Bank of New York Mellon v. Horsey , 182 Conn. App. 417 ( 2018 )

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THE BANK OF NEW YORK MELLON, SUCCESSOR
TRUSTEE v. WADE H. HORSEY II ET AL.
(AC 39665)
Prescott, Elgo and Bright, Js.
Syllabus
The plaintiff bank, B Co., sought to foreclose a mortgage on certain real
property owned by the defendant H. In its complaint, B Co. alleged,
inter alia, that it was the holder of the subject note and mortgage and
that the note was in default for nonpayment. After B Co. filed a motion
for a judgment of strict foreclosure, it assigned the mortgage to T Co.,
which subsequently was substituted as the plaintiff. Thereafter, H filed
a motion pursuant to the relevant rule of practice (§ 14-3) requesting
the court to render a judgment of dismissal on the ground that T Co.
had failed to prosecute the action with reasonable diligence. The trial
court issued an order denying H’s motion but directing T Co. to take
some action to advance the case within sixty days. The court also
indicated that if T Co. failed to comply, the court would entertain a
renewed motion to dismiss. Approximately seven months later, T Co.
filed a motion for summary judgment as to liability only and submitted
copies of the note, mortgage and assignments, and an affidavit from its
loan servicing agent. H filed an objection to the motion but did not
attach an affidavit or any other evidence that disputed factually T Co.’s
submissions. H also filed a motion renewing his request for a judgment
of dismissal pursuant to § 14-3, noting that T Co. had not filed its motion
for summary judgment within the sixty day time period established by
the court’s order. Following a hearing, the trial court denied H’s motion
to dismiss without comment and granted T Co.’s motion for summary
judgment as to liability, finding that no genuine issue of material fact
existed as to H’s liability on the note and mortgage. Thereafter, the
parties appeared before the court on the dormancy docket to address
the status of the case, and, after hearing from counsel on the matter,
the court dismissed the action. T Co. subsequently filed a motion to
open the judgment of dismissal, arguing that it had filed and reclaimed
a motion for a judgment of strict foreclosure prior to the court’s dismissal
and that it had in its possession all documents necessary to proceed to
a final judgment, including an updated appraisal and affidavit of debt,
which were later filed with the court. The court summarily granted the
motion to open and, on the basis of its review of the documents submit-
ted by T Co., rendered a judgment of strict foreclosure. On H’s appeal
to this court, held:
1. H could not prevail on his claim that the trial court improperly granted
T Co.’s motion to open the disciplinary judgment of dismissal: there
was nothing in the record to support H’s assertion that the court disre-
garded the standard for opening a disciplinary judgment set forth in the
applicable statute (§ 52-212) and rule of practice (§ 17-43), which require,
inter alia, a showing that the plaintiff was prevented by mistake, accident
or other reasonable cause from prosecuting the action, and H failed to
demonstrate that the court abused its discretion in granting the motion,
as the record indicated that T Co. timely moved to open the judgment
of dismissal on the ground that any delay in proceeding to a final judg-
ment was not the result of lack of diligence on its part but, instead, was
caused by a delay in receiving certain original documents necessary to
foreclose, which was outside of its direct control, that H did not dispute
the veracity of T Co.’s factual assertions, that no real argument existed
that a good cause of action failed to exist at the time of the dismissal
because the motion for summary judgment as to liability already had
been granted, and that the court expressed skepticism that H had been
unduly prejudiced by any delay in bringing the action to a final judgment;
accordingly, on that record and in light of the well established policy
that courts should favor bringing about a trial on the merits whenever
possible, this court could not conclude that the trial court abused its
considerable discretion in opening the judgment or that its implicit
finding of reasonable cause to do so was clearly erroneous.
2. This court declined to review H’s unpreserved claims that the trial court
exhibited bias against him in ruling on the motion to open the judgment
of dismissal and that the court improperly rendered a judgment of strict
foreclosure because T Co. failed to comply with the five day notice
provision of the relevant rule of practice (§ 23-18 [b]), as those claims
were never raised before or decided by the trial court and, therefore,
were not properly before this court on appeal.
3. The trial court properly granted T Co.’s motion for summary judgment
as to liability, as there was no genuine issue of material fact precluding
summary judgment; T Co. submitted sufficient evidence in support of
its motion for summary judgment to establish its prima facie case of
foreclosure, including copies of the note, mortgage and relevant assign-
ments, and a sworn affidavit from its loan servicing agent averring that
T Co. was the holder of the original note and mortgage, the note was
in default for nonpayment, notice of the default was sent to H and H
had not cured the default, and H failed to submit any competent or
admissible evidence to counter T Co.’s evidentiary submissions and
to demonstrate the existence of a genuine issue of material fact that
precluded summary judgment as to liability.
4. This court declined to review H’s claim that the trial court abused its
discretion by not dismissing the foreclosure action pursuant to the
relevant rule of practice (§ 17-19) for T Co.’s failure to comply with that
court’s order directing T Co. to advance the case within sixty days, that
claim having been inadequately briefed; H’s brief contained no citations
to the record demonstrating that he requested the court to exercise
its discretion pursuant to § 17-19 and legal analysis of the claim was
essentially limited to a single sentence, and H did not provide any
analysis or cite to any legal authority suggesting that the court was
required to exercise its discretion under § 17-19 sua sponte.
5. This court declined to review H’s claim that the trial court improperly failed
to give credence to the bifurcation of the subject note and mortgage,
as H failed to adequately brief this claim beyond his mere abstract
legal assertion that the splitting of the note and mortgage created an
immediate and fatal flaw in title; it was unclear from H’s brief whether
his claim challenged the summary judgment as to liability, the judgment
of strict foreclosure or both, and the brief contained only bald citations
to two out-of-state cases, without explanation as to how the cited case
law was applicable to the specific facts of the present case, whether
there was Connecticut authority on the question or why this court should
adopt the reasoning of the cited cases.
6. H could not prevail on his claim that the trial court improperly failed to
address whether T Co. had standing to prosecute the foreclosure action
and that T Co., in fact, lacked standing: the record did not support H’s
assertion that the court failed to consider the issue of T Co.’s standing
but, rather, indicated that the court implicitly determined that T Co.
had standing and rejected H’s argument to the contrary, and H did not
seek an articulation of either the court’s ruling on the motion for sum-
mary judgment or the judgment of strict foreclosure; moreover, neither
of H’s arguments on appeal implicated T Co.’s standing, and, on the
basis of the record presented, this court concluded that H failed to rebut
the presumption that T Co. had standing to prosecute this action as the
holder of the note and mortgage.
7. This court summarily rejected H’s claim that the trial court ignored fraud
perpetrated by T Co., as that unsupported claim lacked merit; although H
referenced instances of bank fraud associated with the recent mortgage
crisis, he failed to cite to any evidence in the record indicating that that
type of fraud occurred in the present case.
Argued January 30—officially released June 5, 2018
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendant et al., and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where The Bank of New York Mellon, succes-
sor trustee, was substituted as the plaintiff; thereafter,
the court, Robaina, J., granted the substitute plaintiff’s
motion for summary judgment as to liability; subse-
quently, the court, Noble, J., dismissed the action for
failure to prosecute with reasonable diligence; there-
after, the court, Dubay, J., granted the substitute plain-
tiff’s motion to open the judgment; subsequently, the
court, Dubay, J., granted the substitute plaintiff’s
motion for a judgment of strict foreclosure and ren-
dered judgment thereon, from which the named defen-
dant appealed to this court. Affirmed.
Wade H. Horsey II, self-represented, the appellant
(named defendant).
Marissa I. Delinks, with whom, on the brief, was
Valerie N. Doble, for the appellee (substitute plaintiff).
Opinion
PRESCOTT, J. The defendant, Wade H. Horsey II,1
appeals from the judgment of strict foreclosure ren-
dered in favor of the substitute plaintiff, The Bank of
New York Mellon, as Successor Trustee for JPMorgan
Chase Bank, N.A., as Trustee for Novastar Mortgage
Funding Trust, Series 2005-2 Novastar Home Equity
Loan Asset-Backed Certificates, Series 2005-2. The
defendant claims on appeal that the trial court improp-
erly (1) granted the substitute plaintiff’s motion to open
a disciplinary judgment of dismissal because it disre-
garded the standard set forth in General Statutes § 52-
212 and Practice Book § 17-43; (2) exhibited bias against
the defendant; (3) failed to ensure that the defendant
timely received a preliminary statement of the substi-
tute plaintiff’s monetary claim in accordance with Prac-
tice Book § 23-18 (b); (4) rendered summary judgment
as to the defendant’s liability; (5) declined to dismiss
the foreclosure action pursuant to Practice Book § 17-
9; (6) failed to consider his argument that ‘‘bifurcation’’
of the note and mortgage had rendered them unenforce-
able; (7) failed to address the issue of the substitute
plaintiff’s standing to prosecute this action; and (8)
failed to consider whether the substitute plaintiff had
engaged in fraud upon the court. The defendant’s claims
either are unpreserved, inadequately briefed, or fail to
persuade us that the court’s actions constitute revers-
ible error. Accordingly, we affirm the judgment of strict
foreclosure and remand the case to the trial court for
the purpose of setting new law days.
The record reveals the following relevant facts and
procedural history. The original plaintiff, The Bank of
New York Mellon, as Successor Trustee under Novastar
Mortgage Funding Trust 2005-2, commenced this action
in September, 2009. Its complaint contained two counts.
Count one sought to foreclose on a mortgage that the
defendant had executed in 2005 on property in Avon
as security for a note in the principal amount of
$390,000.2 The original plaintiff alleged that it was the
holder of the note and mortgage and that the note was
in default for nonpayment. Count two sought reforma-
tion of the mortgage in order to correct a minor defect
in the property description.
On April 23, 2010, the original plaintiff filed a motion
for a judgment of strict foreclosure and a motion to
default the defendant for failure to appear. Soon there-
after, it also filed an appraisal, an affidavit of debt, a
foreclosure worksheet and other documents necessary
to obtain a foreclosure judgment. The court clerk
defaulted the defendant for failure to appear on May
3, 2010. On that same day, however, the defendant filed
an appearance as a self-represented party along with a
request to participate in the court-sponsored foreclo-
sure mediation program. The default was set aside and
the court granted the defendant’s request for mediation.
See Practice Book § 17-20 (d) (default automatically set
aside if defaulted party files appearance before judg-
ment on default is rendered).
Foreclosure mediation began and continued through
the end of 2010. Over the following year and a half, the
parties filed a number of motions related to discovery.
On September 26, 2012, the original plaintiff assigned
the mortgage to the substitute plaintiff, which the court
substituted into the action for the original plaintiff on
November 19, 2012.
The defendant filed an answer to the complaint and
a disclosure of defense on October 9, 2013. In his
answer, the defendant admitted to executing the note
and mortgage but denied the allegations that he was in
default on the note or had been provided proper notice
of default. The defendant did not assert any special
defenses or raise any counterclaims. In his disclosure
of defense, the defendant indicated that he reserved
the right to dispute the amount of the debt.
No further activity in the action occurred until April
17, 2015, at which time the defendant filed a motion
pursuant to Practice Book § 14-3 asking the court to
render a judgment of dismissal on the ground that the
substitute plaintiff had failed to prosecute the action
with reasonable diligence. The court, Vacchelli, J.,
issued an order on May 6, 2015, denying the defendant’s
motion, but directing the substitute plaintiff to move
for summary judgment or to take some other action to
advance the case within sixty days. The court indicated
that, if the substitute plaintiff failed to comply, the court
would entertain a renewed motion to dismiss.
The substitute plaintiff filed a motion for summary
judgment as to liability only on December 21, 2015.
Along with its motion, the substitute plaintiff submitted
copies of the note, the mortgage and assignments, and
an affidavit averring, inter alia, that the substitute plain-
tiff was the holder of the note and the mortgagee of
record, the note was in default, notice of the default
had been sent to the defendant, and the default had not
been cured. The defendant filed an objection to the
motion for summary judgment on February 29, 2016.3
He did not attach an affidavit or any other evidence
that disputed factually the summary judgment submis-
sions of the substitute plaintiff.4
When the defendant filed his objection to the motion
for summary judgment, he also filed a motion renewing
his request for a judgment of dismissal pursuant to
Practice Book § 14-3, noting that the substitute plaintiff
had not filed its motion for summary judgment within
the sixty day time period established by the court’s May
6, 2015 order. The substitute plaintiff filed an objection
to the motion to dismiss, arguing that dismissal was
not an appropriate remedy at that juncture because the
defendant had not established that he was prejudiced
by the delay and the parties were now ‘‘postured to
litigate the matter in short order.’’
The court, Robaina, J., heard argument on the motion
for summary judgment on March 21, 2016. On April
14, 2016, the court issued orders, without comment,
denying the defendant’s renewed motion to dismiss for
lack of diligence and overruling his objection to the
motion for summary judgment. The court also issued
the following order granting the motion for summary
judgment as to liability only: ‘‘[I]t is hereby found that
no genuine issue of material fact exists as to the defen-
dants’ liability on the note and mortgage. . . . Determi-
nation of the amount of indebtedness is deferred until
such time as plaintiff seeks a judgment of foreclosure.’’
On April 19, 2016, the defendant filed an appeal from
the court’s April 14, 2016 orders granting the motion
for summary judgment as to liability and denying his
motion for a disciplinary dismissal of the action. The
substitute plaintiff filed with this court a motion to
dismiss that appeal for lack of a final judgment. The
motion was granted on May 25, 2016. See Wells Fargo
Bank, N.A. v. Tarzia, 150 Conn. App. 660, 662 n.2, 92
A.3d 983 (entry of summary judgment as to liability
only not final judgment for purposes of appeal), cert.
denied, 314 Conn. 905, 99 A.3d 635 (2014); Deutsche
Bank National Trust Co. v. Bialobrzeski, 123 Conn.
App. 791, 794 n.7, 3 A.3d 183 (2010) (denial of motion
to dismiss generally not appealable final judgment). On
July 20, 2016, the substitute plaintiff reclaimed for the
short calendar list its April 23, 2010 motion seeking a
judgment of strict foreclosure.
On August 1, 2016, the parties appeared before the
court, Noble, J., on the court’s dormancy docket. The
court had issued a notice to appear and show cause on
March 18, 2016, prior to the hearing on the motion for
summary judgment, directing the parties to appear to
address the status of the case and indicating that ‘‘the
court may dismiss this action at the hearing.’’ The court
first heard from counsel for the substitute plaintiff, who
indicated that the substitute plaintiff was ready to pro-
ceed to judgment but was awaiting the return of the
original note and other documents necessary to secure
the judgment. According to counsel, at some point, the
substitute plaintiff had hired another law firm to repre-
sent it in this action, and the original documents had
been transferred to that firm. The matter subsequently
was transferred back to counsel’s firm, but, according
to counsel, the original documents had not yet been
received back. Without first hearing from the defendant,
the court indicated that it would give the substitute
plaintiff one more chance, but if the matter did not
proceed to judgment by November 14, 2016, the substi-
tute plaintiff would be nonsuited and the matter dis-
missed.
The defendant then asked the court if he could be
heard. The court apologized for not giving the defendant
an opportunity to speak prior to ruling. The defendant
brought to the court’s attention that he previously had
filed a motion to dismiss for lack of diligence and that
the substitute plaintiff had failed to comply with the
court’s order directing the substitute plaintiff to take
some action to advance the case within sixty days. The
substitute plaintiff responded that the same argument
had been raised to and rejected by the court as part of
its consideration of the motion for summary judgment
and renewed motion to dismiss. Nevertheless, after con-
firming that the case had been on the docket since
2009, the court reversed its earlier ruling and dismissed
the action.
On August 31, 2016, the substitute plaintiff filed a
motion to open and set aside the judgment of dismissal.
It argued that it had filed and reclaimed a motion for
a judgment of strict foreclosure prior to the court’s
dismissal and now had in its possession all documents
necessary to proceed to a final judgment, including an
updated appraisal and updated affidavit of debt. It also
argued that ‘‘it would be an exercise in futility and
would unduly burden the court’s docket to require [it]
to commence a new action.’’ The substitute plaintiff
filed the updated appraisal on September 6, 2016, and,
on September 8, 2016, filed a new foreclosure work-
sheet, an updated affidavit of debt, and an affidavit
regarding attorney’s fees. The defendant filed an objec-
tion to the motion to open on September 6, 2016, in
which he argued that the substitute plaintiff could not
demonstrate that it was prevented from prosecuting
the action by mistake, accident or other reasonable
cause or that a good cause of action existed at the time
of the judgment of dismissal.
Both the motion to open and the reclaimed motion
for a judgment of strict foreclosure appeared on the
court’s September 12, 2016 foreclosure docket. The
court, Dubay, J., asked the defendant at the beginning
of that hearing whether he was objecting to the motion
to open or the motion for a judgment of strict foreclo-
sure. The defendant replied: ‘‘I’m objecting to the
motion to open because my understanding is without
opening the judgment the court can’t consider any other
motion.’’ The court acknowledged that the case had
been pending for a long time but asked the defendant
to explain how he had been prejudiced by that delay.
The defendant answered that he had been under the
strain of not knowing whether he would be able to
remain in his home. The court suggested that, with
respect to prejudice, the defendant actually benefitted
from the delay because he was able to remain in his
home for seven years without making mortgage pay-
ments. After some further discussion with the defen-
dant, including about the nature of his defense to the
foreclosure action, the court summarily granted the
motion to open.
The court then immediately turned to consideration
of the motion for a judgment of strict foreclosure. It
began by confirming that summary judgment as to liabil-
ity previously had been rendered in this case. The defen-
dant then requested that the court grant a two month
continuance to November 16, 2016, arguing that the
substitute plaintiff had filed its updated financial infor-
mation after the action had been dismissed and prior
to it having been opened, and the defendant claimed
that he needed additional time to prepare a defense.
The court denied the request, explaining to the defen-
dant that he had had seven years to prepare and, further-
more, that it intended to set law days to commence on
November 28, 2016, and, thus, the defendant would
have ample time to file a motion to open any judgment
it rendered ‘‘based upon whatever reasons you think it
. . . should be reopened for.’’ Other than arguing that
the substitute plaintiff’s financial documents were filed
too close in time to the hearing on the motion for a
judgment of strict foreclosure, the defendant did not
advance any reason why the court could not determine
the amount of indebtedness on the basis of those docu-
ments. Because the defendant’s liability already had
been established, calculating the total net amount of
the debt owed and establishing law days were the only
outstanding issues for the court to resolve before it
could render a judgment of strict foreclosure.5
The court, on the basis of its review of the documents
submitted by the substitute plaintiff, including the
revised affidavit of debt and updated appraisal, ren-
dered a judgment of strict foreclosure, finding that the
property had a fair market value of $390,000 and that
the debt owed as of the judgment date was $644,382.77.
The court also awarded attorney’s fees, an appraisal
fee, and a title search fee, and it set law days to com-
mence on November 28, 2016. Finally, the court also
rendered judgment for the substitute plaintiff, without
objection, on count two of the complaint seeking refor-
mation of the mortgage’s property description. This
appeal followed.
I
The defendant first claims that the court improperly
granted the substitute plaintiff’s motion to open the
disciplinary judgment of dismissal. Specifically, the
defendant argues that the court disregarded the stan-
dard for opening a judgment set forth in General Stat-
utes § 52-212 and Practice Book § 17-43. The substitute
plaintiff responds that the defendant’s claim is not
reviewable because the trial court did not state the
factual or legal basis for its decision to grant the motion
to open and the defendant never requested an articula-
tion. Alternatively, the substitute plaintiff argues that,
on the basis of the record and arguments presented,
the trial court reasonably could have concluded that
the criteria set forth in § 52-212 and Practice Book § 17-
43 for opening a judgment were met, and, therefore,
the defendant has failed to demonstrate that the court
abused its discretion. We agree with the substitute
plaintiff that, on the basis of the record before us, the
defendant has failed to demonstrate that the court
abused its discretion in granting the motion to open
the judgment of dismissal.
‘‘If a party shall fail to prosecute an action with rea-
sonable diligence, the judicial authority may, after hear-
ing, on motion by any party to the action . . . or on
its own motion, render a judgment dismissing the action
with costs.’’ Practice Book § 14-3 (a). ‘‘Practice Book
§ 14-3 reflects the judicial branch’s interest in having
counsel prosecute actions with reasonable diligence.
Judges, faced with case flow management concerns,
must enforce the pace of litigation coming before the
court, rather than allowing the parties to do so. . . .
Our judicial system cannot be controlled by the litigants
and cases cannot be allowed to drift aimlessly through
the system. . . . [Therefore], lengthy periods of inac-
tivity by the plaintiff constitute sufficient grounds for
a trial court to determine that the plaintiff has failed
to prosecute an action with reasonable diligence.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bro-
chu v. Aesys Technologies, 159 Conn. App. 584, 593,
123 A.3d 1236 (2015).
‘‘Courts must remain mindful, however, that [i]t is
the policy of the law to bring about a trial on the merits
of a dispute whenever possible . . . and that [o]ur
practice does not favor the termination of proceedings
without a determination of the merits of the controversy
[if] that can be brought about with due regard to neces-
sary rules of procedure.’’ (Internal quotation marks
omitted) Id., 594. Disciplinary dismissals pursuant to
Practice Book § 14-3, thus, are not favored and, accord-
ingly, may be set aside and the action reinstated to the
docket upon the granting of a motion to open filed in
accordance with Practice Book § 17-43 and § 52-212.
Practice Book § 17-43 provides in relevant part that
the disciplinary dismissal of an action may be set aside
within four months ‘‘upon the written motion of any
party or person prejudiced thereby, showing reasonable
cause, or that a good cause of action in whole or in
part existed at the time of the rendition of such judg-
ment . . . and that the plaintiff . . . was prevented by
mistake, accident or other reasonable cause from prose-
cuting’’ the action. Section 52-212 contains nearly identi-
cal language. ‘‘A motion to open . . . is addressed to
the [trial] court’s discretion, and the action of the trial
court will not be disturbed on appeal unless it acted
unreasonably and in clear abuse of its discretion.’’
(Internal quotation marks omitted.) Rino Gnesi Co. v.
Sbriglio, 83 Conn. App. 707, 711, 850 A.2d 1118 (2004).
In the present case, the court granted without com-
ment the substitute plaintiff’s motion to open the disci-
plinary judgment of dismissal. The defendant did not
request an articulation of that decision. It is the appel-
lant’s burden to provide this court with an adequate
record for review of all claims raised on appeal. Practice
Book § 61-10 (a). In a situation in which the court has
not set forth the factual and legal basis for a discretion-
ary ruling, and the appellant has failed to seek an articu-
lation in accordance with Practice Book § 66-5, we must
presume that the court acted correctly and can only
conclude that there has been an abuse of discretion if
such abuse is apparent on the face of the record before
us. See Equity One, Inc. v. Shivers, 310 Conn. 119, 132,
74 A.3d 1225 (2013) (‘‘The correctness of a judgment
of a court of general jurisdiction is presumed in the
absence of evidence to the contrary. We do not presume
error. The burden is on the appellant to prove harmful
error.’’ [Internal quotation marks omitted.]). We cannot
reach such a conclusion in the present case.
Pursuant to statute and our rules of practice, in order
to justify the opening of a judgment rendered for failure
to prosecute an action with reasonable diligence, the
court must be satisfied only that there has been some
‘‘mistake, accident or other reasonable cause’’ that justi-
fies setting aside the judgment. (Emphasis added.) Gen-
eral Statutes § 52-212; Practice Book § 17-43. There is
nothing in the record to support the defendant’s asser-
tion that the court failed to apply that standard. More-
over, we cannot conclude that the court abused its
discretion in granting the motion to open under the
circumstances. The substitute plaintiff timely moved to
open the disciplinary dismissal well within the requisite
four month period. It argued to the court that any delay
in proceeding to a final judgment was not the result of
lack of diligence on the part of the substitute plaintiff
but, rather, was caused by a delay in receiving original
documents necessary to foreclose, a delay that was
outside of its direct control. The defendant did not
dispute the veracity of the substitute plaintiff’s factual
assertions. Furthermore, because summary judgment
as to liability already had been rendered prior to the
court’s dismissal, no real argument existed that a good
cause of action failed to exist in whole or in part at
the time of the dismissal. Finally, the court expressed
skepticism that the defendant had been unduly preju-
diced by any delay in bringing the action to a final
judgment. We cannot conclude on this record that the
court abused its considerable discretion in opening the
judgment of dismissal or that its implicit finding of
reasonable cause to do so was clearly erroneous, partic-
ularly in light of the well established policy that courts
should favor bringing about a trial on the merits when-
ever possible. Accordingly, we reject the defendant’s
claim.
II
The defendant next claims that the court exhibited
bias against him in ruling on the motion to open the
judgment of dismissal. Specifically, he maintains that
the court displayed bias by questioning him about how
he was prejudiced by the substitute plaintiff’s delay in
prosecuting the action, seeming to presume that judg-
ment inevitably would be rendered against him. The
substitute plaintiff argues that this claim is not review-
able because no claim of judicial bias was ever brought
to the attention of the trial court. We agree with the
substitute plaintiff.
In order to preserve a claim for appellate review, it
generally must have been distinctly raised to and
decided by the trial court. See Practice Book § 60-5;
Connecticut Bank & Trust Co. v. Munsill-Borden Man-
sion, LLC, 147 Conn. App. 30, 36–37, 81 A.3d 266 (2013).
This rule applies equally to claims of judicial bias. See
Burns v. Quinnipiac University, 120 Conn. App. 311,
316, 991 A.2d 666 (claims alleging judicial bias should
be raised at trial or claim will be deemed waived), cert.
denied, 297 Conn. 906, 995 A.2d 634 (2010). Although
the defendant was not required in this case to file a
written motion to disqualify pursuant to Practice Book
§ 1-23 because the circumstances giving rise to the
defendant’s claim had not arisen prior to the hearing;
see In re Messiah S., 138 Conn. App. 606, 625, 53 A.3d
224, cert. denied, 307 Conn. 935, 56 A.3d 712 (2012);
the defendant nevertheless had a duty to assert season-
ably his claim of alleged judicial bias to the court at
the hearing on the basis of his perception of the events
transpiring in court. See id. (respondent preserved
claim of judicial bias by orally asking court during trial
to recuse itself in response to court’s comments and
rulings). Here, the defendant never complained of judi-
cial bias during the hearing, nor did he ask the court
to disqualify itself. Because this claim is unpreserved,
we decline to review it.6
III
The defendant also claims that the court improperly
rendered a judgment of strict foreclosure because the
substitute plaintiff failed to comply with the five day
notice provision of Practice Book § 23-18 (b). As with
his claim of judicial bias, this claim is unpreserved
because it was never raised or decided at the hearing
on the motion for a judgment of strict foreclosure.
Accordingly, we decline to review it.
As previously noted, Practice Book § 23-18 governs
the proof required to establish the amount of indebted-
ness in a foreclosure action. Subsection (a) of § 23-18
‘‘serve[s] as an exception to the general prohibition of
hearsay evidence’’; Bank of America, N.A. v. Chainani,
174 Conn. App. 476, 484, 166 A.3d 670 (2017); and pro-
vides: ‘‘In any action to foreclose a mortgage where
no defense as to the amount of the mortgage debt is
interposed, such debt may be proved by presenting to
the judicial authority the original note and mortgage,
together with the affidavit of the plaintiff or other per-
son familiar with the indebtedness, stating what
amount, including interest to the date of the hearing, is
due, and that there is no setoff or counterclaim thereto.’’
Subsection (b) of § 23-18 provides in relevant part: ‘‘No
less than five days before the hearing on the motion
for judgment of foreclosure, the plaintiff shall file with
the clerk of the court and serve on each appearing party
. . . a preliminary statement of the plaintiff’s monetary
claim.’’ This obligation ordinarily is satisfied by the fil-
ing of an affidavit of debt.
The original plaintiff filed an affidavit of debt in this
matter on April 28, 2010, shortly after filing the motion
for a judgment of strict foreclosure, which was later
reclaimed by the substitute plaintiff. Accordingly, some
preliminary statement of the defendant’s indebtedness
was filed more than five days before the hearing on the
motion for a judgment of foreclosure. Four days before
the hearing on the motion, the substitute plaintiff also
filed and served an updated affidavit of debt. The defen-
dant, in requesting a continuance of the motion, raised
to the court that the substitute plaintiff had filed the
updated affidavit of debt and other paperwork only a
few days prior to the hearing. The defendant, however,
never made any reference to Practice Book § 23-18 or a
five day notice period, nor did he argue that the updated
affidavit of debt or other submissions were inadmissible
as evidence of the amount of indebtedness because
they were not timely filed. Because those issues were
not raised distinctly before the trial court, they are not
properly before this court on appeal. Accordingly, we
do not decide whether Practice Book § 23-18 was satis-
fied by the filing of the initial affidavit of debt or whether
the five day notice requirement is mandatory or subject
to waiver at the discretion of the parties or the court.7
IV
The defendant next claims that the court improperly
granted the substitute plaintiff’s motion for summary
judgment as to liability. The substitute plaintiff
responds that the defendant failed to present any com-
petent or admissible evidence to rebut its right to
enforce the note and to foreclose the mortgage and
failed to demonstrate the existence of any disputed
issue of fact or law that would have barred summary
judgment as to liability. We agree with the substitute
plaintiff and, accordingly, reject the defendant’s claim.
‘‘Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) GMAC Mortgage, LLC v.
Ford, 144 Conn. App. 165, 175, 73 A.3d 742 (2013). ‘‘[I]n
seeking summary judgment, it is the movant who has
the burden of showing . . . the absence of any genuine
issue as to all the material facts [that], under applicable
principles of substantive law, entitle him to a judgment
as a matter of law.’’ (Internal quotation marks omit-
ted) Id.
‘‘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.’’
(Citations omitted.) Id., 176.
A party opposing summary judgment ‘‘must provide
an evidentiary foundation to demonstrate the existence
of a genuine issue of material fact. . . . A party may
not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary
judgment.’’ (Emphasis omitted; internal quotation
marks omitted.) Little v. Yale University, 92 Conn. App.
232, 234, 884 A.2d 427 (2005), cert denied, 276 Conn.
936, 891 A.2d 1 (2006). In other words, ‘‘[d]emonstrating
a genuine issue of material fact requires a showing of
evidentiary facts or substantial evidence outside the
pleadings from which material facts alleged in the plead-
ings can be warrantably inferred. . . . A material fact
is one that will make a difference in the result of the
case. . . . To establish the existence of a [dispute as
to a] material fact, it is not enough for the party opposing
summary judgment merely to assert the existence of
a disputed issue. . . . Such assertions are insufficient
regardless of whether they are contained in a complaint
or a brief. . . . Further, unadmitted allegations in the
pleadings do not constitute proof of the existence of a
genuine issue as to any material fact . . . . The issue
must be one which the party opposing the motion is
entitled to litigate under [its] pleadings and the mere
existence of a factual dispute apart from the pleadings is
not enough to preclude summary judgment.’’ (Citations
omitted; internal quotation marks omitted.) New Mil-
ford Savings Bank v. Roina, 38 Conn. App. 240, 244–45,
659 A.2d 1226, cert. denied, 235 Conn 915, 665 A.2d
609 (1995).
At the hearing on the motion for summary judgment,
the defendant described his argument in opposition to
summary judgment as encompassing two issues: fraud
and lack of standing. With respect to fraud, the defen-
dant first asserted that he had been unable to refinance
his loan because of what he described as an unfair
prepayment penalty. Second, he asserted that the sub-
stitute plaintiff and its predecessors in interest utilized
the London Interbank Offered Rate to set and adjust
rates, despite knowing that it, according to the defen-
dant, ‘‘had been determined to be a fraudulent index.’’
With respect to standing, the defendant first asserted
his belief that errors had been made with respect to
how the note and mortgage had been transferred and
assigned and that so-called ‘‘robo-signers’’ may have
been used to reconstruct documents. The defendant
also asserted the ‘‘possibility of bifurcation,’’ which the
defendant described as the note and mortgage having
been legally separated and rendered unenforceable. The
various arguments made by the defendant to the court,
however, were unsupported by reference to any eviden-
tiary submissions included as part of the summary judg-
ment record, nor did he offer other evidentiary proof
or affidavits in support of his arguments at the hearing.
In support of its motion for summary judgment as
to liability only, the substitute plaintiff’s evidentiary
submissions included copies of the note, the mortgage
and relevant assignments. It also submitted a sworn
affidavit from its loan servicing agent. The affidavit
provided, inter alia, that the substitute plaintiff was the
holder of the original note and the mortgagee of record,
the note was in default for nonpayment, the defendant
was provided notice of that default in accordance with
the terms of the note and mortgage, and, as of that
date, the defendant had not cured the default. This
evidence, which was not countered by the defendant
through his own evidentiary submission, was sufficient
to establish the substitute plaintiff’s prima facie case
and there was no genuine issue of material fact preclud-
ing summary judgment as to liability. We conclude on
the basis of our plenary review that the trial court prop-
erly rendered summary judgment as to liability only.
V
We next turn to the defendant’s claim that the court
abused its discretion by not dismissing the foreclosure
action pursuant to Practice Book § 17-19. The substitute
plaintiff argues that the defendant has failed to brief
this claim adequately and that he failed to preserve the
claim for review because he never expressly moved for
dismissal of the action pursuant to Practice Book § 17-
19. We agree that the claim, even if preserved, is inade-
quately briefed.
Practice Book § 17-19 provides: ‘‘If a party fails to
comply with an order of a judicial authority or a citation
to appear or fails without proper excuse to appear in
person or by counsel for trial, the party may be non-
suited or defaulted by the judicial authority.’’ The defen-
dant argues that the substitute plaintiff failed to comply
with the court’s May 6, 2015 order to advance the case
within sixty days, instead filing its motion for summary
judgment more than six months later. As the defendant
acknowledges, however, he did not file a motion raising
the substitute plaintiff’s noncompliance until he
objected to the motion for summary judgment. At that
time, he renewed his request for a dismissal pursuant
to Practice Book § 14-3 for lack of reasonable diligence.
He did not, however, invoke Practice Book § 17-19.
The defendant’s appellate brief contains no citations
to the record demonstrating that he ever asked the
court to exercise its discretion pursuant to Practice
Book § 17-19. Furthermore, his legal analysis is essen-
tially limited to a single sentence: ‘‘By not following the
court’s [May 6, 2015] order in a timely fashion, this
case should have been dismissed with prejudice.’’ The
defendant has provided no analysis or cited any legal
authority, however, suggesting that a court is required
to exercise its discretion under Practice Book § 17-19
sua sponte. ‘‘We are not required to review issues that
have been improperly presented to this court through
an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.’’
(Internal quotation marks omitted.) Kelib v. Connecti-
cut Housing Finance Authority, 100 Conn. App. 351,
353, 918 A.2d 288 (2007). Thus, even if preserved, the
defendant has failed to brief this claim adequately.
Accordingly, we decline to review it.
VI
We turn next to the defendant’s claim that the court
improperly failed to ‘‘[give] credence to’’ what he
describes as ‘‘the bifurcation of the note and mortgage.’’
The defendant asserts that ‘‘[t]he splitting of the note
and mortgage creates an immediate and fatal flaw in
title.’’ We decline to review this claim because it is not
adequately briefed.
As we previously have indicated in this opinion, we
will not review a claim that is devoid of any legal analy-
sis. With respect to this claim, the defendant’s brief is
inadequate in at least two ways. First, it is unclear from
the brief whether the defendant’s claim challenges the
court’s decision to render summary judgment as to lia-
bility, the judgment of strict foreclosure, or both. Sec-
ond, the defendant’s brief contains only bald citations to
two out-of-state cases, presumably because he believes
that those decisions support his claim. The defendant
does not explain, however, how the cited case law is
applicable to the specific facts of the present case,
whether there is Connecticut authority on the question,
or why this court should adopt the reasoning of the cited
cases. ‘‘[A]lthough we allow [self-represented] litigants
some latitude, the right of self-representation provides
no attendant license not to comply with relevant rules
of procedural and substantive law.’’ (Internal quotation
marks omitted.) Tonghini v. Tonghini, 152 Conn. App.
231, 240, 98 A.3d 93 (2014). This would include the
requirement that an appellant adequately brief all claims
raised on appeal. Id. Because the defendant has not
adequately briefed this claim beyond his mere abstract
legal assertion, we decline to review it.
VII
The defendant next claims that the court improperly
failed to address whether the substitute plaintiff had
standing to prosecute this action and that the substitute
plaintiff, in fact, lacks standing. We reject this claim
and conclude on the basis of the record presented that
the defendant failed to rebut the presumption that the
substitute plaintiff has standing to prosecute this action
as the holder of the note and mortgage.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . [If] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause. . . . [B]ecause [a] determination regarding a
trial court’s subject matter jurisdiction is a question of
law, our review is plenary. . . . In addition, because
standing implicates the court’s subject matter jurisdic-
tion, the issue of standing is not subject to waiver and
may be raised at any time.’’ (Internal quotation marks
omitted.) U.S. Bank, National Assn. v. Schaeffer, 160
Conn. App. 138, 145, 125 A.3d 262 (2015).
‘‘The rules for standing in foreclosure actions [in
which] the issue of standing is raised may be succinctly
summarized as follows. [If] a holder seeks to enforce
a note through foreclosure, the holder must produce
the note. The note must be sufficiently endorsed so as
to demonstrate that the foreclosing party is a holder,
either by a specific endorsement to that party or by
means of a blank endorsement to bearer. If the foreclos-
ing party shows that it is a valid holder of the note and
can produce the note, it is presumed that the foreclosing
party is the rightful owner of the debt. That presumption
may be rebutted by the defending party, but the burden
is on the defending party to provide sufficient proof
that the holder of the note is not the owner of the debt,
for example, by showing that ownership of the debt
had passed to another party. It is not sufficient to pro-
vide that proof, however, merely by pointing to some
documentary lacuna in the chain of title that might give
rise to the possibility that some other party owns the
debt. In order to rebut the presumption, the defendant
must prove that someone else is the owner of the note
and debt. Absent that proof, the plaintiff may rest its
standing to foreclose on its status as the holder of the
note.’’ (Emphasis in original; footnote omitted.) Id., 150.
Turning to the defendant’s claim, we first reject the
defendant’s suggestion that the trial court failed to con-
sider his standing arguments because that claim is not
supported by the record. The defendant arguably raised
standing both in objection to the motion for summary
judgment and at the hearing on the motion for a judg-
ment of strict foreclosure. Although neither judge filed
a written memorandum of decision addressing stand-
ing, it nevertheless is implicit in the court’s decision to
grant the motion for summary judgment as to liability
that it concluded there was no genuine issue of fact
regarding the substitute plaintiff’s status as the holder of
the note or mortgage. In order to be entitled to summary
judgment as to liability, the substitute plaintiff had to
establish that there was no factual dispute as to its
status as the holder of the note and mortgage. See
GMAC Mortgage, LLC v. Ford, supra, 144 Conn. App.
174. Further, in rendering the judgment of strict foreclo-
sure, the court implicitly rejected the defendant’s sug-
gestion at the hearing that it remained undetermined
whether the substitute plaintiff was ‘‘the right holder.’’
The defendant never sought an articulation of either
the court’s ruling on the motion for summary judgment
or the judgment of strict foreclosure. An articulation is
the proper vehicle to test whether a court has failed to
consider or overlooked an argument properly raised.
See Brennan v. Brennan Associates, 316 Conn. 677,
705, 113 A.3d 957 (2015) (responsibility of appellant to
ask trial judge to rule on overlooked matter). Because
the defendant has provided no support for his assertion
that the trial court failed to consider his standing argu-
ments, we reject that aspect of his claim.
Because standing can be raised at any stage of the
proceedings, we next consider the merits of the stand-
ing arguments briefed by the defendant on appeal. First,
the defendant argues that the original plaintiff ‘‘is not
on file as licensed to do business in Connecticut,’’ rely-
ing on a business inquiry search for The Bank of New
York Mellon on the Secretary of the State’s website.
The defendant cites case law for the proposition that a
plaintiff must have an actual legal existence and cannot
bring an action using a fictitious name. Second, the
defendant raises a number of allegations the gravamen
of which is that the note and mortgage were transferred
in violation of terms of the mortgage trust’s pooling
and servicing agreement. For the reasons that follow,
we conclude that neither of the defendant’s arguments
implicates standing and that the record establishes that
the substitute plaintiff has standing to assert its claims.
First, the defendant’s business inquiry search for The
Bank of New York Mellon on the Secretary of the State’s
website, without more, is insufficient to establish as a
matter of law that The Bank of New York Mellon is
either an improper legal entity or a fictitious name. As
the substitute plaintiff correctly notes in its appellate
brief, the defendant’s argument is belied by the fact
that the Connecticut Department of Banking’s website
includes The Bank of New York Mellon in its list of
out-of-state banks operating branches in Connecticut.
See Connecticut Dept. of Banking, Banks in Connecticut,
available at http://www.ct.gov/dob/cwp/view.asp?a=22
28&q=296954&dobNAV_GID=1660 (last visited May 30,
2018).
Second, the defendant is not a party to the pooling
and servicing agreement at issue. In Wells Fargo Bank,
N.A. v. Strong, 149 Conn. App. 384, 89 A.3d 392, cert.
denied, 312 Conn. 923, 94 A.3d 1202 (2014), this court
rejected arguments nearly identical to those made by
the defendant, concluding that they did not implicate
standing. ‘‘Our appellate courts have not required a
foreclosure plaintiff to produce evidence of ownership
deriving from a pooling and servicing agreement in mak-
ing its prima facie case . . . .’’ Id., 399. ‘‘The relevance
of securitization documents [to] a lender’s standing to
foreclose a mortgage is questionable. Simply put, a bor-
rower has a contract—the note and mortgage—with the
owner or holder of the loan documents. The borrower,
however, is not a party to the pooling and servicing
agreement, commonly referred to as a trust document.
. . . It is a basic tenet of contract law that only parties
to an agreement may challenge its enforcement. . . .
[C]lose scrutiny of trust documents and challenges to
their veracity appear to offer little benefit to the court in
determining the owner or holder of a note in a particular
case. If admissible evidence of holder status has been
presented, a borrower must then challenge those facts
by competent evidence addressed to the delivery of
the loan documents. In most instances, a borrower’s
challenge to the content of trust documents or other
borrower claims appear to have little relevance to the
issue of standing.’’ (Internal quotation marks omitted.)
Id., 393–94. The defendant has not addressed Wells
Fargo Bank, N.A., or in any way tried to distinguish its
holding from the facts of the present case. We conclude
that, like in Wells Fargo Bank, N.A., the defendant’s
claim here does not implicate the plaintiff’s standing
to bring the action.
The original plaintiff alleged in the complaint that it
was the holder of the note and mortgage. The mortgage
later was transferred during the pendency of the action
to the substitute plaintiff, who was substituted in as
the plaintiff. Along with its motion for summary judg-
ment, the substitute plaintiff submitted an affidavit
averring that it was currently the holder of the note
and the mortgage. Neither the factual allegations of
the original plaintiff nor the affidavit submitted by the
substitute plaintiff were disputed by any evidence pro-
vided by the defendant. At the time judgment was ren-
dered, the substitute plaintiff demonstrated that it was
in possession of the original note, which included an
allonge with a specific endorsement to the substitute
plaintiff. In addition, the substitute plaintiff presented
to the court original copies of the mortgage and assign-
ments. The defendant has failed to direct our attention
to any evidence in the record that would rebut the
presumption that the substitute plaintiff, as the holder
of the note, owns the debt. Because the record before
us establishes that the substitute plaintiff has standing,
we reject the defendant’s claim.
VIII
Finally, the defendant claims that the court ‘‘ignored
fraud upon the court’’ perpetrated by the substitute
plaintiff. The defendant suggests that the substitute
plaintiff (1) misrepresented to the court that it was the
holder of the original note, (2) fabricated its excuse of
waiting for the return of the original note as the reason
for the delay in prosecuting the action, and (3) ‘‘fabri-
cated documents, used robo-signers and claimed money
that was not due to them because they did not have
the proper paperwork when the suit was initiated.’’
In support of these assertions, the defendant makes
reference to instances of bank fraud associated with the
recent mortgage crisis but fails to cite to any evidence
in the record indicating that this type of fraud occurred
in his case. As we have indicated previously, ‘‘we take
seriously all allegations of fraud and misdeeds in the
prosecution of residential mortgage foreclosure actions
before the courts of this state. Some evidence sug-
gesting actual wrongdoing, however, and not merely
the specter of such, is necessary in order to set aside
a final adjudication.’’ Bank of America, N.A. v. Thomas,
151 Conn. App. 790, 806 n.7, 96 A.3d 624, 634 (2014). The
defendant’s unsupported claim that the court turned a
blind eye to fraud in this case lacks merit, and, accord-
ingly, we summarily reject it.
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
Jacquelyn Costa Horsey and Sovereign Bank also are named as defen-
dants in the foreclosure action. Neither, however, has appealed from the
judgment of foreclosure or participated in the present appeal, and, therefore,
we refer in this opinion to Wade H. Horsey II as the defendant.
2
The note originally was executed by the defendant in favor of Novastar
Mortgage, Inc. (Novastar), and the mortgage securing the note was executed
in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nomi-
nee for Novastar and its successors and assigns. In October, 2008, MERS
assigned the mortgage to the original plaintiff. The note was endorsed from
Novastar to JPMorgan Chase Bank, N.A., the original trustee of the Novastar
Mortgage Funding Trust 2005-2, and then from JPMorgan Chase Bank, N.A.,
to the substitute plaintiff as the successor trustee.
3
We note that the copy of the objection to the motion for summary
judgment included in the defendant’s appendix, although substantially simi-
lar, is not the objection filed with the court. Because our review is limited
to the record before the trial court, any reference to the defendant’s objection
to the motion for summary judgment is to the objection that is contained
in the trial court file.
4
The defendant submitted three documents: An article of unknown origin
titled ‘‘Robo-Signer Misdeeds May Help Homeowners’’ attributed to Jorge
Newbery; an incomplete copy of a Wikipedia article titled ‘‘Libor scandal’’;
and a search result page from a website called MERS ServicerID.
5
‘‘In a mortgage foreclosure action, a defense to the amount of the debt
must be based on some articulated legal reason or fact.’’ (Internal quotation
marks omitted) Bank of America, N.A. v. Chainani, 174 Conn. App. 476,
486, 166 A.3d 670 (2017). Although, unlike a defense to liability, a defense
challenging the amount of the debt does not need to be disclosed prior to
a judgment hearing, the defense nevertheless ‘‘must be squarely focused on
the amount of the debt rather than other matters that are ancillary to the
amount of the debt, such as whether the loan is in default, which is a matter
of liability, or challenges that attack the credibility of the affiant or defects
in the execution of the affidavit itself.’’ Id., 487. If a proper defense as to
the amount of the debt is not pursued, Practice Book § 23-18 (a), which
authorizes the plaintiff to prove the amount of the debt through affidavit
and documentary submissions, is applicable. Id., 486. The defendant never
advanced any theory of defense to the court related to the amount of
indebtedness. Rather, he returned to challenges related to the substitute
plaintiff’s authority to prosecute the action and whether alleged irregular
procedures regarding the assignment of the note and mortgage invalidated
the foreclosure action; issues that already had been raised and implicitly
rejected by the court in rendering summary judgment as to liability.
6
Even if we considered the merits of the defendant’s claim, we are uncon-
vinced on the basis of our review of the hearing transcript that there is any
compelling argument for the finding of judicial bias in this case. Although
the court mentioned several times that the defendant had been able to live
at the foreclosed property for approximately seven years without paying
his mortgage, those statements, rather than necessarily evincing bias, were
made in response to the legal arguments of the defendant and in the context
of assessing whether the defendant was prejudiced by the substitute plain-
tiff’s purported lack of diligence in bringing the action to judgment following
the granting of the motion for summary judgment as to liability. The court’s
assertions were factual and supported by the evidence and thus do not
reflect bias.
7
We feel compelled to note that the defendant has not distinctly raised
or briefed as a claim on appeal whether the court properly denied his request
for a continuance. It is well settled that ‘‘[a] trial court holds broad discretion
in granting or denying a motion for a continuance. Appellate review of a
trial court’s denial of a motion for a continuance is governed by an abuse
of discretion standard that, although not unreviewable, affords the trial court
broad discretion in matters of continuances.’’ (Internal quotation marks
omitted.) Marshall v. Marshall, 71 Conn. App. 565, 574, 803 A.2d 919, cert.
denied, 261 Conn. 941, 808 A.2d 1132 (2002). Given the equitable nature of
foreclosure proceedings and the important interests at stake, we question
the court’s decision to adjudicate immediately the reclaimed motion for a
judgment of strict foreclosure, particularly in light of the defendant’s request
for a continuance and given that the court, immediately prior to the defen-
dant’s request, had set aside a disciplinary judgment of dismissal based on
the substitute plaintiff’s failure to exercise due diligence in prosecuting the
action. We do not mean to suggest that the court abused its discretion in
denying the defendant’s request for a lengthy, two month continuance,
which, as we have indicated, is not an issue that is properly before us
because he has not raised it as a claim on appeal. We simply take this
opportunity to suggest that it may have been equitable under the circum-
stance for the court to have provided the defendant some additional time
to evaluate the revised documents submitted by the substitute plaintiff.