HSBC Bank USA, National Assn. v. Nathan ( 2020 )


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    HSBC BANK USA, NATIONAL ASSOCIATION,
    TRUSTEE v. LESLIE I. NATHAN
    ET AL.
    (AC 40222)
    Bright, Moll and Harper, Js.
    Syllabus
    The plaintiff bank, H Co., sought to foreclose a mortgage on certain real
    property owned by the defendants L and W and the defendant trust,
    who filed special defenses and a counterclaim. Specifically, they alleged,
    inter alia, that the equitable doctrine of laches applied to the plaintiff’s
    conduct and that the plaintiff had violated the Connecticut Unfair Trade
    Practices Act (CUTPA) (§ 42-110a et seq.). The trial court granted the
    plaintiff’s motion to strike the first amended laches defense and the
    counterclaim in its entirety. L and W and the trust then filed a second
    amended counterclaim and special defenses, in which, inter alia, they
    repleaded four counts of their first amended counterclaim and repleaded
    laches as a special defense. The trial court granted the plaintiff’s motion
    to strike the second amended laches defense and the counterclaim in
    its entirety and, subsequently, rendered judgment of strict foreclosure,
    from which L and W and the trust appealed to this court. On appeal,
    they claimed that the trial court improperly granted the plaintiff’s first
    motion to strike as to the nonrepleaded counts and the second motion
    to strike the second amended laches defense and second amended
    counterclaim. The plaintiff claimed that certain nonrepleaded counts of
    their first amended counterclaim as well as a special defense of unclean
    hands had been abandoned. Held:
    1. Contrary to the plaintiff’s claim, L and W and the trust preserved their
    right to appeal the nonrepleaded counts of their first amended counter-
    claim: the correct course of action for a litigant to take in order to
    preserve appellate rights as to a stricken pleading is to forgo pleading
    over, await the rendering of a final judgment and appeal therefrom, and
    the defendants’ statement in their objection to the plaintiff’s second
    motion to strike that they were not reasserting counts involving only
    postdefault conduct was a decision by the defendants, in an effort to
    preserve their appellate rights, not to replead those counts with modified
    allegations in an effort to cure the purported deficiencies therein, rather
    than an abandonment of the counts; nevertheless, the defendants having
    expressly stated in their objection that the first amended unclean hands
    defense had been abandoned, that statement was an unequivocal relin-
    quishment of the first amended unclean hands defense, and the defen-
    dants, having abandoned that defense, could not now ask this court to
    consider whether the trial court’s striking thereof constituted error.
    2. The trial court erred in striking the nonrepleaded counts, the second
    amended laches defense and the second amended counterclaim on the
    ground that they did not satisfy the making, validity or enforcement
    test; the allegations in the pleadings of L and W and the trust related
    to the enforcement of the note or mortgage in that those defendants
    raised allegations of postorigination misconduct by the plaintiff that,
    inter alia, increased their debt and hindered their ability to cure their
    default.
    Argued January 15, 2019—officially released January 14, 2020
    Procedural History
    Action to foreclose a mortgage on certain real prop-
    erty owned by the named defendant et al., brought to
    the Superior Court in the judicial district of Middlesex,
    where the defendant Gerri N. Russo was defaulted for
    failure to appear; thereafter, the defendant Webster
    Bank, National Association was defaulted for failure to
    plead; subsequently, the named defendant et al. filed
    an amended counterclaim; subsequently, the court,
    Aurigemma, J., granted the plaintiff’s motion to strike
    the amended special defenses and counterclaim in part;
    thereafter, the named defendant et al. filed a second
    amended counterclaim; subsequently, the court granted
    the plaintiff’s motion to strike the second amended
    special defenses and counterclaim; thereafter, the
    court, Domnarski, J., concluded that the plaintiff was
    entitled to enforce the note by foreclosing on the mort-
    gage; subsequently, the court, Aurigemma, J., granted
    the plaintiff’s motion for a judgment of strict foreclosure
    and rendered judgment thereon, from which the named
    defendant et al. appealed to this court; subsequently,
    this court dismissed, for lack of a final judgment, the
    portion of the appeal challenging the trial court’s strik-
    ing of the counterclaim as amended; thereafter, the
    court, Frechette, J., granted the plaintiff’s motion for
    judgment on the stricken counterclaim as amended and
    the named defendant et al. filed an amended appeal;
    subsequently, this court, sua sponte, issued an order
    staying the appeal pending the final disposition by the
    Supreme Court in U.S. Bank National Assn. v. Blowers,
    
    332 Conn. 656
    , 
    212 A.3d 226
    (2019); thereafter, following
    the release of the opinion in Blowers, the Appellate
    Court lifted the stay and, sua sponte, ordered the parties
    to submit supplemental briefing, and the parties there-
    after filed supplemental briefs. Reversed; further pro-
    ceedings.
    Karen L. Dowd, with whom was Scott Garosshen,
    for the appellants (defendants).
    David M. Bizar, for the appellee (plaintiff).
    Opinion
    MOLL, J. The defendants, Leslie I. Nathan, Lynne W.
    Nathan, and Lynne W. Nathan, Trustee of the Lynne W.
    Nathan Trust Agreement dated November 19, 2001,1
    appeal from the judgment of strict foreclosure and the
    judgment on their counterclaim, as amended, rendered
    by the trial court in favor of the plaintiff, HSBC Bank
    USA, National Association, Trustee.2 On appeal, the
    defendants claim that the court erred in striking two
    of their special defenses, as amended, and their counter-
    claim, as amended.3 We reverse the judgments of the
    trial court.
    The following facts and procedural history are rele-
    vant to our disposition of this appeal. In August, 2014,
    the plaintiff commenced this foreclosure action. In its
    complaint, the plaintiff alleged the following relevant
    facts. On or about April 12, 2007, Leslie and Lynne
    executed a promissory note, in the principal amount
    of $560,000, in favor of Wells Fargo Bank, N.A. (Wells
    Fargo). To secure the note, the Lynne Trustee executed
    a mortgage on real property located at 115 Second Ave-
    nue in Westbrook. On April 17, 2007, the mortgage deed
    was recorded on the Westbrook land records. The mort-
    gage was to be assigned to the plaintiff by virtue of
    an assignment to be recorded on the Westbrook land
    records, and the plaintiff was the holder of the note.
    Leslie and Lynne thereafter defaulted on the note,4 and
    they failed to cure the default following receipt of writ-
    ten notice of the default from the plaintiff. Thereafter,
    the plaintiff elected to accelerate the balance due on
    the note, to declare the note to be due in full, and to
    foreclose the mortgage.
    On June 8, 2015, the defendants filed a first amended
    answer, special defenses, and counterclaim.5 The defen-
    dants asserted three special defenses: (1) lack of stand-
    ing; (2) laches; and (3) unclean hands. In the counter-
    claim, the defendants asserted the following twelve
    counts: (1) equitable reduction of interest on the ground
    that the plaintiff failed to mitigate its damages (count
    one); (2) the plaintiff was improperly pursuing attor-
    ney’s fees and costs accrued in relation to a prior fore-
    closure action, with docket number MMX-CV-10-
    6002743-S (prior foreclosure action), which the plaintiff
    had commenced against the defendants in 2010 and
    which was dismissed in 2013 (count two); (3) inten-
    tional infliction of emotional distress (count three); (4)
    negligent infliction of emotional distress (count four);
    (5) breach of the covenant of good faith and fair dealing
    (count five); (6) unjust enrichment (count six); (7) viola-
    tion of the Fair Debt Collection Practices Act, 15 U.S.C.
    § 1692 et seq. (count seven); (8) violation of the Credi-
    tors’ Collections Practices Act, General Statutes § 36a-
    645 et seq. (count eight); (9) vexatious litigation (count
    nine); (10) fraud (count ten); (11) negligence (count
    eleven); and (12) violation of the Connecticut Unfair
    Trade Practices Act (CUTPA), General Statutes § 42-
    110a et seq. (count twelve). As relief, the defendants
    sought, inter alia, compensatory damages and an equita-
    ble reduction in principal and interest.
    On July 8, 2015, the plaintiff filed a motion to strike
    the defendants’ first amended special defenses and
    counterclaim, claiming, inter alia, that the defendants’
    claims and defenses did not relate to the making, valid-
    ity, or enforcement of the note or mortgage. The defen-
    dants objected to the motion. On December 28, 2015,
    the trial court, Aurigemma, J., issued a memorandum
    of decision granting the motion to strike as to the first
    amended laches defense, unclean hands defense, and
    counterclaim in its entirety.6
    On January 12, 2016, the defendants filed a second
    amended counterclaim and special defenses. In the
    counterclaim, the defendants repleaded counts five, six,
    ten, and twelve of the first amended counterclaim. They
    did not replead counts one, two, three, four, seven,
    eight, nine, or eleven thereof. In addition, the defen-
    dants reasserted their first amended special defense
    asserting lack of standing, which had not been stricken
    by the court, and repleaded laches as a special defense,
    but they did not replead unclean hands as a special
    defense.
    On February 9, 2016, the plaintiff filed a motion to
    strike the defendants’ second amended laches defense
    and counterclaim, claiming, inter alia, that the defen-
    dants’ claims and second amended laches defense failed
    to satisfy the making, validity, or enforcement test. The
    defendants objected to the motion. On March 28, 2016,
    the court issued an order granting the motion to strike
    the second amended laches defense and counterclaim
    in its entirety.
    On August 25, 2016, following a one day court trial
    conducted on May 19, 2016, the court, Domnarski, J.,
    issued a memorandum of decision concluding that the
    plaintiff was entitled to enforce the note by foreclosing
    the mortgage. The court also made findings regarding
    the debt and the value of the subject property. There-
    after, the plaintiff filed a motion for a judgment of strict
    foreclosure, which the court, Aurigemma, J., granted
    on February 21, 2017. This appeal followed.7
    On January 17, 2019, following oral argument held
    on January 15, 2019, this court, sua sponte, issued an
    order staying the appeal pending the final disposition
    by our Supreme Court of U.S. Bank National Assn. v.
    Blowers, 
    332 Conn. 656
    , 
    212 A.3d 226
    (2019), in which
    the court resolved the dispositive certified question of
    whether special defenses and a counterclaim asserted
    in a foreclosure action must ‘‘directly attack’’ the mak-
    ing, validity, or enforcement of the note or mortgage. On
    August 27, 2019, following the release of our Supreme
    Court’s opinion in Blowers, this court lifted the appel-
    late stay and, sua sponte, ordered the parties to submit
    supplemental briefs to address the impact, if any, of
    Blowers on the defendants’ claims on appeal.8 The par-
    ties thereafter filed supplemental briefs in accordance
    with this court’s order.
    I
    Before reaching the merits of the defendants’ claims
    on appeal, we first address the plaintiff’s argument that
    the defendants abandoned (1) counts one, two, three,
    four, seven, eight, nine, and eleven of the first amended
    counterclaim (nonrepleaded counts) and (2) their first
    amended unclean hands defense, thereby forfeiting
    their appellate rights to challenge the court’s decision
    striking them. We conclude that the defendants (1) pre-
    served their appellate rights as to the nonrepleaded
    counts, but (2) abandoned their first amended unclean
    hands defense and, therefore, cannot contest on appeal
    the court’s striking thereof.
    The following additional facts and procedural history
    are relevant to this claim. In their second amended
    counterclaim, the defendants repleaded counts five, six,
    ten, and twelve of their first amended counterclaim,
    but they did not replead the other eight counts thereof.
    Additionally, the defendants reasserted their special
    defense sounding in standing and repleaded laches as
    a special defense, but they did not replead unclean
    hands as a special defense. Thereafter, the plaintiff
    moved to strike the second amended laches defense
    and the second amended counterclaim. The defendants
    filed a written objection, stating in relevant part: ‘‘[The
    defendants’ pleading setting forth their second
    amended special defenses and counterclaim] realleges
    the laches special defense . . . . It abandons the
    unclean hands special defense. It also realleges [counts
    five, six, ten, and twelve of the first amended counter-
    claim] . . . . [The nonrepleaded counts] involving
    only postdefault conduct have not been reasserted.’’
    The plaintiff first argues that the defendants’ failure
    to replead the nonrepleaded counts and their first
    amended unclean hands defense constitutes a waiver
    of any alleged error in the court’s striking thereof. This
    contention is unavailing, as the correct course of action
    for a litigant to take in order to preserve his or her
    appellate rights as to a stricken pleading is to forgo
    pleading over, await the rendering of a final judgment,
    and appeal therefrom. See Himmelstein v. Windsor,
    
    116 Conn. App. 28
    , 32, 
    974 A.2d 820
    (2009) (plaintiff
    preserved appellate rights with respect to stricken
    counts of original complaint by not repleading stricken
    counts in amended complaint), aff’d, 
    304 Conn. 298
    , 
    39 A.3d 1065
    (2012); Suffield Development Associates Ltd.
    Partnership v. National Loan Investors, L.P., 64 Conn.
    App. 192, 194 n.2, 
    779 A.2d 822
    (2001) (plaintiff sought
    to preserve appellate rights as to certain stricken counts
    by not repleading those counts in amended complaint),
    rev’d in part on other grounds, 
    260 Conn. 766
    , 
    802 A.2d 44
    (2002).9
    The plaintiff next argues that, on the basis of their
    statements in their objection to its February 9, 2016
    motion to strike, the defendants expressly abandoned
    the nonrepleaded counts and the first amended unclean
    hands defense. ‘‘[T]he interpretation of pleadings is
    always a question of law for the court . . . .’’ (Internal
    quotation marks omitted.) Bridgeport Harbour Place
    I, LLC v. Ganim, 
    111 Conn. App. 197
    , 202 n.4, 
    958 A.2d 210
    (2008), aff’d, 
    303 Conn. 205
    , 
    32 A.3d 296
    (2011).
    As to the nonrepleaded counts, the defendants stated
    in the objection that those counts, ‘‘involving only post-
    default conduct,’’ had ‘‘not been reasserted’’ in the sec-
    ond amended counterclaim. We do not construe that
    statement as an abandonment of the nonrepleaded
    counts; rather, we interpret it to mean that the defen-
    dants, in an effort to preserve their appellate rights,
    decided not to replead those counts with modified alle-
    gations in an effort to cure the purported deficiencies
    therein. See Lund v. Milford Hospital, Inc., 
    326 Conn. 846
    , 850, 
    168 A.3d 479
    (2017). Accordingly, we reject
    the plaintiff’s argument as to the nonrepleaded counts.
    In contrast, the defendants expressly stated in their
    objection that the first amended unclean hands defense
    had been ‘‘abandon[ed].’’ The defendants characterize
    their use of the term ‘‘abandon[ed]’’ as ‘‘not ideal’’ and
    ‘‘unfortunate’’; however, they contend that the state-
    ment at issue should be interpreted as being synony-
    mous with their other statement, located within the
    same paragraph of the objection, that the nonrepleaded
    counts had ‘‘not been reasserted.’’ We are not per-
    suaded. The defendants chose to describe their first
    amended unclean hands defense as having been ‘‘aban-
    don[ed],’’ as opposed to not ‘‘reasserted’’ or ‘‘realleged.’’
    Litigants routinely and unambiguously use the term
    ‘‘abandon’’ to convey their decision not to preserve or
    otherwise pursue a claim, a defense, or a particular
    position, and we perceive no ambiguity in the defen-
    dants’ use of the term here. Instead, we construe the
    defendants’ statement as an unequivocal relin-
    quishment of the first amended unclean hands defense.
    Having abandoned the first amended unclean hands
    defense, the defendants cannot now ask this court to
    consider whether the trial court’s striking thereof con-
    stituted error.10
    II
    We now address the merits of the defendants’ claim
    that the court improperly granted (1) the plaintiff’s July
    8, 2015 motion to strike as to the nonrepleaded counts
    and (2) the plaintiff’s February 9, 2016 motion to strike
    the defendants’ (a) second amended laches defense and
    (b) second amended counterclaim. For the reasons set
    forth subsequently in this opinion, we agree.
    The following additional facts and procedural history
    are relevant. On June 8, 2015, the defendants filed their
    first amended answer, special defenses, and counter-
    claim. In support of their first amended laches defense,
    the defendants alleged, in a conclusory manner, that the
    ‘‘[p]laintiff’s action is barred by the equitable doctrine
    of laches.’’ With respect to their first amended counter-
    claim, the defendants made various allegations con-
    cerning misconduct that the plaintiff purportedly
    engaged in following their January, 2010 default on the
    note. For instance, the defendants alleged that (1) Wells
    Fargo, the plaintiff’s purported servicer of the loan,
    refused to accept certain payments from them, thereby
    causing them to incur exacerbated interest charges, and
    (2) the plaintiff and Wells Fargo repeatedly failed to
    send representatives to speak with the defendants at
    mediation sessions held during the course of the prior
    foreclosure action and otherwise frustrated the defen-
    dants’ efforts to discuss modifications of their loan,
    causing them harm.
    In its July 8, 2015 motion to strike, the plaintiff
    claimed that the first amended laches defense (1) was
    not supported by any allegations of fact, (2) did not
    relate to the making, validity, or enforcement of the
    note or mortgage, and (3) was not a legally cognizable
    defense. With respect to the twelve counts of the first
    amended counterclaim, the plaintiff asserted that they
    (1) did not relate to the making, validity, or enforcement
    of the note or mortgage, and (2) were not legally suffi-
    cient. In its December 28, 2015 memorandum of deci-
    sion granting, in part, the July 8, 2015 motion to strike,
    the court struck the first amended laches defense on
    the basis of its determinations that (1) the defense was
    devoid of any supporting factual allegations, and (2) to
    the extent that the defendants were relying on allega-
    tions in the first amended counterclaim that Wells Fargo
    delayed offering them a loan modification, Connecticut
    law does not impose a duty on a mortgagee to provide
    a loan modification. In striking the first amended coun-
    terclaim in its entirety, the court construed the allega-
    tions therein as concerning (1) payments remitted by
    the defendants subsequent to their default, (2) the par-
    ties’ failed attempts to modify the loan, (3) the plaintiff’s
    debt collection activities, or (4) litigation in the prior
    foreclosure action, all of which had occurred after the
    execution of the note or mortgage. The court concluded
    that the allegations in the first amended counterclaim
    did not relate to the making, validity, or enforcement of
    the note or mortgage, and, therefore, the first amended
    counterclaim could not be joined with the plaintiff’s
    complaint.
    Thereafter, the defendants filed their second
    amended laches defense and counterclaim. In support
    of the second amended laches defense, the defendants
    alleged that the plaintiff had engaged in dilatory behav-
    ior during the course of the prior foreclosure action,
    inter alia, by failing to send agents with knowledge
    of the case and/or settlement authority to mediation
    sessions and by initiating the prior foreclosure action
    despite lacking sufficient documentation to establish its
    standing to pursue that action. The defendants further
    alleged that the plaintiff’s misconduct had prejudiced
    them, inter alia, by depleting their equity in the subject
    property. As to the second amended counterclaim, the
    defendants repleaded therein counts five, six, ten, and
    twelve—sounding in breach of the implied covenant of
    good faith and fair dealing, unjust enrichment, fraud,
    and a violation of CUTPA, respectively—of the first
    amended counterclaim. In support thereof, the defen-
    dants set forth allegations primarily concerning pur-
    ported misconduct by the plaintiff that predated their
    default on the note. For example, the defendants alleged
    that (1) in early 2009, prior to their default, Wells Fargo
    had represented to them that they could obtain a loan
    modification within three months, but Wells Fargo
    thereafter engaged in intentional dilatory conduct that
    resulted in an untimely loan modification offer that
    contained terms that were inconsistent with previous
    representations made by Wells Fargo, and (2) Wells
    Fargo made false representations to the defendants dur-
    ing their discussions regarding a loan modification. The
    defendants further alleged that they were harmed by
    these actions.
    In its February 9, 2016 motion to strike, the plaintiff
    asserted that the allegations set forth in support of
    the second amended laches defense and the second
    amended counterclaim (1) were largely the same or
    substantively identical to the allegations in the prior
    versions thereof, and any new allegations provided by
    the defendants were immaterial, (2) did not relate to
    the making, validity, or enforcement of the note or
    mortgage, and (3) were legally insufficient. In its order
    striking the second amended laches defense and the
    second amended counterclaim in its entirety, the court
    concluded that the issues raised in the second amended
    laches defense, the second amended counterclaim, and
    the February 9, 2016 motion to strike ‘‘were previously
    adjudicated by this court in its memorandum of decision
    dated December 28, 2015.’’11
    On appeal, the defendants, relying on our Supreme
    Court’s decision in U.S. Bank National Assn. v. Blow-
    
    ers, supra
    , 
    332 Conn. 656
    , claim that the allegations that
    they pleaded in support of the nonrepleaded counts,
    their second amended laches defense, and their second
    amended counterclaim related to the ‘‘enforcement’’ of
    the note or mortgage. Thus, the defendants contend, the
    trial court erred in striking those claims and defenses
    on the ground that they did not relate to the making,
    validity, or enforcement of the note or mortgage. We
    agree.
    We first observe that, in general, ‘‘[a]ppellate review
    of a trial court’s decision to grant a motion to strike is
    plenary. . . . This is because a motion to strike chal-
    lenges the legal sufficiency of a pleading . . . and, con-
    sequently, requires no factual findings by the trial court
    . . . . In ruling on a motion to strike, the court must
    accept as true the facts alleged in the special defenses
    and construe them in the manner most favorable to
    sustaining their legal sufficiency. . . . The allegations
    of the pleading involved are entitled to the same favor-
    able construction a trier would be required to give in
    admitting evidence under them and if the facts provable
    under its allegations would support a defense or a cause
    of action, the motion to strike must fail.’’ (Citations
    omitted; internal quotation marks omitted.) U.S. Bank
    National Assn. v. Blow
    ers, supra
    , 
    332 Conn. 667
    –68. As
    in Blowers, the precise issue before us is whether the
    allegations set forth by the defendants in support of
    the nonrepleaded counts, the second amended laches
    defense, and the second amended counterclaim ‘‘bear
    a sufficient connection to enforcement of the note or
    mortgage,’’12 which ‘‘presents an issue of law over which
    we also exercise plenary review.’’ 
    Id., 670. We
    next provide an overview of our Supreme Court’s
    decision in Blowers. In Blowers, after the mortgagee
    had commenced an action to foreclose the mortgage
    encumbering the mortgagor’s real property, the mort-
    gagor filed special defenses sounding in equitable estop-
    pel and unclean hands, and a counterclaim sounding in
    negligence and violations of CUTPA. 
    Id., 659. In
    support
    thereof, the mortgagor alleged that the mortgagee com-
    mitted various acts, which occurred either after the
    mortgagor’s default on the promissory note or after
    the mortgagee had commenced the foreclosure action,13
    that, inter alia, frustrated his ability to obtain a proper
    loan modification and increased the amount of the debt,
    including attorney’s fees and interest, claimed by the
    mortgagee in the foreclosure action. 
    Id., 661. Addition-
    ally, in support of his negligence claim, the mortgagor
    alleged that the mortgagee’s actions had ruined his
    credit score, which detrimentally affected his business
    and personal affairs, and caused him to incur significant
    legal and other expenses. 
    Id. The mortgagor
    also
    asserted that the mortgagee should be estopped from
    collecting the damages that it had caused by its own
    alleged misconduct and barred from foreclosing the
    mortgage at issue due to its unclean hands. 
    Id., 661–62. With
    respect to his counterclaim, he sought compensa-
    tory and punitive damages, injunctive relief, and attor-
    ney’s fees. 
    Id., 662. The
    mortgagee moved to strike the mortgagor’s spe-
    cial defenses and counterclaim, claiming that they were
    unrelated to the making, validity, or enforcement of the
    note and failed to state a claim upon which relief may
    be granted. 
    Id. The trial
    court granted the motion to
    strike, concluding that the alleged misconduct by the
    mortgagee had occurred following the execution of the
    note and, therefore, neither the counterclaim nor the
    special defenses related to the making, validity, or
    enforcement thereof. 
    Id., 662–63. Additionally,
    the court
    determined that the mortgagor had alleged sufficient
    facts to support his special defenses, but the court did
    not reach the issue of whether the counterclaim was
    supported by adequate facts. 
    Id., 662. The
    reafter, the
    court rendered a judgment of strict foreclosure. 
    Id., 663. The
    mortgagor appealed to this court, which
    affirmed the judgment, with one judge dissenting. U.S.
    Bank National Assn. v. Blowers, 
    177 Conn. App. 622
    ,
    638, 
    172 A.3d 837
    (2017), rev’d, 
    332 Conn. 656
    , 
    212 A.3d 226
    (2019); 
    id., 638–51 (Prescott,
    J., dissenting).
    On certified appeal to our Supreme Court, the mort-
    gagor challenged, inter alia, the propriety of the making,
    validity, or enforcement test, and, to the extent that the
    test applied in foreclosure actions, the proper scope of
    ‘‘ ‘enforcement’ ’’ under the test. U.S. Bank National
    Assn. v. Blow
    ers, supra
    , 
    332 Conn. 664
    . Our Supreme
    Court explained that the making, validity, or enforce-
    ment test is ‘‘nothing more than a practical application
    of the standard rules of practice that apply to all civil
    actions to the specific context of foreclosure actions.’’14
    
    Id., 667. Having
    clarified the proper standard, the court
    agreed with the mortgagor that ‘‘a proper construction
    of ‘enforcement’ includes allegations of harm resulting
    from a mortgagee’s wrongful postorigination conduct
    in negotiating loan modifications, when such conduct
    is alleged to have materially added to the debt and
    substantially prevented the mortgagor from curing the
    default.’’ 
    Id. The court
    observed that ‘‘[a]n action for foreclosure
    is ‘peculiarly an equitable action’ ’’; 
    id., 670; and
    that
    ‘‘appellate case law recognizes that conduct occurring
    after the origination of the loan, after default, and even
    after the initiation of the foreclosure action may form
    a proper basis for defenses in a foreclosure action.’’ 
    Id., 672. The
    court determined that ‘‘[t]his broader temporal
    scope is consistent with the principle that, in equitable
    actions, ‘the facts determinative of the rights of the
    parties are those in existence at the time of final hearing’
    . . . [and] is not inconsistent with a requirement that
    a defense sufficiently relates to enforcement of the note
    or mortgage. The various rights of the mortgagee under
    the note and mortgage (or related security instruments)
    are not finally or completely ‘enforced’ until the foreclo-
    sure action is concluded.’’ (Citations omitted.) 
    Id., 673. The
    court further determined that ‘‘[t]he mortgagor’s
    rights and liabilities . . . depend not only on the valid-
    ity of the note and mortgage but also on the amount
    of the debt. That debt will determine whether strict
    foreclosure or foreclosure by sale is ordered, and, in
    turn, whether a deficiency judgment may be recovered
    and the amount of that deficiency. . . . The debt may
    include principal, interest, taxes, and late charges owed.
    . . . The terms of the note or mortgage may also permit
    an award of reasonable attorney’s fees for expenses
    arising from any controversy relating to the note or
    mortgage . . . .’’ (Citations omitted.) 
    Id., 674–75. The
    court continued: ‘‘These equitable and practical
    considerations inexorably lead to the conclusion that
    allegations that the mortgagee has engaged in conduct
    that wrongly and substantially increased the mortgag-
    or’s overall indebtedness, caused the mortgagor to incur
    costs that impeded the mortgagor from curing the
    default, or reneged upon modifications are the types
    of misconduct that are directly and inseparably con-
    nected . . . to enforcement . . . . Such allegations,
    therefore, provide a legally sufficient basis for special
    defenses in the foreclosure action. Insofar as the coun-
    terclaims rest, at this stage, upon the same allegations as
    the special defenses, judicial economy would certainly
    weigh in favor of their inclusion in the present action.’’15
    (Citations omitted; footnote omitted; internal quotation
    marks omitted.) 
    Id., 675–76. On
    the basis of that ratio-
    nale, the court reversed this court’s judgment and
    remanded the matter to this court with direction to
    reverse the judgment of strict foreclosure and remand
    the matter to the trial court for further proceedings.
    
    Id., 678. Applying
    the rationale of Blowers to the present case,
    we conclude that the trial court erred in striking the
    nonrepleaded counts, the defendants’ second amended
    laches defense, and the defendants’ second amended
    counterclaim on the ground that they did not satisfy the
    making, validity, or enforcement test. The defendants
    raised allegations of postorigination misconduct by the
    plaintiff that, inter alia, increased their debt and hin-
    dered their ability to cure their default. Such alleged
    misconduct is ‘‘directly and inseparably connected to
    enforcement’’ of the note or mortgage and, therefore,
    may form the basis of special defenses and a counter-
    claim in the present action.
    Like our Supreme Court in Blowers, we note that we
    are not deciding whether the defendants’ allegations,
    even if proven, ‘‘are sufficient to justify the remedy of
    withholding foreclosure or reducing the debt. . . .
    [T]he trial court would have to be mindful that [t]he
    equitable powers of the court are broad, but they are
    not without limit. Equitable power must be exercised
    equitably.’’ (Internal quotation marks omitted.) U.S.
    Bank National Assn. v. Blow
    ers, supra
    , 
    332 Conn. 676
    –
    77. We conclude only that the defendants’ allegations
    relate to enforcement of the note or mortgage and,
    as a result, the court committed error in striking the
    nonrepleaded counts, the defendants’ second amended
    laches defense, and the defendants’ second amended
    counterclaim.16
    The judgments are reversed and the case is remanded
    for further proceedings in accordance with this opinion.
    In this opinion the other judges concurred.
    1
    The complaint also named Gerri N. Russo and Webster Bank, National
    Association, as defendants, but those parties were defaulted for failure to
    appear and for failure to plead, respectively, and are not participating in
    this appeal. For purposes of clarity, we will refer to Leslie I. Nathan as
    Leslie, Lynne W. Nathan as Lynne, Lynne W. Nathan, Trustee of the Lynne
    W. Nathan Trust Agreement dated November 19, 2001, as the Lynne Trustee,
    and to those three parties collectively as the defendants.
    2
    The full name of the plaintiff is HSBC Bank USA, National Association,
    as Trustee for Wells Fargo Asset Securities Corporation Mortgage Pass-
    Through Certificates Series 2007-8.
    3
    In their principal appellate brief, the defendants also claimed that the
    trial court erred in concluding that the plaintiff had standing to pursue this
    foreclosure action. More specifically, the defendants asserted that the court
    erroneously presumed, upon the plaintiff’s production of the note demonstra-
    ting that it was the valid holder thereof, that the plaintiff was the rightful
    owner of the debt and shifted the burden to the defendants to rebut that
    presumption. In their principal reply brief, however, the defendants concede
    that they cannot prevail on this claim because this court is bound by our
    Supreme Court’s decision in RMS Residential Properties, LLC v. Miller,
    
    303 Conn. 224
    , 231–32, 
    32 A.3d 307
    (2011), overruled in part by J.E. Robert
    Co. v. Signature Properties, LLC, 
    309 Conn. 307
    , 325 n.18, 
    71 A.3d 492
    (2013),
    wherein our Supreme Court stated that ‘‘a holder of a note is presumed to
    be the owner of the debt, and unless the presumption is rebutted, may
    foreclose the mortgage under [General Statutes] § 49-17.’’ The defendants
    represent that they have raised this claim solely to preserve it for review
    by our Supreme Court. Accordingly, we need not address the merits of
    this claim.
    4
    In their second amended counterclaim, the defendants pleaded that the
    default occurred in January, 2010.
    5
    The defendants filed an original answer, special defenses, and counter-
    claim on May 20, 2015.
    6
    The court denied the motion to strike as to the defendants’ first amended
    special defense asserting lack of standing.
    7
    Prior to oral argument in this matter, this court ordered the parties to
    be prepared to address whether the portion of the appeal challenging the
    trial court’s striking of the defendants’ counterclaim, as amended, was taken
    from a final judgment where no judgment had been rendered thereon. See
    Practice Book §§ 10-44 and 61-2; Pellecchia v. Connecticut Light & Power
    Co., 
    139 Conn. App. 88
    , 90–91, 
    54 A.3d 658
    (2012), cert. denied, 
    307 Conn. 950
    , 
    60 A.3d 740
    (2013); Homecomings Financial Network, Inc. v. Starbala,
    
    85 Conn. App. 284
    , 285 n.1, 
    857 A.2d 366
    (2004). On January 17, 2019, after
    having heard argument from the parties on January 15, 2019, with respect
    to, inter alia, the final judgment issue, this court issued an order dismissing,
    for lack of a final judgment, the portion of the appeal challenging the trial
    court’s striking of the counterclaim, as amended. Thereafter, the plaintiff
    filed with the trial court a motion for judgment on the stricken counterclaim,
    as amended, which the court, Frechette, J., granted. The defendants then
    filed an amended appeal to encompass the judgment rendered on the coun-
    terclaim, as amended.
    8
    This court also ordered the parties to address the claims raised in the
    defendants’ amended appeal. See footnote 7 of this opinion.
    9
    Conversely, the defendants waived their right to challenge the court’s
    striking of their first amended laches defense and counts five, six, ten, and
    twelve of their first amended counterclaim by repleading them. See Lund
    v. Milford Hospital, Inc., 
    326 Conn. 846
    , 850, 
    168 A.3d 479
    (2017) (‘‘[A]fter
    a court has granted a motion to strike, [a party] may either amend his [or
    her] pleading [pursuant to Practice Book § 10-44] or, on the rendering of
    judgment, file an appeal. . . . The choices are mutually exclusive [as the]
    filing of an amended pleading operates as a waiver of the right to claim
    that there was error in the sustaining of the [motion to strike] the original
    pleading.’’ [Internal quotation marks omitted.]).
    We further observe that ‘‘[i]f the [pleading party] elects to replead follow-
    ing the granting of a motion to strike, the [opposing party] may take advan-
    tage of this waiver rule by challenging the amended [pleading] as not materi-
    ally different than the [stricken] . . . pleading that the court had determined
    to be legally insufficient. That is, the issue [on appeal becomes] whether
    the court properly determined that the [pleading party] had failed to remedy
    the pleading deficiencies that gave rise to the granting of the motions to
    strike or, in the alternative, set forth an entirely new cause of action. It is
    proper for a court to dispose of the substance of a [pleading] merely repeti-
    tive of one to which a demurrer had earlier been sustained. . . . Further-
    more, if the allegations in a [pleading] filed subsequent to one that has
    been stricken are not materially different than those in the earlier, stricken
    [pleading], the party bringing the subsequent [pleading] cannot be heard to
    appeal from the action of the trial court striking the subsequent [pleading].’’
    (Internal quotation marks omitted.) Sempey v. Stamford Hospital, 194 Conn.
    App. 505, 512,         A.3d     (2019). The plaintiff does not argue on appeal
    that the second amended laches defense and the second amended counter-
    claim were not materially different from the stricken iterations thereof.
    Therefore, we do not consider that issue. 
    Id., 512 n.4.
       10
    On January 12, 2016, in addition to filing their second amended counter-
    claim and special defenses, the defendants filed a notice of intent to appeal
    (notice) from the court’s December 28, 2015 decision granting, in part, the
    plaintiff’s July 8, 2015 motion to strike. The defendants contend that the
    notice preserved their appellate rights as to the December 28, 2015 decision.
    We are not persuaded.
    First, the notice did not operate to preserve the defendants’ appellate
    rights. Subsection (b) of Practice Book § 61-5, which governs the filing of
    notices of intent to appeal, provides in relevant part: ‘‘The use of the notice
    of intent to appeal is abolished in all instances except as provided in subsec-
    tion (a) of this section, which sets forth the two instances in which a notice
    of intent must be filed. Except as provided in subsection (a), the filing of
    a notice of intent to appeal will preserve no appeal rights.’’ Subsection (a)
    of § 61-5 provides in relevant part that a notice of intent to appeal must be
    filed in the following two instances only: ‘‘(1) [W]hen the deferred appeal
    is to be filed from a judgment that not only disposes of an entire complaint,
    counterclaim or cross complaint but also disposes of all the causes of action
    brought by or against a party or parties so that that party or parties are not
    parties to any remaining complaint, counterclaim or cross complaint; or (2)
    when the deferred appeal is to be filed from a judgment that disposes of
    only part of a complaint, counterclaim, or cross complaint but nevertheless
    disposes of all causes of action in that pleading brought by or against a
    particular party or parties.’’ Section 61-5 (a) further provides in relevant
    part: ‘‘In the event that the party aggrieved by a judgment described in (1)
    or (2) above elects to defer the taking of the appeal until the disposition
    of the entire case, the aggrieved party must, [within the applicable appeal
    period], file in the trial court a notice of intent to appeal the judgment
    . . . .’’ Here, the December 28, 2015 decision, which itself is not a final
    judgment; see Sempey v. Stamford Hospital, 
    180 Conn. App. 605
    , 618, 
    184 A.3d 761
    (2018) (‘‘[t]he granting of a motion to strike . . . ordinarily is not
    a final judgment’’); Practice Book § 10-44; and footnote 7 of this opinion; is
    outside of the ambit of § 61-5 (a). Accordingly, the defendants did not
    preserve their appellate rights by filing the notice.
    Second, the notice did nothing to counteract the defendants’ simultaneous
    express abandonment of their first amended unclean hands defense in their
    objection. In the notice, the defendants represented in relevant part that
    they were ‘‘exercis[ing] their option to appeal from the [December 28, 2015
    decision when] a final judgment is rendered which disposes of the cause
    of action for all purposes.’’ The defendants made no representations in the
    notice contradicting their explicit abandonment of the first amended unclean
    hands defense.
    11
    In their briefs, the parties interpret this decision as the court concluding
    that the allegations set forth in support of the second amended laches
    defense and the second amended counterclaim did not relate to the making,
    validity, or enforcement of the note or mortgage. We do as well.
    12
    We do not address whether all of the allegations that the defendants
    set forth in support of their claims and defenses have a sufficient nexus to
    enforcement of the note or mortgage. The parties and the trial court have
    generally addressed the allegations in toto, as will we. See U.S. Bank
    National Assn. v. Blow
    ers, supra
    , 
    332 Conn. 676
    .
    13
    The mortgagor alleged, inter alia, that the mortgagee had (1) offered
    rate reductions lowering the mortgagor’s monthly mortgage payments, only
    to later renege on the modifications following the mortgagor’s successful
    completion of trial payment periods, (2) increased the mortgagor’s monthly
    payment amount of modified payments that had been agreed to following
    the intervention of the state’s Department of Banking, (3) erroneously
    informed the mortgagor’s insurance company that the mortgagor’s real prop-
    erty was no longer being used as the mortgagor’s residence, resulting in the
    cancelation of the mortgagor’s insurance policy and requiring the mortgagor
    to replace the coverage at higher premium costs, and (4) engaged in dilatory
    conduct during the course of approximately ten months of mediation ses-
    sions held after the commencement of the foreclosure action. U.S. Bank
    National Assn. v. Blow
    ers, supra
    , 
    332 Conn. 659
    –61.
    14
    In their principal appellate brief in this appeal, the defendants claim
    that the pleading standards set forth in Practice Book §§ 10-10 (concerning
    counterclaims) and 10-50 (concerning special defenses) that apply in other
    civil actions should also be applicable in foreclosure actions in lieu of the
    making, validity, or enforcement test. As our Supreme Court established in
    Blowers, the making, validity, or enforcement test is not a separate pleading
    standard, but rather a ‘‘practical application’’ of the existing pleading stan-
    dards set forth in our rules of practice. U.S. Bank National Assn. v. Blow
    ers, supra
    , 
    332 Conn. 667
    .
    15
    In striking the mortgagor’s special defenses and counterclaim, the trial
    court also ‘‘acknowledged that a foreclosure sought after a modification
    had been reached during mediation could have the requisite nexus to
    enforcement of the note, but found that there had been no such modification
    . . . .’’ U.S. Bank National Assn. v. Blow
    ers, supra
    , 
    332 Conn. 662
    . On
    appeal, the mortgagor also challenged ‘‘the sufficiency of the allegations to
    establish that the parties had entered into a binding modification if such
    allegations are necessary to seek equitable relief on the basis of postorigina-
    tion conduct.’’ 
    Id., 664. Our
    Supreme Court determined that ‘‘[t]o the extent
    that the pleadings reasonably may be construed to allege that the April,
    2012 intervention by the Department of Banking resulted in a binding modifi-
    cation, there can be no doubt that the breach of such an agreement would
    bear the requisite nexus [to enforcement of the note or mortgage].’’ 
    Id., 675. 16
          In its principal and supplemental appellate briefs, the plaintiff, as an
    alternative ground for affirmance, asserts that the nonrepleaded counts, the
    defendants’ second amended laches defense, and the defendants’ second
    amended counterclaim fail to state legally cognizable claims or defenses.
    Although the plaintiff raised that argument in each of its motions to strike,
    the trial court did not address it in its decisions adjudicating the motions.
    The defendants argue that the trial court should adjudicate that issue in the
    first instance and that, pursuant to Practice Book § 10-44, they are entitled
    to an opportunity to replead if the trial court, upon motion by the plaintiff,
    strikes their claims or defenses as otherwise legally insufficient. We agree
    with the defendants. Accordingly, we do not address the plaintiff’s claim and
    leave it to the trial court to decide should the plaintiff choose to reassert it.