U.S. Bank National Assn. v. Eichten ( 2018 )


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    U.S. BANK NATIONAL ASSOCIATION, TRUSTEE
    v. KARIN C. EICHTEN ET AL.
    (AC 39679)
    Alvord, Keller and Bright, Js.
    Syllabus
    The plaintiff bank sought to foreclose a mortgage on certain real property
    owned by the defendant homeowner, E. The trial court granted the
    plaintiff’s motion for summary judgment as to liability on the complaint
    and on a counterclaim that E had filed. Thereafter, the court rendered
    judgment of strict foreclosure, from which E appealed to this court. After
    E had defaulted on her mortgage loan, she applied with the plaintiff’s
    loan servicer, C Co., for a modification of her mortgage loan under
    the federal Home Affordable Modification Program (HAMP). Under the
    HAMP program and a directive issued by the United States Department
    of the Treasury, borrowers who participated in a certain trial period
    plan, and who timely made three monthly payments in place of their
    normal monthly mortgage payments and met all other program eligibility
    requirements, would have their mortgage loans permanently modified.
    The Treasury Department directive also required loan servicers to send
    borrowers notice if their documentation for a loan modification was
    incomplete and a list of additional required documents. C Co. approved
    E for entry into the trial period plan and sent her a letter, which stated,
    inter alia, that after she timely made all trial period payments and
    continued to meet all other program eligibility requirements, C Co. would
    send her a modification agreement. The letter further stated that E’s
    credit score could be affected if she accepted entry into the trial period
    plan. Thereafter, C Co. informed E in a letter that her ‘‘housing ratio,’’
    or housing expense as a percentage of her household income, exceeded
    the maximum allowed for C Co.’s lending program. C Co. stated that
    under applicable HAMP guidelines, E’s monthly mortgage payment could
    not be less than 31 percent of her household monthly gross income in
    order to qualify for a loan modification. C Co. informed E that her
    housing ratio at that time was 24.76 percent. C Co. subsequently sent
    E two more letters, the first of which stated that she had been denied
    a permanent loan modification because her housing ratio exceeded the
    maximum allowed for the modification program, and the second of
    which explained that her housing expense was not a large enough per-
    centage of her household income to qualify for a loan modification. E
    objected to the plaintiff’s motion for summary judgment and claimed,
    inter alia, that she had contacted C Co. to discuss mortgage assistance
    options but was told that C Co. would not speak to her unless or until
    she stopped making her mortgage payments. E claimed that she relied
    on that information and stopped making payments, but that C Co. did
    not follow through with its promise to help her with mortgage assistance.
    E further claimed that she had timely made the monthly payments under
    the trial plan period and remained eligible under the HAMP guidelines
    for a loan modification. E also claimed that certain of C Co.’s internal
    documents showed that approximately nine months after she had com-
    pleted the trial period plan, C Co. approved her application for a loan
    modification, but did not inform her of that approval, and did not offer
    her a loan modification or send her notice that her documentation was
    incomplete. The trial court concluded that no genuine issue of material
    fact existed as to any of the special defenses that E had filed. The court
    determined, as to the counterclaim, that E and the plaintiff did not enter
    into a new contract when she accepted entry into and complied with
    the terms of the trial period plan, that the allegations in the counterclaim
    did not satisfy the transaction test set forth in the applicable rule of
    practice (§ 10-10) and that the counterclaim was barred by the statute
    of frauds (§ 52-550 [a]). On appeal to this court, E claimed, inter alia,
    that the trial court improperly rendered summary judgment as to liability
    on the plaintiff’s complaint and on her counterclaim, and improperly
    concluded that a genuine issue of material fact did not exist with respect
    to her special defenses. Held:
    1. The trial court improperly rendered summary judgment as to liability on
    the plaintiff’s complaint, as genuine issues of material fact existed as
    to E’s special defense of unclean hands:
    a. The trial court improperly concluded that there was no genuine issue
    of material fact as to whether E could prevail on her special defense
    of unclean hands, the plaintiff having failed to establish that it adhered
    to the requirements of the Treasury Department directive; the plaintiff
    produced no evidence that it made a determination as to E’s eligibility
    for a loan modification at the end of the trial period plan, the plaintiff
    failed to explain its apparent internal approval of a loan modification
    for E or to produce evidence as to why it failed to offer her a loan
    modification, the unexplained length of time it took C Co. to deny E
    an offer of a permanent loan modification raised a question as to whether
    C Co. treated her in a fair, equitable and honest manner, and there
    was no evidence that C Co. sent E notice that her documentation was
    incomplete and a list of additional required documentation.
    b. The trial court improperly concluded that E’s special defense of
    unclean hands was invalid because it did not relate to the making,
    validity or enforcement of the mortgage note; E’s allegations raised a
    genuine issue of material fact as to whether deceitful or unfair practices
    on the part of the plaintiff led to its filing of the foreclosure action,
    the plaintiff’s submissions did not defeat the evidence set forth in E’s
    objection that the procedures required by HAMP may not have been
    followed during the trial period plan process, and the defense of unclean
    hands does not necessarily need to relate to the making, enforcement
    or validity of a mortgage loan.
    2. E could not prevail on her unpreserved claim that the trial court erred
    in concluding that her special defense of equitable estoppel failed to
    raise a genuine issue of material fact as to whether C Co. induced her
    to default: E’s claim on appeal that C Co. knew or should have known that
    telling her she had to stop payments as a requirement to be considered
    for a loan modification was misleading differed from her argument to
    the trial court that C Co. had a practice of instructing mortgagors to
    stop making payments under the false pretense that doing so would not
    hurt their credit scores, E never directed the trial court to any authority
    that supported her claim that C Co. knew or should have known that
    it was misleading to tell her that she had to stop making mortgage
    payments to be considered for a loan modification, and E failed to
    present evidence that she reasonably relied on any promise by C Co.
    that her credit score would be unaffected or that a loan modification
    would take place if she defaulted, as the maintenance of a favorable
    credit score or a loan modification were never certainties at the time
    she elected to default; moreover, even if E had preserved her equitable
    estoppel claim, she could not prevail, as she did not claim that C Co.
    directed her to default or promised her a loan modification if she were
    to default, the only detriment E alleged was the negative impact on her
    credit score, and C Co. followed through on its promise to discuss
    mortgage assistance with her after she defaulted.
    3. E could not prevail on her claim that a genuine issue of material fact
    existed as to her breach of contract special defense, which was based
    on her assertion that C Co.’s letter in which it offered her entry into
    the trial period plan created an offer that if she timely made all of the
    trial period payments, her mortgage would be permanently modified; E
    failed to allege that she had maintained her eligibility for the HAMP
    program, which was a condition precedent in the letter, and, thus, her
    conduct never triggered the plaintiff’s duty to perform its obligations
    under the contract.
    4. The trial court did not err in concluding that there was no genuine issue
    of material fact as to E’s special defense of breach of the covenant of
    good faith and fair dealing in the note and mortgage agreements: C Co.’s
    failure to offer E a loan modification under the trial period program
    could not violate the covenant of good faith and fair dealing, as there was
    no evidence that C Co. impeded E’s rights under the note or mortgage
    agreements, or that it acted in bad faith by misleading her into defaulting,
    and once E defaulted, C Co. discussed mortgage assistance with her
    and gave her a trial period plan; moreover, the note and mortgage
    agreements, and the plaintiff’s notices to E that she had defaulted, made
    clear the consequences of default, the note and mortgage did not require
    the plaintiff to notify E that her credit rating may be affected if she
    were to default, neither the note nor the mortgage addressed the situa-
    tion where E might need relief from the payment provisions or promised
    to offer E a loan modification, and there was no evidence that C Co.
    was motivated to induce E to default for greater fees.
    5. The trial court properly concluded that E’s special defense of promissory
    estoppel did not raise a genuine issue of material fact; the plaintiff did
    not break any promise to E when it declined to modify her loan after
    she made the three trial period payments, which were not the only
    contingency under the trial period plan, and E failed to allege that she
    fulfilled the condition precedent in the trial period plan that required that
    her housing expense be greater than 31 percent of her household income.
    6. The trial court improperly rendered summary judgment in favor of the
    plaintiff on E’s counterclaim sounding in breach of contract:
    a. The trial court erred in determining that the counterclaim did not
    satisfy the transaction test in Practice Book § 10-10, which requires that
    a counterclaim have a sufficient relationship to the making, validity or
    enforcement of the note or mortgage; the counterclaim was intertwined
    sufficiently with the subject of the foreclosure complaint, as the counter-
    claim alleged the formation and breach of a contractual agreement that
    was intended to lead to an offer of a permanent modification of E’s
    mortgage loan, E sought relief that was directly connected to the relief
    sought in the plaintiff’s complaint, and the note, mortgage and trial period
    plan involved the same lender, the same borrower and the same property.
    b. On the basis of the record, there was a genuine issue of material fact
    as to whether a contract was formed and whether there was a breach
    by the plaintiff; genuine issues of material fact existed as to whether the
    plaintiff and E formed a contract when E complied with the conditions
    of the trial period plan and as to whether C Co. was permitted to continue
    to review E’s financial eligibility for the HAMP program after the end
    of her trial period plan, as the HAMP guidelines suggested an intention
    not to leave E without notice of a final determination for months after
    the conclusion of her trial period plan, although a HAMP handbook may
    have contemplated a trial period plan that lasted more than three months,
    there was no definite indication in the record that the plaintiff and E
    ever agreed to a prolonged trial period plan, and it was unquestionable
    that E suffered some detriment in addition to any preexisting duties
    that she owed to the plaintiff, as the trial period plan imposed new
    obligations on her.
    c. The trial court improperly determined that the contract that E claimed
    was created by the trial period plan did not satisfy the statute of frauds,
    § 52-550 (a), which requires, inter alia, that an agreement for a loan in
    excess of $50,000 must be in writing; the trial period plan was not an
    agreement for the sale of real property or any interest in or concerning
    real property within the meaning of § 52-550 (a), and because the trial
    period plan, which was supposed to be performed within one year, was
    not an agreement for a loan in excess of $50,000, it was not a purported
    contract that fell within the statute frauds, and even if § 52-550 (a) were
    applicable, the trial period plan was in writing on C Co.’s letterhead
    and provided proof of the contract.
    (One judge concurring in part and dissenting in part)
    Argued January 25—officially released September 18, 2018
    Procedural History
    Action to foreclose a mortgage on certain of the
    named defendant’s real property, and for other relief,
    brought to the Superior Court in the judicial district of
    New Haven, where the named defendant filed a counter-
    claim; thereafter, the court, Avallone, J., granted the
    plaintiff’s motion for summary judgment as to liability
    on the complaint and the counterclaim; subsequently,
    the court rendered judgment of strict foreclosure, from
    which the named defendant appealed to this court;
    thereafter, the court, Avallone, J., issued an articulation
    of its decision. Reversed; new trial.
    Loraine Martinez, with whom were David F. Lavery
    and, on the brief, Sarah E. White, for the appellant
    (named defendant).
    Pierre-Yves Kolakowski, with whom, on the brief,
    was Zachary Grendi, for the appellee (plaintiff).
    Opinion
    KELLER, J. In this foreclosure action, the defendant
    Karin C. Eichten1 appeals from the judgment of strict
    foreclosure rendered by the trial court in favor of the
    plaintiff, U.S. Bank National Association, as trustee,
    successor in interest to Bank of America, National Asso-
    ciation as trustee as successor by merger to LaSalle
    Bank, National Association as trustee for Washington
    Mutual Mortgage Pass-Through Certificates WMALT
    2007-HY2. The defendant claims that, in rendering sum-
    mary judgment as to liability in the plaintiff’s favor
    with respect to the plaintiff’s foreclosure complaint,
    the court erred in concluding that a genuine issue of
    material fact did not exist with respect to her special
    defenses of equitable estoppel, breach of the covenant
    of good faith and fair dealing, promissory estoppel,
    unclean hands, and breach of contract, all of which
    pertain to the conduct of the plaintiff’s loan servicer,
    Chase Home Finance, LLC (Chase), in denying the
    defendant’s application for a loan modification under
    the federal Home Affordable Modification Program
    (HAMP).2 Additionally, the defendant claims that the
    court improperly rendered summary judgment in the
    plaintiff’s favor on her counterclaim sounding in breach
    of contract. We reverse the judgment of the trial court.
    ‘‘In February, 2009, faced with a nationwide foreclo-
    sure crisis, the Secretary of the Treasury and the Direc-
    tor of the Federal Housing Finance Agency exercised
    their authority under the Emergency Economic Stabili-
    zation Act, the American Recovery and Reinvestment
    Act, and the Troubled Asset Relief Program, 12 U.S.C.
    §§ 5201—5253, and created [HAMP].’’ Belyea v. Litton
    Loan Servicing, LLP, United States District Court, Civil
    Action No. 10-10931-(DJC), 
    2011 WL 2884964
    , *2 (D.
    Mass. July 15, 2011). HAMP was a national home mort-
    gage modification program aimed at helping at-risk
    homeowners who were in default or at imminent risk
    of default by reducing monthly payments to sustainable
    levels through the restructuring of their mortgages with-
    out discharging any of the underlying debt. 
    Id. It was
    designed to create a uniform loan modification process
    governed by federal standards that could be used by
    any loan servicer that chose to participate. 
    Id. ‘‘As an
    incentive for servicers to participate in HAMP, the fed-
    eral government awards servicers three annual $1,000
    payments for each permanent mortgage loan that [was]
    successfully modified . . . .’’ 
    Id. On August
    28, 2013, the plaintiff commenced this
    action against the defendant to foreclose on its mort-
    gage on the defendant’s property at 630 Cook Hill Road
    in Cheshire. The defendant filed a substitute answer and
    special defenses. The defendant alleged in her special
    defenses that (1) the plaintiff is equitably estopped from
    proceeding with the foreclosure action because the
    plaintiff instructed her to default on her note and mort-
    gage obligations, resulting in her credit rating being
    negatively impacted; (2) the plaintiff breached the cove-
    nant of good faith and fair dealing by instructing her
    to default on her note and mortgage obligations without
    informing her that a default would result in adverse
    consequences such as acceleration of the debt; (3) the
    plaintiff is precluded by promissory estoppel from pur-
    suing a foreclosure action because the plaintiff induced
    the defendant to default and promised her the offer
    of a loan modification if she made three trial period
    payments,3 and the defendant relied on that promise to
    her detriment because she never received the promised
    offer; (4) the plaintiff is guilty of unclean hands because,
    although she qualified for a loan modification upon
    completion of her trial period payments, the plaintiff
    did not offer her a loan modification, but instead, placed
    her in a forbearance program without her consent; and
    (5) the plaintiff breached a contract between the parties
    by failing to offer the defendant a loan modification
    after she performed her part of the bargain by making
    the three agreed upon trial period payments.4
    In her substitute counterclaim, the defendant alleged
    that the plaintiff breached a contract between the par-
    ties when it failed to offer her a loan modification after
    the defendant performed her obligations under the con-
    tract by making her three trial period payments and
    continued to meet all program eligibility requirements
    during the trial period. The plaintiff filed an answer to
    the defendant’s counterclaim on September 29, 2015,
    in which it posited that the alleged contract did not
    comply with the statute of frauds, and that the counter-
    claim is legally insufficient and barred by the doctrines
    of waiver and estoppel. On November 12, 2015, the
    plaintiff moved for summary judgment as to liability
    on its complaint, claiming that the defendant’s special
    defenses are insufficient because they are not sup-
    ported by any evidence and cannot defeat the plaintiff’s
    prima facie showing that it is entitled to foreclose on
    the subject property. The plaintiff also argued that the
    defendant’s counterclaim is barred by the statute of
    frauds and has no factual basis.
    In support of its motion for summary judgment, the
    plaintiff provided the court with the affidavit of Michael
    Piz, a document control officer with the plaintiff’s sub-
    sequent loan servicer, Select Portfolio Servicing, Inc.,5
    the contents of which are summarized as follows. On
    December 15, 2006, the defendant executed an adjust-
    able rate note to pay Washington Mutual Bank, FA
    (Washington Mutual), the principal sum of $480,000,
    payable with interest, including late charges, costs, and
    expenses. The indebtedness evidenced by the note was
    secured by a mortgage, which also is dated December
    15, 2006, on the defendant’s property at 630 Cook Hill
    Road in Cheshire. Washington Mutual endorsed the
    note in blank and on or about September 9, 2009, the
    Federal Deposit Insurance Corporation, as receiver of
    Washington Mutual, executed an assignment of the
    mortgage to the plaintiff. The assignment later was cor-
    rected due to a clerical error in the name of the plaintiff
    in the original assignment. Copies of the note, mortgage,
    assignment, and corrected assignment were annexed to
    the plaintiff’s motion for summary judgment as exhibits.
    In 2009, the defendant defaulted pursuant to the
    terms of the note and mortgage, and the plaintiff noti-
    fied her of the default. The notice of default advised
    that if the amount required to cure the default was not
    received within sixty days, immediate acceleration of
    all moneys due under the note and mortgage could be
    declared without further notice or demand. Piz further
    avers that the defendant failed to cure her default and,
    as a result, the plaintiff elected to accelerate the total
    amount of the indebtedness due and owing by com-
    mencing this action. No part of the outstanding indebt-
    edness has been paid by the defendant. Subsequently,
    the defendant received multiple notices of her default,
    including notices on November 30, 2009, January 21,
    2010, and May 10, 2010.
    Piz further alleges that the plaintiff is in physical
    possession of the original loan documents, including,
    without limitation, the original note endorsed in blank,
    and was in possession of the same at the time this
    action was commenced.6
    Piz also addresses in his affidavit what transpired
    regarding the defendant’s application for a HAMP loan
    modification. On July 15, 2010, the plaintiff sent the
    defendant a letter offering her a trial period plan (TPP).
    A copy of this letter is annexed to the motion for sum-
    mary judgment. It reads, in pertinent part: ‘‘You are
    approved to enter into a [TPP] under [HAMP]. This
    is the first step toward qualifying for more affordable
    mortgage payments. . . . To accept this offer, you
    must make new monthly ‘trial period payments’ in place
    of your normal monthly mortgage payment. . . . After
    all trial period payments are timely made and you con-
    tinue to meet all program eligibility requirements, your
    mortgage would then be permanently modified. You
    will be required to execute a permanent mortgage modi-
    fication agreement that we will send you before your
    modification becomes effective. Until then, your
    existing loan and loan requirements remain in effect
    and unchanged during the trial period. If each trial pay-
    ment is not received by us in the month in which [it]
    is due, this offer will end and your loan will not be
    modified under [HAMP].’’ (Emphasis omitted.) The let-
    ter also includes answers to ‘‘frequently asked ques-
    tions,’’ one of which advised the borrower that ‘‘[y]our
    credit score may be affected by accepting a [TPP] or
    modification.’’ In response to a question, ‘‘[w]hen will
    I know if my loan can be modified permanently and
    how will the modified loan balance be determined?’’
    the letter provided, ‘‘[o]nce we confirm you are still
    eligible for [HAMP] and you make all of your trial period
    payments on time, we will send you a modification
    agreement detailing the terms of the modified loan.’’7
    Piz further avers in his affidavit that in or about May
    and June, 2011, the defendant sent the plaintiff evidence
    of her combined income with her then ‘‘spouse,’’8 and
    that, on the basis of the defendant’s profit and loss
    statement and pay stubs, the plaintiff calculated that the
    defendant and her ‘‘spouse’’ had a combined monthly
    income of $13,826.35 and a total housing expense of
    $3423.94. Thus, the defendant’s ‘‘housing ratio,’’ or hous-
    ing expense as a percentage of household income, was
    24.76 percent. Under the then applicable HAMP guide-
    lines, the borrower’s current monthly mortgage pay-
    ment could not be less than 31 percent of the borrower’s
    household monthly gross income to qualify for a loan
    modification.
    Consequently, the plaintiff concluded that ‘‘[b]or-
    rower [h]ousing [r]atio exceeds the maximum for our
    lending program.’’ In addition, the plaintiff submitted
    a handbook for the HAMP program, version 3.2, which
    indicated that one of the requirements under the pro-
    gram was that ‘‘verified income documentation must
    confirm that the borrower’s monthly mortgage payment
    ratio prior to the modification is greater than 31 per-
    cent.’’ On July 15, 2011, the plaintiff sent the defendant
    a letter explaining that the defendant had been denied
    a permanent modification because her ‘‘housing ratio9
    exceeds the maximum allowed for the modification
    program.’’ The plaintiff sent another letter to the defen-
    dant on July 28, 2011, explaining in greater detail why
    the defendant’s housing ratio made her ineligible for a
    loan modification under HAMP. Although the reference
    in the July 15, 2011 letter to a ‘‘housing ratio that exceeds
    the maximum allowed’’ is confusing, the July 28, 2011
    letter clearly explains why the defendant’s housing
    expense was not a large enough percentage of her
    household income to qualify for a loan modification.
    The defendant filed her objection to the motion for
    summary judgment on January 11, 2016, essentially
    asserting that the evidence relevant to her special
    defenses and counterclaim, which involve the plaintiff’s
    course of conduct in considering and ultimately denying
    her loan modification application, creates a genuine
    issue of material fact as to whether the plaintiff should
    be permitted to proceed to foreclosure.
    The defendant attached her own affidavit to her
    objection to the motion for summary judgment, summa-
    rized as follows. She faithfully submitted her mortgage
    payments in a timely fashion and without incident until
    late 2009. In the beginning of 2009, she was laid off
    from her job and forced to use her cash reserves and
    savings to make her payments. She became concerned
    about her continued ability to make her payments. In
    the fall of 2009, she contacted her loan servicer, Chase,
    to discuss mortgage assistance options and was told
    by a representative that Chase would not speak to her
    unless or until she stopped making her payments. As
    a result of her reliance on this information, she stopped
    making any payments commencing on October 1, 2009.
    The plaintiff did not follow through with its promise to
    help her with mortgage assistance, and she had to retain
    a law firm to help her. Starting in March, 2010, and
    continuing until July, 2010, she supplied the plaintiff
    with all of the financial information it requested of her.
    The defendant attached additional documentation to
    her objection to the plaintiff’s summary judgment
    motion, focusing on her participation in the TPP and
    the plaintiff’s denial of her application for a loan modifi-
    cation. After the defendant retained counsel, the plain-
    tiff finally sent the defendant a letter dated July 15,
    2010, congratulating her and stating that she was
    ‘‘approved to enter into a [TPP] under the [HAMP] (pro-
    gram),’’ and explaining that ‘‘[t]his is the first step
    toward qualifying for more affordable mortgage pay-
    ments. . . . After all trial period payments are timely
    made and you continue to meet all program eligibility
    requirements, your mortgage would then be perma-
    nently modified. You will be required to execute a per-
    manent mortgage modification agreement that we will
    send you before your modification becomes effective.
    Until then, your existing loan and loan requirements
    remain in effect and unchanged during the trial period.’’
    Under the plan, the defendant was to make three con-
    secutive monthly payments of $3373.86 on August 1,
    September 1, and October 1, 2010.
    In her affidavit, the defendant avers that she timely
    made all three payments under the TPP and some addi-
    tional trial payments into 2011.10 The plaintiff continued
    to send her letters on different letterhead and from
    different locations, asking her for the same financial
    information and thanking her for her interest in a HAMP
    modification. According to the defendant, to be safe,
    she kept resending the requested information to the
    plaintiff. She also avers that she received two notices
    that her request for unemployment forbearance had
    been received even though she had never made any such
    request. Finally, the defendant avers that the plaintiff,
    approximately nine months after the TPP had ended,
    sent her a letter dated July 15, 2011, which stated that
    ‘‘[w]e received your request for a permanent loan modi-
    fication . . . . We are unable to offer you a modifica-
    tion through the federal [program] . . . . This decision
    was confirmed through a second level of review. . . .
    We are unable to offer you a modification because your
    housing ratio exceeds the maximum allowed for the
    modification program.’’ The letter also recommended
    other possible options for the defendant to avoid fore-
    closure.
    As part of her objection to the plaintiff’s motion for
    summary judgment, the defendant also submitted inter-
    nal documents of the plaintiff and a number of other
    letters sent to her by the plaintiff. The plaintiff does not
    dispute the existence or accuracy of these documents
    or letters, which reveal the following. In or about June
    and July, 2010, the defendant submitted to the plaintiff
    a loan modification application with supporting docu-
    ments. The plaintiff reviewed these submissions, which
    included bank statements from the defendant’s busi-
    ness from February through May, 2010, and a contribu-
    tion letter and pay stubs from the defendant’s fiance´
    from May and June, 2010.11 The analysis, called an ‘‘MOD
    Summary Report,’’ revealed that the defendant’s hous-
    ing ratio was 37.892 percent, which was within HAMP’s
    limits for approval of a loan modification. As a result,
    the plaintiff forwarded the defendant a letter offering
    her a TPP. In August, 2010, the plaintiff sent the defen-
    dant a letter requesting a packet of financial information
    regarding her loan modification request. In September,
    2010, the plaintiff sent the defendant another letter stat-
    ing that it was still waiting for the requested package
    of information to be returned. In and about February
    and March, 2011, according to an updated MOD Sum-
    mary Report, the plaintiff again reviewed the defen-
    dant’s application, determined that her housing ratio
    was 31.208 percent, which was still within HAMP limits,
    and, the defendant claims, approved her pending appli-
    cation for a loan modification. On March 10, 2011, the
    plaintiff entered the following messages into its Loss
    Mitigation Tracking Steps system: ‘‘Final Review Com-
    plete,’’ ‘‘Order/Prepare Mod Docs,’’ and ‘‘QA Final
    Approved,’’ which corresponded to a charge of $2838.92
    to the defendant’s bank account. There is no dispute
    that the plaintiff never sent the defendant any perma-
    nent loan modification documents. The Loss Mitigation
    Tracking Steps later reflect that on July 11, 2011, the
    defendant was found ineligible for a loan modification.12
    In its reply to the defendant’s opposition to the
    motion for summary judgment, the plaintiff claimed
    that despite the defendant’s allegations of the plaintiff’s
    internal generation of alleged final loan modification
    documents, the defendant admits she never received
    or accepted the final loan modification documents. The
    plaintiff also argued that the defendant’s special
    defenses do not relate to the making, validity or enforce-
    ment of the note, and that her counterclaim does not
    have a sufficient connection to the making, validity or
    enforcement of the note and mortgage to satisfy the
    ‘‘transaction test’’ in Practice Book § 10-10.13
    On May 23, 2016, the court held a hearing on the
    plaintiff’s motion for summary judgment. After oral
    argument, the defendant filed a supplemental brief in
    opposition to the motion for summary judgment on May
    23, 2016. Following the hearing, the court summarily
    granted the plaintiff’s motion for summary judgment.
    On July 8, 2016, the defendant filed a motion for clarifi-
    cation of whether the court’s order granting the sum-
    mary judgment motion pertained to her counterclaim.
    The court issued an order on September 8, 2016, stating
    that its ruling included rendering summary judgment
    on the defendant’s counterclaim. On September 12,
    2016, the court rendered judgment of strict foreclosure
    with a law day of December 5, 2016. This appeal
    followed.
    Thereafter, on October 27, 2016, the defendant filed
    a motion for articulation of the court’s granting of the
    plaintiff’s motion for summary judgment. The defendant
    requested that the court articulate its ‘‘findings of fact
    and conclusions of law upon which the trial court relied
    in granting the motion for summary judgment as to the
    special defenses and counterclaim of the defendant
    . . . .’’ (Emphasis omitted.) On February 15, 2017, the
    court issued an articulation. In its articulation, the court
    determined that ‘‘the plaintiff has established the
    absence of a genuine issue of material fact regarding
    the prima facie case for foreclosure,’’ and that none of
    the defendant’s special defenses raised a genuine issue
    of material fact that might defeat the plaintiff’s cause
    of action. The court also concluded that summary judg-
    ment was appropriate on the defendant’s breach of
    contract counterclaim. The court determined that the
    undisputed facts show that the parties did not enter into
    a new contract and that the defendant’s counterclaim
    regarding the denial of her application for a loan modifi-
    cation did not present an issue that satisfied the transac-
    tion test in Practice Book § 10-10. Finally, the court
    ruled that even if the transaction test were satisfied,
    the counterclaim was barred by the statute of frauds,
    General Statutes § 52-550, because the amount due on
    the note was $480,000, which exceeds the threshold
    amount of $50,000 for loan agreements in the statute,
    and thus any contract for a modification needed to be
    in writing.
    We first set forth the applicable standard of review.
    ‘‘In seeking summary judgment, it is the movant who
    has the burden of showing the nonexistence of any
    issue of fact. . . . Although the party seeking summary
    judgment has the burden of showing the nonexistence
    of any material fact . . . a party opposing summary
    judgment must substantiate its adverse claim by show-
    ing that there is a genuine issue of material fact together
    with the evidence disclosing the existence of such an
    issue.’’ (Internal quotation marks omitted.) Rosenfield
    v. I. David Marder & Associates, LLC, 
    110 Conn. App. 679
    , 684, 
    956 A.2d 581
    (2008). A material fact is one
    that makes a difference in the outcome of a case. Catz
    v. Rubenstein, 
    201 Conn. 39
    , 48, 
    513 A.2d 98
    (1986).
    ‘‘Summary judgment shall be granted if the pleadings,
    affidavits and any other proof submitted show that there
    is no genuine issue as to any material fact and that the
    moving party is entitled to judgment as a matter of law.
    . . . The trial court must view the evidence in the light
    most favorable to the nonmoving party. . . .
    ‘‘Appellate review of the trial court’s decision to grant
    summary judgment is plenary. . . . [W]e must [there-
    fore] decide whether [the trial court’s] conclusions are
    legally and logically correct and find support in the
    facts that appear in the record.’’ (Citations omitted;
    internal quotation marks omitted.) McFarline v. Mick-
    ens, 
    177 Conn. App. 83
    , 90, 
    173 A.3d 417
    (2017), cert.
    denied, 
    327 Conn. 997
    , 
    176 A.3d 557
    (2018).
    ‘‘In order to establish a prima facie case in a mortgage
    foreclosure action, the plaintiff must prove by a prepon-
    derance of the evidence that it is the owner of the
    note and mortgage, that the defendant mortgagor has
    defaulted on the note and that any conditions precedent
    to foreclosure, as established by the note and mortgage,
    have been satisfied. . . . Thus, a court may properly
    grant summary judgment as to liability in a foreclosure
    action if the complaint and supporting affidavits estab-
    lish an undisputed prima facie case and the defendant
    fails to assert any legally sufficient special defense.’’
    (Internal quotation marks omitted.) Wells Fargo Bank,
    N.A. v. Strong, 
    149 Conn. App. 384
    , 392, 
    89 A.3d 392
    ,
    cert. denied, 
    312 Conn. 923
    , 
    94 A.3d 1202
    (2014).
    ‘‘[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]. . . . It [is] for the defendant to set up and
    prove the facts which limit or change the plaintiff’s
    rights.’’ (Internal quotation marks omitted.) Equity
    One, Inc. v. Shivers, 
    310 Conn. 119
    , 135, 
    74 A.3d 1225
    (2013).
    ‘‘[T]he party raising a special defense has the burden
    of proving the facts alleged therein.’’ Wyatt Energy,
    Inc. v. Motiva Enterprises, LLC, 
    308 Conn. 719
    , 736,
    
    66 A.3d 848
    (2013). ‘‘If the plaintiff in a foreclosure
    action has shown that it is entitled to foreclose, then
    the burden is on the defendant to produce evidence
    supporting its special defenses in order to create a
    genuine issue of material fact . . . .’’ WM Specialty
    Mortgage, LLC v. Brandt, Superior Court, judicial dis-
    trict of Ansonia-Milford, Docket No. CV-XX-XXXXXXX-S,
    
    2009 WL 567040
    , *4 (February 10, 2009); see Union
    Trust Co. v. Jackson, 
    42 Conn. App. 413
    , 417–20, 
    679 A.2d 421
    (1996). Legally sufficient special defenses
    alone do not meet the defendant’s burden. ‘‘The purpose
    of a special defense is to plead facts that are consistent
    with the allegations of the complaint but demonstrate,
    nonetheless, that the plaintiff has no cause of action.
    . . . Further . . . [t]he applicable rule regarding the
    material facts to be considered on a motion for sum-
    mary judgment is that the facts at issue are those alleged
    in the pleadings.’’ (Citation omitted; internal quotation
    marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.
    App. 700, 718, 
    807 A.2d 968
    , cert. denied, 
    262 Conn. 915
    , 
    811 A.2d 1291
    (2002). ‘‘[B]ecause any valid special
    defense raised by the defendant ultimately would pre-
    vent the court from rendering judgment for the plaintiff,
    a motion for summary judgment should be denied when
    any [special] defense presents significant fact issues
    that should be tried.’’ (Internal quotation marks omit-
    ted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd.,
    
    134 Conn. App. 699
    , 704, 
    41 A.3d 1077
    (2012).
    I
    First, the defendant claims that the court improperly
    rendered summary judgment against her as to liability
    on the foreclosure complaint because genuine issues
    of material fact exist with respect to her special
    defenses of equitable estoppel, breach of the covenant
    of good faith and fair dealing, promissory estoppel,
    unclean hands, and breach of contract. We agree with
    the defendant that her special defense of unclean hands
    raises a genuine issue of material fact, and therefore,
    summary judgment in favor of the plaintiff should not
    have been rendered. We disagree, however, that the
    remainder of the defendant’s special defenses pre-
    cluded summary judgment in the plaintiff’s favor.
    A
    The defendant claims in her fifth special defense that
    the plaintiff violated the doctrine of unclean hands and
    should be precluded from proceeding with the foreclo-
    sure action because the plaintiff did not offer her a
    permanent loan modification under the program despite
    the fact that, pursuant to regulations published by the
    United States Department of the Treasury, she was enti-
    tled to a permanent modification upon the completion
    of her three trial payments. She argues that instead,
    the plaintiff placed her into a mortgage forbearance
    program for which she did not apply. She contends that
    the plaintiff’s internal records indicate that it approved
    her for a loan modification under the program in March,
    2011, months before it mailed her the denial letter. She
    argues that a number of documents in evidence suggest
    that the plaintiff approved the defendant for a loan
    modification in March, 2011, when she had a housing
    ratio of 31.2 percent. She notes that the plaintiff only
    appended evidence to its motion for summary judgment
    that supported its version of the narrative while failing
    to make any argument or even reference to its own
    internal processes, evidence of which raises more ques-
    tions than answers. We agree with the defendant.
    Because an action to foreclose a mortgage is an equi-
    table proceeding, the doctrine of unclean hands may
    be applicable. ‘‘It is a fundamental principle of equity
    jurisprudence that for a complainant to show that he
    is entitled to the benefit of equity he must establish
    that he comes into court with clean hands. . . . The
    clean hands doctrine is applied not for the protection
    of the parties but for the protection of the court. . . .
    It is applied not by way of punishment but on considera-
    tions that make for the advancement of right and justice.
    . . . The doctrine of unclean hands expresses the prin-
    ciple that where a plaintiff seeks equitable relief, he
    must show that his conduct has been fair, equitable
    and honest as to the particular controversy in issue.
    . . . Unless the plaintiff’s conduct is of such a character
    as to be condemned and pronounced wrongful by hon-
    est and fair-minded people, the doctrine of unclean
    hands does not apply.’’ (Citation omitted; internal quota-
    tion marks omitted.) Thompson v. Orcutt, 
    257 Conn. 301
    , 310, 
    777 A.2d 670
    (2001). ‘‘The party seeking to
    invoke the clean hands doctrine to bar equitable relief
    must show that his opponent engaged in wilful miscon-
    duct with regard to the matter in litigation. . . . The
    trial court enjoys broad discretion in determining
    whether the promotion of public policy and the preser-
    vation of the courts’ integrity dictate that the clean
    hands doctrine be invoked.’’ (Internal quotation marks
    omitted.) Monetary Funding Group, Inc. v. Pluchino,
    
    87 Conn. App. 401
    , 407, 
    867 A.2d 841
    (2005). ‘‘Wilful
    misconduct has been defined as intentional conduct
    designed to injure for which there is no just cause or
    excuse. . . . [Its] characteristic element is the design
    to injure either actually entertained or to be implied
    from the conduct and circumstances. . . . Not only the
    action producing the injury but the resulting injury also
    must be intentional.’’ (Internal quotation marks omit-
    ted.) 19 Perry Street, LLC v. Unionville Water Co., 
    294 Conn. 611
    , 630–31 n.10, 
    987 A.3d 1009
    (2010).
    This special defense questions the legitimacy of the
    plaintiff’s processing of the defendant’s application for
    a loan modification. It raises a question as to why the
    plaintiff failed to send the defendant a permanent loan
    modification agreement if she was approved for a loan
    modification in March, 2011. The court rejected the
    defendant’s special defense of unclean hands and char-
    acterized it as another ‘‘inducement to default’’ special
    defense, similar to the defendant’s equitable estoppel
    special defense. We, however, conclude that the nature
    of the allegations in this special defense are distin-
    guishable.
    The defendant submitted as evidence a copy of a
    supplemental directive issued on January 28, 2010, by
    the Treasury Department to provide guidance to loan
    servicers in making HAMP eligibility determinations for
    borrowers currently participating in a TTP. This direc-
    tive notes a change from a prior directive issued in
    2009, which gave loan servicers the option of placing
    a borrower into a TPP on the basis of verbal financial
    information obtained from the borrower, subject to
    later verification during the TPP. Effective on or after
    June 1, 2010, a loan servicer was instructed to evaluate
    a borrower for HAMP only after the servicer received
    an initial package that included a request for modifica-
    tion and an ‘‘affidavit (RMA) form,’’ an Internal Revenue
    Service form 4506-T or 4506T-EZ to request transcripts
    of tax returns, and documentation of income that may
    not be more than ninety days old as of the date the
    initial package is received by the servicer. If the loan
    servicer received an incomplete initial package or
    needed additional documentation to verify the borrow-
    er’s eligibility and income, the servicer had to send the
    borrower an ‘‘Incomplete Information Notice’’ that lists
    the additional required verification documentation.
    Loan servicers were required to use a two step process
    for HAMP modifications. In referencing conversion
    from trial to permanent modification, the directive
    stated: ‘‘Following underwriting and a determination
    that the borrower qualifies for a HAMP trial modifica-
    tion, servicers will place qualified borrowers in a trial
    period plan by preparing and sending a [TPP] [n]otice
    to the borrower describing the terms of the trial modifi-
    cation and the payment due dates. Borrowers who make
    all trial period payments timely and who satisfy all other
    trial period requirements will be offered a permanent
    HAMP modification.’’
    In this case, the plaintiff produced no evidence that
    it made a determination as to the defendant’s eligibility
    for a HAMP modification at the end of her TPP, which
    was at the end of the month in which she made her
    third payment, October, 2010. Furthermore, there is
    evidence in the defendant’s submissions that the defen-
    dant’s application was approved by the plaintiff in
    March, 2011, and the plaintiff has produced no evidence
    to explain why it failed, at that time, to complete the
    process and forward to the defendant an offer of a
    permanent loan modification. In addition, there is no
    evidence that the plaintiff ever sent the defendant the
    required ‘‘Incomplete Information Notice’’ that her doc-
    umentation was incomplete, as required by the
    directive.
    The plaintiff’s failure to establish that it adhered to
    the Treasury Department’s directives, which appear to
    encourage that final determinations on whether to offer
    the borrower a loan modification be made before the
    end of the TPP, and the plaintiff’s failure to provide an
    explanation as to its apparent internal approval of the
    loan modification in March, 2011, which was not com-
    municated to the defendant, create a genuine issue of
    material fact as to whether the defendant can prevail
    on her special defense of unclean hands. When viewing
    the evidence in the light most favorable to the defen-
    dant, the unexplained length of time it took the plaintiff
    to deny the defendant an offer of a permanent modifica-
    tion, almost twenty months, commencing with the date
    it told her that the only way to explore modification of
    her loan was to stop paying in November, 2009, and
    ending with the date it denied her a modification, July
    15, 2011, raises the question of whether the plaintiff
    treated the defendant in a fair, equitable and honest
    manner knowing that prolonged delay would place the
    defendant in an untenable financial situation, such that
    she could not possibly extricate herself to prevent fore-
    closure. We have no evidentiary basis to determine if
    wilful misconduct or simple negligence occurred in the
    plaintiff’s handling of her application.
    We, therefore, conclude that the court erred in
    determining that there was no genuine issue of material
    fact as to whether the defendant can prevail on her
    special defense of unclean hands.
    B
    Having concluded that there is a genuine issue of
    material fact raised in the allegations in the defendant’s
    unclean hands special defense, we next address the
    plaintiff’s argument that this special defense is invalid
    because it does not relate to the making, validity, or
    enforcement of the note and mortgage.14 The court did
    not expressly address or rely on this rationale, but we
    address it because it presents a question of law that is
    subject to plenary review. See, e.g., TD Bank, N.A. v.
    M.J. Holdings, LLC, 
    143 Conn. App. 340
    , 343, 
    70 A.3d 156
    (2013) (issues concerning legal sufficiency of plead-
    ing subject to plenary review). In mortgage foreclosure
    cases, ‘‘courts require that a viable legal defense directly
    attack the making, validity or enforcement [of the note
    and mortgage].’’ (Internal quotation marks omitted.)
    CitiMortgage, Inc. v. Rey, 
    150 Conn. App. 595
    , 603, 
    92 A.3d 278
    , cert. denied, 
    314 Conn. 905
    , 
    99 A.3d 635
    (2014).
    ‘‘[S]pecial defenses which are not limited to the making,
    validity or enforcement of the note or mortgage fail to
    assert any connection with the subject matter of the
    foreclosure action and as such do not arise out of the
    same transaction as the foreclosure action.’’ (Internal
    quotation marks omitted.) 
    Id., 600. In
    U.S. Bank National Assn. v. Sorrentino, 158 Conn.
    App. 84, 97, 
    118 A.3d 607
    , cert. denied, 
    319 Conn. 951
    ,
    
    125 A.3d 530
    (2015), this court concluded that counter-
    claims that addressed the plaintiff’s alleged improper
    conduct concerning the defendants’ qualification for a
    possible loan modification during a foreclosure media-
    tion program that began after the execution of the note
    and mortgage did ‘‘not reasonably relate to the making,
    validity or enforcement of the note or mortgage,’’ and,
    thus, could not be joined properly with the complaint.
    Recently, in U.S. Bank National Assn. v. Blowers, 
    177 Conn. App. 622
    , 625–26, 
    172 A.3d 837
    , cert. granted,
    
    328 Conn. 904
    , 
    177 A.3d 1160
    (2018), an appeal from a
    judgment of strict foreclosure, this court held that the
    trial court properly granted the plaintiff’s motion to
    strike the defendants’ special defenses and counter-
    claims. The counterclaims sounded in negligence; viola-
    tion of the Connecticut Unfair Trade Practices Act,
    General Statutes § 42-110a et seq.; and unjust enrich-
    ment. U.S. Bank National Assn. v. 
    Blowers, supra
    , 626.
    The special defenses sounded in equitable estoppel,
    unjust enrichment and unclean hands. 
    Id. The defen-
    dants in Blowers claimed that shortly after they had
    defaulted on their mortgage payments, a servicing agent
    for the plaintiff reached out to the defendants, offering
    a rate reduction. 
    Id., 628. After
    the defendants success-
    fully completed a three month trial modification period,
    however, the plaintiff withdrew its offer to modify the
    loan and ultimately commenced a foreclosure action.
    
    Id. The defendants
    essentially claimed that the plaintiff
    and its servicing agent failed to conduct themselves in
    a manner that was fair, equitable and honest during
    the court mediation and loan modification negotiation
    period. 
    Id. Relying on
    U.S. Bank National Assn. v. Sor-
    
    rentino, supra
    , 96, this court held that the alleged
    improper conduct occurring during mediation and mod-
    ification negotiations lacked ‘‘a reasonable nexus to
    the making, validity, or enforcement of the note or
    mortgage.’’ U.S. Bank National Assn. v. 
    Blowers, supra
    ,
    632. By contrast, if ‘‘the modification negotiations ulti-
    mately result in a final, binding, loan modification, and
    the mortgagee subsequently breaches the terms of that
    new modification, then any special defenses asserted
    by the mortgagor in regard to that breach would relate
    to the enforcement of the mortgage.’’15 
    Id., 630. The
    court in Blowers further noted that ‘‘our courts
    have allowed exceptions to the making, validity, or
    enforcement requirement where traditional notions of
    equity would not be served by its strict application. For
    example, in Thompson v. Orcutt, [supra, 
    257 Conn. 301
    ],
    our Supreme Court reversed this court’s determination
    that a special defense of unclean hands did not apply
    where the plaintiff’s fraudulent conduct occurred in a
    separate bankruptcy proceeding that was not strictly
    related to the making, validity, or enforcement of the
    note or mortgage. In reversing this court’s decision, the
    Supreme Court observed that the plaintiff would not
    have had the legal authority to bring the foreclosure
    action against the defendants but for its fraudulent con-
    duct during the bankruptcy proceeding. . . . The court
    [in Thompson] noted, [b]ecause the doctrine of unclean
    hands exists to safeguard the integrity of the court . . .
    [w]here a plaintiff’s claim grows out of or depends upon
    or is inseparably connected with his own prior fraud,
    a court of equity will, in general, deny him any relief,
    and will leave him to whatever remedies and defenses at
    law he may have.’’ (Citation omitted; internal quotation
    marks omitted.) U.S. Bank National Assn. v. 
    Blowers, supra
    , 
    177 Conn. App. 633
    –34. Our Supreme Court fur-
    ther clarified that an equitable defense of unclean hands
    need not strictly relate to the making, validity, or
    enforcement of the note or mortgage, provided the alle-
    gations set forth were ‘‘directly and inseparably con-
    nected’’ to the foreclosure action. (Internal quotation
    marks omitted.) Thompson v. 
    Orcutt, supra
    , 313. Thus,
    we are not persuaded by the plaintiff’s argument that the
    defendant’s unclean hands defense is invalid because
    it does not relate to the making, validity, or enforcement
    of the note. First, the defense of unclean hands, as our
    Supreme Court recognized, does not necessarily need
    to relate to the making, enforcement, or validity of the
    loan. Second, if the plaintiff did engage in fraudulent
    conduct by deliberately failing to communicate its inter-
    nal approval of the loan modification, then that raises
    questions as to whether, but for this conduct, the plain-
    tiff would have had the legal authority to bring this
    action.
    We conclude that the allegations in the defendant’s
    special defense of unclean hands raise a genuine issue
    of material fact as to whether deceitful or unfair prac-
    tices on the part of the plaintiff led to the filing of a
    foreclosure action that could have been avoided by the
    timely processing of the defendant’s application for a
    permanent loan modification in accordance with the
    HAMP guidelines. The plaintiff’s submissions do not
    satisfactorily defeat the evidence set forth in the defen-
    dant’s objection that HAMP’s required procedures may
    not have been followed during the TPP process. Thus,
    the court erred in rendering summary judgment in favor
    of the plaintiff in light of the defendant’s unclean hands
    special defense.
    C
    Because we conclude that the case is to be remanded
    for further proceedings, it is appropriate for us to
    address certain issues raised by the defendant that are
    likely to recur on remand. See Sullivan v. Metro-North
    Commuter Railroad Co., 
    292 Conn. 150
    , 164, 
    971 A.2d 676
    (2009). The defendant claims that the court erred in
    concluding that her equitable estoppel special defense
    failed to raise a genuine issue of material fact as to
    whether the plaintiff induced her default. In this special
    defense, the defendant alleges that the plaintiff advised
    her that she had to stop making her mortgage payments,
    as this was the only way to explore a modification. She
    claims that the plaintiff should be equitably estopped
    from foreclosing on her mortgage because ‘‘the event
    of default was contrived by [the plaintiff],’’ who
    ‘‘reported the default to various credit reporting agen-
    cies . . . which substantially interfered with her ability
    to . . . pursue refinancing options with other financial
    institutions.’’ We are not persuaded.
    ‘‘The doctrine of equitable estoppel is well estab-
    lished. [W]here one, by his words or actions, intention-
    ally causes another to believe in the existence of a
    certain state of things, and thereby induces him to act
    on that belief, so as injuriously to affect his previous
    position, he is [precluded] from averring a different
    state of things as existing at the time. . . . Our
    Supreme Court . . . stated, in the context of an equita-
    ble estoppel claim, that [t]here are two essential ele-
    ments to an estoppel: the party must do or say
    something which is intended or calculated to induce
    another to believe in the existence of certain facts and
    to act upon that belief; and the other party, influenced
    thereby, must actually change his position or do some-
    thing to his injury which he otherwise would not have
    done. Estoppel rests on the misleading conduct of one
    party to the prejudice of the other. . . . Broadly speak-
    ing, the essential elements of an equitable estoppel . . .
    as related to the party to be estopped, are: (1) conduct
    which amounts to a false representation or concealment
    of material facts, or, at least, which is calculated to
    convey the impression that the facts are otherwise than,
    and inconsistent with, those which the party subse-
    quently attempts to assert; (2) the intention, or at least
    the expectation, that such conduct shall be acted upon
    by, or influence, the other party or other persons; and
    (3) knowledge, actual or constructive, of the real facts.’’
    (Internal quotation marks omitted.) TD Bank, N.A. v.
    M.J. Holdings, LLC, 
    143 Conn. App. 322
    , 337–38, 
    71 A.3d 541
    (2013). ‘‘Estoppel rests on the misleading conduct
    of one party to the prejudice of the other.’’ (Internal
    quotation marks omitted.) Fischer v. Zollino, 
    303 Conn. 661
    , 668, 
    35 A.3d 270
    (2012).
    In opposing summary judgment, the defendant
    argued that the plaintiff should be equitably estopped
    from bringing the foreclosure action because she with-
    held mortgage payments beginning in October, 2009,
    only after the plaintiff advised her ‘‘that in order to
    discuss modification options, she would have to default
    on her mortgage by withholding payment.’’ In her affida-
    vit that was submitted to the court in support of her
    opposition to the plaintiff’s motion for summary judg-
    ment, the defendant averred that she had called the
    plaintiff in the fall of 2009, and further averred: ‘‘I was
    told by the representative with whom I spoke that [the
    plaintiff] would not speak to me about mortgage assis-
    tance unless or until I stopped making my payments.’’
    On appeal, the defendant claims as grounds for equi-
    table estoppel that she was not in default and had not
    missed any mortgage payments in the past but that
    when she reached out to the plaintiff to inquire about
    modifying her monthly payments, it instructed her to
    stop making her payments, as this was the only way to
    explore a modification. She claims, for the first time
    on appeal, that this was a misleading statement by the
    plaintiff because, under the HAMP program standards,
    she only needed to be at imminent risk of default and
    did not have to be in default in order to be considered
    for a modification. She also claims that her default,
    contrived by the plaintiff, negatively impacted her credit
    score, and thus her ability to pursue refinancing with
    other financial institutions.
    A major problem with the defendant’s claim that the
    plaintiff misled her by telling her she first had to stop
    making payments to be considered for a loan modifica-
    tion, rather than merely be at imminent risk of default,
    is that she raises this argument for the first time on
    appeal.16 ‘‘Our appellate courts, as a general practice,
    will not review claims made for the first time on appeal.
    We repeatedly have held that [a] party cannot present
    a case to the trial court on one theory and then seek
    appellate relief on a different one . . . .’’ (Internal quo-
    tation marks omitted.) White v. Mazda Motor of
    America, Inc., 
    313 Conn. 610
    , 619, 
    99 A.3d 1079
    (2014).
    We also do not consider evidence not presented to the
    trial court. See O’Hara v. State, 
    218 Conn. 628
    , 639–40
    n.8, 
    590 A.2d 948
    (1991). In the present case, the argu-
    ment that the defendant made in her opposition to sum-
    mary judgment was that the plaintiff’s servicer had a
    widespread practice of instructing mortgagors to stop
    making mortgage payments under the false pretense
    that doing so would not hurt their credit scores. In the
    portion of her memorandum of law in opposition to the
    motion for summary judgment where she discusses her
    equitable estoppel special defense, the defendant never
    directs the court’s attention to any authority that sup-
    ports her appellate contention that the plaintiff knew
    or should have known that telling her she had to stop
    payments as a requirement to be considered for a loan
    modification was misleading. Accordingly, the claim as
    framed on appeal is unpreserved.
    Assuming, arguendo, that the defendant had pre-
    served her equitable estoppel claim, we would conclude
    that she cannot prevail on the merits of the defense as
    currently pleaded and argued. The following additional
    facts pertaining to the defendant’s decision to default
    are relevant to this claim. In her affidavit, the defendant
    states that after she was laid off from her job, she
    used cash reserves and savings to make her mortgage
    payments, but soon became concerned about her ability
    to continue making the payments. In her affidavit, the
    defendant avers that the plaintiff’s loan servicer did not
    direct her to default, but rather informed her that it
    could not speak with her regarding loan assistance until
    she was in default. Thereafter, the defendant elected
    to default and was not coerced or forced to do so by
    the plaintiff.
    This special defense fails to allege that the plaintiff
    promised her that her credit score would be unaffected
    by her default, and the only detriment she alleges was
    the negative impact on her credit score. In her equitable
    estoppel special defense, the defendant also does not
    claim that the plaintiff promised her a loan modification
    when it instructed her that the only way to explore
    modifying her payment was for her to default.
    After the defendant defaulted, the plaintiff followed
    through on its promise to discuss mortgage assistance
    with the defendant, and engaged in documented com-
    munications, internal calculations and correspondence
    with the defendant in an effort to conclude a mort-
    gage modification.
    Because the allegations in this special defense in no
    way set forth a claimed promise from the plaintiff that
    her credit score would be unaffected or that a future
    loan modification would take place if she defaulted
    and there is no evidence of any such promises, the
    defendant cannot claim that she relied to her detriment
    on promises she fails to allege or prove existed. At the
    time the defendant elected to default, the maintenance
    of a favorable credit score or a loan modification were
    never certainties, and she chose to default at her own
    peril. The defendant has failed to plead or present evi-
    dence of a promise or reasonable reliance on any
    promise.
    Carlson v. Bank of America, N.A., United States Dis-
    trict Court, Civ. No. 12-1440 (DSD/AJB), 
    2012 WL 5519733
    (D. Minn. November 14, 2012), is factually anal-
    ogous and provides further justification for why the
    defendant’s ‘‘induced to default’’ special defense is
    insufficient for lack of proof of detrimental reliance on
    her part. The court in Carlson stated: ‘‘The homeowners
    argue that Bank of America fail[ed] to properly commu-
    nicate with plaintiffs and encourag[ed] plaintiffs to
    default on their loan. . . . Absent from the verified
    complaint, however, is any allegation that Bank of
    America hindered performance by refusing payment.
    . . . In other words, the homeowners never alleged
    that the lender’s actions prevented them from per-
    forming their responsibilities under the mortgage
    agreement. . . . For this reason, the homeowners’
    claim fails. . . .
    ‘‘Here, the homeowners did not plead plausible fac-
    tual allegations indicating that they would have been
    able to pay the mortgage absent their reliance on the
    instructions to default. . . . The homeowners allege
    that they would have continued to make payments had
    they not been instructed to default on the loan; however,
    they also allege financial concerns beginning in fall 2009
    and do not allege an ability to pay.’’ (Citations omitted;
    internal quotation marks omitted.) 
    Id., *2. Carlson
    is instructive. In rejecting the defendant’s
    ‘‘instruction to default’’ defense therein, the court found
    that the defendant’s own admitted financial problems
    were the undisputed overriding impetus for the defen-
    dant’s decision to default on the note and mortgage.
    Similarly, the defendant in the present case has not
    presented evidence that she could have or would have
    remained current on the mortgage had she not been
    instructed to default to take advantage of the opportu-
    nity for a modification. The fact that she claims she
    was current on certain other financial obligations while
    she was in default does not equate to an ability to pay
    her mortgage. As the plaintiff points out, the defendant’s
    argument is ‘‘self-contradictory and illogical.’’ On the
    one hand, the defendant claims that she defaulted only
    because she was wrongfully induced to default by the
    plaintiff and would not have defaulted but for plaintiff’s
    supposedly inequitable conduct. On the other hand, she
    claims she should have been considered for a modifica-
    tion before defaulting, but the HAMP guidelines only
    permit predefault modification consideration if the bor-
    rower’s default is imminent. If, in 2009, the defendant
    was about to default in the near future, how can she
    argue that the plaintiff’s actions were the wrongful
    cause of her default? If she was able to continue to
    afford her mortgage payments and only was induced
    by the plaintiff to default, then her default was not
    imminent, and presumably she could have afforded the
    existing terms of her mortgage and would not have
    been eligible for HAMP. See Pennington v. HSBC Bank
    USA, N.A., 493 Fed. Appx. 548, 553 (5th Cir. 2012) (not-
    ing borrower could not have possibly qualified for
    HAMP if her claim that she would not have missed
    payment but for servicer’s ‘‘demand that she quit mak-
    ing her regular monthly payments’’ were true [internal
    quotation marks omitted]), cert. denied, 
    568 U.S. 1161
    ,
    
    133 S. Ct. 1272
    , 
    185 L. Ed. 2d 185
    (2013).
    D
    We next address the defendant’s claim that a genuine
    issue of material fact exists with respect to her breach
    of contract special defense. She argues that her submis-
    sions give rise to a genuine issue of material fact as to
    whether the plaintiff breached its contract with her by
    failing to offer her a permanent loan modification. She
    alleges in this special defense that the July 15, 2010
    TPP created an offer from the plaintiff that if all trial
    period payments were timely made, her mortgage
    would be permanently modified.17
    ‘‘[D]ue to the adversarial nature of our judicial sys-
    tem, [t]he court’s function is generally limited to adjudi-
    cating the issues raised by the parties on the proof they
    have presented . . . . Connecticut is a fact pleading
    jurisdiction. . . . Pleadings have an essential purpose
    in the judicial process. . . . The purpose of pleading
    is to apprise the court and opposing counsel of the
    issues to be tried . . . . For that reason, [i]t is impera-
    tive that the court and opposing counsel be able to rely
    on the statement of issues as set forth in the pleadings.
    . . . Fairness is a double-edged sword and both sides
    are entitled to its benefits throughout the trial.’’ (Cita-
    tions omitted; emphasis in original; internal quotation
    marks omitted.) Somers v. Chan, 
    110 Conn. App. 511
    ,
    528–29, 
    955 A.2d 667
    (2008); see also 71 C.J.S. 33, Plead-
    ing § 2 (2011) (‘‘purpose of pleadings is to frame, pre-
    sent, define, and narrow the issues and to form the
    foundation of, and to limit, the proof to be submitted’’).
    ‘‘The elements of a breach of contract action are the
    formation of an agreement, performance by one party,
    breach of the agreement by the other party and dam-
    ages.’’ (Internal quotation marks omitted.) Pelletier v.
    Galske, 
    105 Conn. App. 77
    , 81, 
    936 A.2d 689
    (2007),
    cert. denied, 
    285 Conn. 921
    , 
    943 A.2d 1100
    (2008). The
    promise of an offer of a loan modification must be
    pleaded as enforceable by the terms of the agreement.
    See Everbank v. Engelhard, Superior Court, judicial
    district of Waterbury, Docket No. CV-XX-XXXXXXX, 
    2016 WL 4507540
    , *4 (July 28, 2016).
    The defendant avers that the plaintiff breached the
    terms of the TPP letter. The plaintiff argues that it was
    the defendant’s failure to perform a condition prece-
    dent—maintaining her financial eligibility for HAMP—
    that resulted in the rejection of her application for a
    permanent loan modification. There is no dispute that
    maintaining eligibility for HAMP was a condition prece-
    dent in the TPP letter, and, because the defendant failed
    to allege her compliance with this condition precedent
    in her breach of contract special defense, her argument
    necessarily fails because she failed to allege full perfor-
    mance on her part.18 Thus, by her own allegations, her
    conduct never triggered the plaintiff’s duty to perform
    its obligations under the contract, rendering this
    defense as currently pleaded legally insufficient.
    E
    We next address whether the court erred in conclud-
    ing that there was no genuine issue of material fact
    as to the defendant’s special defense of breach of the
    covenant of good faith and fair dealing. We are not
    persuaded by the defendant’s arguments.
    The defendant claims that the plaintiff violated its
    duty of good faith and fair dealing by instructing her
    to default on her mortgage, on which she then was
    current, as a precondition to discussing a loan modifica-
    tion; and by failing to advise her of the risks that would
    result from her failure to make her monthly mortgage
    payments—the acceleration of the debt, the application
    of default interest, the assessment of penalties and late
    fees, and unfavorable reports to credit agencies. She
    further alleges that the instruction to default delivered
    to her by the plaintiff was made in bad faith and moti-
    vated by financial gain on behalf of the plaintiff, to wit,
    the promise of financial incentives from the Treasury
    Department, to modify the loan.19
    ‘‘[I]t is axiomatic that the . . . duty of good faith and
    fair dealing is a covenant implied into a contract or a
    contractual relationship. . . . In other words, every
    contract carries an implied duty requiring that neither
    party do anything that will injure the right of the other
    to receive the benefits of the agreement. . . . The cove-
    nant of good faith and fair dealing presupposes that the
    terms and purpose of the contract are agreed upon
    by the parties and that what is in dispute is a party’s
    discretionary application or interpretation of a contract
    term. . . . To constitute a breach of [the implied cove-
    nant of good faith and fair dealing], the acts by which
    a defendant allegedly impedes the plaintiff’s right to
    receive benefits that he or she reasonably expected to
    receive under the contract must have been taken in bad
    faith. . . .
    ‘‘Bad faith has been defined in our jurisprudence in
    various ways. Bad faith in general implies both actual
    or constructive fraud, or a design to mislead or deceive
    another, or a neglect or refusal to fulfill some duty or
    some contractual obligation, not prompted by an honest
    mistake as to one’s rights or duties, but by some inter-
    ested or sinister motive. . . . Bad faith means more
    than mere negligence; it involves a dishonest purpose.’’
    (Citation omitted; emphasis omitted; internal quotation
    marks omitted.) Landry v. Spitz, 
    102 Conn. App. 34
    ,
    42–43, 
    925 A.2d 334
    (2007). In general, bad faith ‘‘implies
    both actual or constructive fraud, or a design to mislead
    or deceive another, or a neglect or refusal to fulfill some
    duty or some contractual obligation, not prompted by
    an honest mistake as to one’s rights or duties, but by
    some interested or sinister motive.’’ (Internal quotation
    marks omitted.) TD Bank, N.A. v. J & M Holdings, 
    LLC, supra
    , 
    143 Conn. App. 348
    .
    The defendant argues that a genuine issue of material
    fact exists as to whether the plaintiff violated the cove-
    nant of good faith and fair dealing. Specifically, she
    argues that the plaintiff acted in bad faith when it
    instructed her to default on her mortgage as a precondi-
    tion to discussing loan modification.20
    Viewing this special defense in the light most favor-
    able to the defendant, we will presume that she is claim-
    ing that the plaintiff breached the implied covenant of
    good faith and fair dealing in the note and mortgage
    agreements because there must be an existing contract
    in order for there to be a breach of the implied covenant,
    and the defendant does not allege the existence of any
    other contract in this special defense. ‘‘[T]he existence
    of a contract between the parties is a necessary anteced-
    ent to any claim of breach of the duty of good faith
    and fair dealing. . . . [N]o claim of breach of the duty
    of good faith and fair dealing will lie for conduct that
    is outside of a contractual relationship.’’ (Citations
    omitted; emphasis omitted; internal quotation marks
    omitted.) Carford v. Empire Fire & Marine Ins. Co.,
    
    94 Conn. App. 41
    , 45–46, 
    891 A.2d 55
    (2006). Because
    a special defense admits the facts pleaded in the com-
    plaint, and the complaint alleges the existence of note
    and mortgage agreements, we fairly can make this pre-
    sumption.21
    We agree with the plaintiff that there is no evidence
    that it impeded the defendant’s rights under the note
    or mortgage or that it acted in bad faith. As detailed in
    part I C of this opinion, there is no evidence that the
    plaintiff misled the defendant into defaulting; rather,
    she elected to default. See part I C of this opinion. The
    note and mortgage, which the defendant signed, made
    clear the consequences of default. Commencing on
    November 30, 2009, the first month in which the defen-
    dant stopped making her mortgage payments, the plain-
    tiff sent the defendant numerous notices of default,
    including several notices that predated her application
    for a loan modification. These letters advised the defen-
    dant of the consequences of her default, as required
    by the terms of the note and mortgage. The note and
    mortgage, however, do not require the plaintiff to notify
    her that her credit rating may be affected were she to
    be in default. Once the defendant defaulted, the plaintiff
    discussed mortgage assistance and gave the defendant
    a TPP, as promised. Although the defendant makes the
    sweeping generalization that many mortgage servicers
    are motivated to induce defaults for greater fees, there
    is no evidence that any employee of Chase, acting on
    behalf of the plaintiff, was so motivated in this case.
    Moreover, neither the note nor the mortgage contem-
    plate addressing a situation where the defendant might
    need relief from the payment provisions, nor does either
    of these documents promise to offer the defendant a
    loan modification. Accordingly, a failure to provide the
    defendant with an offer for a loan modification under
    the program cannot be a violation of the covenant of
    good faith and fair dealing under the note or mort-
    gage agreements.
    F
    The defendant also claims that the court erred in
    determining that there was no genuine issue of material
    fact regarding her promissory estoppel special
    defense.22 She contends that submissions presented to
    the court show that the plaintiff promised to offer to
    permanently modify her loan if she made three trial
    period payments and met the eligibility requirements
    of the TPP, but that the plaintiff did not fulfill its promise
    to modify her mortgage after she made the payments
    and met the requirements. We are not persuaded
    because the allegations in this special defense, which
    state that the defendant was promised a permanent
    modification of her mortgage so long as she made three
    consecutive trial payments in a specified amount, are
    contradicted by the undisputed evidence. In reviewing
    the language of this particular special defense, it is not
    asserted that the defendant met all the terms of the
    purported offer she submitted as evidence.
    ‘‘[U]nder the doctrine of promissory estoppel [a]
    promise which the promisor should reasonably expect
    to induce action or forbearance on the part of the prom-
    isee or a third person and which does induce such action
    or forbearance is binding if injustice can be avoided
    only by enforcement of the promise. . . . A fundamen-
    tal element of promissory estoppel, therefore, is the
    existence of a clear and definite promise which a promi-
    sor could reasonably have expected to induce reliance.
    Thus, a promisor is not liable to a promisee who has
    relied on a promise if, judged by an objective standard,
    he had no reason to expect any reliance at all. . . .
    ‘‘Additionally, the promise must reflect a present
    intent to commit as distinguished from a mere state-
    ment of intent to contract in the future. . . . [A] mere
    expression of intention, hope, desire, or opinion, which
    shows no real commitment, cannot be expected to
    induce reliance . . . and, therefore, is not sufficiently
    promissory. The requirements of clarity and definite-
    ness are the determinative factors in deciding whether
    the statements are indeed expressions of commitment
    as opposed to expressions of intention, hope, desire or
    opinion. . . . Finally, whether a representation rises
    to the level of a promise is generally a question of fact,
    to be determined in light of the circumstances under
    which the representation was made.’’ (Citations omit-
    ted; internal quotation marks omitted.) Stewart v. Cen-
    dant Mobility Services Corp., 
    267 Conn. 96
    , 104–106,
    
    837 A.2d 736
    (2003). ‘‘[A] promisor is not liable to a
    promisee who has relied on a promise if, judged by an
    objective standard, he had no reason to expect any
    reliance at all.’’ D’Ulisse-Cupo v. Board of Directors of
    Notre Dame High School, 
    202 Conn. 206
    , 213, 
    520 A.2d 217
    (1987).
    Again, the defendant’s claim is limited to the allega-
    tions she made in her promissory estoppel defense. See
    Somers v. 
    Chan, supra
    , 
    110 Conn. App. 528
    –29. It is
    undisputed that the defendant made all of the trial
    period payments on time. According to the July 15,
    2010 letter, however, the defendant also was required
    to continue to meet the eligibility requirements of the
    program. Both parties submitted a letter dated July 15,
    2010, addressed to the defendant from the plaintiff,
    in which the plaintiff states that the defendant was
    approved to enter into a trial period plan, and explained
    that ‘‘[a]fter all trial period payments are timely made
    and you continue to meet all program eligibility
    requirements, your mortgage would then be perma-
    nently modified.’’ (Emphasis added.) The plaintiff fur-
    ther explained in the letter that ‘‘[o]nce we confirm you
    are still eligible for a Home Affordable Modification
    and you make all of your trial period payments on time,
    we will send you a modification agreement detailing
    the terms of the modified loan.’’
    The undisputed evidence reveals that the defendant
    was required to continue to meet the requirements of
    the program in order to qualify for a permanent modifi-
    cation. The plaintiff contends that she did not satisfy
    the requirement that her housing ratio be greater than
    31 percent.23 In her claim of promissory estoppel, the
    defendant does not allege that she fulfilled that condi-
    tion and, thus, did not satisfy all the conditions prece-
    dent in the TPP to receive an offer of a permanent loan
    modification. Accordingly, the plaintiff did not break
    any promise to the defendant by declining to modify
    her loan under the program. As such, the party against
    whom estoppel is claimed, the plaintiff, indisputably
    never promised to form a binding modification
    agreement once the defendant made her three consecu-
    tive trial period payments because those payments were
    not the only contingency.
    The court properly concluded that the defendant’s
    promissory estoppel special defense as currently
    pleaded did not raise a genuine issue of material fact
    that would preclude the rendering of summary judg-
    ment on the plaintiff’s complaint.
    II
    Finally, the defendant claims that the court improp-
    erly rendered summary judgment in the plaintiff’s favor
    on her counterclaim sounding in breach of contract.
    Specifically, she argues that the court improperly con-
    cluded that the counterclaim (1) failed to allege the
    formation of a contract, (2) failed to meet the transac-
    tion test set forth in Practice Book § 10-10, and (3)
    was barred by the statute of frauds. We agree with
    the defendant.
    In her counterclaim, the defendant alleged that the
    plaintiff breached its contract with her when it failed
    to offer her a permanent loan modification within a
    reasonable period of time after she made the trial period
    payments and continued to meet all HAMP program
    eligibility requirements.24 The court concluded: ‘‘[T]he
    undisputed facts show that the plaintiff and [the] defen-
    dant did not enter into a new contract or agreement,’’
    ruling that ‘‘[t]he defendant was obligated to make pay-
    ments on her mortgage as demonstrated by the note,
    and therefore, the undisputed facts show that the defen-
    dant would be obligated to pay the monthly trial plan
    amount at a minimum. . . . Therefore, the offer of a
    trial modification, even with a promise of a future alter-
    ation to the original mortgage, did not form a new con-
    tract.’’ (Citation omitted.) The court further concluded
    that the purported contract would be unenforceable
    due to its noncompliance with the statute of frauds,
    and that the counterclaim, which alleged the failure to
    execute a loan modification agreement, did not meet
    the transaction test set forth in Practice Book § 10-10
    because it did not satisfy the same transaction standard.
    A
    Initially, we discuss whether the court erred in
    determining that the defendant’s counterclaim failed to
    satisfy the transaction test set forth in Practice Book
    § 10-10. In its reply to the defendant’s objection to the
    motion for summary judgment, the plaintiff raised the
    procedural issue that the counterclaim was improper
    because it did not arise out of the ‘‘transaction or one
    of the transactions which is the subject of the plaintiff’s
    complaint . . . .’’ Practice Book § 10-10.25 The defen-
    dant claims that the court erred in its application of
    the transaction test. This is a question of law subject to
    plenary review. U.S. Bank National Assn. v. Sor
    rentino, supra
    , 
    158 Conn. App. 94
    .
    ‘‘Although, ordinarily, a challenge to the legal suffi-
    ciency of a pleading should be raised by way of a motion
    to strike; see Practice Book § 10-39 (a); our Supreme
    Court has held that a motion for summary judgment also
    may be used to challenge a pleading’s legal sufficiency
    provided that the party seeking summary judgment can
    establish as a matter of law both that the cause of action
    alleged is legally insufficient and, more importantly,
    that any defect in the pleading could not be cured by
    repleading, which the nonmoving party would have had
    an opportunity to do if the alleged insufficiency had
    been raised by way of a motion to strike. See Larobina
    v. McDonald, 
    274 Conn. 394
    , 401, 
    876 A.2d 522
    (2005)
    . . . . If both prongs are met, the court may properly
    grant summary judgment as a matter of law. The court
    in Larobina further explained that we will not reverse
    the trial court’s ruling on a motion for summary judg-
    ment that was used to challenge the legal sufficiency
    of [a pleading] when it is clear that the motion was
    being used for that purpose and the nonmoving party,
    by failing to object to the procedure before the trial
    court, cannot demonstrate prejudice. . . .
    ‘‘A counterclaim that has been filed in contravention
    of our rules of practice is legally insufficient. Section
    10-10 of the Practice Book provides in relevant part
    that [i]n any action for legal or equitable relief, any
    defendant may file counterclaims against any plaintiff
    . . . provided that each such counterclaim . . . arises
    out of the transaction or one of the transactions which
    is the subject of the plaintiff’s complaint . . . .’’ (Cita-
    tions omitted; footnote omitted; internal quotation
    marks omitted.) U.S. Bank National Assn. v. Sorren-
    
    tino, supra
    , 
    158 Conn. App. 94
    –95.
    ‘‘[A] proper application of Practice Book § 10-10 in
    a foreclosure context requires consideration of whether
    a counterclaim has some reasonable nexus to, rather
    than directly attacks, the making, validity or enforce-
    ment of the mortgage or note.’’ (Internal quotation
    marks omitted.) U.S. Bank National Assn. v. 
    Blowers, supra
    , 
    177 Conn. App. 631
    –32.26 Essentially, a counter-
    claim must have a sufficient relationship to the making,
    validity or enforcement of the subject note or mortgage
    in order to meet the transaction test as set forth in
    Practice Book § 10-10 and the policy consideration it
    reflects, judicial economy. With respect to that policy
    consideration, which is one of practicality, the interest
    of efficiency and judicial economy are served by
    allowing the complaint and counterclaim to be adjudi-
    cated in the same action when the competing claims
    are closely related. See, e.g., Jackson v. Conland, 
    171 Conn. 161
    , 166, 
    368 A.2d 3
    (1976).
    The court, relying on Sorrentino, found that the
    defendant’s counterclaim failed to satisfy the transac-
    tion test because it did not bear some reasonable nexus
    to the making, validity or enforcement of the note. We
    conclude, however, that the subject counterclaim in the
    present case sufficiently meets the transaction test of
    Practice Book § 10-10 because it is intertwined suffi-
    ciently with the subject of the foreclosure complaint.
    The defendant’s counterclaim alleges the formation and
    breach of a contractual agreement, prior to the com-
    mencement of this action, intended to lead to an offer
    from the plaintiff for a permanent modification of the
    defendant’s note and mortgage, which, if accepted,
    would avoid a foreclosure. In her prayer for relief, the
    defendant is seeking specific performance of that
    agreement, or other equitable relief, which is directly
    and inseparably connected to the relief sought in the
    plaintiff’s complaint because, were the defendant to
    prevail, the result may be a modification of her obliga-
    tions under the note and mortgage sought to be
    enforced in the foreclosure action. ‘‘[B]ecause a mort-
    gage foreclosure action is an equitable proceeding, the
    trial court may consider all relevant circumstances to
    ensure that complete justice is done.’’ (Internal quota-
    tion marks omitted.) TD Bank, N.A. v. M.J. Holdings,
    
    LLC, supra
    , 
    143 Conn. App. 326
    . The connection
    between the note, the mortgage and the TPP involves
    the same lender, the same borrower and the same prop-
    erty. Moreover, this interrelationship involves the same
    constellation of facts underlying the defendant’s surviv-
    ing special defense, and all of these same facts will be
    part of this case with or without the counterclaim.27
    Accordingly, the court erred in concluding that the
    defendant’s counterclaim did not satisfy the transac-
    tion test.
    B
    Having concluded that the defendant’s counterclaim
    satisfied the transaction test, we turn to whether the
    counterclaim was legally sufficient. We address
    whether there is a genuine issue of material fact as to
    whether the parties formed a contract. An essential
    issue for this analysis on which the parties differ is
    whether, under the HAMP guidelines, the plaintiff was
    permitted to continue to require additional documenta-
    tion to verify the defendant’s eligibility for a loan modifi-
    cation months after the conclusion of the TPP, or
    whether the defendant, who made all her trial period
    payments and remained eligible during the TPP, should
    have been tendered a permanent modification offer
    after she successfully completed the trial period. The
    defendant makes it clear that she is not claiming that
    the TPP was itself a contract for a permanent loan
    modification. Rather, a contract governed the terms of
    the TPP that, if fully performed, required the plaintiff
    to tender her offer to permanently modify her loan.
    The defendant claims that on July 15, 2010, the plain-
    tiff made a definite offer to enter into a contractual
    relationship that, when accepted by the defendant, cre-
    ated a contract binding on both parties.28 See Auto Glass
    Express, Inc. v. Hanover Ins. Co., 
    293 Conn. 218
    , 227,
    
    975 A.2d 1266
    (2009); see also 1 Restatement (Second),
    Contracts § 24 (1981) (offer defined as ‘‘manifestation
    of willingness to enter into a bargain, so made as to
    justify another person in understanding that his assent
    to that bargain is invited and will conclude it’’). The
    defendant argues that her acceptance of the contract
    was evidenced through her performance of the two
    conditions precedent in the offer: timely payment of all
    amounts due during the trial period, a fact which is not
    disputed, and her continued eligibility, a primary source
    of contention in this case. She maintains that these
    conditions precedent were solely in her control and did
    not hinge on the ‘‘whims of the plaintiff.’’ She notes
    that the plaintiff concedes that the terms of the TPP
    were supplemented by the HAMP guidelines issued by
    the Treasury Department and that the HAMP guidelines
    in effect at the time she received the offer from the
    plaintiff, effective June 1, 2010, namely, HAMP Supple-
    mental Directive 10-01, dated January 28, 2010, required
    ‘‘full verification of borrower eligibility prior to offering
    a trial period plan.’’ She claims that the record supports
    her assertion that she submitted extensive income doc-
    umentation to the plaintiff at its request prior to receiv-
    ing the TPP offer, and that the plaintiff’s underwriting
    department reviewed her income documentation, veri-
    fied she was eligible for HAMP and then determined
    her modified loan terms on July 8, 2010, prior to offering
    her the July 15, 2010 TPP. She further claims that she
    submitted more information to the plaintiff at its request
    during the trial period to verify her continuing eligibility.
    She maintains that her compliance with these two con-
    ditions precedent constituted acceptance of the plain-
    tiff’s definite offer, and consideration to induce and
    bargain for the plaintiff’s promise to tender her an offer
    of a permanent HAMP loan modification, as the acts
    she promised to perform under the TPP encompassed
    acts that were not preexisting legal duties. See Turbe-
    ville v. JPMorgan Chase Bank, United States District
    Court, Docket No. SA CV 10-01464 DOC (JCG), 
    2011 WL 7163111
    , *4 (C.D. Cal. April 4, 2011) (plaintiff’s sub-
    mission of TPP financial documents not previously
    required constituted consideration).
    The defendant notes, with regard to further consider-
    ation, that any permanent loan modification would have
    required her to pay interest on a higher principal bal-
    ance and that the modified loan would have matured
    with a two month balloon payment that did not pre-
    viously exist. While she participated in the TPP, her
    original obligations on the note and mortgage remained
    unchanged and in effect, and continued to accrue. By
    delaying in making her full monthly payments, the
    defendant committed herself to paying a greater amount
    in the long run because during the months she made
    reduced payments, interest accrued on a larger sum of
    principal than it otherwise would have. Thus, it is unfair
    to categorize the defendant’s promise to pay reduced
    monthly payments solely as a preexisting duty, as she
    actually suffered some detriment by agreeing to pay
    less than the full amount she owed. See Henderson v.
    Wells Fargo Bank, NA, United States District Court,
    Civ. No. 3:13-cv-378 (JBA), 
    2016 WL 324939
    , *6 (D. Conn.
    January 27, 2016) (although plaintiff did have preex-
    isting duty to pay reduced monthly payments, she actu-
    ally suffered some detriment by agreeing to pay less
    than full amount owed, committing herself to pay
    greater amount in long run).
    The plaintiff concedes that the defendant made all
    of her trial period payments on time, but argues that she
    failed to comply with the second condition precedent
    in its offer, which is that she continue to meet all HAMP
    program eligibility requirements, because eventually
    the plaintiff confirmed, on the basis of updated docu-
    ments that the defendant sent at its request in May,
    2011, six months after the TPP ended, that she no longer
    qualified. The plaintiff asks this court to reject the
    defendant’s argument that the HAMP guidelines forbid
    a loan servicer from requesting additional documents
    to confirm a borrower’s continuing eligibility under the
    program, as HAMP Supplemental Directive 10-01 specif-
    ically states that ‘‘[b]orrowers who make all trial period
    payments timely and who satisfy all other trial period
    requirements will be offered a permanent HAMP modifi-
    cation.’’ Moreover, HAMP guidelines state that when
    ‘‘evaluating a borrower’s eligibility for HAMP, servicers
    should use good business judgment consistent with the
    judgment employed when modifying mortgage loans
    held in their own portfolio.’’
    Our review of the HAMP guidelines leads us to con-
    clude that there is a genuine issue of material fact as
    to whether the plaintiff was permitted to continue to
    review the defendant’s financial eligibility for the HAMP
    program after the end of her trial period. The plaintiff’s
    own contention, which is that HAMP Supplemental
    Directive 10-01 specifically states that ‘‘[b]orrowers
    who make all trial period payments timely and who
    satisfy all other trial period requirements will be
    offered a permanent HAMP modification’’; (emphasis
    added); may be interpreted as indicating that all other
    requirements have to be met only during the trial period,
    suggesting an intention not to leave the borrower with-
    out notice of a final determination for months after-
    ward, as took place in this case. Although the HAMP
    handbook may contemplate a prolonged TPP, lasting
    more than three months, there is no definite indication
    in the record before us that the plaintiff and the defen-
    dant ever agreed to a prolonged TPP.
    The plaintiff also claims that the trial court correctly
    held that the defendant provided no consideration to
    the plaintiff because she paid less than she already was
    obligated to pay under the terms of the existing note
    and mortgage. ‘‘Consideration consists of a benefit to
    the party promising, or a loss or detriment to the party
    to whom the promise is made. . . . Although an
    exchange of promises usually will satisfy the consider-
    ation requirement . . . a promise to do that which one
    is already bound by his contract to do is not sufficient
    consideration to support an additional promise by the
    other party to the contract.’’ (Citations omitted; internal
    quotation marks omitted.) Christian v. Gouldin, 
    72 Conn. App. 14
    , 23, 
    804 A.2d 865
    (2001). ‘‘A modification
    of an agreement must be supported by valid consider-
    ation and requires a party to do, or promise to do,
    something further than, or different from, that which
    he is already bound to do.’’ (Internal quotation marks
    omitted.) Thomas v. Oxford Performance Materials,
    Inc., 
    153 Conn. App. 50
    , 56, 
    100 A.3d 917
    (2014).
    In this case, the TPP imposed new obligations on the
    defendant. The July 15, 2010 letter from the plaintiff
    that offered the defendant a TPP informed her that in
    addition to making monthly trial period payments in
    place of her normal monthly mortgage payments, she
    had to continue to meet all program eligibility require-
    ments. Attached to this letter was a list of frequently
    asked questions, which informed the defendant that her
    credit score may be affected, she may be required to
    attend credit counseling, that she would be required to
    have an escrow account for payment of property taxes,
    insurance premiums and other required charges, and
    that she was required to provide income and expenses
    documentation. By not making her full monthly mort-
    gage payments, the plaintiff committed herself to paying
    a greater amount in the long run, as during the months
    she made reduced payments, interest accrued on a
    larger sum of principal than it otherwise would have.
    In addition, the defendant’s account was assessed a
    charge of $2838.92 when her loan modification was
    ‘‘approved.’’ It is unquestionable that the defendant suf-
    fered some detriment additional to any preexisting
    duties she owed to the plaintiff.
    The documents submitted by the defendant and her
    arguments lead us to conclude that there is a genuine
    issue of material fact as to whether a contract was
    formed when she accepted the TPP and complied with
    its conditions, including remaining financially eligible
    for the HAMP program throughout the trial time period.
    There also is a genuine issue of fact as to whether the
    plaintiff failed to meet its obligations under the TPP,
    particularly as to the timing of when it made its relevant
    determinations. Thus, on the existing record, there is
    a genuine issue as to whether a contract was formed
    and whether there was a breach by the plaintiff. We
    therefore conclude that the trial court should not have
    rendered summary judgment on the counterclaim due
    to the nonexistence of a contract.
    C
    We next address whether the contract that the defen-
    dant claims was created would be unenforceable under
    our statute of frauds, § 52-550 (a).29 The court, after
    noting that the defendant in her affidavit is alleging
    an oral agreement, relied on relevant language from
    Deutsche Bank Trust Co. Americas v. DeGennaro, 
    149 Conn. App. 784
    , 788, 
    89 A.3d 969
    (2014), which held
    that an oral agreement would be ineffective because
    ‘‘[a] modification of a written agreement [for a loan
    exceeding $50,000] must be in writing to satisfy the
    statute of frauds.’’ (Internal quotation marks omitted.)
    As the defendant argues, the TPP was not a modifica-
    tion of the note and mortgage, but rather, it was a
    promise by the plaintiff to tender an offer of a perma-
    nent loan modification if the defendant successfully
    completed the requirements during the three month
    trial period. Because the TPP was not an agreement
    for the sale of real property or any interest in or concern-
    ing real property, and, arguably was supposed to be
    performed within one year, and because it was not an
    agreement for a loan in an amount that exceeded
    $50,000, it was not a purported contract that falls within
    the statute of frauds. The TPP is unlike the oral modifi-
    cation agreement that the court in DeGennaro found
    was barred by the statute of frauds, as it is not a modifi-
    cation agreement.
    Even if the statute of frauds were applicable to the
    agreement at issue here, the TPP was in writing, on the
    letterhead of the plaintiff’s mortgage servicer, Chase,
    included a salutation, stating, ‘‘Sincerely, Chase Home
    Finance, LLC,’’ contained the electronic signature of
    a Chase representative, and satisfied the evidentiary
    function of the statute of frauds by providing proof of
    the contract itself. The defendant further claims that
    she performed her part of the contract after being
    induced to do so by the plaintiff. She relies on Red Buff
    Rita, Inc. v. Moutinho, 
    151 Conn. App. 549
    , 
    96 A.3d 581
    (2014), wherein this court held that ‘‘[t]he doctrine of
    part performance . . . is an exception to the statute
    of frauds. . . . This doctrine originated to prevent the
    statute of frauds from becoming an engine of fraud.’’
    (Citation omitted; internal quotation marks omitted.)
    
    Id., 554–55. In
    explaining this exception, this court cited
    Glazer v. Dress Barn, Inc., 
    274 Conn. 33
    , 
    873 A.2d 929
    (2005), when stating in Red Buff Rita, Inc. v. 
    Moutinho, supra
    , 549, that ‘‘our Supreme Court clarified and
    explained the circumstances in which a contract may
    be enforced despite its noncompliance with the statute
    of frauds. It also concluded that part performance and
    equitable estoppel are not separate and independent
    exceptions to the statute of frauds, but rather, that part
    performance is an essential element of the estoppel
    exception to the statute of frauds. . . . [T]he elements
    required for part performance are: (1) statements, acts
    or omissions that lead a party to act to his detriment
    in reliance on the contract; (2) knowledge or assent to
    the party’s actions in reliance on the contract; and (3)
    acts that unmistakably point to the contract. . . .
    Under this test, two separate but related criteria are
    met that warrant precluding a party from asserting the
    statute of frauds. . . . First, part performance satisfied
    the evidentiary function of the statute of frauds by pro-
    viding proof of the contract itself. . . . Second, the
    inducement of reliance on the oral agreement impli-
    cates the equitable principle underlying estoppel
    because repudiation of the contract by the other party
    would amount to the perpetration of a fraud.’’ (Citations
    omitted; internal quotation marks omitted.) 
    Id., 555. There
    remain genuine issues of material fact as to
    (1) whether the statute of frauds would be applicable
    to the nature of the contract the defendant has alleged,
    and (2) whether, even if the statute applies, the defen-
    dant could prove that the facts in this case entitle her
    to the application of an exception to it.30 We therefore
    conclude that the court erred in rendering summary
    judgment in favor of the plaintiff on the defendant’s
    counterclaim on the ground that it was legally unen-
    forceable under § 52-550.
    The judgment is reversed and the case is remanded
    for further proceedings according to law.
    In this opinion BRIGHT, J., concurred.
    1
    The complaint also named as defendants American Fuel Corporation
    and the town of Cheshire. Neither of these defendants filed an appearance
    in the trial court or is a party to this appeal. We will refer to Eichten only
    as the defendant.
    2
    For simplicity, the actions of the plaintiff’s loan servicer, Chase, will be
    referred to as the plaintiff’s actions. The plaintiff indicated in its brief, and
    we agree, that ‘‘there is no principled reason to draw a distinction between
    the alleged actions of Chase and/or [the] plaintiff.’’
    3
    As a condition precedent to qualifying for a HAMP loan modification,
    borrowers are required to make reduced payments on the note and mortgage
    during a trial period plan.
    4
    In her special defenses, the defendant also alleged payment and claimed
    attorney’s fees. In its memorandum of decision, the court addressed the
    issue of attorney’s fees but did not address the issue of payment. The
    defendant does not raise an issue on appeal regarding the sufficiency of
    her special defense of payment or her claim for attorney’s fees. We therefore
    consider these claims abandoned. See, e.g., Grimm v. Grimm, 
    276 Conn. 377
    , 393–94, 
    886 A.2d 391
    (2005), cert. denied, 
    547 U.S. 1148
    , 
    126 S. Ct. 2296
    ,
    
    164 L. Ed. 2d 815
    (2006).
    5
    The record does not reflect how Select Portfolio Servicing, Inc., suc-
    ceeded Chase as servicer of the loan in question for the plaintiff, but Chase
    was the servicer at the time the events alleged in the special defenses and
    counterclaim took place.
    6
    The plaintiff, in its complaint, alleges that it was the party entitled to
    collect the debt evidenced by the note and to enforce the mortgage. Although
    the defendant denied these allegations in her answer, she did not object to
    the rendering of summary judgment as to liability or make any claim on
    appeal that was based on an alleged lack of standing by the plaintiff to bring
    this foreclosure action.
    7
    This letter, which the defendant purports to be the contract between
    the parties, does not contain any place for a signature by either the plaintiff
    or the defendant, and it does not contain a time is of the essence clause or
    any particular date by which a determination on her application for a loan
    modification would be made.
    8
    The defendant alleges that the other person residing in the home was
    her fiance´, not her spouse, but does not challenge the propriety of the
    inclusion of her fiance´’s income in calculating monthly gross income for
    purposes of determining eligibility for the HAMP program.
    9
    The housing ratio or monthly mortgage payment ratio, is defined in the
    HAMP program handbook for servicers submitted by the defendant, as ‘‘the
    ratio of the borrower’s current monthly mortgage payment to the monthly
    gross income of all borrowers on the mortgage note, whether or not those
    borrowers reside in the property.’’ To qualify for HAMP, verified income
    documentation must confirm that the borrower’s monthly mortgage payment
    ratio prior to modification is greater than 31 percent.
    10
    Internal records of the plaintiff, submitted by the defendant with her
    objection, reveal that she made six payments of $3373.86 between August,
    2010, and January, 2011
    11
    The HAMP guidelines provide that ‘‘[s]ervicers should include non-bor-
    rower household income in monthly gross income if it is voluntarily provided
    to the borrower and if, in the servicer’s business judgment, that income
    reasonably can continue to be relied upon to support the mortgage payment.’’
    12
    As of July, 2011, the $12,578.85 monthly income of the defendant’s
    fiance´, when combined with her monthly income, was too high a sum for
    the defendant to qualify for HAMP assistance.
    13
    Practice Book § 10-10 provides in relevant part: ‘‘In any action for legal
    or equitable relief, any defendant may file counterclaims against any plaintiff
    . . . provided that each such counterclaim . . . arises out of the transac-
    tion or one of the transactions which is the subject of the plaintiff’s com-
    plaint . . . .’’
    14
    The plaintiff argues on appeal that the court properly granted the motion
    for summary judgment because the defendant’s special defenses do not
    relate to the making, validity or enforcement of the note and mortgage.
    Without objection from the defendant, the plaintiff raised this issue at the
    hearing on the motion for summary judgment and in its reply memorandum
    of law in support of the motion for summary judgment.
    15
    The dissenting opinion in Blowers did not agree that a special defense
    that is based on loan modification negotiations can be viable only if the
    parties actually reach a modification agreement because it ‘‘would unneces-
    sarily shield mortgagees or their agents from judicial scrutiny of potentially
    unscrupulous behavior that may have directly resulted in the foreclosure
    action. Courts have not always strictly applied the making, validity, or
    enforcement requirement in evaluating the sufficiency of equitable special
    defenses such as those raised here, particularly if a strict application would
    offend traditional notions of equity.’’ U.S. Bank National Assn. v. 
    Blowers, supra
    , 
    177 Conn. App. 648
    (Prescott, J., dissenting).
    16
    A fair reading of the HAMP guidelines, Supplemental Directive 09-01,
    dated April 6, 2009, reveals that, in order to qualify for relief, a borrower
    must be in default, or, in very limited circumstances, must claim a hardship
    and be determined to be at imminent risk of default, or ‘‘reasonably foresee-
    able’’ default. Courts have recognized, however, that servicers are permitted
    to give priority to borrowers on the basis of their payment or default status.
    Lindsay v. Bank of America, N.A., United States District Court, Civ. No.
    12-00277 LEK-BMK, 
    2012 WL 5198160
    , *12 (D. Haw. October 19, 2012).
    17
    In her special defense of breach of contract, the defendant does not
    allege, as she does in her counterclaim, that she was promised a permanent
    loan modification if she made all trial payments on a timely basis and
    continued to meet all program eligibility requirements.
    18
    The fact that the defendant avers in her affidavit that she continued to
    comply with all guidelines during the trial period does not cure the pleading
    deficiency in her special defense, as the allegations necessarily frame the
    party’s claim.
    19
    Actually, such financial incentives would have been paid to the servicer,
    not directly to the plaintiff, and only would have been paid if and when the
    loan was modified.
    20
    The defendant also argues that the court erred in determining, on the
    basis of the language in the note and mortgage, that there was no genuine
    issue of material fact as to whether the defendant was aware of the conse-
    quences of default. She contends that a reasonable fact finder could deter-
    mine that the defendant was unaware that the plaintiff would treat her loan
    as delinquent, given that the plaintiff instructed her to default, the program
    did not exist at the time of the execution of the note and mortgage, the
    defendant may not have understood the intricacies of her mortgage contract
    and was relying on the plaintiff’s superior knowledge, and the note and
    mortgage do not discuss adverse credit reporting. For the reasons set for
    previously, we are unpersuaded.
    21
    To the extent that the defendant is attempting to claim in her second
    special defense that the plaintiff violated the covenant of good faith and
    fair dealing pursuant to a purported agreement to provide her with an offer
    for a permanent loan modification, she cannot prevail because she fails to
    allege the formation of such a contract in this special defense.
    22
    We note that promissory estoppel is usually pleaded as a cause of action
    as an alternative to a breach of contract claim. ‘‘Promissory estoppel is
    asserted when there is an absence of consideration to support a contract.
    . . . [T]he doctrine of promissory estoppel serves as an alternative basis
    to enforce a contract in the absence of competing common-law considera-
    tions . . . .’’ (Citation omitted; internal quotation marks omitted.) Glazer
    v. Dress Barn, Inc., 
    274 Conn. 33
    , 88–89, 
    873 A.2d 929
    (2005).’’ Although
    the promise must be clear and definite, it need not be the equivalent of an
    offer to enter into a contract because [t]he prerequisite for . . . application
    [of the doctrine of promissory estoppel] is a promise and not a bargain and
    not an offer.’’ (Emphasis in original; internal quotation marks omitted.)
    Stewart v. Cendant Mobility Services Corp., 
    267 Conn. 96
    , 105, 
    837 A.2d 736
    (2003).
    23
    The defendant does not dispute that by May, 2011, when she provided
    the plaintiff with additional requested documentation she no longer qualified
    under the program.
    24
    We note that the counterclaim, unlike the defendant’s breach of contract
    and promissory estoppel special defenses, sufficiently alleges that she fully
    performed her part of the bargain pursuant to the alleged contract.
    25
    See footnote 21 of this opinion regarding the defendant’s claim that the
    court improperly addressed this issue because it was first raised by the
    plaintiff in its memorandum of law in reply to the defendant’s objection to
    the motion for summary judgment.
    26
    In Blowers, this court determined that counterclaims arising from factual
    allegations pertaining to the mortgagee’s ‘‘conduct during postdefault media-
    tion and loan modification negotiations’’ did not relate to the making, validity
    or enforcement of the note, and, thus, failed the transaction test. U.S. Bank
    National Assn. v. 
    Blowers, supra
    , 
    177 Conn. App. 632
    . The present case is
    factually distinguishable because the defendant claims that the plaintiff was
    required to offer her a modification under the terms of their TPP agreement.
    Cf. 
    id., 630. 27
          We also note that we have concluded in part I of this opinion that the
    defendant’s special defense of unclean hands meets the making, validity or
    enforcement test.
    28
    ‘‘Whether the TPP is an enforceable contract for a loan modification
    has been the subject of extensive litigation [in federal circuit courts] . . .
    with courts reaching mixed results. The [United States Court of Appeals
    for the] Second Circuit has not weighed in on the issue, but the First, Ninth,
    and Seventh Circuits have held that the TPP is an enforceable contract. See
    Corvello [v. Wells Fargo Bank, N.A., 
    728 F.3d 878
    , 885 (9th Cir. 2013)]; Young
    v. Wells Fargo Bank, N.A., 
    717 F.3d 224
    , 235 (1st Cir. 2013); Wigod [v. Wells
    Fargo Bank, N.A., 
    673 F.3d 547
    , 566 (7th Cir. 2012)]. Those courts reasoned
    that the most natural and fair interpretation of the TPP is that the servicer
    must send a signed Modification Agreement offering to modify the loan
    once borrowers meet their end of the bargain. . . . [T]here could be no
    actual mortgage modification until all the requirements were met, but the
    servicer could not unilaterally and without justification refuse to send the
    offer.’’ (Internal quotation marks omitted.) Henderson v. Wells Fargo Bank,
    NA, United States District Court, Civ. No. 3:13-cv-378 (JBA), 
    2016 WL 324939
    ,
    *4 n.5 (D. Conn. January 27, 2016); see also Markey v. Ditech Financial
    LLC, United States District Court, Docket No. 3:15-cv-1711 (MPS), 
    2016 WL 5339572
    , *3 (D. Conn. September 22, 2016).
    29
    General Statutes § 52-550 provides in relevant part: ‘‘(a) No civil action
    may be maintained in the following cases unless the agreement, or a memo-
    randum of the agreement, is made in writing and signed by the party, or
    the agent of the party, to be charged . . . (6) upon any agreement for a
    loan in an amount which exceeds fifty thousand dollars . . . .’’
    30
    See Everbank v. Engelhard, Superior Court, judicial district of Water-
    bury, Docket No. CV-XX-XXXXXXX, 
    2016 WL 4507450
    , *2 (July 28, 2016) (late
    payments accepted by lender under TPP constituted part performance, pre-
    venting application of statute of frauds); Corvello v. Wells Fargo Bank, N.A.,
    
    728 F.3d 878
    , 885 (9th Cir. 2013) (finding part performance exception to
    statute of frauds under California law applicable to HAMP TPP because
    borrowers fully performed under TPP).