Bank of New York Mellon v. Madison

B
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           THE BANK OF NEW YORK MELLON,
                TRUSTEE v. RUSSELL M.
                   MADISON ET AL.
                     (AC 43719)
                       Alvord, Prescott and Moll, Js.

                                  Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property
    in Woodbridge owned by the defendants R and M. Following several
    antecedent assignments, the mortgage was assigned to the plaintiff on
    the Woodbridge land records, and, subsequently, R defaulted on the
    note which was secured by the mortgage. The plaintiff provided R and
    M with written notice of the default, which was not cured, and thereafter
    commenced this action. The plaintiff appended to its original complaint
    a copy of the schedule affixed to the mortgage containing a description
    of the property. The plaintiff subsequently filed an amended two count
    complaint, alleging, in count one, a claim for foreclosure and appending
    an amended schedule that described an additional parcel of land that
    abutted the previously identified parcel. The plaintiff asserted in count
    two a claim for reformation of the mortgage, which alleged that the
    property description in the schedule appended to the plaintiff’s original
    complaint was inaccurate, and that the amended schedule set forth the
    correct description of the property. The court thereafter granted the
    plaintiff’s motion for summary judgment as to liability on its foreclosure
    claim. Following a hearing, the court granted the plaintiff’s motion for
    judgment of strict foreclosure and, immediately thereafter, the plaintiff’s
    counsel orally moved for judgment on the reformation claim. The court
    reserved decision on the plaintiff’s oral motion for judgment at the
    hearing, but subsequently granted the motion. From the judgment ren-
    dered thereon, R and M appealed to this court. Held:
1. The trial court improperly granted the plaintiff’s oral motion for judgment
    on its reformation claim: the plaintiff failed to produce any evidence in
    support of its reformation claim, R and M were not defaulted as to
    the plaintiff’s amended complaint, and the plaintiff never moved for
    summary judgment on its reformation claim; accordingly, there was no
    basis on which the court could have properly rendered judgment in the
    plaintiff’s favor; moreover, this court concluded that, as a result of its
    reversal of the judgment with respect to the reformation of the mortgage,
    the judgment of strict foreclosure must also be reversed, because a trial
    court must adjudicate a reformation claim before or in conjunction with
    the attendant foreclosure claim.
2. The trial court properly granted the plaintiff’s motion for summary judg-
    ment as to liability on its foreclosure claim: contrary to R and M’s claim
    that the plaintiff failed to establish that the default notice that it had
    mailed to R and M complied with the notice requirements of the mort-
    gage, this court concluded that the notice substantially complied with
    those requirements, insofar as that notice was required to specify a
    date, not less than thirty days from the date the notice is given to the
    borrower, by which the default must be cured, as the language of the
    notice was sufficiently clear and unambiguous so as to alert R and M
    that the plaintiff was demanding that they cure the default within thirty
    days of February 22, 2016, the notice in the present case was dated
    February 22, 2016, included several references to that date, and, read
    as a whole, sufficiently notified R and M that they had to cure their
    default within thirty days of February 22, 2016.
       Argued October 21, 2020—officially released March 2, 2021

                             Procedural History

   Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the plaintiff filed an amended
complaint; thereafter, the court, Baio, J., granted the
plaintiff’s motion for summary judgment as to liability;
subsequently, the court, Baio, J., rendered judgment
of strict foreclosure; thereafter, the court granted the
plaintiff’s motion for judgment on count two of the
complaint seeking reformation of the mortgage and ren-
dered judgment thereon, from which the named defen-
dant et al. appealed to this court. Reversed in part;
further proceedings.
  Earle Giovanniello, for the appellants (named defen-
dant et al.).
  Christopher J. Picard, for the appellee (plaintiff).
                          Opinion

   MOLL, J. In this foreclosure action, the defendants
Russell M. Madison and Margit Madison1 appeal from
the judgment of the trial court rendered in favor of the
plaintiff, The Bank of New York Mellon, Trustee,2 on
its amended two count complaint asserting claims for
foreclosure and reformation of the mortgage. On
appeal, the defendants claim that the court improperly
granted (1) the plaintiff’s oral motion for judgment on
its reformation claim when the plaintiff failed to pro-
duce any evidence in support thereof and (2) the plain-
tiff’s motion for summary judgment as to liability only
on its foreclosure claim when the plaintiff failed to
establish that the default notice that it had mailed to
the defendants complied with the notice requirements
of the mortgage. We reverse in part the judgment of
the trial court.3
   The following facts and procedural history are rele-
vant to our resolution of this appeal. In May, 2017,
the plaintiff commenced this foreclosure action. The
plaintiff’s original complaint set forth a single count
alleging the following relevant facts. On or about Febru-
ary 25, 2005, Russell executed a promissory note, in
the principal amount of $473,400, in favor of Mortgage
Capital Group, LLC. The loan was subsequently sub-
jected to several loan modification agreements. To
secure the note, the defendants executed a mortgage
on certain real property located at 140 Seymour Road
in Woodbridge. Appended to the original complaint was
a copy of the schedule affixed to the mortgage con-
taining a description of the property encumbered by
the mortgage (original schedule). On March 2, 2005,
the mortgage was recorded on the Woodbridge land
records. Following several antecedent assignments, the
mortgage was assigned to the plaintiff by virtue of an
assignment recorded on the Woodbridge land records
on October 26, 2011, and the plaintiff became the holder
of the note. On an unspecified date, Russell defaulted
on the note. Thereafter, the plaintiff provided the defen-
dants with written notice of the default, which was not
cured. As a result, the plaintiff elected to accelerate the
balance due on the note, declare the note to be due in
full, and commence this action seeking to foreclose on
the mortgage.
  On October 19, 2018, the plaintiff filed a request for
leave to file an amended complaint.4 Attached to the
request was a proposed two count amended complaint,
which was deemed to have been filed by consent, with-
out objection. Appended to the amended complaint was
an amended schedule describing the property encum-
bered by the mortgage (amended schedule). The
amended schedule was otherwise identical to the origi-
nal schedule, except that the amended schedule
described an additional parcel of land that abutted the
previously identified parcel. Count one of the amended
complaint asserted a claim for foreclosure (count one)
and mirrored the allegations set forth in the plaintiff’s
original complaint, except that count one alleged that
the amended schedule described the property secured
by the mortgage, whereas the original complaint alleged
that the original schedule described the encumbered
property. The newly added count two of the amended
complaint asserted a claim for reformation of the mort-
gage (count two). In support of count two, the plaintiff
alleged in relevant part that, following a title search
completed in relation to the plaintiff’s foreclosure
claim, it was discovered that the property description
affixed to the mortgage (as reflected in the original
schedule) was inaccurate, and that the amended sched-
ule set forth the correct description of the property
encumbered by the mortgage.
   On November 14, 2018, the defendants answered the
amended complaint. As to count one, the defendants
admitted, inter alia, that they owned and were in posses-
sion of the property as described in the amended sched-
ule, but they left the plaintiff to its proof regarding its
allegations that, inter alia, the plaintiff was the holder
of the note, the note was in default, the plaintiff had
properly notified them of the default, and the default
had not been cured. As to count two, other than restat-
ing their admission that they owned the property as
described in the amended schedule, the defendants
either denied the plaintiff’s allegations or left the plain-
tiff to its proof. The defendants did not plead any special
defenses. On November 21, 2018, the plaintiff filed a
demand for disclosure of a defense. On November 30,
2018, the defendants filed a disclosure of defense
demanding that the plaintiff produce the ‘‘original mort-
gage note’’ and provide proof that it had a legal right
to foreclosure, produce evidence that the assignment
of the mortgage to the plaintiff was validly executed,
and produce evidence that it had sent a proper default
notice to them.
   On June 17, 2019, the plaintiff filed a motion, accom-
panied by a supporting memorandum of law and exhib-
its, seeking summary judgment as to liability only with
respect to count one. The plaintiff claimed that it had
established a prima facie case for foreclosure because
there was no genuine issue of material fact that (1) it
was the holder of the note, (2) a default had occurred,
(3) in accordance with the terms of the mortgage, it
had mailed a default notice to the defendants, and (4)
the default had not been cured. Notably, the plaintiff
did not move for summary judgment as to count two
or mention the reformation count in its motion. On July
30, 2019, the defendants filed an objection, principally
arguing that the default notice mailed to them by the
plaintiff did not comply with the notice provisions of
the mortgage.
  On October 8, 2019, after having heard argument on
September 23, 2019, the trial court, Baio, J., issued
an order granting the plaintiff’s motion for summary
judgment as to liability only on count one and overruling
the defendants’ objection. None of the parties nor the
court referred to count two or reformation during argu-
ment on September 23, 2019, and the court’s order grant-
ing the motion for summary judgment did not mention
count two.
   On December 2, 2019, the court held a hearing on a
motion for judgment of strict foreclosure that the plain-
tiff had filed on November 9, 2018. On the record, over
the defendants’ objection, the court granted the plain-
tiff’s motion and rendered a judgment of strict foreclo-
sure as to count one. Immediately thereafter, the plain-
tiff orally requested that the court also render judgment
in its favor on count two. The defendants objected on
the ground that the plaintiff’s motion for summary judg-
ment, which was granted by the court on October 8,
2019, did not encompass count two.
   After passing the matter to allow the parties an oppor-
tunity to review the relevant materials in the record,
the court allowed brief argument. The defendants
argued that the plaintiff failed to submit evidence in
support of its reformation claim, and, therefore, they
requested that the court reserve its ruling on the plain-
tiff’s oral motion for judgment as to count two until the
plaintiff had met its evidentiary burden. The plaintiff
argued that its motion for summary judgment was
‘‘generic enough to ask for liability as to the entire
[amended] complaint,’’ and that it interpreted the
court’s granting of the motion for summary judgment
as encompassing both counts of the amended com-
plaint. In addition, after conceding that its November
9, 2018 motion for judgment of strict foreclosure was
limited to count one, the plaintiff orally moved for judg-
ment with respect to count two. The court reiterated
that it had rendered a judgment of strict foreclosure as
to count one before stating that it was reserving its
decision on the plaintiff’s oral motion for judgment on
count two.
  On December 6, 2019, the court summarily granted
the plaintiff’s oral motion for judgment as to count two.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
                            I
  We first address the defendants’ claim that the trial
court improperly granted the plaintiff’s oral motion for
judgment on count two. The defendants assert that the
court had no ground on which to render judgment in
the plaintiff’s favor on count two because the plaintiff
had failed to produce any evidence demonstrating that
reformation of the mortgage was justified. We agree.
  We begin by observing that ‘‘[r]eformation and fore-
closure are both equitable proceedings. . . . We will
reverse a trial court’s exercise of its equitable powers
only if it appears that the trial court’s decision is unrea-
sonable or creates an injustice. . . . [E]quitable power
must be exercised equitably . . . [but] [t]he determina-
tion of what equity requires in a particular case, the
balancing of the equities, is a matter for the discretion
of the trial court. . . . In determining whether the trial
court has abused its discretion, we must make every
reasonable presumption in favor of the correctness of
its action. . . . Our review of a trial court’s exercise
of the legal discretion vested in it is limited to the
questions of whether the trial court correctly applied
the law and could reasonably have reached the conclu-
sion that it did. . . .
   ‘‘A cause of action for reformation of a contract rests
on the equitable theory that the instrument sought to be
reformed does not conform to the real contract agreed
upon and does not express the intention of the parties
and that it was executed as the result of mutual mistake,
or mistake of one party coupled with actual or construc-
tive fraud, or inequitable conduct on the part of the
other. . . . Reformation is not granted for the purpose
of alleviating a hard or oppressive bargain, but rather
to restate the intended terms of an agreement when the
writing that memorializes that agreement is at variance
with the intent of both parties . . . . Equity evolved
the doctrine because an action at law afforded no relief
against an instrument secured by fraud or as a result
of mutual mistake. . . . The remedy of reformation is
appropriate in cases of mutual mistake—that is where,
in reducing to writing an agreement made or transaction
entered into as intended by the parties thereto, through
mistake, common to both parties, the written instru-
ment fails to express the real agreement or transaction.
. . . In short, the mistake, being common to both par-
ties, effects a result which neither intended. . . .
   ‘‘[T]here can be no reformation unless there is an
antecedent agreement upon which the minds of the
parties have met. The relief afforded in reforming an
instrument is to make it conform to the previous agree-
ment of the parties. Therefore a definite agreement on
which the minds of the parties have met must have pre-
existed the instrument in question. The court cannot
supply an agreement which was never made, for it is
its province to enforce contracts, not to make or alter
them. . . .
   ‘‘A court in the exercise of its power to reform a
contract must act with the utmost caution and can
only grant the relief requested if the prayer for refor-
mation is supported by convincing evidence. . . . In
the absence of fraud, it must be established that both
parties agreed to something different from what is
expressed in writing, and the proof on this point should
be clear so as to leave no room for doubt . . . . If the
right to reformation is grounded solely on mistake, it
is required that the mistake be mutual, and to prevail
in such a case, it must appear that the writing, as
reformed, will express what was understood and agreed
to by both parties. . . . A party seeking the reforma-
tion of a contract must show proof justifying reforma-
tion by clear, substantial and convincing evidence,
meaning evidence that induces in the mind of the trier
a reasonable belief that the facts asserted are highly
probably true, [and] that the probability that they are
true or exist is substantially greater than the probability
that they are false or do not exist.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Perez, 146 Conn.
App. 833, 838–40, 

80 A.3d 910

(2013), appeal dismissed,

315 Conn. 542

, 

109 A.3d 452

(2015).
   The record reveals that the court granted the plain-
tiff’s oral motion for judgment on count two, notwith-
standing the fact that the plaintiff failed to ‘‘show proof
justifying reformation by clear, substantial and convinc-
ing evidence . . . .’’ (Internal quotation marks omit-
ted.)

Id., 840.

The defendants were not defaulted as to
the plaintiff’s amended complaint; indeed, as to count
two, other than admitting that they owned the property
as described in the amended schedule, they either
denied the plaintiff’s allegations or left the plaintiff to
its proof. The plaintiff never moved for summary judg-
ment on count two.5 At no point did the plaintiff produce
any evidence before the trial court in support of its
reformation claim. Put simply, there was no basis on
which the court could have properly rendered judgment
in the plaintiff’s favor on its reformation claim.6 There-
fore, we conclude that the court committed error in
granting the plaintiff’s oral motion for judgment on
count two.
   At this juncture, we must address whether the fore-
closure judgment rendered on count one is directly
affected by our conclusion that the court improperly
rendered judgment in the plaintiff’s favor on count two,
reforming the mortgage. We conclude that reversing the
judgment rendered on count two necessitates reversing
the foreclosure judgment rendered on count one.
   When pursued together in the same action, a foreclo-
sure claim is oftentimes inextricably intertwined with
a reformation claim, such that the foreclosure claim is
untenable if the reformation claim fails. See JPMorgan
Chase Bank, National Assn. v. Virgulak, 192 Conn.
App. 688, 705, 

218 A.3d 596

(concluding that trial court
did not err in denying foreclosure claim when mortgage,
as executed, was nullity because it purported to secure
nonexistent debt and reformation of mortgage, as trial
court properly determined, was not warranted), cert.
granted, 

333 Conn. 945

, 

219 A.3d 375

(2019); Deutsche
Bank National Trust Co. v. 

Perez, supra

, 

146 Conn. App. 843

(concluding that reversal of portion of judgment
reforming mortgage ‘‘necessarily’’ required reversal of
foreclosure judgment predicated on erroneously
reformed mortgage); Century Mortgage Co. v. George,

35 Conn. App. 326

, 331, 

646 A.2d 226

(concluding that
trial court did not err in denying foreclosure claim when
property description affixed to mortgage referred to
property in different municipality and trial court had
concluded that reformation of mortgage was not war-
ranted), cert. denied, 

231 Conn. 915

, 

648 A.2d 150

(1994).
   In the present case, the plaintiff’s foreclosure claim
was not necessarily dependent on its particular refor-
mation claim, which sought to capture an abutting par-
cel; that is, failure of the reformation claim would not
preclude the plaintiff from pursuing a foreclosure on
the mortgage, as executed, against the defendants with
respect to 140 Seymour Road in Woodbridge. Neverthe-
less, we conclude that under the circumstances of the
present case, where a mortgagee is seeking simultane-
ously to foreclose on and to reform a mortgage, a fore-
closure judgment cannot be rendered, or, if already
rendered, cannot stand if the reformation claim remains
pending. In other words, under such circumstances, a
trial court must adjudicate the reformation claim before
or in conjunction with the attendant foreclosure claim.
This rule recognizes the interrelation between foreclo-
sure and reformation claims and promotes judicial
economy by removing any potential need to open an
existing foreclosure judgment to account for a subse-
quent reformation of the mortgage. Moreover, it is sim-
ply more prudent to resolve any ambiguity clouding a
mortgage before foreclosing on it. Accordingly, as a
result of our reversal of the judgment rendered on count
two reforming the mortgage, the judgment of strict fore-
closure rendered on count one must be reversed.7
                           II
  We next turn to the defendants’ claim that the trial
court improperly granted the plaintiff’s motion for sum-
mary judgment as to liability only on count one. We
disagree.
  ‘‘The legal principles and standard of review govern-
ing our resolution of this claim are well settled. On
appeal, [w]e must decide whether the trial court erred
in determining that there was no genuine issue as to
any material fact and that the moving party is entitled
to judgment as a matter of law. . . . Because the trial
court rendered judgment for the [plaintiff] as a matter
of law, our review is plenary and we must decide
whether [the trial court’s] conclusions are legally and
logically correct and find support in the facts that
appear in the record. . . . Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered forth-
with if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . A material fact is a fact that will make a
difference in the outcome of the case. . . . Once the
moving party has presented evidence in support of the
motion for summary judgment, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue. . . . The movant has the
burden of showing the nonexistence of such issues but
the evidence thus presented, if otherwise sufficient, is
not rebutted by the bald statement that an issue of
fact does exist. . . . To oppose a motion for summary
judgment successfully, the nonmovant must recite spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents.’’ (Internal quotation
marks omitted.) Hudson City Savings Bank v. Hell-
man, 

196 Conn. App. 836

, 849–50, 

231 A.3d 182

(2020).
‘‘When documents submitted in support of a motion for
summary judgment fail to establish that there is no
genuine issue of material fact, the nonmoving party
has no obligation to submit documents establishing the
existence of such an issue. . . . Once the moving party
has met its burden, however, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue.’’ (Internal quotation marks
omitted.)

Id., 850–51.

   ‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant summary judgment as to liability in a foreclosure
action if the complaint and supporting affidavits estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense.’’
(Internal quotation marks omitted.)

Id., 850.

   The following additional facts are relevant to our
disposition of this claim. In its memorandum of law in
support of its motion for summary judgment, the plain-
tiff asserted that it had demonstrated a prima facie case
for foreclosure because, inter alia, there was no genuine
issue of material fact that it had mailed a default notice
to the defendants in compliance with the notice provi-
sions of the mortgage.
   Appended to the plaintiff’s supporting memorandum
of law was a copy of the mortgage. Paragraph 22 of
the mortgage provides in relevant part: ‘‘Acceleration;
Remedies. Lender shall give notice to Borrower prior
to acceleration following Borrower’s breach of any cov-
enant or agreement in this Security Instrument . . . .
The notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not less than
30 days from the date the notice is given to Borrower,
by which the default must be cured; and (d) that failure
to cure the default on or before the date specified in the
notice may result in acceleration of the sums secured
by this Security Instrument and foreclosure or sale of
the Property. . . . If the default is not cured on or
before the date specified in the notice, Lender at its
option may require immediate payment in full of all
sums secured by this Security Instrument without fur-
ther demand and may invoke any of the remedies per-
mitted by Applicable Law.’’ (Emphasis added.)
   Additionally, appended to the plaintiff’s supporting
memorandum of law was an affidavit of Mhari Holtz-
claw, an employee of a company doing business as
Shellpoint Mortgage Servicing, the plaintiff’s loan ser-
vicer. Holtzclaw averred in relevant part that ‘‘[t]he
[p]laintiff provided written notice of default by letter
dated February 22, 2016, and sent to the [d]efendants
on or about that date. A true and accurate copy of the
notice is attached hereto . . . .’’ The attached default
notice was titled ‘‘Notice of Default and Intent to Accel-
erate’’ (notice). The first page of the notice was dated
‘‘02/22/2016.’’ The notice provides in relevant part: ‘‘The
loan associated with the . . . Deed of Trust/Mortgage
[referenced earlier in the notice] is in default for failure
to pay amounts due. To cure this default, you must
pay all amounts due under the terms of the Note and
Security Instrument. As of 02/22/2016, the total amount
necessary to bring the Loan current is $14,173.83 (the
‘Amount Due’). For the exact amount you must pay to
bring the Loan current after 02/22/2016, please contact
our office . . . as interest, payments, credits, fees and/
or other permissible charges can continue to cause your
loan balance to vary from day to day. . . . If you have
not cured the default within Thirty Days (30) days of
this notice, Shellpoint [Mortgage Servicing] intends to
accelerate the sums evidenced by the Note and Security
instruments and declare same due and payable in full
and to take other legally and contractually permitted
action to collect the same . . . . If such date falls on
a Saturday, Sunday or legal holiday then the Due Date
shall be the next business day. Any partial payment
received by our office on the Loan after the date of this
letter may not be applied to the reduction of the Amount
Due and may be returned however any such acceptance
does not waive the right to proceed with foreclosure
and a new demand letter may not be sent.’’
   In their objection, relying on Fortune Savings Bank
v. Thibodeau, Superior Court, judicial district of New
Haven, Docket No. CV-XX-XXXXXXX (November 17, 1992)
(

7 Conn. L. Rptr. 611

), the defendants argued that the
notice was defective because it did not specify the date
by which the default had to be cured, as required by
paragraph 22 of the mortgage. In granting the plaintiff’s
motion for summary judgment and overruling the defen-
dants’ objection, the court determined that Thibodeau
was distinguishable because the notice in the present
case ‘‘[did] indeed contain a specific date as a clear
reference point to provide clear notice to the
defendants.’’
   The defendants on appeal contend that, in contraven-
tion of paragraph 22 of the mortgage, the notice did
not specify a date by which the default had to be cured.
Accordingly, the defendants claim that the plaintiff did
not demonstrate that it had mailed a proper default
notice to them, and, therefore, the plaintiff was not
entitled to summary judgment as to liability only on
count one.8 We are not persuaded.
   ‘‘It is well established that [n]otices of default and
acceleration are controlled by the mortgage documents.
Construction of a mortgage deed is governed by the
same rules of interpretation that apply to written instru-
ments or contracts generally, and to deeds particularly.
. . . In construing a deed, a court must consider the
language and terms of the instrument as a whole. . . .
Moreover, the words [in the deed] are to be given their
ordinary popular meaning, unless their context, or the
circumstances, show that a special meaning was
intended. . . .
   ‘‘In construing a contract, the controlling factor is
normally the intent expressed in the contract, not the
intent which the parties may have had or which the
court believes they ought to have had. . . . Where . . .
there is clear and definitive contract language, the scope
and meaning of that language is not a question of fact
but a question of law. . . . In such a situation our scope
of review is plenary, and is not limited by the clearly
erroneous standard. . . . In contrast, a contract is
ambiguous if the intent of the parties is not clear and
certain from the language of the contract itself. . . . If
the language of the contract is susceptible to more than
one reasonable interpretation, the contract is ambigu-
ous. . . . Ordinarily, such ambiguity requires the use
of extrinsic evidence by a trial court to determine the
intent of the parties, and, because such a determination
is factual, it is subject to reversal on appeal only if it is
clearly erroneous.’’ (Internal quotation marks omitted.)
Hudson City Savings Bank v. 

Hellman, supra

, 

196 Conn. App. 858

–59.
  Our precedent instructs that the contents of a default
notice need not adhere strictly to the notice require-
ments of a mortgage; rather, substantial compliance is
sufficient. See Saunders v. Stigers, 

62 Conn. App. 138

,
146–47, 

773 A.2d 971

(2001) (rejecting defendant’s claim
that trial court improperly granted, in part, plaintiffs’
motion for summary judgment as to liability only when
default notice ‘‘substantially complied’’ with notice pro-
vision in mortgage requiring default notice to specify
action required to cure default and that failure to cure
default within allotted time could result in foreclosure
or sale of property); see also Fidelity Bank v. Krenisky,

72 Conn. App. 700

, 713–15, 

807 A.2d 968

(citing Saun-
ders in concluding that default notice ‘‘substantially
complied’’ with notice provision in mortgage requiring
default notice to specify that defendants had ‘‘ ‘right to
assert in court the [nonexistence] of a default or any
other defense of Borrower to acceleration and foreclo-
sure or sale,’ ’’ and, thus, trial court properly rendered
summary judgment as to liability only in plaintiff’s
favor), cert. denied, 

262 Conn. 915

, 

811 A.2d 1291

(2002).
   Upon a careful review of the notice, we conclude
that the notice substantially complied with paragraph
22 of the mortgage insofar as that provision requires
the notice to specify ‘‘a date, not less than 30 days from
the date the notice is given to Borrower, by which
the default must be cured.’’ The notice is plainly dated
February 22, 2016, and set forth the sum necessary to
bring the mortgage loan current ‘‘[a]s of 02/22/2016
. . . .’’ The notice further provides in relevant part that
if the default was not cured ‘‘within Thirty Days (30)
days of this notice, Shellpoint [Mortgage Servicing]
intend[ed] to accelerate the sums evidenced by the Note
and Security instruments and declare same due and
payable in full and to take other legally and contractu-
ally permitted action to collect the same . . . .’’
(Emphasis added.) Moreover, the notice provides that
‘‘[a]ny partial payment received by [Shellpoint Mortgage
Servicing’s] office on the Loan after the date of this
letter may not be applied to the reduction of the Amount
Due and may be returned however any such acceptance
does not waive the right to proceed with foreclosure
and a new demand letter may not be sent.’’ (Emphasis
added.) The language of the notice was sufficiently clear
and unambiguous so as to alert the defendants that
the plaintiff was demanding that they cure the default
within thirty days of February 22, 2016.9
   In Federal Home Loan Mortgage Corp. v. Bardinelli,

44 Conn. Supp. 85

, 87–89, 

667 A.2d 1315

, aff’d, 39 Conn.
App. 786, 

667 A.2d 806

(1995), a foreclosure action, in
granting the plaintiff’s motion for summary judgment,
the trial court concluded that a default notice providing
that the defendant’s default had to be cured ‘‘within
thirty . . . days from the date of this letter,’’ substan-
tially complied with a provision in the mortgage requir-
ing that a default notice ‘‘shall specify . . . a date, not
less than 30 days from the date the notice is given to
Borrower, by which the default must be cured.’’ (Inter-
nal quotation marks omitted.) This language mirrors
the relevant language in paragraph 22 of the mortgage
in the present case. On appeal, this court adopted the
trial court’s memorandum of decision granting the
plaintiff’s motion for summary judgment and affirmed
the judgment of foreclosure by sale that followed the
trial court’s rendering of summary judgment. Federal
Home Loan Mortgage Corp. v. Bardinelli, 39 Conn.
App. 786, 788, 

667 A.2d 806

(1995). Like the mortgagee
in Bardinelli, the plaintiff substantially complied with
the relevant language in paragraph 22 of the mortgage,
despite having failed to set forth in explicit terms the
date by which the default had to be cured.
    The defendants cite Thibodeau in support of their
argument that the notice was deficient. In Thibodeau,
the parties executed a mortgage with a notice provision,
like that of paragraph 22 of the mortgage in the present
case, requiring that a default notice ‘‘shall specify . . .
a date, not less than 30 days from the date the notice
is given to Borrower; by which the default must be cured
. . . .’’ (Emphasis omitted; internal quotation marks
omitted.) Fortune Savings Bank v. 

Thibodeau, supra

,

7 Conn. L. Rptr. 611

. In purported compliance with
the mortgage, the plaintiff in Thibodeau sent a default
notice to the defendants providing in relevant part that
‘‘[t]his is your thirty . . . day notice to reinstate your
loan . . . .’’ (Internal quotation marks omitted.)

Id. Although the trial

court in Thibodeau noted that the
plaintiff had sent the default notice on December 9,
1991, there was no indication that the default notice
was dated or otherwise referred to December 9, 1991,
as a reference point.

Id. In rendering judgment

for the
defendants, the trial court concluded that the default
notice was deficient in two material ways, including
that it failed to specify a date by which the default had
to be cured, such that it was unclear when the thirty
day period to cure the default would expire.

Id. Unlike the default

notice in Thibodeau, the notice in the pres-
ent case was dated February 22, 2016, included several
references to that date, and, when read as a whole,
sufficiently notified the defendants that they had to
cure their default within thirty days of February 22,
2016. Thus, the defendants’ reliance on Thibodeau is
misplaced.
  In sum, the notice substantially complied with the
relevant language of paragraph 22 of the mortgage.
Therefore, we reject the defendants’ claim that the court
improperly granted the plaintiff’s motion for summary
judgment as to liability only on count one.
   The judgment is reversed only with respect to the
granting of the plaintiff’s November 9, 2018 motion for
judgment of strict foreclosure as to the first count of the
amended complaint and the granting of the plaintiff’s
December 2, 2019 oral motion for judgment as to the
second count of the amended complaint, and the case
is remanded with direction to deny those motions and
for further proceedings according to law; the judgment
is affirmed in all other respects.
      In this opinion the other judges concurred.
  1
    The original complaint also named Capital One Bank (USA), N.A., Eric
Demander, Jr., Mortgage Electronic Registration Systems, Inc., as nominee
for Capital One F.B.S., and Webster Bank, N.A., as defendants, but those
parties were defaulted for failure to appear and are not participating in this
appeal. For purposes of clarity, we will refer to Russell M. Madison and
Margit Madison individually by their first names and collectively as the
defendants.
  2
    The full name of the plaintiff is The Bank of New York Mellon, formerly
known as The Bank of New York, as trustee for the Certificateholders of
CWABS, Inc., Asset Backed Certificates, Series 2005-AB2.
   3
     For ease of discussion, we address the defendants’ claims in a different
order than they are set forth in their principal appellate brief.
   4
     On May 24, 2018, pursuant to Practice Book § 14-1, Margit filed a claim
for a statutory stay on the basis of a chapter 7 bankruptcy petition filed by
Margit on May 23, 2018. On September 14, 2018, the plaintiff filed a notice
reflecting that the United States Bankruptcy Court for the District of Con-
necticut had closed Margit’s bankruptcy case, thereby terminating the stay.
   5
     As the plaintiff’s counsel conceded during oral argument before this
court, the plaintiff’s June 17, 2019 motion for summary judgment did not
encompass count two. In contrast, during the December 2, 2019 hearing
before the trial court, the plaintiff argued that the motion for summary
judgment was ‘‘generic enough’’ to include count two. We note that the
motion for summary judgment makes no mention of count two, does not
contain the term ‘‘reformation,’’ and cannot reasonably be construed to be
directed to count two. Moreover, we construe the court’s ruling on the
motion for summary judgment as being limited only to count one, and only
as to the issue of liability with respect to that particular claim. Had the
court rendered summary judgment as to count two, despite the plaintiff not
having moved for summary judgment with regard thereto, such a ruling
would have been improper. See Magee Avenue, LLC v. Lima Ceramic Tile,
LLC, 

183 Conn. App. 575

, 589, 

193 A.3d 700

(2018) (‘‘[a] court may not grant
summary judgment sua sponte, and . . . pursuant to Practice Book § [17-
44], a person seeking summary judgment . . . must file an appropriate
motion addressed to it’’ (internal quotation marks omitted)).
   6
     In its appellate brief, the plaintiff argues that the court did not commit
error in rendering judgment on count two in the plaintiff’s favor ‘‘when
there was a clear intent by the parties to encumber 140 Seymour [Road in
Woodbridge].’’ The merits of the plaintiff’s reformation claim cannot be
addressed in this appeal; rather, the claim must be resolved by the trial
court in the first instance upon a proper evidentiary record.
   7
     To be clear, only the December 2, 2019 judgment of strict foreclosure
rendered on count one is being reversed in conjunction with our reversal
of the December 6, 2019 judgment rendered on count two. The October 8,
2019 order granting the plaintiff’s motion for summary judgment as to liability
only on count one is not affected by our conclusions in part I of this
opinion. During oral argument before this court, when asked to present the
defendants’ position on what effect a reversal of the judgment rendered on
count two would have on the foreclosure judgment rendered on count one,
the defendants’ counsel stated: ‘‘I think you can affirm on . . . count one,
but before the judgment is entered, there’s gonna, someone’s gonna have
to decide what property is being foreclosed. You could say, yes, [Russell]
didn’t pay the debt, and we’re gonna have a judgment of foreclosure, but
you can’t actually have the judgment until you know what property is being
foreclosed.’’ On the basis of counsel’s statements, we construe the defen-
dants’ position to be that the foreclosure judgment rendered on count one
must be reversed if the judgment rendered on count two is reversed, but
that the granting of the plaintiff’s motion for summary judgment finding the
defendants liable under count one should remain undisturbed. In part II of
this opinion, we address the defendants’ claim challenging the propriety of
the order granting the plaintiff’s motion for summary judgment.
   8
     The defendants do not claim that they did not receive the notice.
   9
     In their appellate briefs, the defendants assert that the notice failed to
comply with the mortgage on the additional ground that the notice did not
provide them with at least thirty days following their receipt thereof to cure
the default. The defendants did not raise this distinct claim before the trial
court, and, therefore, we decline to review this unpreserved claim. See Borg
v. Cloutier, 

200 Conn. App. 82

, 122, 

239 A.3d 1249

(2020) (‘‘Our rules of
practice require a party, as a prerequisite to appellate review, to distinctly
raise its claim before the trial court. . . . For that reason, we repeatedly
have held that we will not decide an issue that was not presented to the
trial court. To review claims articulated for the first time on appeal and not
raised before the trial court would be nothing more than a trial by ambuscade
of the trial judge.’’ (Internal quotation marks omitted.)). Additionally, in their
appellate briefs, the defendants make reference to the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. During oral argument before
this court, the defendants’ counsel clarified that the defendants were not
relying on the FDCPA in support of their claims on appeal.

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