Summary
concluding that trial court did not err in denying foreclosure claim when mortgage, as executed, was nullity because it purported to secure nonexistent debt and reformation of mortgage, as trial court properly determined, was not warranted
Summary of this case from Bank of N.Y. Mellon v. MadisonOpinion
AC 40479
09-17-2019
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION et al. v. Robert J. VIRGULAK et al.
Brian D. Rich, Hartford, with whom, on the brief, were Laura Pascale Zaino, Hartford, and Peter R. Meggers, for the appellant (substitute plaintiff). Alexander H. Schwartz, Southport, for the appellee (defendant Theresa Virgulak).
Brian D. Rich, Hartford, with whom, on the brief, were Laura Pascale Zaino, Hartford, and Peter R. Meggers, for the appellant (substitute plaintiff).
Alexander H. Schwartz, Southport, for the appellee (defendant Theresa Virgulak).
The listing of judges reflects their seniority status on this court as of the date of oral argument.
KELLER, J.
In this foreclosure action, the plaintiff, Manufacturers and Traders Trust Company, also known as M & T Bank (M & T Bank), appeals from the judgment of the trial court in favor of the defendant Theresa Virgulak. The plaintiff claims that the trial court improperly (1) failed to exercise its discretion in considering the plaintiff's foreclosure claim as a stand-alone claim independent from its other causes of action and failed to grant the plaintiff the equitable remedy of foreclosure, (2) declined to reform the mortgage deed, (3) denied its motion to amend its responses to the defendant's requests for admission, (4) concluded that its admissions limited its recovery under its unjust enrichment count, and (5) denied its motion for reargument. We disagree and affirm the judgment of the trial court.
The named plaintiff, JPMorgan Chase Bank, National Association (JPMorgan Chase), is no longer a party in this matter. On August 4, 2015, JPMorgan Chase filed a motion to substitute Hudson City Savings Bank as the plaintiff, which the court granted on August 18, 2015. On August 9, 2016, M & T Bank filed a motion to substitute itself as the plaintiff noting that it was the successor by merger to Hudson City Savings Bank. That motion was granted on August 15, 2016. Accordingly, any reference in this opinion to "the plaintiff" is to M & T Bank.
The original complaint filed in this matter also named as defendants Robert J. Virgulak and the state of Connecticut, Department of Revenue Services. During the pendency of the case, the then plaintiff, JPMorgan Chase, withdrew the action against Robert J. Virgulak. Additionally, the state of Connecticut, Department of Revenue Services, which filed an initial appearance in the matter, was defaulted for failing to plead. Thus, any reference in this opinion to "the defendant" is to Theresa Virgulak.
The following procedural history and facts, which either are undisputed in the record or were found by the trial court in its memorandum of decision, are relevant to our resolution of this appeal. On or about December 11, 2006, Robert J. Virgulak (Robert), the defendant's husband, executed and delivered to JPMorgan Chase Bank, National Association (JPMorgan Chase) a note for a loan in the principal amount of $533,000 (note). The defendant was not a signatory on the note. On the same date, the defendant signed a document titled "Open-End Mortgage Deed" (mortgage) for residential property she owns at 14 Bayne Court in Norwalk (property). The mortgage recited that it was given to secure a note dated December 11, 2006, and recited that the note was signed by the defendant as "Borrower" in the amount of $533,000. The term "Borrower" is defined in the mortgage deed as "THERESA VIRGULAK, MARRIED." The mortgage did not reference Robert. The defendant did not sign any guarantee.
On or about February 1, 2010, after JPMorgan Chase failed to receive payments in accordance with the terms of the note, the note went into default and JPMorgan Chase elected to accelerate the balance due. On January 3, 2011, notices of default were sent to both the defendant and Robert and, in February, 2013, JPMorgan Chase commenced this foreclosure action against the couple. The action sought to foreclose the mortgage that JPMorgan Chase claimed to have on the property. In September, 2014, JPMorgan Chase withdrew the foreclosure action against Robert, as he had filed for bankruptcy and been granted an unconditional discharge of the debt.
Thereafter, JPMorgan Chase filed a motion to substitute party plaintiff, stating that it had assigned the subject mortgage deed and note to Hudson City Savings Bank (Hudson). This motion was granted by the court on August 18, 2015.
On September 25, 2015, the defendant filed a motion for summary judgment arguing that Hudson was precluded from foreclosing the mortgage. In particular, she argued that she had not defaulted under the terms of the note because she was never a party to a promissory note with the plaintiff or any of its predecessors-in-interest. The motion was denied by the court on January 14, 2016, on the basis of the court's determination that an issue of material fact remained with respect to whether the mortgage deed provided reasonable notice to third parties that the defendant was securing Robert's obligation.
On March 18, 2016, the defendant served Hudson with requests for admission. On May 6, 2016, Hudson filed notice with the court that it had responded to the defendant's requests.
On August 9, 2016, the plaintiff, M & T Bank, into which Hudson had merged, filed a motion to substitute itself as the party plaintiff and requested leave to amend the complaint in order to add two additional causes of action. The court granted the motion on August 15, 2016. In the first count of the plaintiff's three count amended complaint, the plaintiff sought a judgment of foreclosure against the defendants. In the second count, it sought equitable reformation of the note in order to include the defendant as a borrower on the note. In the third count, the plaintiff pleaded that the defendant had been unjustly enriched because (1) the proceeds of the note were used to pay off loans which she was obligated to pay and (2) she had free use of the subject property without satisfying the terms of the mortgage, which she had executed.
We note that the plaintiff's complaint sought reformation of the note, but not the deed. The trial court noted in its memorandum of decision, however, that "on page [seven] of its posttrial brief ... the plaintiff con-cedes: ‘Quite simply, there is ... no support for any notion that the mortgage was ever intended to secure a note executed by [the defendant].’ " The court noted that the plaintiff changed its position in its posttrial brief arguing "that the mortgage deed should be reformed ‘to reference the fact that the mortgage executed by [the defendant] was to secure the note executed by Robert.’ " This was not challenged by the defendant.
On December 1, 2016, the defendant filed an amended answer denying the essential allegations of the amended complaint regarding her liability for the debt and the claim of unjust enrichment. She also set forth eight special defenses.
On December 5, 2016, the defendant filed a motion in limine seeking to have the trial court order that all of the plaintiff's earlier admissions in response to her March 18, 2016 requests for admissions "be conclusively established at trial." The trial court indicated subsequently that it would rule on the motion in limine during the course of trial "when a context develop[ed] that require[d] [its] ruling."
The parties tried the case before the court on December 6, 2016. The plaintiff presented three witnesses, including Wilkin Rodriguez, a mortgage banking research officer at JPMorgan Chase, the defendant, and Robert. After the plaintiff rested, the defendant did not present additional evidence; she relied instead on the testimony and exhibits introduced during cross-examination of the witnesses called by the plaintiff. The next day, the court met with the parties to discuss the issues it believed to be germane to its decision and set a briefing schedule. As noted in the court's memorandum of decision, the court requested that the parties address the following issues in their briefs: (1) "Is the plaintiff entitled to foreclose the mortgage against [the defendant's] property without first reforming the mortgage note to make her a maker or guarantor of the note and/ or reforming the mortgage deed to alter the description of the debt secured by the mortgage?"; (2) "If the answer to #1 is negative, is there sufficient evidence to support equitable reformation of the mortgage note and/or deed?"; (3) "If the answer[s] to both #1 and #2 are negative, is the plaintiff entitled to recover, by way of a claim of unjust enrichment, any of the following: [use and occupancy of the property, property taxes paid by the plaintiff for the property, or property insurance premiums paid by the plaintiff for coverage of the property?]"; (4) "If the plaintiff is otherwise entitled to recover under #1, #2, or #3, is such recovery precluded by [the] plaintiff's responses to the requests for admissions ... which included the admission that the defendant did not owe any money to the plaintiff?"; (5) "If [the] plaintiff is otherwise entitled to recover under #1, #2, or #3, is there adequate evidence to support any of the defendant's special defenses?"
On December 21, 2016, approximately two weeks after the conclusion of the trial, the plaintiff filed a motion seeking to withdraw and amend its responses to the requests for admissions that it had previously provided to the defendant. On December 27, 2016, the court entered orders stating that it would not entertain arguments on the plaintiff's motion until all of the posttrial briefs it had ordered had been filed by the parties.
On April 12, 2017, the court issued its memorandum of decision. The court found in favor of the defendant on the foreclosure and reformation counts of the complaint. In particular, the court stated, among other things, that "[t]he court finds that the plaintiff has not sustained its burden of proving, by clear and convincing evidence, that it [was] entitled to the equitable remedy of reformation of the mortgage deed .... Accordingly, the court finds the issues on the second count for [the defendant] and against the plaintiff. Since the plaintiff failed to present any authority to the court which would allow the plaintiff to prevail on the first count [foreclosure claim] in the absence of reformation of the mortgage deed, the court [also] finds the issues on the first count for [the defendant] and against the plaintiff."
The court then proceeded to address the plaintiff's unjust enrichment claim, noting that the defendant had been benefitted in several respects as a result of the loan that Robert had obtained, but determining that, prior to ruling on the unjust enrichment claim, it needed to determine whether the plaintiff was entitled to withdraw and amend its responses to the defendant's requests for admissions. The court ultimately found that, pursuant to Practice Book § 13-24 (a), a motion to withdraw and amend responses to requests for admissions could not be filed following trial, as was done here, because § 13-24 (a) required the court to find (1) that "the presentation of the merits of the action will be subserved thereby" and (2) the party who obtained the admission will not be prejudiced "in maintaining his or her action or defense on the merits." The court concluded that it was unable to find "that ‘the presentation of the merits of the action will be subserved’ by the granting of the plaintiff's motion" after trial. It further found that it would be "hard to imagine how the defendant would not be prejudiced at the time the case was tried because defense counsel had every reason to believe that the plaintiff's admissions were both operative and binding." The court, therefore, denied the plaintiff's motion to withdraw and amend, which it had filed on December 21, 2016. The court ultimately determined that the plaintiff's responses to the requests for admissions precluded any recovery on its unjust enrichment claim, except for the property tax payments that the defendant conceded that she owed to the plaintiff.
The court also rejected the plaintiff's argument that the defendant had waived her right to rely on its responses when she failed to object to Wilkin Rodriguez' testimony disagreeing with those responses.
On May 1, 2017, the plaintiff filed a motion for reargument. The court summarily denied the motion for reargument on May 4, 2017. This appeal followed. Additional facts will be set forth as necessary.
After filing this appeal, the plaintiff filed a motion for articulation and a motion for rectification with the trial court. The trial court largely denied those motions, and the plaintiff filed two motions for review with this court pursuant to Practice Book § 66-7. This court granted the motions for review, but denied the relief requested therein on January 18, 2018.
I
The plaintiff first argues that the court committed reversible error by refusing to exercise its discretion in considering the plaintiff's foreclosure claim as a stand-alone claim independent from its other causes of action. The plaintiff also argues that "[a]side from the trial court's failure to properly consider the plaintiff's argument that foreclosure is warranted, even without reformation, extant legal authority ... dictates that result." We disagree.
A
Our Supreme Court has made clear that when a "trial court is properly called upon to exercise its discretion, its failure to do so is error." State v. Martin , 201 Conn. 74, 88, 513 A.2d 116 (1986) ; see also Meadowbrook Center, Inc. v. Buchman , 328 Conn. 586, 609, 181 A.3d 550, 565 (2018) (remand for hearing was appropriate because trial court failed to exercise its discretion); Costello v. Goldstein & Peck , P.C. , 321 Conn. 244, 256, 137 A.3d 748 (2016) ("the court's failure to recognize its authority to act constituted an abuse of discretion"). In a foreclosure proceeding, "the determination of what equity requires is a matter for the discretion of the trial court.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) AJJ Enterprises, LLP v. Jean-Charles , 160 Conn. App. 375, 394–95, 125 A.3d 618 (2015). We thus address the plaintiff's claim that the court committed reversible error by refusing to exercise its discretion in considering its foreclosure claim as a stand-alone claim.
In support of its argument, the plaintiff directs us to the trial court's memorandum of decision, which states in relevant part: "In its January 27, 2017 posttrial brief ... the plaintiff does not argue that the law would permit the plaintiff to foreclose a mortgage on 14 Bayne Court without first obtaining equitable reformation of the mortgage note and/or deed. Accordingly, the court will first address the plaintiff's second count which requests reformation." The plaintiff argues that the court's statement is "simply wrong," and that the plaintiff properly requested that the court consider the foreclosure count as an independent claim irrespective of the other two causes of action it advanced.
The plaintiff further contends that it gave the court multiple opportunities to correct this purported error by way of motions for reargument, articulation, and rectification, but it failed to do so. Specifically, it contends that the court improperly ignored its claim for foreclosure. Our review of the record, however, suggests otherwise. After the court issued its memorandum of decision, the plaintiff filed numerous motions with the court to which the court responded. In particular, the plaintiff filed with the court a motion for articulation and a motion for rectification raising this same argument that it presses on appeal. With respect to the motion for articulation, the court addressed the plaintiff's arguments in a four page response. In relevant part, the court stated: "In its first posttrial brief dated January 27, 2017 ... the plaintiff addressed the merits of the first two counts of its August 9, 2016, amended complaint ... under one heading [titled] ‘Plaintiff has Met its Burden to Recover under its Claim of Foreclosure and Reformation.’ In that section of its brief, the plaintiff provided no authority whatsoever supporting the plaintiff's right to foreclose its mortgage without reforming either the mortgage deed (to state that it was Robert's debt under a promissory note that was secured by the mortgage) or the mortgage note (to state that [the defendant] was a maker or guarantor of the note.) The court recognizes that the plaintiff recited some general propositions of law in that brief and in its posttrial reply brief ... to the effect that mortgage foreclosures are equitable proceedings....
"On page 5 of its May 1, 2017 motion for reargument/ reconsideration ... the plaintiff cited no less than nine cases in support of its claim that the court had the power, in equity, ‘to fashion any order aimed at achieving the interest of justice.’ None of those cases addressed the question of whether a mortgage deed which purportedly secured a nonexistent debt could be foreclosed without reforming at least one of the mortgage documents....
"If, in its memorandum of decision, the court failed to address the first count independently of the remedy of reformation claimed in the second count, it was because the plaintiff did not (and probably could not) present the court with any authority supporting the first count as an independent cause of action."
The court further addressed the claim in the court's five page response to the plaintiff's motion for rectification. In a section titled "Plaintiff's ‘Stand-Alone’ Fore-closure Claim," the court stated: "Following extensive oral argument and review of the plaintiff's brief, the court concluded that the plaintiff had offered no authority for the proposition that the plaintiff was entitled to foreclose its mortgage, which, on its face, purported to secure an obligation that did not exist, without first reforming either the mortgage note or the mortgage deed. The plaintiff correctly points out that foreclosure actions invoke the court's equitable powers. In its memorandum of decision at pages 11 through 18, the court addressed the plaintiff's equitable claim that the mortgage deed should be reformed to reflect that the obligation being secured by the mortgage was not [the defendant's] debt, but rather her husband Robert's debt. The court concluded that the plaintiff did not meet the standards required by case law for the reformation of the mortgage deed.
"The plaintiff offered no legal authority to support the notion that a court, in the exercise of its equitable powers, can change the obligations of a party to a written instrument without meeting the standards for reformation of the instrument. If the court ignored the plaintiff's ‘stand-alone’ claim it was because it was inadequately briefed and, in the absence of reformation, without merit. " (Emphasis added.).
With this as our backdrop, we reject the plaintiff's claim that the court "ignore[d] the plaintiff's claim for foreclosure" and conclude that the court did in fact exercise its discretion. With respect to that claim, the court explained that it believed that the plaintiff's claim was inadequately briefed and was unsupported by any citation of authority to support its contention. It made clear that the plaintiff's claim that the mortgage could be foreclosed without first reforming the mortgage was "without merit." As such, we reject the plaintiff's claim and conclude that the court did not ignore the plaintiff's claim for foreclosure, as it clearly exercised its discretion in declining to grant foreclosure of the defendant's property.
B
The plaintiff also argues that "[a]side from the trial court's failure to properly consider the plaintiff's argument that foreclosure is warranted, even without reformation, extant legal authority ... dictates that result." The plaintiff contends that the record in the present case required the court to grant foreclosure because the evidence demonstrates that the mortgage signed by the defendant was intended to secure the note that was executed solely by Robert.
The defendant contends that the plaintiff did not provide either the trial court or this court with any authority to support a claim that a court can foreclose a mortgage that secures a nonexistent debt. Furthermore, the defendant argues that there is no authority in Connecticut to support the proposition that a court can, sua sponte, or at the request of one party to a commercial transaction, rewrite a promissory note or mortgage to materially change the terms of the transaction they describe without first reforming the document. The defendant contends that the proper vehicle by which the plaintiff could obtain relief is by seeking reformation of the mortgage, which the plaintiff did in count two of its complaint. The defendant ultimately argues that the trial court correctly exercised its discretion in refusing to foreclose a mortgage that secured a nonexistent debt. We agree with the defendant.
It is well established that a mortgagee in a foreclosure action is entitled "to pursue its remedy at law on the notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. A note and a mortgage given to secure it are separate instruments, executed for different purposes and, in this State, action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit." (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer , 244 Conn. 251, 266–67, 708 A.2d 1378 (1998). "In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance 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." (Internal quotation marks omitted.) Bank of America, N.A. v. Gonzalez , 187 Conn. App. 511, 514, 202 A.3d 1092 (2019).
"Mortgage foreclosure appeals are reviewed under an abuse of discretion standard." (Internal quotation marks omitted.) Cliffside Condominium Assn., Inc. v. Cushman , 100 Conn. App. 803, 804, 921 A.2d 609 (2007). "A foreclosure action is an equitable proceeding.... The determination of what equity requires is a matter for the discretion of the trial court.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas , 73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003).
In the present case, it is undisputed that the defendant did not sign the promissory note executed by Robert on which he defaulted, prompting this foreclosure proceeding. It is also undisputed that the subject mortgage signed by the defendant does not purport to secure a note executed by her husband, but rather identifies her as the borrower on the note. The subject mortgage does not expressly refer to any obligation for which the defendant is legally responsible. In reviewing the court's memorandum of decision and subsequent rulings on the plaintiff's motions, it is clear that it declined to grant foreclosure of the mortgage without reformation because it determined that the mortgage, as executed, was a nullity because it secured a nonexistent debt.
Indeed, the plaintiff similarly describes the court's decision in its appellate brief: "In other words ... the trial court concluded that the mortgage deed the defendant executed had no meaning and was a nullity."
In arguing that the court should have foreclosed the mortgage despite this discrepancy and without reformation because foreclosure is an equitable remedy in and of itself, the plaintiff cites to numerous cases largely for the axiom that "[f]oreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done." See, e.g., Hartford Federal Savings & Loan Assn. v. Lenczyk , 153 Conn. 457, 463, 217 A.2d 694 (1966) ; Federal Deposit Ins. Corp. v. Hillcrest Associates , 233 Conn. 153, 170–71, 659 A.2d 138 (1995). The factual underpinnings of the cases relied upon by the plaintiff, however, are markedly different from the facts of the present case and, thus, we do not interpret them to suggest that a court can foreclose a mortgage that contains a material mistake without first concluding that the requirements for reformation of the mortgage have been satisfied. Although the plaintiff argues that the discrepancy at issue in the mortgage can best be described as a "scrivener's error" or "an inadvertent technical error" and that the equitable remedy of foreclosure is warranted even without reformation in order to ensure complete justice, our well established jurisprudence on reformation, also an equitable remedy, was the proper prerequisite in order for the plaintiff to correct the purported mistake in the mortgage document.
The dissent ultimately agrees with the plaintiff and concludes that the trial court erred in declining to grant foreclosure of the mortgage. In the dissent's view, the trial court was required to foreclose the subject mortgage, without first reforming it, despite the fact that the mortgage did not purport to secure her husband's debt. The dissent cites to no case law in this state, or elsewhere, that holds that a court can foreclose a mortgage containing this type of material flaw without first satisfying the requirements to reform the document. Like the plaintiff, the dissent cites generally to case law for the proposition that "[f]oreclosure is peculiarly an equitable action ...." See, e.g., Federal Deposit Ins. Corp. v. Hillcrest Associates , supra, 233 Conn. at 170–71, 659 A.2d 138. On the basis of the equitable nature of foreclosure, the dissent concludes that "[w]hen the essence of a transaction is clear, as it is in this case, a court must look to its substance, instead of relying upon errors of form, to determine its enforceability against a party to it." We respectfully disagree with the dissent that such a conclusion is tenable in light of our Supreme Court's well established jurisprudence on reformation.
The dissent's conclusion essentially would permit a court to disregard the requirements for reformation and choose to foreclose a mortgage that contains a material flaw in the mortgage document if it believed the essence of the transaction was clear. Although the dissent argues that the transaction in this case was clear, there is little support in the record before us to suggest that a contract was ever formed between JPMorgan Chase and the defendant in the first place. Courts do not have the power to make a contract where none exists. Where a contract does exist but does not conform to the real contract agreed upon and does not express the intention of the parties, our Supreme Court has said that our courts can reform the contract if it was executed as the result of mutual mistake, fraud, or other inequitable conduct on the part of the other. See Lopinto v. Haines , 185 Conn. 527, 531, 441 A.2d 151 (1981) ("reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other" [internal quotation marks omitted] ). Because the dissent's newly proposed "essence of a transaction" test would fly in the face of our Supreme Court's jurisprudence on reformation and would render it obsolete, we decline to sanction such a test.
Following reformation of the mortgage, if appropriate, it would have then been proper for the plaintiff in the present case to seek foreclosure. As we discuss in part II of this opinion, the plaintiff did in fact bring a cause of action for reformation in count two of its complaint, which the court properly denied. Because reformation of the mortgage was not warranted in the present case, we conclude that the court's decision denying foreclosure was appropriate. The subject mortgage, as executed, was a nullity because it purported to secure a nonexistent debt. The plaintiff has cited no authority, and we have found none, that stands for the proposition that, absent reformation, a court can foreclose a mortgage that purports to secure a nonexistent debt. This is for good reason. To hold otherwise would be counter to the basic concept of mortgages. "A mortgage is a conveyance or retention of an interest in real property as security for performance of an obligation." Restatement (Third), Property, Mortgages § 1.1, p. 8–9 (1997). However, "[u]nless it secures an obligation, a mortgage is a nullity." Restatement (Third), supra, § 1.1, comment.
Although the plaintiff argues that the subject mortgage was valid because it gave "reasonable notice" to third parties of the nature and amount of Robert's obligation; see Dart & Bogue Co. v. Slosberg , 202 Conn. 566, 579, 522 A.2d 763 (1987) ; we find its argument unpersuasive.
II
The plaintiff next claims that the court abused its discretion by declining to reform the mortgage. In its view, the evidence at trial and the facts found by the court established that the mortgage signed by the defendant was intended to secure the note executed by Robert and, thus, the mortgage should be reformed to reflect that intention. The defendant argues, however, that the court properly declined to reform the mortgage because the plaintiff did not meet its burden of proving by "clear, substantial and convincing evidence" that there was a mutual mistake made by the parties to warrant reformation. (Internal quotation marks omitted.) We agree with the defendant.
We begin by setting forth our standard of review and the applicable legal principles with respect to this claim. "Reformation and foreclosure are both equitable proceedings." Derby Savings Bank v. Oliwa , 49 Conn. App. 602, 604, 714 A.2d 1278 (1998). The "determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Perez , 146 Conn. App. 833, 838, 80 A.3d 910 (2013), appeal dismissed, 315 Conn. 542, 109 A.3d 452 (2015). "When a decision in an equitable matter lies within the trial court's discretion, an appellate court will reverse that decision only when an abuse of discretion is manifest or where an injustice appears to have been done ...." (Internal quotation marks omitted.) Traggis v. Shawmut Bank Connecticut, N.A. , 72 Conn. App. 251, 264, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002).
"A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other." (Internal quotation marks omitted.) Lopinto v. Haines , supra, 185 Conn. at 531, 441 A.2d 151. "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties." (Internal quotation marks omitted.) Kaplan v. Scheer , 182 Conn. App. 488, 502, 190 A.3d 31, cert. denied, 330 Conn. 913, 193 A.3d 49 (2018). "Reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction." Home Owners' Loan Corp. v. Stevens , 120 Conn. 6, 9–10, 179 A. 330 (1935). Simply put, "the mistake, being common to both parties, effects a result which neither intended." (Internal quotation marks omitted.) Czeczotka v. Roode , 130 Conn. App. 90, 99, 21 A.3d 958 (2011). "Therefore a definite agreement on which the minds of the parties have met must have preexisted the instrument in question. The court cannot supply an agreement which was never made, for it is its province to enforce contracts, not to make or alter them." Hoffman v. Fidelity & Casualty Co. , 125 Conn. 440, 443, 6 A.2d 357 (1939).
"A court in the exercise of its power to reform a contract must act with the utmost caution .... In the absence of fraud, it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear so as to leave no room for doubt.... If the right to reformation is grounded solely on mistake, it is required that the mistake be mutual, and to prevail in such a case, it must appear that the writing, as reformed, will express what was understood and agreed to by both parties." (Citations omitted.) Greenwich Contracting Co. v. Bonwit Construction Co. , 156 Conn. 123, 126–27, 239 A.2d 519 (1968). The party insisting on reformation must show proof justifying reformation by "clear, substantial and convincing evidence," meaning evidence that "induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) Lopinto v. Haines , supra, 185 Conn. at 534, 534 n.9, 441 A.2d 151.
The following additional facts are pertinent to our discussion. During trial, the plaintiff called Rodriguez, a mortgage banking research officer employed by JPMorgan Chase, to testify regarding the files and records maintained by his employer. He testified that his employer maintains files for each mortgage it holds or services, including the original collateral file that typically contains, among other things, the original mortgage note and deed, title insurance policies, and records regarding loan origination. Through his testimony, the plaintiff introduced into evidence numerous documents relating to the subject mortgage, including the note and deed.
With respect to the note, page one of the note recites the obligations of the "Borrower," but the note does not further define that term. Page three of the note, however, bears the signature of "Robert J. Virgulak—Borrower." The note does not contain any reference to the defendant nor does her signature appear on the document. The only person obligated under the terms of the note is Robert.
With respect to the subject mortgage, it recited that it was given to secure a note dated December 11, 2006, signed by the defendant as "Borrower" in the amount of $533,000. The term "Borrower" is defined in the mortgage deed as "THERESA VIRGULAK, MARRIED." There was no reference to Robert.
Rodriguez authenticated numerous documents relating to the approval and closing of the mortgage documents that were addressed to or signed solely by Robert. He also authenticated numerous documents relating to the mortgage that show that the defendant signed a United States Department of Housing and Urban Development settlement statement (commonly referred to as a HUD-1), a Transfer of Servicing Disclosure Statement, a Federal Truth in Lending Statement, and a Notice of Right to Cancel.
The defendant was also called as a witness at trial. During her testimony, she testified that she did not recognize the subject mortgage document but acknowledged that her signature was on it and that it was signed at her husband's request. She knew at the time she signed the mortgage there was an existing mortgage on the residence, but she did not recall the mortgage lender or the balance of the mortgage loan. The defendant testified that she believed that the old mortgage was paid off with the proceeds of the loan Robert received from JPMorgan Chase. She also acknowledged her signature on the HUD-1, Transfer of Servicing Disclosure Statement, Federal Truth in Lending Statement, and Notice of Right to Cancel documents. She testified that she had not read those documents before signing them. The defendant testified that even though she signed the HUD-1 form as "Borrower," she did not receive any portion of the $155,236.22 shown as paid to "Borrower" at closing. She testified that perhaps Robert had been paid that sum. On being confronted by her deposition testimony, the defendant acknowledged that the proceeds of the 2006 note had been used to pay off a prior mortgage on the property to People's Bank for which she may have been responsible.
On cross-examination by her attorney, the defendant stated that she did not consider the prior mortgages to be her debts since they were taken out by Robert, who managed all the family's bills and paid all the property taxes. She stated that she did not sign any of the documents relating to the mortgage in front of any witnesses and that she believed that she signed the documents at their home in her husband's presence only. The defendant testified that she never filed joint tax returns with Robert and they never had credit cards in both their names. She denied that she had signed any guarantees of her husband's debts.
Robert also testified at the trial. He testified that on the loan application submitted to JPMorgan Chase, he included the value of the property even though he knew that title to that property was solely in the defendant's name. He testified that he believed that he and the defendant were jointly responsible for the prior mortgages on the property. Robert testified that he had received all of the funds available to the borrower at the closing of the mortgage and that the defendant did not receive any portion of the $155,236.32 shown on the HUD-1 form paid to "Borrower" at closing. Some of the proceeds of the mortgage were used by Robert to improve the kitchen and bathroom of the property, and he testified that he made the required payments on the mortgage, the real estate taxes and the property insurance for the property until he filed for bankruptcy in 2010. He never made any additional payments on the mortgage or real estate taxes, but believed he may have reinstated the property insurance after a couple of years.
On cross-examination, Robert testified that the vast majority of the documents relating to the closing of the mortgage were given to him and not to the defendant and all communications regarding the mortgage were sent to him. He testified that the defendant was not present at the closing. Robert testified that a portion of the proceeds of the mortgage were used to pay off credit cards that were Robert's exclusive responsibility, which totaled $109,070.48. Robert testified that he used approximately $35,000 of the $155,236.22 paid to him at closing to improve the kitchen and bathroom of the property. On redirect examination, Robert testified that JPMorgan Chase required that the prior mortgages be paid off as a condition of granting the loan. Those mortgage balances totaled $255,882.56. After the plaintiff rested, the defendant did not present additional evidence; she relied on the testimony and exhibits introduced during cross-examination of the witnesses called by the plaintiff.
In its posttrial brief, the plaintiff argued that to the extent that the court found a technical deficiency with the language of the loan documents, "the court should use its equitable powers, in ensuring justice, to cure the mutual mistake of the parties in not specifically documenting within the mortgage that the note which it secures was executed by Robert and not [the defendant]." It requested that the court "reform the mortgage to reference the fact that the mortgage executed by [the defendant] was to secure the note executed by Robert." On April 12, 2017, the court concluded in its memorandum of decision "that the plaintiff [had] not sustained its burden of proving, by clear and convincing evidence, that it [was] entitled to the equitable remedy of reformation of the mortgage deed ...."
On appeal, the plaintiff argues that the only discrepancy, or true error, with the information reflected in the mortgage is the fact that it references that the note it was securing was executed by the defendant rather than her husband. The plaintiff argues that the evidence presented at trial and the facts found by the court established that the mortgage signed by the defendant was intended to secure the note executed by Robert and, thus, the mortgage should be reformed to reflect that intention. In support of this contention, it argues, inter alia, that it demonstrated that reformation was warranted because (1) the trial court found that the defendant's debts were paid off at the time of the closing, (2) it was established that the defendant signed at least four of the closing documents, and (3) it was established that the mortgage itself referred to a note identical to both the date and exact amount of the only note executed in the present case.
The plaintiff argues that in the present case, as in this court's decision in Derby Savings Bank v. Oliwa , supra, 49 Conn. App. at 602, 714 A.2d 1278, reformation is necessary to ensure justice. In Derby Savings Bank , the defendant appealed from the trial court's judgment reforming his mortgage deed and granting strict foreclosure. Id. In that case, the defendant executed a mortgage deed and note to the plaintiff. Id., at 602–603, 714 A.2d 1278. The trial court found that both parties intended for the mortgage to cover property other than that described in the mortgage deed, and that the error resulted from a mistake by the attorney who prepared the mortgage documents. Id., at 603, 714 A.2d 1278. The court found it to be a mutual mistake. Id. Specifically, the trial court found that the commitment letter, which was signed by both parties, described what was found to be the parcel of land actually covered by the mortgage. Id. The mortgage note also contained a notation in its lower left corner describing the correct property. Id. This court affirmed the trial court's decision. Id., at 604, 714 A.2d 1278.
Unlike in the present case, the plaintiff in Derby Savings Bank provided sufficient evidence to demonstrate that a mutual mistake was in fact made. Both the commitment letter and the mortgage note, which were each signed by the defendant, described the correct property which the parties actually agreed was to secure the note. Id., at 603, 714 A.2d 1278. The attorney preparing the mortgage document for the parties, however, failed to include the proper description on the mortgage deed. Id. Under the specific facts of that case, it is evident that the evidence introduced was clear and convincing.
As our Supreme Court has noted, "evidence of a very high order" is required in order to show that reformation is justified. (Internal quotation marks omitted.) Lopinto v. Haines , supra, 185 Conn. at 534, 441 A.2d 151. Although the plaintiff in the present case may have introduced some evidence at trial that suggested that the mortgage signed by the defendant was intended to secure her husband's note, in light of the conflicting evidence before the trial court, we are not persuaded that it abused its discretion in declining to reform the mortgage.
In the present case, it was necessary for the plaintiff to demonstrate that JPMorgan Chase and the defendant agreed that the subject mortgage signed by the defendant was effectuated in order to secure her husband's debt, that the subject mortgage did not express that intent, and that the subject mortgage was executed as the result of a mutual mistake. See Lopinto v. Haines , supra, 185 Conn. at 531, 441 A.2d 151 ; see also Hoffman v. Fidelity & Casualty Co. , 125 Conn. 440, 443, 6 A.2d 357 (1939) ("a definite agreement on which the minds of the parties have met must have preexisted the instrument in question. The court cannot supply an agreement which was never made, for it is its province to enforce contracts, not to make or alter them.").
As the court correctly noted, even with the various documents admitted into evidence at trial and the testimony of the witnesses, many gaps were left in the factual record. For instance, although the defendant testified that her signatures were on some of the mortgage closing documents, there were still questions remaining with respect to her state of mind and what she intended by signing them. The defendant testified that she signed the documents at Robert's request and that she had not read those documents before doing so. The defendant testified that she was aware of Robert's intent to borrow money, but she indicated that he never told her how much money he was borrowing. When asked at trial whether she knew what institution Robert was seeking the loan from, she responded: "No, because ... I wasn't getting the loan, he was, so I didn't question it."
Furthermore, the record discloses that the defendant signed the aforementioned documents in the presence of her husband only, and was not present at the closing that took place in Attorney John A. Milici's office. Additionally, as the court noted, there was no explanation of how the mortgage came to bear the signatures of two witnesses, including Attorney Milici's. There is also no indication in the record that any attorney for or a representative from JPMorgan Chase explained to the defendant her role in the process and that her property would be used as collateral to secure Robert's loan. The testimony introduced disclosed that the vast majority of the documents relating to the closing of the mortgage were given to Robert and that all communications regarding the mortgage were sent to him.
Further, the plaintiff offered little evidence, if any, to demonstrate that the subject mortgage was integral to its decision in providing Robert with the loan. As the trial court aptly noted, the records authenticated by Rodriguez at trial were silent as to the understanding that JPMorgan Chase may have had with the defendant regarding her responsibility for Robert's loan. For example, there was no mortgage commitment letter or closing instructions introduced into evidence, which typically would describe the transaction in detail and set forth conditions that must be met in order for disbursement to be made. Additionally, the plaintiff could have called the loan officer or another representative to explain how the subject mortgage impacted its decision to offer the loan. Instead, the only JPMorgan Chase representative introduced at trial was Rodriguez, an employee whose employment began after the execution of the note.
On the basis of the evidence before the trial court, we discern no reason to disturb its decision. We conclude that court did not abuse its discretion in declining to reform the mortgage.
III
The plaintiff next argues that the court improperly denied its motion to amend its responses to the defendant's requests for admission to conform to the evidence at trial. We disagree.
We briefly set forth additional facts necessary for this claim. On December 21, 2016, approximately two weeks after the trial ended and the court had set a briefing schedule, the plaintiff filed a motion to withdraw and amend its responses to the defendant's requests for admission in order to conform to the evidence at trial. In particular, it requested that its responses to requests four and five be withdrawn and amended because there was no basis in fact adduced at trial to support those responses. Request for admission number four asked: "Do you admit that the defendant did not borrow any money from the plaintiff?" The response: "Admitted but this did not preclude the defendant from obtaining a benefit from the loan." Request for admission number five asked: "Do you admit that the defendant does not owe any money to the plaintiff?" The response: "Admitted." The plaintiff argued, inter alia, that the defendant would not be prejudiced if the court were to grant the motion.
On December 27, 2016, the court entered an order stating that it would not entertain any arguments on the plaintiff's motion until all the posttrial briefs it had ordered on December 7, 2016, had been filed by the parties.
In the court's memorandum of decision filed on April 12, 2017, the court addressed, inter alia, the plaintiff's unjust enrichment claim. In addressing its arguments, the court noted certain instances in which the defendant had been benefited by the note executed by Robert. The court also acknowledged that the defendant conceded that she should reimburse the plaintiff for the taxes it and JPMorgan Chase had paid on her behalf. The court then addressed whether the plaintiff was entitled to withdraw and/or amend its responses to the requests for admission served on it by the defendant. The court concluded that, pursuant to Practice Book § 13-24 (a), a motion to withdraw and amend responses to requests for admissions could not be filed following trial, as in the present case, because § 13-24 (a) required the court to determine (1) that "the presentation of the merits of the action will be subserved thereby," and (2) the party who obtained the admission will not be prejudiced "in maintaining his or her action or defense on the merits." The court concluded that "it would be impossible for [it] to find that ‘the presentation of the merits of the action will be subserved’ by the granting of the plaintiff's motion" after trial. It further concluded that it would be "hard to imagine how the defendant would not be prejudiced at the time the case was tried because defense counsel had every reason to believe that the plaintiff's admissions were both operative and binding."
The court went on to state that "[i]f, after having amended its complaint, the plaintiff had wished to be relieved of the consequences of its admissions, it could have filed a timely motion, pursuant to Practice Book § 13-24 (a), to withdraw or amend its admissions. As noted ... the court finds no authority permitting a party to seek withdrawal or amendment of admissions following the completion of trial." The court concluded that it did "not agree with the plaintiff that it can avoid the consequences of its admission that [the defendant] does not owe any money to the plaintiff simply because the money judgment which the plaintiff seeks is sought as damages on a claim based on equitable principles. Under these circumstances, the court is compelled to find that the plaintiff's responses to the requests for admissions preclude the plaintiff from any recovery on count three of the plaintiff's amended complaint, except to the extent of the tax payments which the defendant has conceded she owes."
We briefly set forth the relevant legal principles that guide our discussion. Practice Book § 13-24 (a) provides: "Any matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission. The judicial authority may permit withdrawal or amendment when the presentation of the merits of the action will be sub-served thereby and the party who obtained the admission fails to satisfy the judicial authority that withdrawal or amendment will prejudice such party in maintaining his or her action or defense on the merits. Any admission made by a party under this section is for the purpose of the pending action only and is not an admission by him or her for any other purpose nor may it be used against him or her in any other proceeding."
"A trial court has wide discretion in granting or denying amendments to the pleadings and only rarely will this court overturn the decision of the trial court.... To reverse a ruling of the trial court [denying] an amendment to the pleadings requires that the [plaintiff] make a clear showing of abuse of discretion." (Internal quotation marks omitted.) JPMorgan Chase Bank, N.A. v. Eldon , 144 Conn. App. 260, 280, 73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889 (2013).
"In determining whether there has been an abuse of discretion, much depends on the circumstances of each case.... In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party." (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas , 66 Conn. App. 146, 178, 783 A.2d 1226 (2001).
Although the plaintiff attempts on appeal to distinguish the present case from certain cases cited in the court's memorandum of decision; see, e.g., JPMorgan Chase Bank, N.A. v. Eldon , supra, 144 Conn. App. at 260, 73 A.3d 757 ; Montanaro v. Balcom , 132 Conn. App. 520, 521, 35 A.3d 280 (2011) ; it fails to cite to any case law that holds that a court's denial of a motion to withdraw and amend a party's responses to requests for admissions after the conclusion of trial constitutes an abuse of discretion.
Despite the plaintiff's contentions, the court correctly relied on Practice Book § 13-24 (a), which governs when a withdrawal or an amendment of an admission is proper, and noted that the defendant likely would have been prejudiced by allowing the plaintiff to amend its responses two weeks after the conclusion of trial. As the court made clear, the defendant had every reason to believe that the plaintiff's admissions were both operative and binding. See Practice Book § 13-24 (a) ("[a]ny matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission"). As such, it is likely that these binding admissions affected how the defendant presented her defense.
It is also hard to imagine how the presentation of the merits of the action would be subserved by allowing a post hoc withdrawal or amendment of the plaintiff's responses in the present case. If the court had granted the plaintiff's motion two weeks after the close of evidence, it likely would have been necessary, at a mini-mum, to give the defendant the opportunity to conduct further discovery on the facts previously established by the plaintiff's admissions. This assuredly would have caused an unreasonable delay and would not have subserved the presentation of the merits of the action. Although the plaintiff takes issue with the court's denial of its motion to withdraw and amend its responses, as the court correctly noted, after having amended its complaint to add the two additional counts, the plaintiff could have easily filed a timely motion pursuant to Practice Book § 13-24 (a) to withdraw or amend its admissions before trial. It failed to do so. Under the facts of this case, we conclude that the trial court did not abuse its discretion in denying the plaintiff's motion to withdraw and amend its responses to the defendant's requests for admission.
To the extent that the plaintiff is claiming that the defendant was not permitted to rely on its responses to her requests because certain testimony elicited at trial contradicted the responses to the questions it sought to amend, we deem it inadequately briefed and, thus, abandoned. See Clelford v. Bristol , 150 Conn. App. 229, 233, 90 A.3d 998 (2014).
To the extent that the plaintiff's few passing references in its appellate brief about the court's decision not to hold a hearing on its motion to withdraw and amend its responses can be read to challenge that decision, we conclude that the plaintiff abandoned such argument as a result of an inadequate brief. See Ocwen Federal Bank, FSB v. Charles , 95 Conn. App. 315, 329–30 n.14, 898 A.2d 197 ("[T]he parties must clearly and fully set forth their arguments in their briefs.... Analysis, rather mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly" [Citation omitted; emphasis omitted; internal quotation marks omitted.] ), cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).
IV
The plaintiff next contends that the court erred in concluding that the plaintiff's responses to the defendant's requests for admission precluded it from any recovery under its unjust enrichment count aside from the property tax payments that the defendant conceded she owed to the plaintiff. We disagree.
"Appellate appraisal of a trial court's finding of unjust enrichment is governed by the well established principle that the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal.... Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion.... This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court." (Internal quotation marks omitted.) Laser Contracting, LLC v. Torrance Family Ltd. Partnership , 108 Conn. App. 222, 230–31, 947 A.2d 989 (2008).
As our case law makes clear, the only remedy a plaintiff can obtain with respect to an unjust enrichment claim is "an award of money damages." (Internal quotation marks omitted.) Id., at 233, 947 A.2d 989. In the present case, however, it is undisputed that the plaintiff's response to request number five of the defendant's requests for admission stated that the defendant did not owe the plaintiff any money. Practice Book § 13-24 (a) makes clear that "[a]ny matter admitted under this section is conclusively established ...." It was thus appropriate for the court to hold that the plaintiff was bound by its admissions and to limit its recovery under the unjust enrichment claim to property taxes that the defendant conceded in her posttrial brief that she owed to it.
We, therefore, conclude that the court did not abuse its discretion in limiting the award under the unjust enrichment count to the property taxes owed to the plaintiff. V
The plaintiff's final argument is that the court abused its discretion in denying its motion for reargument. We disagree.
"[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.... It also may be used to address ... claims of law that the [movant] claimed were not addressed by the court.... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ...." (Internal quotation marks omitted.) Light v. Grimes , 156 Conn. App. 53, 69, 111 A.3d 551 (2015). We thus review a trial court's denial of a motion to reargue for an abuse of discretion. Id.
This claim requires little discussion. Although the plaintiff contends that the court abused its discretion in denying its motion for reargument where it set forth legal principles that were not expressly considered by the trial court in its memorandum of decision, our review of the record discloses that the plaintiff's twenty-two page motion filed on May 1, 2017, was largely a request for the court to reevaluate the facts that it had before it, thus seeking an improper second bite of the apple. We, therefore, conclude that the court did not abuse its discretion in denying the relief sought in the motion for reargument.
The judgment is affirmed.
In this opinion, SHELDON, J., concurred.
BEAR, J., dissenting.
The plaintiff, Manufacturers and Traders Trust Company, also known as M & T Bank (M& T Bank), successor in interest to the named plaintiff JPMorgan Chase Bank, National Association (JPMorgan Chase), appeals from the judgment of the trial court rendered in favor of the defendant Theresa Virgulak. On appeal, the plaintiff claims that the trial court abused its discretion by (1) failing to consider the plaintiff's foreclosure claim against the defendant as a stand-alone claim independent from its other causes of action and, thus, failing to grant the plaintiff the equitable remedy of foreclosure to which it was entitled on the facts of this case, (2) declining to reform the note and/or mortgage deed at issue in this case, (3) denying its motion to amend its responses to the defendant's requests for admission, (4) concluding that the plaintiff's admissions limited its recovery under its unjust enrichment count, and (5) denying the plaintiff's motion for reargument. The majority disagrees with the plaintiff as to all of its claims and concludes that the court did not abuse its discretion in refusing to consider those claims. I respectfully disagree with the majority's disposition of this case and, rather, would reverse the judgment of the court on the ground that the court both abused its discretion and erred in failing to properly consider the plaintiff's stand-alone foreclosure claim. The court should have allowed the plaintiff to proceed with its foreclosure claim.
As the majority notes in footnote 1 of its opinion, JPMorgan Chase Bank, National Association, is no longer a party in this matter, and M & T Bank filed a motion to substitute itself as the plaintiff.
As noted in footnote 2 of the majority opinion, this action was withdrawn against Robert J. Virgulak, and the state of Connecticut, Department of Revenue Services, was defaulted for failure to plead.
The plaintiff argues that the court abused its discretion in failing to consider its foreclosure claim and, therefore, erred in failing to exercise its equitable powers to render a judgment of foreclosure against the defendant. Specifically, plaintiff asserts that, even without reformation of the note or mortgage, the court had discretion to consider its foreclosure claim and, in light of the evidence presented at trial, abused that discretion. The plaintiff also argues that it is entitled to proceed with the foreclosure complaint as a matter of law.
The following facts are evident from the record and are undisputed. The defendant and her husband, Robert J. Virgulak (Robert), on this and prior occasions, had a practice of borrowing money from banks whereby Robert would execute a note for the amount to be borrowed, and the defendant would execute a mortgage as security for the note. In this case, there is no dispute that Robert, on December 11, 2006, executed a note to JPMorgan Chase in the amount of $533,000 and that he received and expended that $533,000 for the benefit of himself and the defendant. There is also no dispute that on December 11, 2006, the defendant signed an open-end mortgage deed to JPMorgan Chase for the defendant's real property known as 14 Bayne Court, Norwalk (real property), and that she initialed each page of that fifteen page form mortgage document, which was recorded on the Norwalk land records. The defendant was listed in the form mortgage document as the "Borrower ... THERESA VIRGULAK, MARRIED," a reference to her marriage to Robert, the maker of the note. The note, however, incorrectly was described in the mortgage document as being signed by the defendant, instead of Robert. Consistently with the note signed by Robert, the mortgage referred to a note dated December 11, 2006, in the amount of $533,000.
On December 11, 2016, the defendant also signed a U.S. Department of Housing and Urban Development form, RESPA HUD1A (HUD-1), that included the following disbursements to pay off encumbrances on the defendant's real property: (1) to M & T Mortgage Corporation in the amount of $14,889.38; (2) to Wachovia Bank, N. A., in the amount of $240,993.18; (3) to The Greater Norwalk Area Credit Union, Inc., in the amount of $18,285.47; (4) to Bank of America in the amount of $27,921.82; (5) to Wachovia in the amount of $27,647.94; (6) to Chase in the amount of $16,950.47; (7) to the Norwalk Tax Collector in the amount of $4640; and (8) to James P. Murphy & Assoc. in the amount of $1274 for an unpaid insurance premium. The encumbrances on the defendant's real property that were paid off for her benefit at the closing thus totaled approximately $370,000.
In rejecting the plaintiff's foreclosure claim, the majority looks to the trial court's memorandum of decision and the plaintiff's pleadings filed thereafter and concludes that the court properly exercised its discretion in determining that the plaintiff's claim was inadequately briefed and "without merit." Moreover, the majority, relying on our well established mortgage foreclosure case law that "the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that the conditions precedent to foreclosure ... have been satisfied;" Bank of America, N.A. v. Gonzalez , 187 Conn. App. 511, 514, 202 A.3d 1092 (2019) ; concludes that because the defendant did not sign the promissory note and the mortgage did not refer to any obligation for which the defendant was legally responsible, "the subject mortgage, as executed, was a nullity because it purported to secure a nonexistent debt." I respectfully disagree with the majority's conclusion.
When the essence of a transaction is clear, as it is in this case, a court must look to its substance, instead of relying upon errors of form, to determine its enforce-ability against a party to it. As our Supreme Court observed, "[e]quity always looks to the substance of a transaction and not to mere form ... and seeks to prevent injustice." (Citation omitted; internal quotation marks omitted.) Natural Harmony, Inc. v. Normand , 211 Conn. 145, 149, 558 A.2d 231 (1989). Accordingly, "[t]he governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit." (Internal quotation marks omitted.) Maruca v. Phillips , 139 Conn. 79, 82–83, 90 A.2d 159 (1952). "In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done.... The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission , 270 Conn. 409, 417, 853 A.2d 497 (2004) ; see also Connecticut National Bank v. Chapman , 153 Conn. 393, 216 A.2d 814 (1966).
"[F]oreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Hillcrest Associates , 233 Conn. 153, 170–71, 659 A.2d 138 (1995). "[T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.... Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... For that reason, equitable remedies are not bound by formula but are molded to the needs of justice." (Citations omitted; internal quotation marks omitted.) McKeever v. Fiore , 78 Conn. App. 783, 788–89, 829 A.2d 846 (2003) (concluding "that in light of the [trial] court's inherent equitable powers in a foreclosure action, the court did not improperly consider the equitable doctrine of unclean hands without it being specifically pleaded").
"While it is normally true that this court will refrain from interfering with a trial court's exercise of discretion ... this presupposes that the trial court did in fact exercise its discretion .... Where ... the trial court is properly called upon to exercise its discretion, its failure to do so is error." (Citation omitted; emphasis altered; internal quotation marks omitted.) Higgins v. Karp , 243 Conn. 495, 504, 706 A.2d 1 (1998) ; State v. Martin , 201 Conn. 74, 88, 513 A.2d 116 (1986).
Additionally, a court must apply common sense in analyzing and interpreting all relevant documents and the entire transaction. See Gazo v. Stamford , 255 Conn. 245, 266, 765 A.2d 505 (2001) ("[c]ommon sense also informs us that the plaintiff's contract claim is in reality his negligence claim cloaked in contract garb"); see also State v. Zayas , 195 Conn. 611, 620, 490 A.2d 68 (1985) ("[i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom"); Lawson v. Whitey's Frame Shop , 241 Conn. 678, 697 A.2d 1137 (1997) ("[e]ven if we were to assume, without deciding, that the contract's failure to refer to subsection (g) meant that the entire statute applies, the Appellate Court's conclusion that the defendant could not dispose of vehicles that were not specifically designated by [General Statutes] § 14-150 is contrary to common sense and to a plain reading of the contract as a whole"); Gino's Pizza of East Hartford, Inc. v. Kaplan , 193 Conn. 135, 138, 475 A.2d 305 (1984) (contract must be given common sense interpretation, and in construing contract, court must view written document as expression of parties' intent).
In the present case, the first count of the plaintiff's amended complaint unambiguously sets forth a claim for foreclosure of a valid mortgage, independent of any claim for reformation. In connection with the defendant's motion for summary judgment, the court, Hon. Kevin Tierney , judge trial referee, in its memorandum of decision denying that motion, framed the issue as whether a foreclosure action could be maintained "by a lender who has a mortgage deed executed by a named defendant, the sole property owner who has not executed the note." At trial, the plaintiff's counsel and the court, Tobin, J. , further discussed this issue:
"[The Plaintiff's Counsel]: [T ]his is a three count complaint for foreclosure, equitable reformation of the note and unjust enrichment. We have essentially stipulated by virtue of our stipulation of facts that all the prerequisites to foreclosure have been satisfied, but there is a legal issue raised by the defendants that remains.... The defendant's contention is that the foreclosure action is not valid by virtue of the fact that the note does not secure the mortgage because two different parties executed those documents ...
* * *
"The Court: Okay. Now, I can understand how you might prevail if you're—you've got your equitable remedy in the form of reformation of the note, and I understand what you're seeking is to have the [defendant] added as a maker of the note, and that would make the recitations of the mortgage deed accurate.... But it—it strikes me that the manner in which you introduced your case you suggested that you believe the plaintiff can prevail in this case even if it is not successful in demonstrating the requisites to have the note reformed ?"
"[The Plaintiff's Counsel]: That's correct, Your Honor. We are proceeding out of three different [bases ] essentially. We believe that foreclosure itself is appropriate. Now we have added the other causes of action, but we believe that we can foreclose under these circumstances regardless of those causes of action to answer Your Honor's question." (Emphasis added.)
The plaintiff asserted, as well, in its posttrial brief "that, under both the law and equitably, it is entitled to foreclosure of the mortgage in issue and equitable relief." In support of its claim for foreclosure, the plaintiff argued that it had established a prima facie case for foreclosure, and that "the only issue remaining in this matter results from a technical reading of the mortgage, which, based on a literal reading of its terms, describes [the defendant] as the ‘Borrower.’ " The plaintiff concluded by requesting that the trial court enter "an order of judgment of foreclosure in its favor or, in the alternative, order appropriate equitable relief."
It is thus clear that the plaintiff adequately articulated to the court the merits of his claim for foreclosure. Rather than substantively addressing this claim, however, the court summarily rejected it on the basis that "the plaintiff does not argue that the law would permit the plaintiff to foreclose a mortgage ... without first obtaining equitable reformation of the mortgage note and/or deed." In reaching this conclusion, the court erred both as a matter of law and as a matter of equity. It did not consider the plaintiff's adequately argued and briefed foreclosure claim, including whether the plaintiff was entitled to any remedies upon the default of the obligor on the underlying debt. The majority's conclusion that the court did exercise its discretion by explaining that "the plaintiff's claim was inadequately briefed and was unsupported by any citation to support its contention" compounds this error and runs counter to the inherently equitable nature of foreclosure actions. This conclusion is also inconsistent with our law that requires a court to be guided by the substance of the transaction, in the present case the note and the mortgage, which although signed separately, constituted one unified transaction through the joint and concerted actions, with full knowledge of the consequences, of the defendant and Robert, and resulted in them obtaining $533,000 from JPMorgan Chase while also providing security for repayment of the loan. Any limitation or defect in the mortgage form that did not correctly describe the defendant or the maker of the note is in the nature of a technical defect, or a scrivener's or otherwise harmless error; see, e. g., Boisvert v. Gavis , 332 Conn. 115, 122 n.4, 210 A.3d 1 (2019) ; Do v. Commissioner of Motor Vehicles , 330 Conn. 651, 665, 200 A.3d 681 (2019) ; and as a matter of law cannot bar the enforcement of the valid mortgage, the terms of which were known and agreed to by both parties to the document; see, e.g., Wiley v. London & Lancashire Fire Ins. Co. , 89 Conn. 35, 43, 92 A. 678 (1914) ; where JPMorgan Chase's disbursement of $533,000 to or for the benefit of the defendant and Robert is far more than sufficient consideration for Robert's execution of the note and the defendant's agreement to and execution of the mortgage document.
Both the defendant and Robert signed two documents at the closing: (1) the Transfer of Servicing Disclosure Statement, in which both stated that they understood that their acknowledgements were a "required part of the mortgage loan application;" and (2) the Federal Truth in Lending Statement, which contained the following statement: "You are giving a security interest in certain real property located at 14 Bayne Court, Norwalk, CT, 06851."
In the context of this case, therefore, I respectfully disagree with the majority's conclusion that, absent a reformation of the mortgage or note, the court is precluded from foreclosing on the mortgage. Under the particular circumstances of this case, the defendant's failure to sign the promissory note executed by Robert did not protect her from a foreclosure of the valid security interest she had granted to JPMorgan Chase in the real property. The trial court and the majority erroneously have concluded that the mortgage fails to expressly refer to any obligation for which the defendant is legally responsible. The appropriate approach in this case is to view the note and mortgage as elements of one transaction; see, e. g., Wiley v. London & Lancashire Fire Ins. Co. , supra, 89 Conn. at 43–44, 92 A. 678 ; or alternatively, to view the mortgage from the defendant to JPMorgan Chase as a grant of security, in the nature of a guarantee, for the repayment of Robert's note to JPMorgan Chase.
There are certain fundamental principles underlying both the right of a party to initiate and prosecute a foreclosure action and an action on a guarantee, whether it is secured or unsecured: "Upon a mortgagor's default on an underlying obligation, the mortgagee is entitled to pursue various remedies against the mortgagor including its remedy at law for the amount due on the note, its remedy in equity to foreclose on the mortgage, or both remedies in one consolidated cause of action.... To understand who are proper parties when a mortgagee pursues the remedy of foreclosure, one must recognize that Connecticut follows the title theory of mortgages, which provides that on the execution of a mortgage on real property, the mortgagee holds legal title and the mortgagor holds equitable title to the property.... As the holder of equitable title, also called the equity of redemption, the mortgagor ... has the right to redeem the legal title on the performance of certain conditions contained within the mortgage instrument.... The purpose of the foreclosure is to extinguish the mortgagor's equitable right of redemption that he retained when he granted legal title to his property to the mortgagee following the execution of the mortgage....
"Unlike the equitable nature and aims of foreclosure, a claim on the note at law is grounded in contract, and is enforceable as between the parties to that contract—the debtor and the creditor .... Thus, any deficiency judgment sought in connection with the foreclosure arises from the contractual relationship between the parties to the promissory note.
"When payment of a promissory note secured by a mortgage is further protected by a separate guarantee, in addition to the aforementioned potential remedies against the mortgagor, the mortgagee may pursue a claim against the guarantors to recover any of the unpaid debt of the mortgagor.... A guarantee is a promise to answer for another's debt, default or failure to perform a contractual obligation.... As a contractual obligation separate from the contractual agreement between the lender and borrower, a guarantee imports the existence of two different obligations: the obligation of the borrower and the obligation of the guarantor." (Citations omitted; internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Winthrop Properties , LLC , 312 Conn. 662, 675, 94 A.3d 622 (2014).
It is well established that "a contract of guarant[ee] creates a secondary liability" and, therefore, "a guarantor is not bound to do what the principal has contracted to do but only to answer for the consequences of the default of the principal." (Footnote omitted.) 23 S. Williston, Contracts (4th Ed. 2019) § 61:2; see also JP Morgan Chase Bank, N.A. v. Winthrop Properties , LLC , supra, 312 Conn. at 676, 94 A.3d 622 ("a guarantor's liability does not arise from the debt or other obligation secured by the mortgage; rather, it flows from the separate and distinct obligation incurred under the guarantee contract"); Carpenter v. Thompson , 66 Conn. 457, 464, 34 A. 105 (1895) ("[t]he contract of the guarantor is his own separate undertaking in which the principal does not join" [internal quotation marks omitted] ). As such, it has been "recognized that, in the absence of a statute expressly pertaining to guarantors, such secondary obligors are not proper parties to a claim seeking the foreclosure of a mortgage and their obligations are not limited by the extinguishment of the mortgagor's rights and obligations." JP Morgan Chase Bank, N.A. v. Winthrop Properties , supra, at 677, 94 A.3d 622. In JP Morgan Chase Bank, N.A. v. Winthrop Properties , supra, at 682–83, 94 A.3d 622, our Supreme Court reversed the judgment of this court and concluded that the judgment of strict foreclosure that had been rendered against the mortgagor had no effect on the plaintiff's ability to recover damages from the guarantors for the remaining unpaid debt. Although our Supreme Court determined that the plaintiff mortgagee could not properly make the guarantors parties to the foreclosure claim because they were not parties to the mortgage or the note, it concluded that the guarantors' obligation that separately arose under the guarantee could still be enforced. Id. In the present case, the defendant provided security in connection with, but only to the extent of, her equity in the real property.
The principle that a guarantor may be held liable for an unpaid debt on a promissory note applies to the particular factual circumstances of the present case. The mortgage document signed by the defendant makes specific reference to the terms of the underlying note, demonstrating her intent that the mortgage operate as her promise to pay in the event of a default by Robert on the terms of the note. Specifically, the document transfers the "Borrower's" rights in the real property to JPMorgan Chase, and its successors in interest. Moreover, the mortgage describes JPMorgan Chase as the "lender" and "mortgagee," which it was at the initiation of the mortgage from the defendant, and sets forth the exact amount of the note obligation. Not only is the mortgage dated the same date as the note, but it also defines itself as the "Security Instrument." Further evidence that the mortgage was intended to provide the plaintiff with a security interest in the defendant's property in the event Robert failed to make payments on the note is contained in the following documents signed by the defendant: (1) the HUD-1 form; (2) the Transfer of Servicing Disclosure Statement where she confirmed that her acknowledgement of that document was part of the mortgage loan application; (3) the Federal Truth in Lending Statement containing details of the loan including that "[you] are giving a security interest in certain real property located at 14 Bayne Court, Norwalk;" and (4) the Notice of Right to Cancel, that set forth, inter alia: "You are entering into a transaction that will result in a mortgage/security interest in your home.... If you cancel the transaction, the mortgage/ security interest is also cancelled."
"Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions.... A promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such." (Internal quotation marks omitted.) Webster Bank v. Oakley , 265 Conn. 539, 547, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004) ; Sunset Mortgage v. Agolio , 109 Conn. App. 198, 202, 952 A.2d 65 (2008).
The present case is distinguishable from JP Morgan Chase Bank, N.A. v. Winthrop Properties , supra, 312 Conn. at 662, 94 A.3d 622, in that the defendant is the mortgagor of the real property, as well as the guarantor of Robert's note. Nevertheless, this distinction, in addition to the references in the mortgage, the note, and the ancillary documents that demonstrate that the note and mortgage, although signed separately by each party, were designed to be part of the same transaction, supports the position that the defendant, as mortgagor and guarantor, is the proper party defendant in the underlying foreclosure action.
The majority relies on the defendant's failure to sign the promissory note executed by her husband and the mortgage's identification of her as the borrower on the note for the conclusion that without reformation, the mortgage secured a nonexistent debt and, thus, as executed, was a nullity. I disagree and, instead, note that strict compliance with a specific form, statutory or otherwise, is not necessary for the execution of a valid mortgage between parties to a transaction. See New Orleans National Banking Assn. v. Adams , 109 U.S. 211, 214, 3 S. Ct. 161, 27 L. Ed. 910 (1883) ("no precise form of words is necessary to constitute a mortgage"); Harding v. Trenor , 157 F. Supp. 350, 356 (D.N.D. 1957) (standard form for mortgage prescribed by statute "neither mandatory nor exclusive"); Wolf v. Schumacher , 477 N.W.2d 827, 828 (N.D. 1991) (compliance with standard form for mortgage "not necessary to create a valid mortgage between the parties to a transaction"). Rather, the validity of a mortgage rests on (1) whether there is some evidence that the transaction was intended as a mortgage in consideration for some debt; see New Orleans National Banking Assn. v. Adams , supra, at 214, 3 S.Ct. 161 (to constitute mortgage, "there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money, or the performance of some other act"), and Wolf v. Schumacher , supra, at 829 (documentary evidence and testimony established that transaction between parties was intended as mortgage and could be enforced as such); and (2) whether the mortgage "provides reasonable notice to third parties of the obligation that is secured." (Internal quotation marks omitted.) Connecticut National Bank v. Esposito , 210 Conn. 221, 227, 554 A.2d 735 (1989).
As the majority states, "[a] cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other." (Internal quotation marks omitted.) Lopinto v. Haines , 185 Conn. 527, 531, 441 A.2d 151 (1981). "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties." (Internal quotation marks omitted.) Kaplan v. Scheer , 182 Conn. App. 488, 502, 190 A.3d 31, cert. denied, 330 Conn. 913, 193 A.3d 49 (2018),
Furthermore, a mortgage that is not properly executed or contains technical defects may be enforced through equity. See Ketchum v. St. Louis , 101 U.S. 306, 317, 25 L. Ed. 999 (1879) ("It is well stated that a party may, by express agreement, create a charge or claim in the nature of a lien on real as well as on personal property of which he is the owner or in possession, and that equity will establish and enforce such charge or claim .... In addition to these formal instruments which are properly entitled to the designation of mortgages, deeds, and contracts, which are wanting in one or both of these characteristics of a common-law mortgage, are often used by parties for the purpose of pledging real property, or some interest in it, as security for a debt or obligation, and with the intention that they shall have effect as mortgages. Equity comes to the aid of the parties in such cases, and gives effect to their intentions." [Citation omitted; internal quotation marks omitted.] ); Union Planters Bank, N.A. v. New York , 988 So. 2d 1007, 1011 (Ala. 2008) ("[w]hen a mortgage is invalid due to a technical defect, equity will give effect to the intent of the parties according to the substance of the transaction" [internal quotation marks omitted] ). It is also well established that "[e]rrors and omissions in the recorded mortgage that would not mislead a title searcher as to the true nature of the secured obligation do not affect the validity of the mortgage against third parties." (Internal quotation marks omitted.) PNC Bank, N.A. v. Kelepecz , 289 Conn. 692, 702, 960 A.2d 563 (2008) ; Dart & Bogue Co. v. Slosberg , 202 Conn. 566, 581, 522 A.2d 763 (1987) ("[F]ailure to state the maximum term of a promissory note ... does not, of itself, render a mortgage invalid.... [A] mortgage need not set forth all of the terms of the underlying obligation provided that it gives notice of the nature and amount of the obligation, so that subsequent lien creditors are not misled." [Citations omitted.] ).
In the present case, there is no dispute that the mortgage was properly recorded in the land records, although as between the parties, that is not necessary to its validity. Wiley v. London & Lancashire Fire Ins. Co. , supra, 89 Conn. at 45, 92 A. 678 ("[t]he deed, when delivered and accepted, is good between the parties, irrespective of the date of its record, and when the title of the grantee is in issue, and the rights of no one are prejudiced by the failure to record, that title is to be determined for all purposes by the fact of title, and not by the record evidence of it"). Thus, although the mortgage contained an inaccuracy by describing the defendant as the "Borrower" and as the maker of the note, this did not under-mine the validity of the mortgage between the parties. In this case, the mortgage also provided reasonable notice to any third party that it secured a debt for the amount listed. Moreover, as previously discussed, the references in the mortgage and note to each other demonstrate that they were designed to be part of the same transaction. When read together, the mortgage and the note clearly establish that the consideration for the mortgage was the amount of $533,000 made available by JPMorgan Chase to Robert, approximately $370,000 of which was used to pay off and release encumbrances on the defendant's real property, and the rest for making improvements to the defendant's real property or for Robert's personal use. Accordingly, I conclude that the trial court erred as a matter of law in failing to view the mortgage on the defendant's real property as a valid mortgage, or, more generally, as the defendant's guarantee to answer for any default by Robert pursuant to the terms of the note.
"Reasonable notice" is defined as "notice of the nature and amount of the encumbrance which the mortgagor intends to place upon the land." (Internal quotation marks omitted.) Connecticut National Bank v. Esposito , supra, 210 Conn. at 228, 554 A.2d 735.
I also conclude that, to the extent it is necessary to consider the equities of this matter, they clearly favor the plaintiff, the successor to JPMorgan Chase. The defendant and Robert clearly benefitted from the $533,000 they received from JPMorgan Chase, and there is nothing in the record to provide the defendant with any equitable or legal defense to the plaintiff's foreclosure of the mortgage. For the foregoing reasons, I would reverse the judgment and remand the case to the trial court with direction to proceed on the first count of the plaintiff's complaint for foreclosure of the mortgage on the defendant's real property.
Reformation of a document is ordinarily the appropriate equitable remedy in circumstances such as an unknown mutual mistake. See Lopinto v. Haines , supra, 185 Conn. at 532, 441 A.2d 151 ("The remedy of reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction.... In short, the mistake, being common to both parties, effects a result which neither intended." [Citations omitted; internal quotation marks omitted.] ); Deutsche Bank National Trust Co. v. Perez , 146 Conn. App. 833, 839, 80 A.3d 910 (2013) ("[t]he relief afforded in reforming an instrument is to make it conform to the previous agreement of the parties"), appeal dismissed, 315 Conn. 542, 109 A.3d 452 (2015). I do not write separately on the ground of reformation, however, because the particular factual circumstances of this case do not require reformation of the note or mortgage, given the substance of the transaction created by the defendant and Robert, upon which the plaintiff relied. Simply put, the defendant was aware of the nature and consequences of her transaction with JPMorgan Chase, and an unnecessarily strict adherence to the concept of documentary perfection should not shield her from her resulting obligation to JPMorgan Chase and its successors, into which she knowingly and voluntarily entered.