Ocwen Loan Servicing, LLC v. Sheldon ( 2021 )


Menu:
  • ***********************************************
    The “officially released” date that appears near the be-
    ginning of each opinion is the date the opinion will be pub-
    lished in the Connecticut Law Journal or the date it was
    released as a slip opinion. The operative date for the be-
    ginning of all time periods for filing postopinion motions
    and petitions for certification is the “officially released”
    date appearing in the opinion.
    All opinions are subject to modification and technical
    correction prior to official publication in the Connecticut
    Reports and Connecticut Appellate Reports. In the event of
    discrepancies between the advance release version of an
    opinion and the latest version appearing in the Connecticut
    Law Journal and subsequently in the Connecticut Reports
    or Connecticut Appellate Reports, the latest version is to
    be considered authoritative.
    The syllabus and procedural history accompanying the
    opinion as it appears in the Connecticut Law Journal and
    bound volumes of official reports are copyrighted by the
    Secretary of the State, State of Connecticut, and may not
    be reproduced and distributed without the express written
    permission of the Commission on Official Legal Publica-
    tions, Judicial Branch, State of Connecticut.
    ***********************************************
    OCWEN LOAN SERVICING, LLC v.
    SANDRA A. SHELDON ET AL.
    (AC 43704)
    Bright, C. J., and Alexander and Suarez, Js.
    Syllabus
    The plaintiff, O Co., sought to foreclose a mortgage on certain real property
    owned by the defendants, S and J. S and J originally signed a promissory
    note to G Co., secured by a mortgage on the property, and further
    agreed to participate in a ‘‘bisaver program,’’ through which they made
    a payment to G Co. every two weeks via a direct withdrawal by G Co.
    from S’s checking account. G Co. ceased withdrawing payments in 2008,
    and reported S and J, who had neither requested nor authorized the
    cessation, as delinquent to several credit reporting agencies, which
    severely damaged S and J’s credit. S and J thereafter reached an oral
    agreement with G Co., pursuant to which G Co. agreed to ‘‘restore’’
    their credit. G Co. did not restore their credit, S and J ceased to make
    additional payments, and G Co. resumed reporting S and J as delinquent
    to the credit agencies. Subsequently, G Co. assigned the note to O Co.
    S and J asserted several special defenses to the foreclosure action,
    including unclean hands. Thereafter, P Co. was substituted as the plain-
    tiff. The trial court concluded that S and J had satisfied their burden of
    proof on their special defense of unclean hands and rendered judgment
    in their favor, finding that they had equitable title to the property. On
    P Co.’s appeal to this court, held:
    1. The trial court’s finding that G Co. did not restore S and J’s credit was
    not clearly erroneous: the court credited J’s testimony that G Co. never
    sent letters to the credit reporting agencies in order to correct its error
    and restore S and J’s credit, which supported the finding that G Co. did
    not restore their credit, and the court was not required to credit evidence
    submitted by P Co., including three letters that P Co. claimed demon-
    strated that G Co. had restored S and J’s credit; moreover, this court
    declined to review P Co.’s unpreserved claim that the court relied on
    J’s testimony in contravention of the best evidence rule, as P Co. did
    not object to J’s testimony that G Co. and O Co. failed to restore S and
    J’s credit, and J’s testimony that G Co. did not send letters to the credit
    reporting agencies was based on his firsthand observations.
    2. The trial court properly balanced the equities in concluding that P Co.’s
    legal title to the property was unenforceable after finding for S and J
    on their special defense of unclean hands.
    a. The trial court properly applied the doctrine of unclean hands: the
    court concluded that G Co.’s failure to take payments from S and J and
    to restore S and J’s credit after erroneously reporting them to be in
    default caused their credit to be destroyed; moreover, the court’s findings
    that G Co.’s conduct was wilful and that S and J came to the court with
    clean hands were not clearly erroneous, as G Co. voluntarily reported
    S and J’s nonpayment, caused by G Co.’s failure to withdraw payments,
    to the credit reporting agencies, and the court credited J’s testimony
    that G Co. failed to send letters to restore S and J’s credit; furthermore,
    the court’s finding that S and J’s economic downfall was caused by G
    Co. was not clearly erroneous, as evidence presented linked S and J’s
    economic difficulties to G Co.’s actions in failing to restore their credit,
    including J’s testimony that G Co. had not attempted to restore S and
    J’s credit but, instead, had continued to report nonpayment to the credit
    reporting agencies for more than ten years, and P Co.’s argument that
    the ruination of S and J’s credit was unconnected to G Co.’s error in
    failing to withdraw the payments was based on the incorrect premise
    that G Co. had acted to restore S and J’s credit.
    b. The trial court did not abuse its discretion in determining that a
    reasonable balancing of the equities weighed in favor of S and J’s equita-
    ble title to the property: the court considered all relevant factors and
    found that S and J’s economic downfall was a greater inequity than their
    failure to make a payment on the note in more than ten years; moreover,
    the remedy ordered by the court did not eliminate S and J’s obligations
    under the note or hold that P Co. may not pursue its legal remedy to
    enforce the note, but merely held that P Co. was not entitled to the
    equitable remedy of foreclosure.
    Argued February 10—officially released October 5, 2021
    Procedural History
    Action to foreclose a mortgage on certain real prop-
    erty owned by the defendants, and for other relief,
    brought to the Superior Court in the judicial district
    of Windham, where PHH Mortgage Corporation was
    substituted as the plaintiff; thereafter, the case was
    tried to the court, Hon. Leeland J. Cole-Chu, judge trial
    referee; judgment for the defendants, from which the
    substitute plaintiff appealed to this court. Affirmed.
    Jordan W. Schur, for the appellant (substitute plain-
    tiff).
    Opinion
    ALEXANDER, J. In this foreclosure action, the substi-
    tute plaintiff, PHH Mortgage Corporation, appeals from
    the judgment of the trial court rendered in favor of the
    defendants, Sandra A. Sheldon and James J. Sheldon.
    On appeal, the substitute plaintiff claims that, in con-
    cluding that the defendants prevailed on their special
    defense of unclean hands, the court (1) made a clearly
    erroneous factual finding that a predecessor of the sub-
    stitute plaintiff failed to ‘‘restore’’ the defendants’ credit
    following its own error, and (2) improperly determined
    that the balancing of the equities prevented foreclosure.
    We disagree and, accordingly, affirm the judgment of
    the trial court.
    The following facts, as found by the trial court, and
    procedural history are relevant. On September 24, 2007,
    the defendants signed a promissory note in which they
    promised to pay $182,000, plus interest, to GMAC Mort-
    gage, LLC (GMAC). The note was secured by a mortgage
    to Mortgage Electronic Registration Systems, Inc.
    (MERS),1 as nominee for GMAC. Part of the property
    that is the subject of the mortgage and this foreclosure
    action is located in Killingly (Killingly property). The
    other portion of the property is located in Foster, Rhode
    Island. Only a foreclosure on the Killingly property was
    sought in the present case.
    Shortly after the note was executed, the defendants
    accepted GMAC’s offer of a ‘‘ ‘bisaver program’ ’’
    wherein payments would be made on the loan every
    two weeks by direct withdrawal from Sandra Sheldon’s
    checking account. In or about August, 2008, for reasons
    that remain unexplained, GMAC ceased withdrawing
    the biweekly payments as the defendants had author-
    ized it to do. The substitute plaintiff and GMAC admitted
    that the nonpayment of the loan was GMAC’s fault. The
    court determined that there was no evidence that, had
    GMAC continued to withdraw the authorized biweekly
    payments, there would have been any interruption in
    the defendants’ payments. Although the missed pay-
    ments were a result of GMAC’s failure to withdraw
    those payments, GMAC, nevertheless, reported the
    absence of the payments to several credit reporting
    agencies. The court found that, as a result, the defen-
    dants’ credit was ‘‘damaged quickly’’ and eventually was
    ‘‘destroyed.’’ Soon after GMAC stopped withdrawing
    the payments and began reporting the resultant missed
    payments as a default on the part of the defendants,
    James Sheldon’s credit cards were cancelled. Because
    James Sheldon needed at least one open credit card
    account for travel related expenses in order to fulfill
    the duties of his employment in multistate construction
    management, he could not continue such work, and his
    income dropped dramatically.
    The defendants filed complaints with the Rhode
    Island Department of Business Regulation, Division of
    Banking (department) in 2008 and 2009. An officer with
    the department told GMAC that it ‘‘ ‘screwed up and you
    gotta fix it.’ ’’ Bryan Duggan, a GMAC representative,
    acknowledged GMAC’s error in failing to withdraw the
    loan payments, but GMAC continued to send regular
    reports to credit reporting agencies that the defendants
    were in default. On July 14, 2009, an oral agreement
    was reached between the defendants and GMAC,
    wherein the defendants agreed to bring the loan current
    and make three additional regular monthly payments,
    and GMAC agreed to restore the defendants’ credit. The
    defendants satisfied the October, 2008 through July,
    2009 loan payments in July, 2009, and made three addi-
    tional mortgage payments, with the last one being in
    December, 2009. James Sheldon testified that, because
    the defendants did not believe that GMAC had per-
    formed its obligation to restore their credit, they made
    no additional mortgage payments thereafter. As a result
    of the defendants’ refusal to make additional mortgage
    payments, GMAC resumed reporting to credit agencies
    by early 2010, that the defendants were delinquent in
    their mortgage payments.
    On August 20, 2010, GMAC assigned the mortgage to
    Ocwen Loan Services, LLC (Ocwen). Although James
    Sheldon explained the situation to Ocwen, it refused
    to do anything to restore the defendants’ credit or to
    take into account the effect that GMAC’s errors had on
    the defendants’ credit and income. Ocwen continued
    to send reports of the defendants’ nonpayment of the
    mortgage to credit reporting agencies. At least one
    credit reporting agency reported the defendants as hav-
    ing no credit rating at all, which fact prevented them
    from obtaining a Veterans Administration refinancing
    loan.
    In 2017, Ocwen commenced this foreclosure action
    against the defendants.2 In its amended complaint,
    Ocwen alleged that the defendants had defaulted on
    their mortgage payment due on November 1, 2009, and
    every month thereafter. Ocwen alleged that, as a result,
    it had elected to accelerate the balance due on the
    note and to foreclose on the mortgage on the Killingly
    property. The defendants, who were self-represented
    throughout the proceedings in the trial court, filed an
    answer and asserted special defenses, including
    unclean hands.3 Ocwen assigned the note and mortgage
    to the substitute plaintiff and filed a motion to substitute
    PHH Mortgage Corporation as the plaintiff, which was
    granted by the court.4
    Following trial, the court issued a memorandum of
    decision on October 18, 2019, in which it concluded
    that the defendants had satisfied their burden of proof
    of their special defense of unclean hands. The court
    credited James Sheldon’s testimony. It determined that
    the defendants’ original default was GMAC’s fault due
    to its failure to take biweekly mortgage payments and
    that GMAC reported, without justification, these non-
    payments to credit reporting agencies as the defen-
    dants’ fault. The court further found that GMAC failed
    to restore the defendants’ credit, thereby causing the
    defendants’ credit to be destroyed, and rendering James
    Sheldon unable to continue his career in multistate
    construction management.
    In balancing the equities, the court found for the
    defendants on the issue of liability and concluded that
    the substitute plaintiff’s legal title to the property was
    unenforceable. It found that the defendants had equita-
    ble title subject to legal title being quieted in them by
    agreement or by a separate action. This appeal fol-
    lowed.5 Following the filing of the present appeal, the
    substitute plaintiff filed a motion for articulation, which
    the trial court granted. Additional facts will be set forth
    as necessary.
    Because the substitute plaintiff’s claims on appeal
    center on the unclean hands doctrine, we note at the
    outset the following relevant legal principles. ‘‘Our juris-
    prudence has recognized that those seeking equitable
    redress in our courts must come with clean hands. 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. . . . For a
    complainant to show that he is entitled to the benefit
    of equity he must establish that he comes into court
    with clean hands. . . . The clean hands doctrine is
    applied not for the protection of the parties but for the
    protection of the court. . . . It is applied . . . for the
    advancement of right and justice. . . . The party seek-
    ing to invoke the clean hands doctrine to bar equitable
    relief must show that his opponent engaged in wilful
    misconduct with regard to the matter in litigation. . . .
    The trial court enjoys broad discretion in determining
    whether the promotion of public policy and the preser-
    vation of the courts’ integrity dictate that the clean
    hands doctrine be invoked.’’ (Internal quotation marks
    omitted.) Monetary Funding Group, Inc. v. Pluchino,
    
    87 Conn. App. 401
    , 407, 
    867 A.2d 841
     (2005).
    I
    The substitute plaintiff first claims that the court’s
    finding that GMAC did not restore the defendants’ credit
    is clearly erroneous. It argues that the defendants ‘‘pre-
    sented no credible evidence that [the] credit reporting
    was not corrected as agreed.’’ (Emphasis in original.)
    We are not persuaded.
    ‘‘[W]hen reviewing findings of fact, we defer to the
    trial court’s determination unless it is clearly erroneous.
    . . . A finding of fact is clearly erroneous when there
    is no evidence in the record to support it . . . or when
    although there is evidence to support it, the reviewing
    court on the entire evidence is left with the definite
    and firm conviction that a mistake has been committed.
    . . . Under the clearly erroneous standard of review,
    a finding of fact must stand if, on the basis of the
    evidence before the court and the reasonable inferences
    to be drawn from that evidence, a trier of fact reason-
    ably could have found as it did.’’ (Internal quotation
    marks omitted.) Wells Fargo Bank, N.A. v. Lorson, 
    183 Conn. App. 200
    , 210, 
    192 A.3d 439
    , cert. granted, 
    330 Conn. 920
    , 
    193 A.3d 1214
     (2018).
    The substitute plaintiff challenges the court’s deci-
    sion to credit James Sheldon’s testimony that GMAC
    did not restore his credit. Specifically, it argues that
    James Sheldon did not testify as to what GMAC failed
    to do to restore his credit, but testified only that GMAC
    failed to fix his credit ‘‘to my satisfaction and my wife’s
    satisfaction.’’ James Sheldon did not, as the substitute
    plaintiff contends, testify that GMAC failed to restore
    his credit only because it did not fix his credit to his
    undefined ‘‘satisfaction.’’ His testimony was that GMAC
    did not restore his credit at all because it did not send
    letters to credit reporting agencies in order to correct
    its mistake and restore the defendants’ credit. He testi-
    fied that he brought the loan current and made the
    additional loan payments as requested by GMAC, but
    that GMAC ‘‘never followed through.’’6 James Sheldon
    testified that GMAC did not send letters to the credit
    reporting agencies, questioning, ‘‘[W]hy would they not
    do this? It corrects everything. And really maybe eight,
    fifty cent stamps is all it’s gonna cost ’em, that’s all.
    GMAC didn’t do it . . . .’’ He further stated that, ‘‘when
    Ocwen had the chance, they didn’t feel like generating
    eight letters either . . . .’’ James Sheldon argued that,
    as of July 31, 2009, he never again heard from the execu-
    tive officers at GMAC despite that ‘‘[i]t’s probably eight
    letters, three credit bureaus and five creditors, and they
    just walked away.’’7 The court, as was within its prov-
    ince to do, credited the testimony of James Sheldon
    that GMAC did not restore his credit. See Gianetti v.
    Norwalk Hospital, 
    304 Conn. 754
    , 772–73, 
    43 A.3d 567
    (2012) (it is within province of trier of fact to weigh
    evidence presented and determine credibility).
    The substitute plaintiff contends that James Shel-
    don’s two credit denial letters from 2019, which were
    admitted as full exhibits at trial, had no bearing on
    the status of the defendants’ credit in 2009, but rather
    related to the defendants’ failure to make any payments
    in the following eight years. Regardless of whether
    these credit denial letters relate to GMAC’s failure to
    restore the defendants’ credit, James Sheldon’s testi-
    mony supports the court’s finding that GMAC did not
    restore the defendants’ credit. See, e.g., Wells Fargo
    Bank, N.A. v. Lorson, supra, 
    183 Conn. App. 210
     (finding
    of fact is clearly erroneous when there is no evidence
    in record to support it).
    The substitute plaintiff argues that the court’s factual
    finding, in reliance on James Sheldon’s testimony, was
    clearly erroneous because the uncontroverted docu-
    mentary evidence proved that GMAC met its obligation
    to restore the defendants’ credit rating. In particular,
    the substitute plaintiff relies on three letters that it
    claims show that GMAC had restored the defendants’
    credit in accordance with the verbal agreement. The
    first letter, which was dated July 27, 2009, and which
    was addressed to the defendants from Duggan, stated
    that GMAC ‘‘sent an amendment to the four credit
    reporting agencies for the [September, 2008] through
    [the June, 2009] payments. These payments will reflect
    as paid within the month due. The credit report will
    reflect no late payments since the loan origination in
    [September, 2007].’’ (Emphasis added.) The letter fur-
    ther stated that the defendants ‘‘may use this letter for
    verification, should you need to provide a potential
    credit grantor with proof that this correction is in [prog-
    ress].’’ A second letter, dated July 31, 2009, sent from
    Duggan to the defendants, stated that the $13,544.06
    that was received on July 23, 2009, was applied to the
    October, 2008 through July, 2009 payments and that ‘‘the
    credit has been amended to reflect no late payments
    on the account. A letter will be sent under separate
    cover to be used for potential creditors.’’ (Emphasis
    added.) In a third letter, dated March 13, 2012, to the
    department, Duggan stated that GMAC had ‘‘received
    complaints filed with your office by the [defendants]
    in 2008 and 2009,’’ and that ‘‘[i]n [July, 2009], [the defen-
    dants] remitted funds to satisfy the [October, 2008]
    through [July, 2009] payments. . . . A recent review of
    the information reported by the credit bureaus reflects
    no late payments on the account prior to August 1,
    2009, which was the agreement reached . . . .’’
    The substitute plaintiff contends that the July 27,
    2009 letter informs the defendants that credit reporting
    amendments were sent to the credit reporting agencies
    and that the credit reporting would be corrected to
    show the loan as paid from September, 2008 through
    July, 2009. The substitute plaintiff contends that the
    July 31, 2009 letter confirms the removal of the negative
    credit reporting for the defendants and that the March
    12, 2012 letter further demonstrates that the defendants’
    credit was restored upon receipt of the defendants’
    three payments. It further argues that the department
    must have agreed that GMAC met its obligation to the
    defendants because it took no further action on the
    defendants’ complaint.
    The court was not convinced that the letters to which
    the substitute plaintiff directs our attention demon-
    strated that GMAC had restored the defendants’ credit.
    It determined that, in the letters, GMAC only ‘‘claimed
    to send correcting credit reports to credit reporting
    agencies, but all that the evidence shows it actually
    did is to place the burden of fixing their credit on the
    defendants: it gave the defendants a letter acknowledg-
    ing its error and saying the defendants could use it to
    try to restore their credit.’’ The court stated that,
    ‘‘[a]part from submitting GMAC correspondence using
    the word ‘amendment’ instead of ‘correction,’ the [sub-
    stitute] plaintiff offered no direct evidence of any such
    ‘amendment .’ . . .’’ In its articulation, the court stated,
    ‘‘[T]he evidence showed that GMAC claimed that it sent
    ‘corrective credit reporting’ . . . not that it actually did
    so.’’ 8 It was within the province of the court not to
    credit the letters and the testimony of the substitute
    plaintiff’s witness as having established that GMAC had
    restored the defendants’ credit and instead to credit
    the testimony of James Sheldon that GMAC and its
    successors in interest never restored the defendants’
    credit rating.
    The substitute plaintiff argues that, in accordance
    with the best evidence rule, the defendants should have
    produced credit reports to refute the letters it pre-
    sented, which demonstrated that the defendants’ credit
    had been restored. It contends that in light of the defen-
    dants’ failure to do so, the court should have concluded
    that GMAC had restored the defendants’ credit. The
    substitute plaintiff misunderstands the best evidence
    rule. The rule does not prevent the court from relying
    on evidence that has been admitted before it. Instead,
    it is a ground on which a party may rely to object to
    the admission of evidence because other evidence is
    preferable. See State v. Carter, 
    151 Conn. App. 527
    ,
    537–38, 
    95 A.3d 1201
     (2014), appeal dismissed, 
    320 Conn. 564
    , 
    132 A.3d 729
     (2016). Significantly, the substi-
    tute plaintiff did not object to James Sheldon’s testi-
    mony that GMAC and Ocwen failed to restore the defen-
    dants’ credit rating. Thus, its claim that the court should
    not have relied on this evidence because it was not the
    best evidence of whether GMAC performed its obliga-
    tion to restore the defendants’ credit rating was not
    properly preserved and, therefore, is unreviewable. See,
    e.g., State v. Warren, 
    83 Conn. App. 446
    , 451, 
    850 A.2d 1086
     (unpreserved evidentiary claims are not review-
    able on appeal), cert. denied, 
    271 Conn. 907
    , 
    859 A.2d 567
     (2004). In any event, we note that the rule, neverthe-
    less, is inapplicable. ‘‘[T]he best evidence rule requires
    a party to produce an original writing, if it is available,
    when the terms of that writing are material and must be
    proved.’’ (Emphasis omitted; internal quotation marks
    omitted.) Cadle Co. v. Errato, 
    71 Conn. App. 447
    , 452,
    
    802 A.2d 887
    , cert. denied, 
    262 Conn. 918
    , 
    812 A.2d 861
     (2002); see also E. Prescott, Tait’s Handbook of
    Connecticut Evidence (6th Ed. 2019) § 10.1.2, p. 697
    (‘‘The Best Evidence Rule is a rule of preference, not
    one of exclusion. Thus, it prefers proof by the original
    document but will accept oral evidence if necessary.’’).
    The disputed issue regarding whether GMAC restored
    the defendants’ credit was not something that was
    reduced to a writing. Rather, James Sheldon’s state-
    ments that GMAC did not send letters to his credit
    agencies is based on his firsthand observations. ‘‘Where
    one testifies to what he has seen or heard, such testi-
    mony is primary evidence regardless of whether such
    facts are reduced to writing.’’ (Internal quotation marks
    omitted.) Coelm v. Imperato, 
    23 Conn. App. 146
    , 150,
    
    579 A.2d 573
    , cert. denied, 
    216 Conn. 823
    , 
    581 A.2d 1054
     (1990).
    We also reject the argument of the substitute plaintiff
    that the department concluded that GMAC had met
    its obligation to fix the defendants’ credit rating. The
    absence of evidence before the court regarding the out-
    come of the defendants’ complaint that was filed with
    the department does not indicate whether or how it
    resolved the complaint. Although the court could have
    drawn the inference the plaintiff advocates for on
    appeal, it was not required to do so. James Sheldon,
    whose testimony the court credited, explained that he
    followed the advice of the department and entered into
    an agreement with GMAC but that GMAC never fol-
    lowed through in sending the letters to restore his
    credit.
    We will not second-guess the court’s decision to
    credit James Sheldon’s testimony or its decision not to
    credit GMAC’s representation in the letters of what
    steps it purportedly took to restore the defendants’
    credit. See Gianetti v. Norwalk Hospital, supra, 
    304 Conn. 772
    –73 (appellate court must defer to fact finder’s
    assessment of credibility). For the foregoing reasons,
    we conclude that the court’s finding that GMAC did not
    restore the defendants’ credit is not clearly erroneous.
    II
    The substitute plaintiff next claims that the court
    improperly balanced the equities in concluding that its
    legal title was unenforceable after finding for the defen-
    dants on their special defense of unclean hands. We
    are not persuaded.
    A
    This claim contains various subarguments in which
    the substitute plaintiff challenges the court’s underlying
    factual findings and legal application of the unclean
    hands doctrine. Our standard of review is as follows.
    ‘‘[A]pplication of the doctrine of unclean hands rests
    within the sound discretion of the trial court. . . . The
    exercise of [such] equitable authority . . . is subject
    only to limited review on appeal. . . . The only issue on
    appeal is whether the trial court has acted unreasonably
    and in clear abuse of its discretion. . . . In determining
    whether the trial court abused its discretion, this court
    must make every reasonable presumption in favor of
    [the trial court’s] action. . . . Whether the trial court
    properly interpreted the doctrine of unclean hands,
    however, is a legal question distinct from the trial
    court’s discretionary decision whether to apply it. . . .
    [T]he question of whether the clean hands doctrine may
    be applied to the facts found by the court is a question
    of law. . . . We must therefore engage in a plenary
    review to determine whether the court’s conclusions
    were legally and logically correct and whether they
    are supported by the facts appearing in the record.’’
    (Citation omitted; emphasis omitted; internal quotation
    marks omitted.) Monetary Funding Group, Inc. v.
    Pluchino, 
    supra,
     
    87 Conn. App. 406
    .
    1
    The substitute plaintiff contends that the court
    improperly determined that it engaged in misconduct
    despite the defendants ‘‘hav[ing] not shown fraud or
    other inequitable or illegal conduct on the part of [the]
    plaintiff . . . .’’ It contends, citing LaSalle National
    Bank v. Freshfield Meadows, LLC, 
    69 Conn. App. 824
    ,
    
    798 A.2d 445
     (2002) (LaSalle), that ‘‘[s]ituations where
    the plaintiff refused to accept payments postcom-
    mencement of foreclosure [were] not deemed unclean
    hands by this [c]ourt.’’
    In LaSalle, this court concluded that the unclean
    hands doctrine was not applicable where the plaintiff
    bank did not accept payments, which had been made
    by the defendant after indebtedness was accelerated
    due to the defendant’s default, because it was not
    required to do so pursuant to the note or mortgage.
    LaSalle National Bank v. Freshfield Meadows, LLC,
    supra, 
    69 Conn. App. 835
    –36. Those facts are markedly
    different from the facts in the present case, wherein it
    was GMAC’s failure to withdraw the authorized pay-
    ments from Sandra Sheldon’s bank account and where
    GMAC, prior to default, ruined the defendants’ credit
    as a result. There is no rigid formula for what constitutes
    misconduct, rather, to constitute misconduct it must
    be ‘‘of such a character as to be condemned and pro-
    nounced wrongful by honest and fair-minded people
    . . . .’’ (Internal quotation marks omitted.) Thompson
    v. Orcutt, 
    257 Conn. 301
    , 310, 
    777 A.2d 670
     (2001). In
    our exercise of plenary review, we determine that the
    court properly applied the doctrine of unclean hands
    to the facts of the present case when it determined that
    GMAC failed to take loan payments from the defendants
    and failed to restore the defendants’ credit after it erro-
    neously reported the defendants’ to be in default,
    thereby causing the defendants’ credit to be destroyed.
    2
    The substitute plaintiff next argues that the court’s
    finding that its conduct was wilful was clearly errone-
    ous. We disagree.
    ‘‘Whether a party’s conduct is wilful is a question of
    fact. . . . The term has many and varied definitions,
    with the applicable definition often turn[ing] on the
    specific facts of the case and the context in which it
    is used. . . . As we previously have observed . . . wil-
    ful has been defined [as] voluntary; knowingly; deliber-
    ate . . . [i]ntending the result which actually comes to
    pass; designed; intentional; purposeful; not accidental
    or involuntary . . . or with indifference to the natural
    consequences. . . . Wilful misconduct has also been
    defined as intentional conduct that is deemed highly
    unreasonable or indicative of bad faith.’’ (Citations
    omitted; internal quotation marks omitted.) Cathedral
    Green, Inc. v. Hughes, 
    174 Conn. App. 608
    , 622–23, 
    166 A.3d 873
     (2017).
    We conclude that the court’s finding was not clearly
    erroneous. Wilfulness reasonably can be inferred from
    GMAC’s voluntary act of reporting to credit reporting
    agencies the nonpayment of the mortgage that was
    caused by GMAC’s own failure to withdraw the mort-
    gage payments from Sandra Sheldon’s checking
    account and its subsequent failure to restore the defen-
    dants’ credit. See 19 Perry Street, LLC v. Unionville
    Water Co., 
    294 Conn. 611
    , 623, 
    987 A.2d 1009
     (2010)
    (intent may be inferred from conduct and circum-
    stances).
    3
    The substitute plaintiff next argues that the court’s
    finding that the defendants came to the court with clean
    hands is clearly erroneous. Specifically, it contends that
    the defendants’ actions indicate that they came to the
    court with unclean hands because they ‘‘unilaterally
    demand[ed]’’ GMAC to satisfy the verbal agreement to
    their own undefined ‘‘ ‘satisfaction’ ’’ standard and
    failed to make any loan payments for more than a
    decade. It contends that it is clear that the defendants
    came to the court with unclean hands because they
    ‘‘made a complaint to the [department], and nothing
    happened. It is clear that the [department] found that
    the complaint had no merit . . . .’’ We are not per-
    suaded.
    As we have detailed in part I of this opinion, James
    Sheldon testified that GMAC did not restore his credit
    because GMAC declined to send correction letters to
    credit reporting agencies and that the absence of evi-
    dence regarding the outcome of the defendants’ com-
    plaint against GMAC with the department does not indi-
    cate that their claim against GMAC was without merit.
    We conclude that the substitute plaintiff has not demon-
    strated that the court’s finding that the defendants came
    to the court with clean hands was clearly erroneous.
    4
    The substitute plaintiff next argues that the court
    erred in finding that the defendants’ economic downfall
    was caused by GMAC’s actions. It contends that the
    defendants’ loan was current as of November, 2009,
    that the defendants’ credit was restored as of July, 2009,
    and, therefore, that the defendants’ failure to obtain
    new credit cards after July, 2009, and the defendants’
    economic difficulties from 2009 through 2020, was out-
    side the control of the substitute plaintiff. We are not
    persuaded.
    The court found that, ‘‘[q]uickly after those negative
    credit reports began, and because of them—that is,
    because GMAC stopped taking the defendants’ pay-
    ments and started reporting as their default what was
    GMAC’s fault—all [of] [James] Sheldon’s credit cards
    were cancelled.’’ The court determined that there was
    no evidence contradicting James Sheldon’s testimony
    that, after GMAC stopped taking the automatic
    biweekly payments, it reported, without justification,
    the resulting nonpayments to credit reporting agencies
    as defaults, and that those reports ‘‘eviscerated the
    defendants’ credit and caused [James] Sheldon to be
    unable to continue his career in multistate construction
    management.’’
    There was evidence linking the defendants’ economic
    difficulties to the actions of GMAC in failing to restore
    the defendants’ credit. James Sheldon testified that
    GMAC failed to restore his credit by not sending letters
    of correction to the credit reporting agencies. He further
    testified that he followed the advice of an agent with
    the department, who had advised him, ‘‘[D]o not make
    another payment until such time as you’ve straightened
    this out.’’ He explained that he tried to contact GMAC
    and, later, Ocwen to resolve the situation, but that it
    was ‘‘impossible’’ because ‘‘they never made any effort
    to reach a resolution’’ and that they ‘‘didn’t wanna talk,’’
    but said they would ‘‘pass it up the chain,’’ and no one
    would discuss the matter because information concern-
    ing this issue was not in the file. He testified that ‘‘the
    most important thing that we do was to get our credit
    restored. GMAC was responsible for the destruction of
    that.’’ He stated that, even during the time frame
    wherein GMAC was ‘‘investigating the mortgage, GMAC
    kept sending that little note to the credit bureau saying
    [he was] not paying his mortgage. I needed that off the
    books. They agreed to do it . . . if I brought the
    account up to date, gave them three extra payments to
    cover the period of time that it would take . . . for the
    credit bureaus to actually get the paperwork entered
    into the system. I agreed to that.’’ He further testified
    that his credit rating was destroyed and that ‘‘[n]owhere
    did anybody think that . . . for ten years, they would
    continue to report . . . no, he didn’t make his mort-
    gage payment this month.’’
    The substitute plaintiff’s argument that the ruination
    of the defendants’ credit is unconnected to GMAC’s
    actions in failing to take the biweekly payments under
    the bisaver program is based on the incorrect premise
    that GMAC had restored the defendants’ credit as of
    July, 2009. As the court found, GMAC did not restore
    the defendants’ credit. It reasonably can be inferred
    from James Sheldon’s testimony that GMAC’s failure
    to restore the defendants’ credit led to and caused the
    defendants’ financial ruin. The court determined that
    ‘‘the degree of the defendants’ financial ruin caused by
    GMAC long before this action began has increased over
    the life of this action by the length of time the defen-
    dants have suffered the effects of GMAC’s unjustified
    and unremedied ruin of their credit [and] their financial
    reputation . . . .’’ The court further reasoned that it
    regarded Duggan’s July 27, 2009 letter, in which he
    stated that GMAC sent an ‘‘amendment’’ to credit
    reporting agencies for the September, 2008 through
    June, 2009 payments, as an admission ‘‘of the foresee-
    able damage to the defendants’ credit: any credit
    reporting company, or actual or prospective creditor
    relying on such company’s report on the defendants,
    would dismiss the defendants’ credit on seeing a report
    of ten months [of] failure to pay their mortgage.’’ The
    court drew reasonable inferences from the evidence in
    this regard. In light of the foregoing, we conclude that
    the court’s finding that GMAC’s act in reporting its own
    failure to take the authorized biweekly payments GMAC
    as defaults caused the defendants’ financial ruin was
    not clearly erroneous.
    B
    The substitute plaintiff’s final claim is that the court
    did not properly balance the equities when it ‘‘wiped
    out [the substitute plaintiff’s] lien based on oral testi-
    mony that lacked documentary proof to show that the
    credit was not corrected or documentary evidence that
    [the substitute plaintiff] somehow caused [the defen-
    dants’] 2019 credit denials. The flimsy evidence offered
    by [the] [d]efendants does not equal or justify wiping
    out a consensual lien and giving the [d]efendants a free
    house. None of the above factors appear[s] to have
    been considered by the [c]ourt.’’ We disagree.
    ‘‘This court will reverse a trial court’s exercise of its
    equitable powers only if it appears that the trial court’s
    decision is unreasonable or creates an injustice. . . .
    [E]quitable power must be exercised equitably . . .
    [but] [t]he determination of what equity requires in a
    particular case, the balancing of the equities, is a matter
    for the discretion of the trial court.’’ (Internal quotation
    marks omitted.) Thompson v. Orcutt, 
    70 Conn. App. 427
    , 435, 
    800 A.2d 530
    , cert. denied, 
    261 Conn. 917
    , 
    806 A.2d 1058
     (2002). ‘‘How a court balances the equities
    is discretionary but if, in balancing those equities, a trial
    court draws conclusions of law, our review is plenary.’’
    (Internal quotation marks omitted.) New Breed Logis-
    tics, Inc. v. CT INDY NH TT, LLC, 
    129 Conn. App. 563
    ,
    571, 
    19 A.3d 1275
     (2011).
    As we have previously explained in this opinion, the
    court’s findings that GMAC did not restore the defen-
    dants’ credit and that GMAC’s misconduct led to the
    defendant’s economic difficulties were not clearly erro-
    neous. See parts I and II A of this opinion. The substitute
    plaintiff cannot prevail on its argument that the court
    improperly balanced the equities because it credited
    James Sheldon’s testimony, which the substitute plain-
    tiff argues is ‘‘flimsy.’’ It was in the court’s province to
    do so. See Gianetti v. Norwalk Hospital, supra, 
    304 Conn. 772
    –73.
    The substitute plaintiff, nevertheless, contends that,
    even if the court properly credited James Sheldon’s
    testimony, it ‘‘was not entitled to wipe clear a
    $308,380.43 loan obligation . . . .’’9 The court, how-
    ever, is permitted, in the exercise of its discretion, to
    withhold the remedy of foreclosure based on equitable
    considerations and principles. See U.S. Bank National
    Assn. v. Blowers, 
    332 Conn. 656
    , 671, 
    212 A.3d 226
    (2019). ‘‘[E]quitable remedies are not bound by formula
    but are molded to the needs of justice.’’ (Internal quota-
    tion marks omitted.) McKeever v. Fiore, 
    78 Conn. App. 783
    , 788, 
    829 A.2d 846
     (2003). ‘‘[T]he trial court enjoys
    broad discretion in considering whether to grant a mort-
    gagee the remedy of foreclosure for the default of a
    mortgage loan.’’ ARS Investors II 2012-1 HVB, LLC v.
    Crystal, LLC, 
    324 Conn. 680
    , 685, 
    154 A.3d 518
     (2017).
    We find no merit in the substitute plaintiff’s claim
    that the court failed to consider multiple factors in
    its favor, such as the defendants not having paid the
    mortgage in more than a decade. The court’s articula-
    tion makes clear that it considered all relevant factors
    and rejected the substitute plaintiff’s argument that the
    balancing of the equities weighed in its favor. The court
    stated in its articulation that, ‘‘[i]mplicitly, the [substi-
    tute] plaintiff claims that the court, its findings of fact
    notwithstanding, should have concluded that the defen-
    dants not making a mortgage payment in more than
    ten years is the greater inequity than the [substitute]
    plaintiff’s predecessor destroying the defendants’
    credit, in turn destroying [James] Sheldon’s career and
    earning capacity and the defendants’ ability to pay the
    mortgage. Implicitly, the [substitute] plaintiff argues
    that, given the facts found by the court, the defendants
    should lose more than they, due to GMAC’s and [the]
    successor mortgagor Ocwen’s conduct in credit
    reporting, have already lost: they should lose their
    home, too. The court rejected that analysis of the equi-
    ties of the present case.’’
    In its memorandum of decision, the court reasoned
    that ‘‘the defendants have suffered the effects of
    GMAC’s unjustified and unremedied ruin of their credit,
    their financial reputation; and by the length of time they
    have endured the burden and stress of this foreclosure
    action, which the court finds, to the extent retrospective
    prognostications may be considered in equity, would
    have been unnecessary had GMAC, in whose shoes the
    plaintiff and its principal stand, promptly repaired the
    damages it unjustifiably caused to the defendants’
    credit.’’ (Footnote omitted.)
    Finally, we note that the remedy ordered by the court
    does not ‘‘wipe clear’’ the defendants’ obligation under
    the note. The court did not hold that the substitute
    plaintiff may not pursue its legal remedy to enforce the
    note. Instead, it held that the plaintiff is not entitled to
    the equitable remedy of foreclosure. See JP Morgan
    Chase Bank, N.A. v. Winthrop Properties, LLC, 
    312 Conn. 662
    , 674, 
    94 A.3d 622
     (2014) (‘‘[u]nlike the equita-
    ble nature and aims of foreclosure, a claim on the note
    at law is grounded in contract, and is enforceable as
    between the parties to that contract—the debtor and
    the creditor, as well as persons who succeed to those
    obligations or rights by transfer or assignment’’).
    On the basis of the court’s factual findings of inequita-
    ble misconduct by GMAC and its successor, Ocwen,
    we conclude that the court properly acted within its
    discretion when it determined that a reasonable balanc-
    ing of the equities weighed in favor of the defendants.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    ‘‘MERS does not originate, lend, service, or invest in home mortgage
    loans. Instead, MERS acts as the nominal mortgagee for the loans owned
    by its members. The MERS system is designed to allow its members, which
    include originators, lenders, servicers, and investors, to assign home mort-
    gage loans without having to record each transfer in the local land recording
    offices where the real estate securing the mortgage is located.’’ (Internal
    quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 
    119 Conn. App. 570
    , 572 n.2, 
    989 A.2d 606
    , cert. denied, 
    295 Conn. 922
    , 
    991 A.2d 564
     (2010).
    2
    The record reflects that at or around the time that the mortgage was
    assigned to Ocwen, it also was ‘‘referred to foreclosure.’’ Nevertheless, the
    foreclosure action that is the subject of this appeal was not instituted until
    September, 2017. James Sheldon testified that this delay caused the defen-
    dants additional harm and that he made several requests that if Ocwen was
    going to foreclose on the property it do so quickly so that the matter could
    be resolved and the defendants’ credit standing could be restored in a timely
    fashion. The court, in its memorandum of decision, stated that it found
    James Sheldon’s testimony ‘‘credible and, in essence, accepts it.’’
    3
    Although the substitute plaintiff makes a passing reference in its appellate
    brief to the defendants’ unclean hands defense being ‘‘unstated,’’ it does
    not challenge the court’s construction of the defendants’ narrative special
    defenses as including a claim that the plaintiff acted with unclean hands.
    Furthermore, to the extent that the substitute plaintiff’s passing reference
    to the defense being unstated could be construed as an argument that
    the court should not have considered such a defense because it was not
    specifically pleaded by the defendants, we note that ‘‘in light of the court’s
    inherent equitable powers in a foreclosure action . . . [a trial court may
    properly] consider the equitable doctrine of unclean hands without it being
    specifically pleaded.’’ McKeever v. Fiore, 
    78 Conn. App. 783
    , 789, 
    829 A.2d 846
     (2003).
    4
    The substitute plaintiff took the note subject to all defenses that could
    be asserted by the defendants, including equitable defenses. See Bank of
    America, N.A. v. Aubut, 
    167 Conn. App. 347
    , 371, 
    143 A.3d 638
     (2016).
    5
    The defendants failed to file an appellee’s brief as ordered by this court.
    This court, therefore, ordered the appeal to be considered on the basis of
    the substitute plaintiff’s brief and the record, as defined by Practice Book
    § 60-4.
    6
    The court noted that, despite the arguable lack of consideration for the
    verbal agreement, it was GMAC’s responsibility to restore the defendants’
    credit whether or not the defendants resumed payments.
    7
    Because James Sheldon made these statements when he was not under
    oath during the testimony of the plaintiff’s sole witness, the court interpreted
    his statements as clarifying his position to the court.
    8
    The substitute plaintiff argues its sole witness, Peter Killinger, an analyst
    in its foreclosure department, testified, in reference to the July 31, 2009
    letter, that GMAC restored James Sheldon’s credit because ‘‘[w]ell, it says
    here that they did.’’ Although the court did not specifically mention this
    portion of Killinger’s testimony, it implicitly rejected Killinger’s interpreta-
    tion that the letter established this correction and instead credited James
    Sheldon’s testimony that GMAC did not restore the defendants’ credit.
    9
    The court noted that the amount of the debt was in dispute and that it
    was not necessary to find the amount of the debt because that issue was
    not actually litigated at trial. We note that the original promissory note was
    for $182,000.