First Niagara Bank, N.A. v. Pouncey

F
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     FIRST NIAGARA BANK, N.A. v. RAYMOND C.
                POUNCEY ET AL.
                   (AC 43459)
                   Bright, C. J. and Alvord and Elgo, Js.

                                  Syllabus

F Co. sought to foreclose a mortgage on certain real property owned by
   the defendants. The substitute plaintiff, K Co., filed a motion for a
   judgment of strict foreclosure and the defendants filed an amended
   answer with seven special defenses. Thereafter, K Co. filed a motion
   for summary judgment as to liability, which the court granted. The
   defendants then filed a motion to reargue and reconsider the granting
   of the motion for summary judgment, which the court granted but denied
   the requested relief. The defendants also filed a motion to open the
   summary judgment, which the court denied. The defendants then filed
   a motion to reargue and reconsider the court’s denial of their motion
   to open the summary judgment on the ground that the court had failed
   to consider our Supreme Court’s holding in U.S. Bank National Assn.
   v. Blowers (

332 Conn. 656

), which the court denied. Subsequently, the
   court rendered a judgment of strict foreclosure, from which the defen-
   dants appealed to this court. Held that the trial court did not abuse its
   discretion in denying the defendants’ motion to reargue and reconsider
   the court’s denial of their motion to open the summary judgment as to
   liability; the record showed that the trial court based its orders on a
   review of the parties’ evidentiary submissions, not on a conclusion
   that the special defenses as pleaded were legally insufficient and, thus,
   contrary to the defendants’ contention, our Supreme Court’s decision
   in Blowers was inapplicable to the circumstances of the present case,
   as Blowers involved the trial court’s ruling on a motion to strike that
   the defendant’s special defenses and counterclaims, as pleaded, were
   legally deficient and whether the special defenses related to the enforce-
   ment of the note and mortgage, whereas in the present case, the court
   made no reference whatsoever to the relationship of the defendants’
   special defenses to the making, validity or enforcement of the note
   or mortgage when it denied the defendants’ motion to reargue and
   reconsider.
           Argued February 16—officially released May 4, 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 Middlesex, where KeyBank, N.A., was substi-
tuted as the plaintiff; thereafter, the court, Domnarski,
J., granted the substitute plaintiff’s motion for summary
judgment as to liability; subsequently, the court denied
the motion to open filed by the named defendant et al.;
thereafter, the court denied the motion to reargue and
reconsider filed by the named defendant et al.; subse-
quently, the court, Domnarski, J., rendered a judgment
of strict foreclosure, from which the named defendant
et al. appealed to this court. Affirmed.
  John R. Williams, for the appellants (named defen-
dant et al.).
  Christopher J. Picard, for the appellee (substitute
plaintiff).
                          Opinion

   BRIGHT, C. J. The defendants Raymond C. Pouncey,
also known as Raymond C. Pouncey, Sr., and Melissa
Pouncey,1 appeal from the judgment of strict foreclo-
sure rendered by the trial court in favor of the substitute
plaintiff, KeyBank, N.A. On appeal, the defendants claim
that, in light of our Supreme Court’s holding in U.S.
Bank National Assn. v. Blowers, 

332 Conn. 656

, 

212
A.3d 226

(2019), the court erred in denying the defen-
dants’ motion to reargue and reconsider the court’s
order denying the defendants’ motion to open summary
judgment.2 We affirm the judgment of the trial court.
   The record reveals the following facts and procedural
history. On July 10, 2007, the defendant Raymond C.
Pouncey executed an adjustable rate note in the original
principal amount of $455,000 to NewAlliance Bank. The
note is secured by a mortgage on real property located
at 11 Sherwood Forest Lane, Lot 5, in Killingworth. In
2011, NewAlliance Bank merged with and into First
Niagara Bank, N.A. (First Niagara). On May 1, 2013, the
note and mortgage were modified by a loan modifica-
tion agreement entered into between the defendants
and First Niagara.
   In a letter dated March 24, 2015, First Niagara notified
the defendants in accordance with the terms of the note
and the mortgage that they were in default and that the
failure to cure the default could result in the accelera-
tion of the debt. The defendants failed to cure the
default following the issuance of the March 24, 2015
letter. Thereafter, First Niagara accelerated the debt
and commenced the present action. In 2016, First Niag-
ara merged into KeyBank, N.A. Thereafter, KeyBank,
N.A., was substituted as the plaintiff in this action.
  On March 16, 2017, the plaintiff filed a motion for a
judgment of strict foreclosure. On March 29, 2017, the
defendants filed an amended answer and special
defenses. The defendants pleaded seven special
defenses alleging estoppel, promissory estoppel, equita-
ble estoppel, unclean hands, violation of the covenant
of good faith and fair dealing, unconscionability, and
gross negligence.
   On July 5, 2018, the plaintiff filed a motion for sum-
mary judgment as to liability on the allegations of the
complaint. In support of the motion for summary judg-
ment, the plaintiff attached an affidavit attested to by
Irena Karovski, a banking officer for the plaintiff, aver-
ring that the defendants were in default under the loan
documents for failure to make payments as required
by the terms of the note and the mortgage and confirm-
ing the plaintiff’s possession of the note at issue. The
plaintiff attached a copy of the note and the mortgage,
the loan modification agreement, the March 24, 2015
demand letter, and an emergency mortgage assistance
payment letter. The defendants did not file any opposi-
tion to the plaintiff’s motion for summary judgment. On
October 15, 2018, the trial court granted the plaintiff’s
motion for summary judgment as to liability.
   On October 16, 2018, the defendants filed a motion
for permission to file a late affidavit in opposition to
the plaintiff’s motion for summary judgment. Attached
to that motion were affidavits of both defendants. On
October 22, 2018, the defendants filed a motion to rear-
gue and reconsider the court’s granting of the plaintiff’s
motion for summary judgment on the ground that their
special defenses established genuine issues of material
facts. The defendants submitted no affidavits or other
documents in support of their motion.3 On October 29,
2018, the trial court deferred action on the defendants’
motion for permission to file a late affidavit in opposi-
tion to the plaintiff’s motion for summary judgment
pending the outcome of the October 22, 2018 motion
to reargue. On November 16, 2018, the court granted
the defendants’ motion to reargue and reconsider, but
denied the requested relief. In its November 16, 2018
order, the court first noted that ‘‘[the defendants
acknowledge] that there was no objection to the motion
for summary judgment before the court when the
motion was decided; however, [the defendants main-
tain] that, on its face, the plaintiff’s motion was insuffi-
cient to establish the absence of a genuine issue of
fact as to the plaintiff’s right to foreclose the subject
mortgage.’’ The court then stated: ‘‘The court has
reviewed the allegations of the complaint, the affidavit
in support of summary judgment, and [the defendants’]
special defenses. The plaintiff’s memorandum and sup-
porting documents establish that there is no genuine
issue of material fact regarding the plaintiff’s right to
foreclose the subject mortgage. The allegations of the
[special defenses] are not legally sufficient. [The defen-
dants allege] that there was a mortgage modification
agreement entered into in February and April of 2013,
however, the plaintiff’s affidavit states that payments
have not been made on the mortgage since June 1,
2014. [The defendants have] failed to sufficiently allege
deceitful or unfair practices on the plaintiff that led to
the filing of a foreclosure action that could have been
avoided. See U.S. Bank, N.A. v. Eichten, 

184 Conn. App.
727

, 

196 A.3d 328

(2018).’’
   Subsequent to the defendants’ filing of their October
22, 2018 motion to reargue and reconsider, but prior to
the court’s ruling on the October 22, 2018 motion, the
defendants, on November 5, 2018, filed a motion to open
the summary judgment as to liability. On November 6,
2018, the defendants filed a revised motion to open the
summary judgment and an affidavit in support of their
motion.4 On November 14, 2018, the defendants filed a
second revised motion to open the summary judgment
as to liability (motion to open). In their memorandum
in support of the motion to open, the defendants argued
that their amended answer and special defenses,
request for admission, and a discovery dispute with
the plaintiff raised genuine issues of material facts. In
particular, the defendants claimed that there was evi-
dence that the plaintiff misapplied their payments after
the 2013 modification, that they had not defaulted on
the note, and that they did not receive the notice of
default. After conducting a hearing on the defendants’
revised motion on July 8, 2019, the court issued an
order on July 16, 2019, requesting further arguments
and/or submissions regarding the defendants’ motion
to open and informed the parties that the matter would
be scheduled for the August 12, 2019 foreclosure short
calendar. After receiving additional evidentiary submis-
sions from the parties, the court denied the defendants’
motion to open on August 20, 2019. In its ruling, the
court stated that it had considered the submissions
of the parties, the procedural history of the case, the
determinations made when summary judgment as to
liability was rendered as well as those made in the
ruling on the defendants’ October 22, 2018 motion to
reargue. The court concluded that the defendants did
not show reasonable cause to open the summary judg-
ment as to liability. Furthermore, the court noted that
the plaintiff’s supplemental affidavit in support of its
motion for summary judgment satisfactorily explained
the purported issues that were the basis for the defen-
dants’ motion to open.5
   On September 9, 2019, the defendants filed a motion
to reargue and reconsider the court’s denial of their
motion to open the summary judgment on the ground
that the court had failed to consider our Supreme
Court’s holding in Blowers. The defendants argued that
Blowers reversed the doctrine that the trial court had
applied in ‘‘ignoring’’ the defendants’ special defenses
and granting the plaintiff’s motion for summary judg-
ment as to liability. The defendants contended that the
court should have considered the defendants’ allega-
tions of, ‘‘[postorigination] of the loan, actions by the
plaintiff in their special defenses as sufficient facts to
deny summary judgment and at the very least to open
after the [Blowers opinion].’’6 On September 10, 2019,
the court denied the defendants’ motion to reargue and
reconsider. On September 16, 2019, the court rendered
a judgment of strict foreclosure. This appeal followed.
   On appeal, the defendants claim that the court erred
in denying their September 9, 2019 motion to reargue
and reconsider because our Supreme Court’s holding
in Blowers ‘‘dramatically reshaped the law’’ regarding
the legal sufficiency of special defenses in a foreclosure
action. According to the defendants, the court’s conclu-
sion that the defendants’ allegations in their special
defenses were not legally sufficient is no longer correct
in light of Blowers. The defendants argue that there is
no meaningful difference between the present case and
Blowers. The defendants contend that their special
defenses, like those in Blowers, are legally sufficient
because the special defenses were directed to the
enforcement of the note or mortgage.
   We first address our standard of review. The defen-
dants argue that our review of the court’s denial of their
motion to reargue and reconsider the court’s denial
of their motion to open is de novo because they are
challenging on appeal the court’s erroneous application
of our Supreme Court’s decision in Blowers to the legal
sufficiency of their special defenses. The plaintiff
argues that our review is limited to determining whether
the court abused its discretion. We agree with the plain-
tiff.
   ‘‘[I]n reviewing a court’s ruling on a motion to open,
reargue, vacate or reconsider, we ask only whether
the court acted unreasonably or in clear abuse of its
discretion. . . . When reviewing a decision for an
abuse of discretion, every reasonable presumption
should be given in favor of its correctness. . . . As
with any discretionary action of the trial court . . . the
ultimate [question for appellate review] is whether the
trial court could have reasonably concluded as it did.
. . . [T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address . . . claims of law that the [movant] claimed
were not addressed by the court. . . . [A] motion to
reargue [however] is not to be used as an opportunity
to have a second bite of the apple . . . .’’ (Internal
quotation marks omitted.) Wachovia Mortgage, FSB v.
Toczek, 

196 Conn. App. 1

, 12, 

229 A.3d 730

, cert. denied,

335 Conn. 964

, 

240 A.3d 282

(2020). Because we con-
clude that Blowers is inapplicable to the circumstances
of the present case, and because the record does not
support the defendants’ claim that the court ignored
the rationale of Blowers, we see no reason to depart
from the abuse of discretion standard of review.
   Relying on Blowers, the defendants contend that
because their special defenses allege that the plaintiff
engaged ‘‘in a pattern of misrepresentation and delay in
postdefault loan modification negotiations before and
after initiating the foreclosure action—thereby adding
to the [defendants’] debt and frustrating the [defen-
dants’] ability to avoid foreclosure,’’ the defendants’
special defenses are legally sufficient.
  Because the defendants rely exclusively on what they
claim was the court’s failure to apply correctly the
Supreme Court’s holding in Blowers, we briefly discuss
the facts, procedural history, and holding of that case.
In Blowers, our Supreme Court addressed the question
of whether this court erred in affirming the judgment
of the trial court, which was based, in part, on the
court’s granting of a motion to strike the defendant’s
special defenses and counterclaims, in which the defen-
dant alleged that the plaintiff ‘‘mortgagee engaged in a
pattern of misrepresentation and delay in postdefault
loan modification negotiations before and after initiat-
ing the foreclosure action—thereby adding to the mort-
gagor’s debt and frustrating the mortgagor’s ability to
avoid foreclosure . . . .’’ U.S. Bank National Assn. v.

Blowers, supra

, 

332 Conn. 658

. The mortgagor’s princi-
pal claim was that this court and the trial court ‘‘incor-
rectly concluded that such allegations cannot establish
legally sufficient special defenses or counterclaims
because the misconduct alleged did not relate to the
making, validity or enforcement of the note or mort-
gage.’’

Id., 658.

   Prior to addressing the merits of the defendant’s
claim, the Supreme Court noted that the trial court
concluded that the allegations in support of at least
two of the special defenses ‘‘were legally sufficient,
but for the requisite direct connection to the making,
validity or enforcement of the note or mortgage.’’

Id.,
669–70.

Thus, the Supreme Court assumed, for purposes
of its opinion, that the special defenses otherwise would
have been legally sufficient, and limited its review to
the question of whether the allegations bore a sufficient
connection to enforcement of the note or mortgage.7


Id., 670.

   The court did not abandon the ‘‘making, validity, or
enforcement’’ test as an appropriate method for trial
courts in foreclosure actions to determine whether spe-
cial defenses and counterclaims bear a sufficient rela-
tionship to the allegations of the complaint to be legally
sufficient. Instead, it interpreted the test ‘‘as nothing
more than a practical application of the standard rules
of practice that apply to all civil actions to the specific
context of foreclosure actions.’’

Id., 667.

The court then
provided a definition of the enforcement element of the
test and concluded that the trial court and this court
applied a too narrow interpretation of the term to the
defendants’ allegations.

Id., 670–76.

In doing so, the
court noted that it took a similar view of what equitable
defenses relate to enforcement of the note or mortgage
in Thompson v. Orcutt, 

257 Conn. 301

, 318, 

777 A.2d
670

(2001). U.S. Bank National Assn. v. 

Blowers, supra

,

332 Conn. 671

–72, 675. Thus, contrary to the defendants’
claim that the Supreme Court in Blowers ‘‘dramatically
reshaped the law,’’ the court only clarified how the
‘‘making, validity, or enforcement’’ test should be
applied, consistent with its earlier decision in Thomp-
son.
  Ultimately, the court concluded that ‘‘allegations that
the mortgagee has engaged in conduct that wrongly
and substantially increased the mortgagor’s overall
indebtedness, caused the mortgagor to incur costs that
impeded the mortgagor from curing the default, or
reneged upon modifications are the types of misconduct
that are directly and inseparably connected . . . to
enforcement of the note and mortgage.’’ (Citation omit-
ted; internal quotation marks omitted.)

Id., 675.

The
court held that such allegations provide a legally suffi-
cient basis for special defenses in a foreclosure action.


Id., 676.

Accordingly, that court reversed the judgment
of this court with direction to reverse the judgment of
strict foreclosure and to remand the case to the trial
court for further proceedings.8

Id., 678.

   The defendants’ reliance on Blowers and their percep-
tion that the court did not properly consider the
Supreme Court’s reasoning in that case are without
merit for a number of reasons. First, Blowers involved
the trial court’s ruling, on a motion to strike, that the
special defenses and counterclaims, as pleaded, were
legally deficient. In the present case, the court rejected
the defendants’ special defenses when it ruled on the
plaintiff’s motion for summary judgment, which
involved the question of whether the defendants had
presented sufficient evidence to create a genuine issue
of material fact as to the viability of their special
defenses. The defendants argue that the procedural dif-
ference between this case and Blowers is unimportant
because the court in the present case did not base its
decision on facts but, instead, rejected the defendants’
special defenses as legally insufficient. This simply is
not true.
  In the present case, before ruling on the defendants’
November 14, 2018 motion to open, the court gave the
parties ‘‘the opportunity to submit further affidavits
[and/or] evidence on the issues related to the defen-
dants’ motion to open the judgment as to liability.’’ After
receiving and considering the parties’ submissions,
including affidavits of the defendants and multiple
exhibits attached thereto, the court concluded that the
defendants had ‘‘not shown reasonable cause to open
the judgment as to liability entered on October 15, 2018’’
and had ‘‘failed to persuade the court that it should
exercise its equitable discretion to open or vacate that
judgment as to liability.’’
   Although when it denied the defendants’ motion to
reargue and reconsider the court’s ruling granting sum-
mary judgment as to liability the court stated that ‘‘[t]he
allegations of the [special defenses] are not legally suffi-
cient,’’ there is no question that in connection with
the defendants’ motion to open, the court requested
evidentiary submissions from the parties, the defen-
dants submitted evidence in response, and the court
found that the submissions did not warrant the opening
of the summary judgment as to liability. Significantly,
on appeal, the defendants do not challenge the court’s
analysis of the parties’ evidentiary submissions related
to the motion to open. Consequently, the manner in
which the court disposed of the defendants’ special
defenses and the record on appeal are completely differ-
ent from the procedural posture and record in Blowers.
The fact that the court rejected the defendants’ argu-
ment in their September 9, 2019 motion for reargument
that Blowers required that the motion to open be
granted, therefore, is not surprising.
  Second, to the extent it can be argued that the court,
when ruling on the motion to open, relied on an earlier
conclusion that the allegations of the special defenses
as pleaded were legally insufficient, such a conclusion
differs from the trial court’s conclusion in Blowers that
the allegations of the defendant’s special defenses and
counterclaims were legally deficient. Unlike in the pres-
ent case, the trial court in Blowers concluded that at
least two of the special defenses at issue were legally
sufficient, but for the requisite direct connection to the
making, validity or enforcement of the note or mort-
gage. Furthermore, the Supreme Court in Blowers
assumed that the special defenses were legally suffi-
cient, but for the question of whether they were suffi-
ciently related to enforcement of the note or mortgage.
Thus, the sole issue in Blowers was whether the special
defenses and counterclaims related to enforcement of
the note or mortgage.
   By contrast, in the present case, the court made no
reference whatsoever to the relationship of the defen-
dants’ special defenses to the making, validity or
enforcement of the note or mortgage, when it denied the
defendants’ motions to reargue and reconsider. When
it denied the first motion to reargue and reconsider it
merely stated that the defendants’ allegations were not
legally sufficient. As previously noted in this opinion,
the court made this determination in the context of a
motion for summary judgment, not a motion to strike.
Furthermore, when the court denied the motion to
open, which was the subject of the motion for reargu-
ment at issue in this appeal, it made no reference at
all to the legal sufficiency of the defendants’ special
defenses. Instead, as previously noted in this opinion,
it denied the motion based on the parties’ evidentiary
submissions.
   In sum, the record does not show that the trial court
concluded, in contrast with Blowers, that the defen-
dants’ special defenses were legally sufficient, but for
the requisite direct connection to the making, validity
or enforcement of the note or mortgage. Instead, the
record shows that the trial court based its November
16, 2018 and August 20, 2019 orders on its review of
the parties’ evidentiary submissions and not on a con-
clusion that the special defenses as pleaded were legally
insufficient. Consequently, on the basis of our review
of the record and our Supreme Court’s holding in Blow-
ers, we conclude that the trial court did not abuse its
discretion in denying the defendants’ motion to reargue
and reconsider the court’s denial of their motion to
open the summary judgment as to liability.
  The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
      In this opinion the other judges concurred.
  1
     The following entities were also named as defendants: First Niagara
Bank, National Association, formerly known as NewAlliance Bank; State of
Connecticut, Department of Revenue Services; and Midland Funding, LLC.
First Niagara Bank, National Association, formerly known as NewAlliance
Bank, and Midland Funding, LLC, were defaulted for failing to appear. State
of Connecticut, Department of Revenue Services was defaulted for failing
to plead. Accordingly, references to the defendants are to Raymond C.
Pouncey, also known as Raymond C. Pouncey, Sr., and Melissa Pouncey.
   2
     The defendants also claim that the court erred in striking their counter-
claim. The record reflects that the plaintiff moved to strike the counterclaim
as untimely because it was filed after the court had granted summary judg-
ment as to liability on the plaintiff’s complaint, and that the court granted
the motion to strike for that reason. The defendants’ counsel conceded
at oral argument before this court that the counterclaim was untimely.
Furthermore, the defendants do not even mention, let alone address, in
their briefs the plaintiff’s motion to strike, the court’s ruling or the basis
for the ruling. Accordingly, the defendants’ claim regarding the motion to
strike their counterclaim is deemed abandoned. See Sturman v. Socha, 

191
Conn. 1

, 3 n.2, 

463 A.2d 527

(1983) (issue raised in preliminary statement
of issues but not pursued in brief deemed abandoned); see also Wells Fargo
Bank, N.A. v. Tarzia, 

186 Conn. App. 800

, 813–14, 

201 A.3d 511

(2019) (claim
deemed abandoned due to inadequate briefing); Araujo v. Araujo, 158 Conn.
App. 429, 430–31, 

119 A.3d 22

(2015) (declined to review claims that were
inadequately briefed).
   3
     On October 25, 2018, the defendants submitted an exhibit in support of
their October 22, 2018 motion to reargue. The exhibit is a copy of Midland
Funding, LLC v. Mitchell-James, 

163 Conn. App. 648

, 

137 A.3d 1

(2016)
(reversing judgment of trial court due to plaintiff failing to meet burden of
establishing absence of genuine issue of material fact as to factual basis
for claim of ownership of defendant’s alleged debt).
   4
     On November 6, 2018, the defendants filed identical evidentiary submis-
sions, which the defendants identified separately as ‘‘additional affidavit in
opposition to motion for summary judgment’’ and ‘‘affidavit in support of
motion to open summary judgment.’’
   5
     In particular, on August 7, 2019, the plaintiff filed a supplemental memo-
randum and an affidavit with attached exhibits providing clarification on the
purported misapplication of funds. The plaintiff submitted a supplemental
affidavit wherein Irena Karovski attested that the defendants did have an
escrow overage totaling $4413.41 on April 30, 2015. On April 30, 2015, the
loan was due for May 1, 2014. The overage was applied to the loan on April
30, 2015, bringing the loan due date to June 1, 2014. The loan was never
brought current after the issuance of the March 24, 2015 demand letters.
   6
     The defendants also argued that ‘‘the court ignored the actions of the
clerk of not entering a write-on on the computer system until after [9 p.m.]
for a hearing that had already [passed] in the morning.’’ The defendants
have not pursued this issue on appeal.
   7
     Because the defendant’s special defenses and counterclaims in the Blow-
ers case were based on alleged misconduct by the plaintiff after the note
and mortgage were executed, they could not relate to the making or validity
of the note or mortgage.
   8
     Although the court concluded that the defendant’s allegations ‘‘in toto’’
were legally sufficient, it ‘‘[expressed] no opinion as to whether all of the
defendant’s allegations necessarily have a sufficient nexus to enforcement
of the note or mortgage.’’ U.S. Bank National Assn. v. 

Blowers, supra

, 

332
Conn. 676

.

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