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*********************************************** 
CHASE HOME FINANCE, LLC v. SCROGGIN—DISSENT

BEAR, J., dissenting. The defendant, Daniel Scroggin

also known as Daniel J. Scroggin also known as Daniel

F. Scroggin, appeals from the judgment of strict foreclosure1

rendered against him by the trial court on April

18, 2016, in favor of the substitute plaintiff, AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings

Fund Society, F.S.B., Trustee.2 On appeal, the defendant

argues that the court erred in rendering the judgment

of strict foreclosure (1) based on a default for failure

to plead, because Chase Home Finance, LLC (Chase),

significantly amended the pleadings after the default

entered, and he was, therefore, entitled to answer prior

to the hearing on the motion for judgment of strict

foreclosure, and (2) in violation of General Statutes

§ 52-121 (a).3 The majority agrees with the defendant

as to his first claim and concludes that the court abused

its discretion in rendering the judgment of strict foreclosure. I respectfully disagree with the majority’s disposition of the defendant’s first claim, and I disagree with

the defendant’s second claim, which the majority does

not reach in light of its disposition of the first claim.

Accordingly, I would affirm the judgment of the trial

court.

I

The defendant first argues that the court erred in

rendering the judgment of strict foreclosure based on

the entry of the June 16, 2010 default for failure to

plead. Specifically, the defendant asserts that Chase

significantly amended the pleadings after the default

entered, which extinguished the default, and he, therefore, was entitled to answer the first count, inter alia,

prior to the hearing on the motion for judgment of

strict foreclosure. Despite the additional facts and legal

theories set forth in the amended complaint, the first

count seeking strict foreclosure, the only count in the

original complaint, was not substantially changed in the

amended complaint to the point where such default

was deemed to be vacated.

The majority looks to the changes in and the additions

to the amended complaint as a whole in concluding

that those changes and additions effectively vacated

the default entered on the first count of the original

complaint.4 The focus of the inquiry in this appeal, however, should not be on the amended complaint as a

whole. Because the defendant has not appealed from

the judgment rendered against him on the fifth and

sixth counts of the amended complaint, alleging unjust

enrichment and fraud, and he had no legal interest in

the dispute between Chase and Bank of America as

alleged in the second, third, and fourth counts of the

amended complaint, the proper inquiry in this appeal is

whether the amended complaint substantially changed
the original count for strict foreclosure, the judgment

rendered on which is the sole basis for the defendant’s

appeal, to the point where it had the effect of extinguishing the default entered thereon. The case law cited by

the majority readily supports my conclusion that the

court did not abuse its discretion in determining that

the amended complaint did not have the effect of extinguishing the default entered on the first count, so as

to permit the defendant to file an answer thereto prior

to or instead of filing a motion to open and vacate

that default.

As conceded in the majority opinion, the analyses of

this court in Willamette Management Associates, Inc.

v. Palczynski, 134 Conn. App. 58, 38 A.3d 1212 (2012),

and Spilke v. Wicklow, 138 Conn. App. 251, 53 A.3d 245

(2012), cert. denied, 307 Conn. 945, 60 A.3d 737 (2013),

are pertinent to and instructive in this case. ‘‘[I]n both

cases the question primarily was whether the filing of

an amended complaint after a finding of default extinguished the default and allowed the defendant to plead

in response.’’ Spilke v. Wicklow, supra, 270.

In Willamette Management Associates, Inc., following a default against the defendant for failure to plead,

the plaintiff filed an amended complaint to correct a

scrivener’s error. Willamette Management Associates,

Inc. v. Palczynski, supra, 134 Conn. App. 63. The trial

court declined to give effect to the defendant’s answer

filed in response to the amended complaint because

‘‘[n]othing changed in the substantive pleadings and

[the defendant had] been defaulted.’’ (Internal quotation

marks omitted.) Id., 64. On appeal, this court concluded

that the trial court did not abuse its discretion in prohibiting the defendant from filing an answer because ‘‘[n]o

change of any kind, and thus certainly not a substantial

change, was made to the cause of action’’; (emphasis

added) id., 69; and thus it was not inequitable for the

court to have exercised its discretion in the manner

that it did. Id., 68–69.

In Spilke, ‘‘the plaintiff filed four amended complaints

after the defendants were defaulted. . . . Although the

complaints differed in some respects from the original

complaint, the substantive allegations remained the

same.’’ Spilke v. Wicklow, supra, 138 Conn. App. 270.

The defendants filed a motion to strike the case from

the hearing in damages list, ‘‘arguing that the plaintiff

had amended her complaint numerous times since the

entry of default against the defendants, which, in turn,

extinguished the default.’’ Id., 266. The trial court denied

the defendant’s motion. Id. On appeal, this court concluded that the court did not abuse its discretion in

denying the motion to strike because ‘‘[a]s in Willamette

Management Associates, Inc. . . . the amendments

worked no substantial change in the cause of action

and . . . the defendants have not demonstrated any

prejudice suffered.’’ (Emphasis added.) Id., 270.
Our Supreme Court stated in Mazulis v. Zeldner,

which is cited in Willamette Management Associates,

Inc., that ‘‘[i]f the effect of an amendment of a complaint

. . . is to substantially change the cause of action originally stated, the defendant is entitled to file new or

amended pleadings and present further evidence.’’

(Emphasis added.) Mazulis v. Zeldner, 116 Conn. 314,

317, 164 A. 713 (1933). Therefore, the focus of our

inquiry should be whether the amendment substantially

changed the cause of action, i.e., in this appeal, the first

count for strict foreclosure.

Here, the cause of action for strict foreclosure in the

original complaint was not substantially changed in the

amended complaint. Although, unlike in Willamette

Management Associates, Inc., the amended complaint

in the present case did contain more than a scrivener’s

error, since it added new causes of action and an additional party, the defendant has not appealed from the

judgment with respect to those new causes of action

against him. The only portion of the judgment appealed

from—that of strict foreclosure—was not rendered on

a substantially changed original complaint, although,

as the majority sets forth in its opinion, there was an

equitable subrogation reference added in the amended

complaint to the language of the original cause of

action.5 The additional language in the first count of the

amended complaint, however, merely reflects Chase’s

change in position from second mortgagee to first mortgagee, as a result of paying off Bank of America’s mortgage.6 The additional language does not change the

substance of the cause of action for strict foreclosure

against the defendant.

In summary, despite the additional counts added

against the defendant in the amended complaint, both

the first, and only, count of the original complaint and

the first count of the amended complaint sought a judgment of strict foreclosure against the defendant on the

basis of essentially the same allegations. Because the

amended complaint did not substantially alter the cause

of action that is the subject of this appeal, pursuant

to Willamette and Spilke the default in the original

complaint was not deemed to be vacated by the filing

of the amended complaint despite the addition of two

causes of action against the defendant and three causes

of action against Bank of America.7

Because I conclude that the defendant’s first claim

should be rejected, I must consider the defendant’s

second claim.

II

The defendant argues in his second claim that, by

operation of § 52-121 (a), he was entitled to file an

operative answer prior to the hearing on the motion

for judgment of strict foreclosure filed on June 7, 2010.

Section 52-121 (a) provides: ‘‘Any pleading in any civil
action may be filed after the expiration of the time fixed

by statute or by any rule of court until the court has

heard any motion for judgment by default or nonsuit

for failure to plead which has been filed in writing with

the clerk of the court in which the action is pending.’’

A court, in the exercise of its discretion, may refuse to

consider a pleading, although it is filed prior to judgment on the default, but doing so is ‘‘plain error if, prior

to rendering a judgment upon default, the court fails

to accept for filing a defaulted party’s pleading solely

on the ground that the pleading is untimely.’’ (Internal

quotation marks omitted.) Deutsche Bank National

Trust Co. v. Cornelius, 170 Conn. App. 104, 117, 154

A.3d 79, cert. denied, 325 Conn. 922, 159 A.3d 1171

(2017); see also Deutsche Bank National Trust Co. v.

Bertrand, 140 Conn. App. 646, 662, 59 A.3d 864, appeal

dismissed, 309 Conn. 905, 68 A.3d 661 (2013). Thus, the

question is whether the court in the present case found

§ 52-121 (a) inapplicable for any reason other than timeliness.8

This court has previously rejected an argument that

the trial court violated § 52-121 (a) in refusing to accept

the defaulted party’s answer solely on the basis of timeliness when there was another reason pursuant to which

the court decided not to allow an answer to be filed.

In Deutsche Bank National Trust Co. v. Bertrand,

supra, 140 Conn. App. 662, this court noted: ‘‘We

acknowledge that there is support for the proposition

that a court commits plain error if, prior to rendering

a judgment upon default, the court fails to accept for

filing a defaulted party’s pleading solely on the ground

that the pleading is untimely. . . . Our review of the

hearing transcript reveals, however, that the plaintiff

objected to the court accepting the answer not only

because of the extensive history of delay but also

because the pleading had not been electronically filed.

We again note that the record before us does not contain

a precise statement by the court for its ruling; however,

the court suggests two possible reasons for rejecting

the defendant’s request to file his answer and special

defenses. In refusing to accept the pleading for filing,

the court stated both that ‘it’s too late for that’ and

‘you’re going to have to e-file it.’ Because it is not clear

from the record that the court rejected the defendant’s

pleading solely on the basis that it was untimely, and

the defendant has not addressed the electronic filing

issue on appeal, we must reject the defendant’s claim

that § 52-121 provides a basis for concluding that the

court abused its discretion in refusing to accept his

answer when it was offered for filing at the hearing.’’

(Citation omitted; footnote omitted.) Id.

Similarly here, it is not clear from the record that the

court rejected the defendant’s answer solely on the

basis that it was untimely. At the hearing on the motion

for judgment of strict foreclosure, the defendant’s counsel asserted that § 52-121 (a) ‘‘is controlling, as it indi-
cates that notwithstanding any other statute or court

rule, a pleading may be filed until the court has heard

any motion for judgment by default.’’ In response, the

plaintiff’s counsel stated that ‘‘[t]his really comes down

to timeliness, and the defendant not [repleading] and

not moving to open the default.’’ The court concluded:

‘‘Well, in my view, [the defendant] should have moved

to open a default. [The defendant] didn’t. I’ll allow [the

plaintiff] to go forward with [its] foreclosure.’’ At the

end of the hearing, the defendant’s counsel again

inquired ‘‘as to the court’s position on the applicability

of § 52-121 (a).’’ The court then explained its reasons

for declining to consider the answer and rendering the

judgment of foreclosure:

‘‘The Court: You didn’t move to [open], waiting five

years. And you just can’t file an answer once a motion

for judgment has been filed.

‘‘[The Defendant’s Counsel]: Notwithstanding the

statute?

‘‘The Court: I’m entering a foreclosure.

‘‘[The Defendant’s Counsel]: Very well, Your Honor.

‘‘The Court: I think your actions were solely for the

purpose of delay.’’

The court thus had before it multiple grounds it could

consider in deciding whether to render the judgment

of foreclosure, including: (1) the timeliness of the

answer; (2) that the defendant never moved to open

the default; and (3) that the defendant’s actions were

solely for the purpose of delay. Similarly to the court

in Bertrand, where the court considered that the

answer was not e-filed in addition to considering the

timeliness of the answer, the court here did not

expressly reject the pleading solely because it was not

filed on time, but also, inter alia, because the defendant

had not filed a motion to open the default prior to the

filing of the answer. See Deutsche Bank National Trust

Co. v. Bertrand, supra, 140 Conn. App. 662.

The court’s ruling, based in part on its consideration

of the defendant’s failure to move to open, is supported

by this court’s conclusion in Deutsche Bank National

Trust Co. v. Cornelius, supra, 170 Conn. App. 117, in

which this court recently rejected a defendant’s argument that ‘‘§ 52-121 requires a trial court to consider

the merits of a motion to strike even after a default

has been entered so long as no judgment has been

rendered.’’ This court quoted Bertrand, stating: ‘‘We

acknowledge that there is support for the proposition

that a court commits plain error if, prior to rendering

a judgment upon default, the court fails to accept for

filing a defaulted party’s pleading solely on the ground

that the pleading is untimely.’’ (Internal quotation marks

omitted.) Id. However, this court found that ‘‘the court

did not deny the defendant’s motion to strike because

it was untimely’’; id., 117; but that it ‘‘correctly con-
cluded that it could not consider the defendant’s motion

to strike until the default was set aside.’’ Id., 117–18.

As discussed in part I of this dissenting opinion, the

first count for strict foreclosure in the amended complaint was not sufficiently different from the count in

the original complaint so as to result in the setting aside

or extinguishing of the default. The plaintiff’s motion

for judgment on the first count was filed on June 7,

2010, the default for failure to plead was entered on

June 16, 2010, and, although no motion to open and

vacate the default had been filed, the defendant’s

answer to the first count was filed on November 2, 2015,

while the plaintiff’s motion for judgment was pending.

During the approximately five year period between the

default and the hearing on the motion for judgment,

the defendant did not move to open the default. Instead,

the defendant waited approximately five years after the

filing of the amended complaint to file an answer to

a cause of action on which he had previously been

defaulted, without moving to open and set aside the

default prior to filing his answer.9 As the court stated,

the defendant ‘‘didn’t move to [open], waiting five years.

And you just can’t file an answer once a motion for

judgment has been filed.’’ The court thus reasonably

understood that ‘‘ ‘[t]he effect of a default is to preclude

the defendant from making any further defense in the

case so far as liability is concerned . . . .’ Practice

Book § 17-33 (b)’’; Bank of New York Mellon v. Talbot,

174 Conn. App. 377, 383, 165 A.3d 1253 (2017); unless

it granted the motion to open and vacated the default.

‘‘Practice Book § 17-33 (b) provides that when a party

is in default for failure to plead, ‘the judicial authority,

at or after the time it renders the default . . . may

also render judgment in foreclosure cases . . . .’ If the

defaulted party has filed an answer before judgment is

rendered, however, the default is automatically set

aside by operation of law. Practice Book § 17-32 (b). If

a motion for judgment already has been filed by the

adverse party at the time the defaulted party files his

answer, however, ‘the default may be set aside only

by the judicial authority.’ Practice Book § 17-32 (b).’’

(Emphasis added.) Bank of New York Mellon v. Talbot,

supra, 383. Similarly to the court in Cornelius, once

the court here determined that the default was not set

aside or vacated sub silentio by the amended first count,

it had the discretion to decide that it would not consider

the defendant’s answer while the default on the first

count for strict foreclosure remained in effect, and the

court did not violate § 52-121 (a) in doing so. See

Deutsche Bank National Trust Co. v. Cornelius, supra,

170 Conn. App. 117.

To summarize, making every reasonable presumption

in favor of the trial court’s decision, as we are required

to do; see Webster Bank v. Zak, 71 Conn. App. 550,

556–57, 802 A.2d 916, cert. denied, 261 Conn. 938, 808

A.2d 1135 (2002); the court did not err in deciding that
the amended complaint did not extinguish the default,

and it was not plain error, but instead was within the

court’s discretion, for it to decline to consider the defendant’s answer to the first count of the amended complaint because the defendant had not filed a motion to

open and set aside the default, which default precluded

the defendant from making any further defense in the

case as to his liability. The court, therefore, did not

violate § 52-121 (a) by declining to consider the defendant’s answer to the first count and by rendering a

judgment of strict foreclosure against him.

Accordingly, I would affirm the judgment of the court.

1 The defendant has not appealed from the judgment rendered against

him on the counts alleging unjust enrichment and fraud.

2 As the majority explains in footnote 1 of its opinion, Chase Home Finance,

LLC, commenced this action in 2009; following the grant of three motions to

substitute the plaintiff, the court rendered judgment in favor of the substitute

plaintiff, AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund

Society, F.S.B. For purposes of clarity, in this dissenting opinion, I refer to

AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund Society,

F.S.B., Trustee as the plaintiff and to Chase Home Finance, LLC (Chase),

by name.

3 General Statutes § 52-121 (a) provides: ‘‘Any pleading in any civil action

may be filed after the expiration of the time fixed by statute or by any rule

of court until the court has heard any motion for judgment by default or

nonsuit for failure to plead which has been filed in writing with the clerk

of the court in which the action is pending.’’

4 As the majority notes in its opinion, a ‘‘comparison of the original and

amended complaints readily reveals that the amended complaint filed following the default interjected material new issues in the case, thereby substantially changing the pleadings. . . . [I]n contrast to the original, one-count

complaint brought against the defendant by Chase, the amended, six-count

complaint . . . contained new counts in which the plaintiff sought equitably

to subordinate the interest of Bank of America to its mortgage interest, and

two new counts directed at the defendant . . . and interjected new material

factual allegations and new legal theories . . . .’’

5 The first count in the amended complaint included the additional language that: ‘‘On the aforementioned piece of property, the following interests

are claimed which are subsequent to [Chase’s] said mortgage: A mortgage

in favor of Bank of America, N.A., in the original principal amount of

$100,000, dated 18, 2007 and recorded February 7, 2007 in Volume 662, Page

195 of the Portland land records.’’ In contrast, the first count in the original

complaint stated: ‘‘On the aforementioned piece of property, the following

interests are claimed which are subsequent to [Chase’s] said mortgage:

None.’’

6 At the time that the complaint was filed, Bank of America maintained

first mortgagee status. The amended complaint requested that Chase be

subrogated to Bank of America’s position as first mortgagee. The reason

for the request for subrogation is in the new count two of the amended

complaint against Bank of America: ‘‘[Chase] paid off, as proceeds of its

mortgage set forth herein, a mortgage prior in right to that of the Defendant

Bank of America intending to then obtain a first mortgage upon the property

herein being foreclosed, and, therefore, should be equitably subrogated to

the position of that prior mortgage.’’

7 Our law concerning the effect of a default is that ‘‘[t]he entry of a default

constitutes an admission by the [defaulted party] of the truth of the facts

alleged in the complaint. . . . Practice Book § 17-33 (b) provides in relevant

part that the effect of a default is to preclude the defendant from making

any further defense in the case so far as liability is concerned . . . .’’ (Citation omitted; internal quotation marks omitted.) TD Banknorth, N.A. v.

White Water Mountain Resorts of Connecticut, Inc., 133 Conn. App. 536,

545–46, 37 A.3d 766 (2012). Thus, the entry of the default on the first count

of the original complaint had the effect of an admission by the defendant

of the material facts alleged in that count. Because the first count of the

amended complaint did not substantially change the first count of the original

complaint, the defendant’s admission of the facts of that count remained

binding on him. Accordingly, the defendant has not demonstrated any preju-
dice suffered by him from the amended complaint insofar as it relates to

the count for strict foreclosure. Cf. Spilke v. Wicklow, supra, 138 Conn.

App. 270.

8 The defendant did not appeal the judgment rendered against him on the

counts alleging unjust enrichment and fraud; therefore, it is not necessary

to address whether he was entitled to file a pleading pursuant to § 52-121

(a) to answer or specially defend against those new counts.

9 Practice Book § 17-42 provides in relevant part: ‘‘A motion to set aside

a default where no judgment has been rendered may be granted by the

judicial authority for good cause shown upon such terms as it may impose.

. . .’’ It is well established that ‘‘[the] determination of whether to set aside

[a] default is within the discretion of the trial court . . . and [such a determination] will not be disturbed unless that discretion has been abused or

where injustice will result. In the exercise of its discretion, the trial court

may consider not only the presence of mistake, accident, inadvertence,

misfortune or other reasonable cause . . . [and] factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of

contumacy involved . . . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.’’

(Citations omitted; emphasis added; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998); see also Chevy Chase

Bank, F.S.B. v. Avidon, 161 Conn. App. 822, 833, 129 A.3d 757 (2015). In

Spilke, this court considered the time that the default was in effect, stating

that the defendants did not file a pleading, which they denominated a motion

to strike, for more than three years after the entry of a default against each

of them. Spilke v. Wicklow, supra, 138 Conn. App. 270. This court took that

duration into consideration in its determination that the court did not abuse

its discretion in denying that motion to strike the matter from the hearing

in damages list. Id. In the present case, more than five years had elapsed

before the defendant filed his answer and special defenses while the default

was still in effect.