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U.S. BANK NATIONAL ASSOCIATION, TRUSTEE v.

GLYNNIS SORRENTINO ET AL.

(AC 36462)

Alvord, Prescott and Pellegrino, Js.

Argued February 11—officially released June 23, 2015

(Appeal from Superior Court, judicial district of

Middlesex, Aurigemma, J.)

Hugh D. Hughes, with whom, on the brief, was John

J. Carta, Jr., for the appellants (defendants).

Geraldine A. Cheverko, for the appellee (plaintiff).
Opinion

PRESCOTT, J. In this mortgage foreclosure action,

the defendants, Glynnis Sorrentino and Gallery at 85

Main, LLC, appeal from the summary judgment on their

counterclaims rendered in favor of the plaintiff, U.S.

Bank National Association, as Trustee for J.P. Morgan

Mortgage Acquisition Trust 2006-CH1, Asset Backed

Pass-Through Certificates, Series 2006-CH1.1 The defendants claim that the court improperly granted the plaintiff’s motion for summary judgment with respect to four

of their five counterclaims because the affidavit and

other evidence submitted in support of the motion for

summary judgment failed to address the factual allegations underlying those counterclaims and, thus, did not

demonstrate a lack of a genuine issue of material fact.2

The plaintiff argues on appeal, however, that the factual

allegations in the counterclaims relate to activities that

postdate the origination of the loan, the defendant’s

default and the plaintiff’s commencement of this foreclosure action, and that, because they do not relate to

the making, validity or enforcement of the mortgage,

they fail as a matter of law. We agree with the plaintiff

and, accordingly, affirm the judgment of the trial court.

The record reveals the following undisputed facts

and procedural history. In February, 2006, Sorrentino

executed a note in favor of Chase Bank USA, N.A., in

the principle amount of $380,000. At the same time, to

secure that note, Sorrentino executed a mortgage in

favor of Chase Bank USA, N.A., on property located at

85 Main Street in Essex. In April, 2007, Sorrentino, by

way of a quit claim deed, transferred her interest in the

85 Main Street property to Gallery at 85 Main, LLC, a

limited liability company with Sorrentino as its sole

member.

In June, 2009, the plaintiff filed the present action,

alleging that the note was in default and seeking to

foreclose the mortgage.3 On October 12, 2010, the court

referred the parties to the foreclosure mediation program. See General Statutes §§ 49-31l through 49-31o.

On May 3, 2012, the foreclosure mediator issued a final

report indicating that the parties were unable to reach

any agreement and referring the matter back to the

court. The defendants filed an answerto the foreclosure

complaint on May 28, 2013, which included eleven special defenses and five counterclaims.

Counterclaims one, two, four, and five, which

sounded respectively in equitable estoppel, breach of

the covenant of good faith and fair dealing, unclean

hands, and fraud, were all premised on a common set

of factual allegations that alleged improper conduct by

the plaintiff during the foreclosure mediation proceedings. Specifically, each of those four counterclaims

incorporated by reference the following eight paragraphs:
‘‘1. Subsequent to the filing of the instant action,

plaintiff and defendants engaged in a court annexed

mediation program.

‘‘2. Pursuant to the mediation process, defendants

provided to plaintiff, on a regular basis, each and every

document requested by plaintiff.

‘‘3. The plaintiff conducted the mediation process in a

manner calculated effectively to ensure that the subject

loan would not qualify for modification. During this

process, plaintiff continually requested documents

which had already been provided; regularly claimed to

have lost or misplaced documents; professed to not

understand the sources and amounts of income despite

repeated, good faith, efforts on the part of defendants

to provide this information to plaintiff. Plaintiff, on a

regular basis, assured defendants that . . . they would

qualify for a modification, and that ‘we want you to

stay in your home and keep your home’ when, in fact,

plaintiff knew that the chances for a modification

were negligible.

‘‘4. Plaintiff, either intentionally or negligently,

delayed the mediation process, which resulted in the

defendants accruing an exorbitant reinstatement

arrearage, which made it impossible for defendants to

even consider reinstating the loan with a lump sum

payment.

‘‘5. Plaintiff either negligently or intentionally strung

this process along for over one year thereby rendering

the possibilities of a modification nonexistent and the

entire process a sham.

‘‘6. Plaintiff explicitly and/or implicitly made certain

representations to defendants upon which defendants

relied; plaintiff knew or should have known that it was

not prepared to offer a loan modification, but, nevertheless, continued to string defendants along, either

expressly or impliedly representing that defendants

would be eligible for a loan modification.

‘‘7. At no point during the loan mediation process

[were] defendant[s] advised that [they] would not qualify for a modification until [they were] so advised at

the last mediation session.

‘‘8. The undersigned was repeatedly assured by representatives of the plaintiff that all the documents were

appropriately submitted and, in [their] opinion, this loan

was eligible for modification; this occurred repeatedly

during the mediation process leading defendants to

believe that a loan modification was imminent.’’

Counterclaim three, which, as previously discussed

in footnote 2 of this opinion, alleged a violation of the

Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., relied on an entirely

distinct set of factual allegations. Rather than incorporating the previously quoted paragraphs, the CUTPA
counterclaim alleged as follows: ‘‘The plaintiff failed to

provide the defendants with a copy of their mortgage

and loan in this transaction. The plaintiff failed to provide a HUD-1 or HUD-1 like statement for the disbursement of the loan funds. The failure to provide such

statement handicapped the defendants from exercising

their statutory right of rescission within three days and

other deadlines. The failure to provide such a statement

also kept them in a state of poor understanding of the

obligations they had undertaken, resulting in their great

distress, injury, and possible loss of hearth and home.’’

The defendants also alleged that the plaintiff had

‘‘engaged in a continuing course of conduct from the

date of the closing [up] to and including the institution

of this action.’’

The plaintiff never moved to strike any of the counterclaims. On October 10, 2013, however, the plaintiff filed

a motion for summary judgment and a memorandum

of law in support of that motion. The plaintiff also

submitted documentary evidence and an affidavit in

support of its motion. With respect to the foreclosure

complaint, the plaintiff sought an order granting summary judgment as to liability only. The plaintiff also

challenged the propriety of the defendants’ counterclaims and special defenses.

The defendants filed a memorandum in opposition

to the motion for summary judgment as well as a supplemental memorandum, each of which focused almost

exclusively on the issue of whether the plaintiff had

standing to bring the foreclosure action and whether

it had provided evidence supporting standing. The memoranda in opposition did not address the substance of

the plaintiff’s arguments regarding the legal sufficiency

of the various counterclaims. The defendants filed no

affidavits or any other evidence in support of their opposition to summary judgment.

On December 6, 2013, the court, Aurigemma, J.,

issued a memorandum of decision granting the plaintiff’s motion for summary judgment on the foreclosure

complaint as to liability only, and also rendering summary judgment for the plaintiff on the defendants’ counterclaims.4 With respect to the judgment rendered on

the counterclaims, the court reasoned as follows: ‘‘The

defendants’ initial objection to the summary judgment

does not address [their] special defenses or[their] counterclaims. [Their] supplemental objection mentions several Superior Court cases where special defenses

similar to those [they have] alleged were not stricken.

However, the court is not considering a motion to strike.

In opposition to a motion for summary judgment, the

defendants must present some concrete evidence to

support [their] defenses and counterclaims. . . . [They

have] failed to do so. . . . The defendants [have] presented no evidence to support any of [their] arguments.’’ (Emphasis in original.) This appeal followed.
The defendants claim on appeal that the court

improperly granted the plaintiff’s motion for summary

judgment with respect to their counterclaims. The

defendants argue that the affidavit and other documentary evidence submitted by the plaintiff in support of

its motion for summary judgment were unresponsive

to the factual allegations that they raised in their counterclaims, and that ‘‘the plaintiff only argued that the

counterclaims were improperly joined because they did

not relate to the making, validity or enforcement of the

mortgage note or deed.’’ According to the defendants,

the plaintiff failed to meet its initial burden of showing

a lack of a genuine issue of material fact and that it

was entitled to judgment as a matter of law, and, thus,

contrary to the trial court’s decision, they were not

obligated to provide any evidentiary support with their

opposition in order to avoid summary judgment.

It is important to clarify from the outset that, although

the defendants’ arguments in their brief on appeal are

directed at all five of their counterclaims, the analysis

in the brief is limited to the plaintiff’s alleged failure to

submit evidence in support of summary judgment with

respect to the plaintiff’s conduct during the foreclosure

mediation program only. We therefore view the claim

on appeal to be limited to a challenge to the court’s

decision on the four counterclaims alleging improper

conduct in the mediation program.5 The CUTPA counterclaim did notrely on any facts arising from the mediation program, and the defendants do not include any

additional analysis pertaining to the distinct allegations

supporting their CUTPA counterclaim. Accordingly,

even if the defendants intended to bring this claim to

challenge the propriety of the summary judgment decision with respect to all ofthe counterclaims, the briefing

is inadequate with respect to the CUTPA counterclaim,

and, thus, we deem it abandoned. See footnote 2 of

this opinion.

For the reasons that follow, we conclude that,

because there were no disputed issues of material facts

relative to whether the defendants’ mediation counterclaims were legally insufficient—an issue that the

defendants clearly understood as having been raised

by the plaintiff in its memorandum in support of the

motion for summary judgment, but which they wholly

failed to address in their opposition to the motion—

and because the defendants could not have benefitted

from an opportunity to replead their counterclaims, the

court properly granted summary judgment in favor of

the plaintiff.

Practice Book § 17-49 provides that summary judgment ‘‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.’’

The rules governing summary judgment are equally
applicable to counterclaims. Practice Book § 17-44.6

‘‘In

deciding a motion for summary judgment, the trial court

must view the evidence in the light most favorable to

the nonmoving party. . . . The party seeking summary

judgment has the burden of showing the absence of

any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a

judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue

of material fact. . . . [I]ssue-finding, rather than issuedetermination, is the key to the procedure. . . . [T]he

trial court does not sit as the trier of fact when ruling

on a motion for summary judgment. . . . [Its] function

is not to decide issues of material fact, but rather to

determine whether any such issues exist. . . . Our

review of the decision to grant a motion for summary

judgment is plenary.’’(Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, 116

Conn. App. 28, 42–43, 974 A.2d 820 (2009), aff’d, 304

Conn. 298, 39 A.3d 1065 (2012).

Although, ordinarily, a challenge to the legal sufficiency of a pleading should be raised by way of a motion

to strike; see Practice Book § 10-39 (a); our Supreme

Court has held that a motion for summary judgment also

may be used to challenge a pleading’s legal sufficiency

provided that the party seeking summary judgment can

establish as a matter of law both that the cause of action

alleged is legally insufficient and, more importantly,

that any defect in the pleading could not be cured by

repleading, which the nonmoving party would have had

an opportunity to do if the alleged insufficiency had

been raised by way of a motion to strike.7 See Larobina

v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005);

see also Practice Book § 10-44. If both prongs are met,

the court may properly grant summary judgment as a

matter of law. The court in Larobina further explained

that ‘‘we will not reverse the trial court’s ruling on a

motion for summary judgment that was used to challenge the legal sufficiency of [a pleading] when it is

clear that the motion was being used for that purpose

and the nonmoving party, by failing to object to the

procedure before the trial court, cannot demonstrate

prejudice.’’ Larobina v. McDonald, supra, 402.

A counterclaim that has been filed in contravention

of our rules of practice is legally insufficient. Section

10-10 of the Practice Book provides in relevant part

that ‘‘[i]n any action for legal or equitable relief, any

defendant may file counterclaims against any plaintiff

. . . provided that each such counterclaim . . . arises

out of the transaction or one of the transactions which

is the subject of the plaintiff’s complaint . . . .’’ This

court previously has held that, ‘‘[i]n a foreclosure action,

a counterclaim must relate to the making, validity or

enforcement of the mortgage note in order properly to

be joined with the complaint.’’ JP Morgan Chase Bank,
Trustee v. Rodrigues, 109 Conn. App. 125, 133, 952 A.2d

56 (2008); see also New Haven Savings Bank v. LaPlace,

66 Conn. App. 1, 9–11, 783 A.2d 1174 (affirming summary judgment for plaintiff on counterclaims not

related to making, validity or enforcement of mortgage

note), cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).

Thus, ‘‘[c]onduct on the part of the [foreclosing party]

that occurred after the loan documents were executed

and not necessarily directly related solely to enforcement of the note . . . properly has been found not to

arise out of the same transaction as the complaint.’’

JP Morgan Chase Bank, Trustee v. Rodrigues, supra,

134–35, citing Southbridge Associates, LLC v. Garofalo,

53 Conn. App. 11, 16–21, 728 A.2d 1114, cert. denied,

249 Conn. 919, 733 A.2d 229 (1999). In CitiMortgage,

Inc. v. Rey, 150 Conn. App. 595, 605–606, 92 A.3d 278,

cert. denied, 314 Conn. 905, 99 A.3d 635 (2014), this

court clarified that a proper application of Practice

Book § 10-10 in a foreclosure contextrequires consideration of whether a counterclaim has some reasonable

nexus to, rather than directly attacks, the making, validity or enforcement of the mortgage and note. With these

principles in mind, we turn to the present case.

In its memorandum in support of summary judgment,

the plaintiff argued to the court that each of the defendants’ mediation counterclaims was based on the same

set of supporting facts; that those supporting facts

involved matters that were unrelated to the making,

validity and enforcement of the mortgage or note, but

instead involved activities ‘‘which are postloan origination, postdefault and postcommencement of the foreclosure action’’; and that, as a result, the counterclaims

were not part of the same transaction that is the subject

of the foreclosure complaint and were improper. We

view those arguments as directly challenging whether

the counterclaims were properly joined pursuant to the

transaction test set forth in Practice Book § 10-10 and,

thus, their legal sufficiency. As the trial court stated,

the defendants failed to address the substance of the

plaintiff’s legal challenges to their counterclaims in

either their opposition to the motion for summary judgment or their supplemental opposition. The defendants

never argued that it was improper for the court to consider the plaintiff’s insufficiency arguments in adjudicating the motion for summary judgment or that the

plaintiff had waived its right to challenge the joinder

of the counterclaims by failing to file a motion to strike.

Accordingly, none of those issues is before us on appeal.

The subject matter of the underlying complaint is the

foreclosure of a mortgage on property located at 85

Main Street in Essex. The relevant transactions for purposes of Practice Book § 10-10 are, therefore, the execution of the note and mortgage, and the subsequent

default. See JP Morgan Chase Bank, Trustee v.

Rodrigues, supra, 109 Conn. App. 132. Our review of

the allegations underlying the defendants’ mediation
counterclaims shows that, even when viewed in a light

most favorable to the defendants as the nonmoving

party, allthe allegations underlying those counterclaims

are addressed to the plaintiff’s improper conduct during

the foreclosure mediation program. That program did

not begin until after the execution of the note and mortgage, and after the foreclosure action was commenced,

and, thus, does not reasonably relate to the making,

validity or enforcement of the note or mortgage.

Moreover, the defendants have not posited how the

factual allegations underlying the counterclaims have

any reasonable nexus to the making, validity or enforcement of the mortgage or note, nor can we discern one.

See CitiMortgage, Inc. v. Rey, supra, 150 Conn. App.

605–606. Even if the defendants were provided with an

opportunity to replead, we conclude as a matter of law

that no permissible corrections could transform the

counterclaims so that they comply with the transaction

test set forth in Practice Book § 10-10. See footnote 7

of this opinion.

Finally, we reject the defendants’ contention that the

trial court should have denied the motion for summary

judgment because the affidavit and other evidence submitted by the plaintiff were unresponsive to the factual

allegations in its counterclaims. In arguing that the

mediation counterclaims were legally insufficient, the

plaintiff was not factually disputing any of the specific

allegations raised in those counterclaims; rather, the

plaintiff was asserting that, even assuming the truth of

all facts alleged, the counterclaims were improperly

joined and it was entitled to summary judgment on the

counterclaims as a matter of law. Because the plaintiff’s

arguments in support of summary judgment were purely

legal in nature or relied on undisputed facts, it was

unnecessary for it to submit evidence directly

responding to the factual allegations of the counterclaims in order to prevail on its motion for summary

judgment.

We agree with the defendants’ assertion that ‘‘[w]hen

documents submitted in support of a motion for summary judgment fail to establish that there is no genuine

issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence

of such an issue’’; Allstate Ins. Co. v. Barron, 269 Conn.

394, 405, 848 A.2d 1165 (2004); see also Harvey v. Boehringer Ingelheim Corp., 52 Conn. App. 1, 8–9, 724 A.2d

1143 (1999); and we do not approve of any statement

by the trial court in its memorandum of decision that

could be viewed as setting forth a contrary standard.

The fatal problem regarding the defendants’ opposition

to summary judgment was not a lack of factual support,

but their complete failure to address the legal insufficiency of their counterclaims. Under established case

law, counterclaims one, two, four and five were not

properly joined with the foreclosure complaint, an
opportunity to replead would have been futile, and,

therefore, summary judgment properly was rendered

by the court.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The court also granted summary judgment as to liability only with respect

to the foreclosure complaint, and the defendants appealed from that aspect

of the court’s decision as well. We later granted a motion to dismiss that

portion of the appeal for lack of subject matter jurisdiction, however,

because the granting of summary judgment as to liability only is not a final

judgment. See Danbury v. Hovi, 34 Conn. App. 121, 122–23, 640 A.2d 609

(1994). Nevertheless, because the court’s decision disposed of all counterclaims brought by the defendants against the plaintiff, that aspect of the

court’s decision constituted a final judgment for purposes of filing an appeal.

See Practice Book § 61-2.

2 The defendants also raise a separate claim on appeal with respect to

counterclaim three, which alleged a violation of the Connecticut Unfair

Trade Practices Act(CUTPA), General Statutes § 42-110a et seq. Specifically,

the defendants claim that the court improperly granted summary judgment

on that counterclaim because, in their view, the plaintiff provided no evidence in support of its motion establishing ‘‘that the loan was part of the

purchase of the property rather than a refinance’’ or that ‘‘the note and

mortgage were provided to the defendants at any time prior to summary

judgment, let alone at or near the time of closing.’’ The defendants fail to

state the legal significance of those assertions and provide no legal analysis

regarding the court’s decision to grant summary judgment with respect to

their CUTPA counterclaim. We, therefore, decline to review this additional

claim because it is inadequately briefed. See Carmichael v. Stonkus, 133

Conn. App. 302, 307, 34 A.3d 1026 (‘‘[W]e are not required to review claims

that are inadequately briefed. . . . We consistently have held that [a]nalysis,

rather than mere abstract assertion, is required in order to avoid abandoning

an issue by failure to brief the issue properly.’’ [Internal quotation marks

omitted.]), cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).

3 The defendants moved to dismiss the foreclosure action for lack of

standing, arguing that, despite the allegations to the contrary in the foreclosure complaint, the plaintiff was not the holder of eitherthe note or mortgage

at the time the action was commenced. The trial court denied that motion

without comment. Attached to the plaintiff’s objection to the motion to

dismiss was an affidavit from an officer of the mortgage servicing company

stating that the plaintiff was the holder of the note at the time the foreclosure

action was commenced. The defendants continued to raise the issue of

standing in their opposition to summary judgment. That issue, which relates

to the ongoing foreclosure action and not to the defendants’ counterclaims,

is not properly before us as a part of the present appeal. See footnote 1 of

this opinion.

4 We note that the motion for summary judgment and the memorandum

of law in support of the motion for summary judgment did not expressly

request that the court render judgment on the counterclaims. Nevertheless,

in its memorandum in support of the motion, the plaintiff provided legal

analysis attacking the validity of the counterclaims, following which the

plaintiff asserted that the counterclaims were ‘‘legally wrong, inapplicable

or insufficiently pleaded’’ and that there were ‘‘no issues of material fact’’

with respectto them. The defendants acknowledged the plaintiff’s challenges

to their counterclaims in their supplemental memorandum in opposition to

summary judgment, although they did not respond to the merits of the

plaintiff’s arguments. After summary judgment was granted, the defendants

filed a motion for reconsideration of the decision. The defendants did not

argue in their motion for reconsideration that the trial court improperly

exceeded the relief sought in the motion for summary judgment. In other

words, they did not claim that summary judgment on the counterclaims

was improper because the motion, on its face, was directed only at liability

with respect to the foreclosure complaint. The defendants also have not

raised that argument as a claim of error on appeal. Accordingly, whether

the court correctly construed the motion for summary judgment as having

been directed at the counterclaims as well as the complaint is not an issue

that is properly before us on appeal.

5 The fact that the defendants raised a separate claim of error directed

solely at the judgment on the CUTPA counterclaim; see footnote 2 of this
opinion; supports our conclusion that the claim that the plaintiff failed to

respond factually to the counterclaims pertains only to the other four counterclaims.

6 Practice Book § 17-44 provides in relevant part that our rules regarding

summary judgment ‘‘shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.’’

7

‘‘The right afforded by Practice Book § 10-44 to file a new pleading

following the granting of a motion to strike, however, is limited to making

those corrections needed to render the claims set forth in the original

pleading legally sufficient. It is not an opportunity to file wholly amended

pleadings that assert new legal claims or rely on a wholly unrelated set of

facts, permission for which ordinarily could be obtained only in accordance

with the provisions of Practice Book § 10-60.’’ GMAC Mortgage, LLC v. Ford,

144 Conn. App. 165, 180–81, 73 A.3d 742 (2013).