rule on the Committee's motion for fees and costs
without prejudice for reconsideration when there is no
longer a bankruptcy stay in place. While it may not seem
‘fair’ that the Committee remains uncompensated for work
he has done on behalf of the Court, the Committee can
move for relief of the bankruptcy stay or seek appellate
review of this Order and the Court will award him the fees
and costs incurred in doing so.”
• Manning v. Feltman, 149 Conn. App. 224, 225-226, 91 A3d
466 (2014). "The plaintiff in this foreclosure action . . .
appeals from the judgment of dismissal rendered by the
trial court in favor of the defendants.... The court concluded
that it lacked subject matter jurisdiction over the
foreclosure action after determining that the plaintiff lacked
standing because he failed to list the note and mortgage
deed at issue in his foreclosure complaint as an asset in his
1995 bankruptcy petition. The court ruled that the note
and mortgage remain the property of the bankruptcy
estate, not the plaintiff. On appeal, the plaintiff claims that
the court erred in granting the defendants' motion to
dismiss because (1) the court should have abstained from
deciding bankruptcy law issues, stayed the case, and
referred such issues to the Bankruptcy Court; (2) the
defendants lacked standing to raise bankruptcy issues; and
(3) the court should have substituted the bankruptcy
trustee as a party plaintiff. We affirm the judgment of the
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update
cases.
Prejudgment Proceedings in Foreclosures - 62
trial court."
• Roy v. Beilin, Superior Court, Judicial District of Danbury,
No. 31 50 57 (Sep. 8, 1997) (1997 WL 583838). “While all
property in which the debtors had an interest at the time
the bankruptcy petition was filed becomes property of the
bankruptcy estate under 11 U.S.C. § 541, any property that
is exempted under 11 U.S.C. § 522 (b) is removed from the
estate. In re Rodriguez, 9 B.R. 643 (S.D. Florida 1981).
Since the defendants contend that the subject property was
exempted, such property is no longer considered part of the
bankruptcy estate and the stay ‘continues only until the
earliest of the time when the case is closed or dismissed or
the time when a discharge is granted to the debtor.’
(Emphasis in original.) In re Rodriguez, supra, 9 B.R. 643-
44 (granting mortgagee's motion to modify stay seeking to
continue its foreclosure action on the debtor's home even
though the property was exempted, on the ground that the
stay had lifted since the debtor had received a discharge).”
• Kilduff v. Adams, Inc., 219 Conn. 314, 321, 593 A.2d 478
(1991). “If the plaintiffs had filed a bankruptcy petition
prior to the redemption by Adams, Inc., an automatic stay
would have been imposed that would have barred
temporarily any further proceedings in the foreclosure
action, including the defendants' redemption. 11 U.S.C. §
362 (a).”
• In Re Lohnes, 26 B.R. 593, 596 (Bkrtcy. D.Conn. 1983). “In
the instant proceeding, there is no question that the
automatic stay was violated by the foreclosure sale.”
WEST KEY
NUMBERS:
• Bankruptcy
#2397(2) Foreclosure proceedings – automatic stay
#2650(4) Price at foreclosure, judicial, or trustee sale –
as consideration for transfer
ENCYCLOPEDIAS:
• 9A Am Jur 2d Bankruptcy, Thomson West, 2016 (Also
available on Westlaw).
b. Factors Affecting Determination of Good Faith in Filing
§ 912. Filing on the eve of foreclosure
d. Exemption of Particular Interests and Types of
Property
§ 1432. Effect of foreclosure action or judgment
§ 1505. Consensual or judicial lien; mortgage
foreclosures
• 9B Am Jur 2d Bankruptcy, Thomson West, 2016 (Also
available on Westlaw).
§ 1771. Mortgages; Foreclosure and sale
§ 1815. Exception to stay for commencement of HUD
foreclosure actions
Encyclopedias and
ALRs are available in
print at some law
library locations and
accessible online at
all law library
locations.
Online databases are
available for
in-library use.
Remote access is not
available.
Once you have
identified useful
cases, it is important
to update the cases
before you rely on
them. Updating case
law means checking
to see if the cases
are still good law.
You can contact your
local law librarian to
learn about the tools
available to you to
update cases.
Prejudgment Proceedings in Foreclosures - 63
• 9C Am Jur 2d Bankruptcy, Thomson West, 2016 (Also
available on Westlaw).
§ 2176. Foreclosure sale as involuntary prepetition
fraudulent transfer or obligation
§ 2214. Mortgage foreclosure sales as conclusive
equivalent value in prepetition transfer or obligation
§ 2856. Requirement of curing default for unimpaired
claim or interest – Foreclosure judgment
TEXTS &
TREATISES:
• Connecticut Foreclosures: An Attorney’s Manual of Practice
and Procedure, 13th ed., by Denis R. Caron & Geoffrey K.
Milne, Connecticut Law Tribune, 2023.
Chapter 12: The Committee
§ 12-3 Conducting the Sale
§ 12-3:2.1 Disregarding the Automatic Bankruptcy
Stay
§ 12-5 The Approval Hearing
§ 12-5:2 Bankruptcy Filing Stay Approval of
Committee Fees and Expenses
Chapter 26: Bankruptcy
§ 26-1 Introduction
§ 26-2 The Petition
§ 26-3 The Proceeding
§ 26-4 The Stay of the Proceedings
§ 26-4:1 Timing Rule on Hearings to Vacate
Automatic Stay
§ 26-4:2 Time for Filing Petition to Halt Foreclosure
§ 26-4:3 Effect of Petition by Guarantor upon a
Pending Foreclosure Proceeding
§ 26-4:5 Joint Tenancy Compels Another Result
§ 26-4:6 Looking Beyond the Cases: Wood and
Pelzar
§ 26-4:7 The Automatic Stay May Not Be as
“Automatic” as We Once Thought – Canney and
BAPCPA
§ 26-4:8 The State Court’s Interpretation of a
Bankruptcy Court’s Order Lifting the Automatic Stay
§ 26-5 Relief from Stay
§ 26-6 Selected Issues of General Interest
§ 26-7 Sale of Real Property or Foreclosure?
Chapter 27: Bankruptcy Litigation
§ 27-1 Introduction
§ 27-2 Jurisdiction and Venue
§ 27-2:1 Jurisdiction
§ 27-2:1.1. Core vs. Non-Core Proceedings
§ 27-2:1.2 Non-Final v Final Judgments
§ 27-2:2 Venue
§ 27-3 Contested Matters
§ 27-3:1 Defining a Contested Matter
§ 27-3:2 Adversary Proceedings
§ 27-3:2.1 Defining an Adversary Proceeding
§ 27-3:2.2 Bankruptcy Rules That Apply to
Adversary Proceedings
§ 27-3:2.3 Overview of Bankruptcy Rules
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 64
§ 27-4 The Filing of a Petition
§ 27-4:1 Litigation
§ 27-4:1.1 Applicability of the Automatic Stay:
Effect of Automatic Stay as to Guarantors
§ 27-4:1.2 Proof of Claims
§ 27-4:1.3 Effect of Chapter 13 Conversion Upon
Creditor Claims
§ 27-4:1.4 Rule 3001
§ 27-4:1.5 Rule 3002.1
§ 27-4:2 Determination of Secured Claims
§ 27-4:2.1 Section 544 and Determination of the
Validity, Priority, or Extent of a Lien
§ 27-4:2.2 Defenses to Avoidance
§ 27-4:2.3 Preference Avoidance
§ 27-4:3 Fraudulent Conveyances
§ 27-4:4 Objections to Discharge Under Sections
523 and 727
§ 27-4:4.1 Dischargeability of a Debt Under
Section 523
§ 27-4:4.2 Objection to Debtor’s Discharge
Under Section 727
§ 27-4:4.3 Revocation of Discharge under § 727
§ 27-4:4.3a Statement of Intention to
Surrender and its Effect on a Foreclosure
Action
§ 27-4:5 Objections to Confirmation
§ 27-4:5.1 Due on Sale Clauses within Mortgage
§ 27-4:5.2 Absolute Priority Rule
• Mortgage Servicing Including Loan Modifications, 1st ed.,
National Consumer Law Center, 2019.
Chapter 11. Using Bankruptcy to Prevent Foreclosure
§ 11.1. Introduction
§ 11.2. Bankruptcy Basics
§ 11.3. Obtaining the Automatic Stay
§ 11.4. Curing Defaults on Home Loans
§ 11.5. Paying Secured Claims in Full
§ 11.6. Stripping Down Residential Mortgages to the
Value of the Collateral
§ 11.7. Avoiding Judicial Liens – Section 522(f)(1)
§ 11.8. Debtor’s Statement of Intention Regarding
Secured Property
§ 11.9. Sale of Property
§ 11.10. Impact of Bankruptcy on Later Foreclosure
Prevention Efforts
Chapter 12. Issues Arising after a Foreclosure Sale
§ 12.2.4. Setting Aside a Foreclosure Sale in
Bankruptcy
§ 12.2.4.1. Sales That Violate the Automatic Stay
§ 12.2.4.2. Fraudulent Transfers – 11 U.S.C. §
548
§ 12.2.4.3. Using State Law Invalidity to Set Aside
a Sale in Bankruptcy Court
§ 12.2.4.4. Preferences – 11 U.S.C. § 547
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.
Prejudgment Proceedings in Foreclosures - 65
§ 12.2.4.5. Sales That Are Not Complete Under
State Law
• A Practical Guide to Residential Real Estate Transactions
and Foreclosures in Connecticut, 2d ed., by Christian R.
Hoheb, Editor, Massachusetts Continuing Legal Education,
Inc., 2021 (also available on Westlaw).
Chapter 8, Preforeclosure Issues
§ 8.2. Initial Determinations and Considerations
§ 8.2.1. Has the Borrower Filed for Bankruptcy?
• 4 Powell on Real Property, by Richard R. Powell, Matthew
Bender, 1989, with 2022 supplement (Also available on
Lexis)
Chapter 37. Mortgages and Mortgage Foreclosures
§ 37.48. Statutory Modifications – Bankruptcy
[1] Arrearages Protection
[2] The Automatic Bankruptcy Stay
[3] Sale of the Property by the Bankruptcy Court
[4] Impact of a Reorganization Plan on the
Mortgagee
[5] Farmer Reorganizations
[6] Rents
• Foreclosure Defense: A Practical Litigation Guide, 2nd Ed.,
Rebecca A. Taylor, American Bar Association, 2020.
Chapter 23. Bankruptcy
• Collier on Bankruptcy, 16th ed, by Alan N. Resnick and
Henry J. Sommer, with 2023 supplement.
HUD foreclosures
Volume 3: 362 (b)(8), 362.05[8]
Extension of time for redemption – Volume 2: 108.03[3]
Deacceleration of foreclosure judgment – Volume 7:
1124.04[6]
• The Foreclosure Survival Guide, 8th ed., Amy Loftsgordon,
Nolo, 2021.
Chapter 5. How Chapter 13 Bankruptcy Can Delay or
Stop Foreclosure
Chapter 6. How Chapter 7 Bankruptcy Can Delay or Stop
Foreclosure
• Mortgage Servicing and Loan Modifications, 1st ed.,
National Consumer Law Center, 2019
Chapter 3. Servicing Requirements Under the Real
Estate Settlement Procedures Act
Chapter 5. State Law Servicing Claims
Each of our law
libraries own the
Connecticut treatises
cited. You can
contact us or visit
our catalog to
determine which of
our law libraries own
the other treatises
cited or to search for
more treatises.
References to online
databases refer to
in-library use of
these databases.
Remote access is not
available.