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*********************************************** 
JPMORGAN CHASE BANK, NATIONAL

ASSOCIATION v. ROBERT

J. VIRGULAK ET AL.

(SC 20403)

Robinson, C. J., and McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

The plaintiff bank, J Co., sought to foreclose a mortgage on certain real

property owned by the defendant T. T’s husband, R, had executed and

delivered to J Co. a promissory note for a loan on December 11, 2006.

T was not a signatory on the note. On the same date, T signed a mortgage

deed for her property, which recited that it was given to secure a note

dated December 11, 2006, that was signed by T as the borrower. The

mortgage deed did not reference R. J Co. commenced its foreclosure

action after the note went into default. J Co. subsequently withdrew

the foreclosure action as to R, as he had been granted an unconditional

discharge of the debt associated with the note in a separate bankruptcy

proceeding. Thereafter, another bank, M Co., was substituted as the

plaintiff, and it filed an amended complaint in which it sought, inter

alia, a judgment of foreclosure and equitable reformation. The trial court

rendered judgment for T on M Co.’s foreclosure and reformation claims,

concluding that M Co. did not sustain its burden of proving, by clear

and convincing evidence, that it was entitled to the equitable remedy

of reformation of the mortgage deed. M Co. appealed to the Appellate

Court, which affirmed the trial court’s judgment. On the granting of

certification, M Co. appealed to this court. Held:

1. The Appellate Court properly upheld the trial court’s decision declining

M Co.’s request to reform the mortgage deed executed by T to reference

the fact that it was given to secure a note executed by R, as this court

could not conclude that the absence of a finding by the trial court that

the parties intended the mortgage deed signed by T to secure R’s note was

clearly erroneous: the language of the mortgage deed, the circumstances

surrounding the negotiation of the mortgage, and the conduct of the

parties in relation to the mortgage deed and the note did not necessarily

support M Co.’s claim that the parties intended the mortgage deed to

secure the note signed by R, as the language of the mortgage deed did

not mention R or any note executed by him, there was no evidence that

M Co. or its predecessors in interest ever spoke with T prior to her

execution of the mortgage deed or required her to secure the note as

a condition of R’s receipt of the net loan proceeds from the note, T did

not attend the closing, and R used most of the proceeds he received to

pay off credit cards that were his exclusive responsibility; moreover,

although the mortgage deed referenced a note with the same date and

in the same amount as the note that R signed, which M Co. claimed

must be the note T agreed to secure, the evidence presented with respect

to this issue fell short of the very high burden required to demonstrate

mutual mistake, as M Co.’s immediate predecessor in interest acknowledged that T did not borrow any money from it or J Co., M Co. conceded

that the mortgage deed was not intended to secure any note signed by

T, and M Co. failed to present any testimony regarding whether J Co.

intended T’s signature on the mortgage deed to secure the note signed

by R.

2. The Appellate Court properly upheld the trial court’s determination that

M Co. was not entitled to foreclose the mortgage executed by T because

T was not a borrower on the note; there was no merit to M Co.’s claim

that foreclosure was the proper equitable relief on the grounds that it

was undisputed that T entered into a mortgage transaction and common

sense dictated that she intended her property interest to serve as security

for the note contemporaneously executed by R, as the mortgage deed,

as executed, was a nullity because it secured a nonexistent debt, and,

accordingly, this court could not conclude that M Co. was entitled to

foreclose a mortgage for a debt for which T was not responsible and

that was not referenced in the mortgage deed.
Argued October 22, 2020—officially released January 11, 2022*

Procedural History

Action to foreclose a mortgage on certain real property owned by the defendant Theresa Virgulak, and for

other relief, brought to the Superior Court in the judicial

district of Stamford-Norwalk, where the plaintiff withdrew the action as to the named defendant; thereafter,

Manufacturers and Traders Trust Company was substituted as the plaintiff; subsequently, the case was tried

to the court, Hon. David R. Tobin, judge trial referee,

who, exercising the powers of the Superior Court, rendered judgment in part for the defendant Theresa Virgulak, from which the substitute plaintiff appealed to the

Appellate Court, Sheldon and Keller, Js., with Bear, J.,

dissenting, which affirmed the trial court’s judgment,

and the substitute plaintiff, on the granting of certification, appealed to this court. Affirmed.

Brian D. Rich, with whom, on the brief, was Laura

Pascale Zaino, for the appellant (substitute plaintiff).

Alexander H. Schwartz, for the appellee (defendant

Theresa Virgulak).

Jeffrey Gentes and J.L. Pottenger, Jr., and Chaarushena Deb, Sophie Laing, Zaria Noble, Stefanie Ostrowski and Emily Coady, law student interns, filed a brief

for the Housing Clinic of the Jerome N. Frank Legal

Services Organization as amicus curiae.
Opinion

MULLINS, J. The plaintiff, Manufacturers and Traders

Trust Company (M&T Bank),1 appeals from the judgment of the Appellate Court in favor of the defendant

Theresa Virgulak.2 On appeal, the plaintiff claims that

the Appellate Court improperly affirmed the judgment

of the trial court because (1) the trial court improperly

declined the plaintiff’s request to reform a mortgage

deed to reference that the mortgage deed executed by

the defendant was given to secure a note executed by

her husband, Robert J. Virgulak (Robert), and (2) even

if the trial court properly denied the request to reform

the mortgage deed, it incorrectly determined that the

plaintiff was not entitled to foreclose the mortgage executed by the defendant because the defendant was not

a borrower on the note. We disagree with the plaintiff

and affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the

following relevant facts and procedural history. ‘‘On or

about December 11, 2006, Robert . . . 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 [deed]) for residential property she owns at

14 Bayne Court in Norwalk (property). The mortgage

[deed] recited that it was given to secure a note dated

December 11, 2006, and recited that the note was signed

by the defendant as [the] ‘[b]orrower’ in the amount

of $533,000. The term ‘[b]orrower’ is defined in the

mortgage deed as ‘[Theresa Virgulak, married].’ The

mortgage [deed] 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 [trial]

court on August 18, 2015.

‘‘On September 25, 2015, the defendant filed a motion

for summary judgment, arguing that Hudson was pre-
cluded 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 [Hudson] 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.’’ JPMorgan Chase Bank, National Assn. v.

Virgulak, 192 Conn. App. 688, 692–93, 218 A.3d 596

(2019).

‘‘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 [defendant]. 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 [that]

she was obligated to pay and (2) she had free use of

the subject property without satisfying the terms of the

mortgage [deed], which she had executed.

‘‘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.’’ (Footnote omitted.) Id.,

693–94.

‘‘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.’’ Id., 694. The trial

court ordered the parties to submit posttrial briefs.

‘‘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 deed3

. . . . Accordingly, the court finds the issues on the second count

for [the defendant] and against the plaintiff. [Because]

the plaintiff failed to present any authority to the court

[that] 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 benefited in several respects as a result of the loan

that Robert had obtained . . . . The court ultimately

determined that [Hudson’s] responses to the requests

for admissions precluded any recovery on [the plaintiff’s] unjust enrichment claim, except for the property

tax payments that the defendant conceded that she

owed to the plaintiff.’’4

(Footnote added; footnote omitted.) Id., 695–97. Thereafter, the plaintiff appealed from

the judgment of the trial court to the Appellate Court.

On appeal to the Appellate Court, the plaintiff

claimed, inter alia, that the trial court (1) improperly

failed to exercise its discretion to consider the plaintiff’s

foreclosure claim as independent from its other claims

and failed to grant the plaintiff the equitable remedy

of foreclosure, (2) improperly declined to reform the

mortgage deed, and (3) incorrectly concluded that Hudson’s admissions limited the plaintiff’s recovery under

its unjust enrichment count. See id., 691–92. The Appellate Court affirmed the judgment of the trial court. Id.,

722. It concluded, inter alia, that the trial court (1)

‘‘did not ignore the plaintiff’s claim for foreclosure’’;

id., 700–701; (2) properly ‘‘declined to grant foreclosure

of the mortgage without reformation because it determined that the mortgage [deed], as executed, was a

nullity because it secured a nonexistent debt’’; id., 703;

see id., 705; (3) did not abuse its discretion by declining

to reform the mortgage deed because the plaintiff did

not meet its burden of proving by clear and convincing

evidence that the mortgage deed did not conform to

the parties’ agreement; see id., 706; and (4) ‘‘did not

abuse its discretion in limiting the award under the

unjust enrichment count to the property taxes owed to

the plaintiff.’’ Id., 721.

We granted the plaintiff’s petition for certification to

appeal, limited to the following issues: (1) ‘‘Did the

Appellate Court properly uphold the trial court’s decision declining the plaintiff’s request to reform the mortgage deed to reference the fact that the mortgage [deed]

executed by the defendant was given to secure a note

executed by [Robert]?’’ And (2) ‘‘[i]f the answer to the

first certified question is ‘yes,’ did the Appellate Court

properly uphold the trial court’s determination that the

plaintiff was not entitled to foreclose the mortgage

executed by the defendant because the defendant is

not a borrower on the note?’’ JPMorgan Chase Bank,

National Assn. v. Virgulak, 333 Conn. 945, 219 A.3d 375

(2019). Additional facts will be set forth as necessary.

I
We first consider whether the Appellate Court properly affirmed the judgment of the trial court declining

to grant reformation of the mortgage deed. The plaintiff

asserts that the trial court improperly did not find that

the parties intended for the mortgage deed signed by

the defendant to secure the note signed by Robert.

Therefore, the plaintiff contends, the mortgage deed

should be reformed to reflect the parties’ true agreement. The defendant counters that the trial court properly refused to reform the mortgage deed on the basis

of the court’s factual findings. We agree with the defendant.

‘‘Reformation is appropriate only when the [contract]

executed by the parties does not reflect the agreement

the parties actually intended. . . . 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.) ARS

Investors II 2012-1 HVB, LLC v. Crystal, LLC, 324

Conn. 680, 692–93, 154 A.3d 518 (2017).

‘‘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 [on] 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. . . . Equity evolved the doctrine

because an action at law afforded no relief against an

instrument secured by fraud or as a result of mutual

mistake. . . . 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 [that] neither intended.’’ (Citations

omitted; internal quotation marks omitted.) Lopinto v.

Haines, 185 Conn. 527, 531–32, 441 A.2d 151 (1981).

Additionally, ‘‘[w]here fraud is absent, 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.’’ (Emphasis omitted; internal quotation marks

omitted.) Id., 535. There is no allegation of fraud in

this case.

‘‘We have stated the standard of proof for reformation

in different ways but all with the same substantive

thrust: evidence should be clear, substantial and convincing.’’ (Internal quotation marks omitted.) Id., 534.

‘‘This is the quality of the evidence required in cases

of this type.’’ Id., 535. ‘‘The burden of proof on the issue
of reformation is [on] the party seeking it.’’ Id.

Here, the plaintiff had to establish the parties’ clear

agreement that the defendant’s mortgage deed was

intended to secure the note executed by Robert. As this

court has recognized, ‘‘the trier is the judge of credibility

and, specifically . . . what the terms of the agreement

were [is] a question of fact for the trier. . . . This court

is limited to corrections of errors of law . . . .’’ (Citations omitted; footnote omitted.) Id., 536. The question

of whether, on the facts found, the court has held the

plaintiff, who had the burden of proof on the reformation issue, to the correct standard becomes one of law

and is reviewable. See id.

In the present case, the plaintiff does not assert that

the trial court improperly required it to prove the parties’ agreement by clear and convincing evidence.

Instead, on appeal, the plaintiff challenges the trial

court’s determination regarding the terms of the agreement between the parties, which is a factual determination subject to the clearly erroneous standard of review.

See id.

The trial court noted that the parties stipulated to

the following facts: ‘‘On or about December 11, 2006,

Robert executed and delivered to [JPMorgan] Chase a

note in the principal amount of $533,000 . . . . [The

defendant] did not sign the note. The note was not

timely paid, [it] went into default on or about February

1, 2010, and [JPMorgan Chase] elected to accelerate

the balance due on the note. The present foreclosure

action was commenced by [JPMorgan] Chase in February, 2013, at which time it held the note executed by

Robert. . . .

‘‘On January 24, 2011, Robert filed for protection

under chapter 7 of the [United States] Bankruptcy Code,

listing the note as an unsecured debt. The filing listed

no real property owned by Robert. . . . [O]n April 26,

2011, Robert was granted an unconditional discharge

from the bankruptcy court for his obligations under

the note.

‘‘[The defendant] signed [the mortgage deed] on

December 11, 2006, which recited that it was given to

secure a note dated December 11, 2006, signed by [the

defendant] as the ‘[b]orrower,’ in the amount of

$533,000. The term ‘[b]orrower’ is defined in the mortgage deed as ‘Theresa Virgulak, married.’ . . . [The

defendant] has never signed a [guarantee] of Robert’s

obligations under the note.’’ (Footnote omitted.)

The trial court heard evidence from the parties over

the course of a one day trial. The plaintiff introduced

into evidence a copy of the note and mortgage deed.

The trial court made the following findings.

The trial court found that the note was signed only

by Robert, above a signature line labeled ‘‘Robert J.

Virgulak,’’ and that the note does not contain a signature
line with the defendant’s name. The trial court further

found that ‘‘[t]he note . . . recites the obligations of

the ‘[b]orrower’ and does not otherwise define that

term. However, page 3 of the note bears the signature

of ‘Robert J. Virgulak—[b]orrower.’ The note does not

bear [the defendant’s] signature, nor does it indicate in

any way that any person, other than Robert, is obligated

under the terms of the note.’’ (Citation omitted.)

The trial court explained that Rodriguez admitted

that JPMorgan Chase’s files did not include any originals

or copies of any note signed by the defendant. Rodriguez did authenticate a United States Department of

Housing and Urban Development Settlement Statement

(HUD-1A form), a Transfer of Servicing Disclosure

Statement, a Truth in Lending Statement, and a Notice

of Right To Cancel, which were all signed by the defendant. None of these mortgage documents references

the note executed by Robert.

The trial court also relied on the defendant’s testimony.5 At trial, the defendant testified that she had lived

at the property for thirty-four years and had owned it

for the last thirty years. The defendant further testified

that she signed the mortgage deed at Robert’s request.

She admitted that she signed the HUD-1A form, the

Transfer of Servicing Disclosure Statement, the Truth

in Lending Statement, and the Notice of Right To Cancel, but testified that she had not read the documents

before signing them and that she signed them in

Robert’s presence only. The plaintiff presented no evidence to dispute this testimony.

The trial court explained that the defendant further

testified that she had agreed that the proceeds of the

subject note would be used to pay off a prior mortgage

on the property but that she did not receive any portion

of the $155,236.22 shown as paid to the ‘‘[b]orrower.’’

The defendant explained that Robert managed the family’s bills and paid all real estate taxes. The defendant

further testified that she and Robert did not file joint

tax returns or have credit cards in their names. The

defendant also denied that she had signed any guarantees of Robert’s debts.

The trial court also relied on Robert’s testimony at

trial.6 He testified that, in his loan application, he

included the value of the property, even though he knew

that the property was solely in the defendant’s name.

Robert also testified that he had considered both he

and the defendant jointly responsible for the prior mortgages on the property. Robert further testified that he

had received the entire $155,236.22 in funds disbursed

to the borrower at the closing. Robert explained that

he used some of those funds to improve the kitchen

and bathroom at the property. Robert testified that he

paid the obligations under the note, real estate taxes

and property insurance up until the time he filed for

bankruptcy in 2010. Robert further testified that, since
that time, he has not made any payments under the note

or for real estate taxes but did reinstate the property

insurance. According to Robert, the defendant has occupied the property since 2006 but has not made mortgage

payments or paid property taxes.

During cross-examination, Robert testified that the

majority of the documents relating to the mortgage were

given to him, not the defendant. He further testified

that the defendant was not present at the closing held

at the attorney’s office. Robert explained that all communications regarding the mortgage were sent to him,

not the defendant. Robert also explained that he used

$109,070.48 of the proceeds of the note to pay off credit

cards that were his exclusive responsibility and that

approximately $35,000 of it was used to improve the

kitchen and bathroom at the property. Robert also testified that JPMorgan Chase ‘‘required that the prior mortgages be paid off as a condition of granting the loan.’’

The trial court ultimately found: ‘‘The documents in

evidence and the testimony of the witnesses leave many

gaps in the factual record. It is not clear [whether]

Robert spoke with any individual representing [JPMorgan] Chase prior to applying for the mortgage. There

was no mortgage commitment listing the terms under

which [JPMorgan] Chase was prepared to close the loan

and what role, if any, [it] intended [the defendant] to

play in the transaction. The [HUD-1A form] lists only

one disbursement to a law firm—the $525 paid to

Bove & Milici. Although Robert testified that the closing

took place in John Milici’s office, he did not testify as

to whether Milici was representing him, [JPMorgan]

Chase, or both. There was no testimony as to who

prepared or reviewed the closing documents. Both

Robert and [the defendant] testified that [the defendant]

did not attend the closing and that she signed the mortgage deed and four related documents at the family

home. However, there was no explanation of how the

mortgage [deed] came to bear the signatures of two

witnesses, one of whom, [Milici], also purported to take

[the defendant’s] acknowledgement.

‘‘The records authenticated by . . . Rodriguez are

silent as to any understanding [that JPMorgan] Chase

may have had with [the defendant] regarding her

responsibility for the loan being made to Robert. Those

records did not include a mortgage commitment letter

or closing instructions, both of which typically would

describe the transaction in detail and contain a checklist

of documents required to be executed prior to disbursement of the proceeds of the loan.’’

On the basis of the foregoing, the trial court concluded: ‘‘The court finds that the plaintiff has not sustained its burden of proving, by clear and convincing

evidence, that it is 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.’’ (Citation omitted.)

In a well reasoned opinion, the Appellate Court

affirmed the judgment of the trial court, explaining that,

‘‘[a]s the [trial] 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.’’ JPMorgan Chase Bank, National

Assn. v. Virgulak, supra, 192 Conn. App. 714. We agree.

Principal among those gaps is that the mortgage deed

identifies a ‘‘[n]ote’’ but does not explicitly identify the

note signed by Robert. In other words, the plaintiff

failed to produce clear and convincing evidence of the

particular debt obligation that was being secured by

the mortgage deed executed by the defendant. Indeed,

in its posttrial brief, the plaintiff conceded that the

parties never intended the mortgage deed to secure a

note signed by the defendant.7 There was no evidence

produced or elicited by the plaintiff that required the

trial court to find that the defendant intended the mortgage as security for Robert’s loan.

On appeal to this court, the plaintiff does not assert

that any of the trial court’s findings of fact are clearly

erroneous or that the trial court incorrectly required

that mutual mistake be shown by clear and convincing

evidence. Instead, we understand the plaintiff’s claim

on appeal to be that the Appellate Court improperly

affirmed the judgment of the trial court because the

trial court failed to find, but should have found, that

the parties—and the defendant in particular—intended

the mortgage deed to secure Robert’s note.

It is well established that ‘‘[a] contract is to be construed according to what may be assumed to have been

the understanding and intention of the parties. . . .

The intention of the parties is a question of fact to

be determined from the language of the contract, the

circumstances attending its negotiation, and the conduct of the parties in relation thereto. . . . The trial

court’s finding of fact with respect to intent is reversible

on appeal only if the court’s finding was clearly erroneous.’’ (Citations omitted; internal quotation marks omitted.) Voll v. Lafayette Bank & Trust Co., 223 Conn. 419,

426, 613 A.2d 266 (1992). We cannot conclude that the

absence of a finding by the trial court that the parties

intended the mortgage deed signed by the defendant

to secure Robert’s note was clearly erroneous.

In the present case, the language of the contract does

not support the plaintiff’s claim that the defendant’s

mortgage deed was intended to secure the note executed by Robert. Indeed, the language of the mortgage

deed does not mention Robert or any note executed

by him.

The circumstances attending the negotiation of the

mortgage also do not necessarily support the plaintiff’s

claim that the parties intended the defendant’s mort-
gage deed to secure Robert’s note. There is no evidence

that the plaintiff or its predecessors in interest ever

spoke with the defendant prior to her execution of the

mortgage deed, or required her to secure the note as

a condition of Robert’s receiving the funds. The trial

court also pointed to the undisputed fact that the defendant did not attend the closing and to the lack of evidence as to whether JPMorgan Chase, or its representative, was present.

Furthermore, the conduct of the parties in relation

to the mortgage deed and the note also does not necessarily support the plaintiff’s claim that the defendant

and JPMorgan Chase intended the defendant’s signature

on the mortgage deed to secure the note signed by

Robert. The trial court found that Robert received all

of the net loan proceeds from the note and used most

of those funds to pay off credit cards that were his

exclusive responsibility. The plaintiff failed to introduce

any evidence of communications with the defendant

regarding the note and mortgage deed.

The trial court was not persuaded that the parties to

the mortgage deed intended it to secure the note signed

by Robert. As we have explained, this is a factual finding

left to the trial court that can be overturned only if it

is clearly erroneous. On the basis of the evidence in

the present case, we cannot conclude that the Appellate

Court improperly affirmed the judgment of the trial

court.

On appeal to this court, the plaintiff does not challenge the absence of a finding by the trial court that

the parties intended the mortgage deed signed by the

defendant to secure Robert’s note as clearly erroneous

or assert that the trial court applied the wrong standard

in making its factual finding. Instead, the plaintiff

asserts that, because the defendant signed a mortgage

deed that referenced a note with the same date and in

the same amount as the note that Robert signed, the

trial court incorrectly determined that the plaintiff did

not meet its high burden of showing that the defendant

intended the mortgage deed to secure the note executed

by Robert. The plaintiff essentially asserts that common

sense dictates that the defendant intended to sign the

mortgage deed to secure a note and that there is no

other reason to sign a mortgage deed. From there, the

plaintiff argues that the note Robert executed on the

same day that the defendant signed the mortgage deed

must be the note the defendant agreed to secure.

The question before this court, however, is not

whether a fact finder could reasonably have concluded

that the defendant intended the mortgage deed to

secure a note signed by Robert but, rather, whether the

trial court’s conclusion that it could not make such a

finding was clearly erroneous. We conclude that it was

not because, as the trial court correctly noted, the evidence presented on that specific question fell short of
the very high burden required to demonstrate mutual

mistake. Indeed, Hudson, the plaintiff’s predecessor in

interest, admitted that the defendant did not borrow

any money from Hudson or JPMorgan Chase, and the

plaintiff conceded that the mortgage deed was not

intended to secure any note signed by the defendant.

Further, the plaintiff failed to present any testimony

regarding whether JPMorgan Chase itself intended the

defendant’s signature on the mortgage deed to secure

the note signed by Robert. Because of this lack of evidence, we cannot conclude that the trial court’s inability

to find that the parties intended the mortgage deed

signed by the defendant to secure Robert’s note was

clearly erroneous.

This court repeatedly has warned that the power of

courts to reform written instruments is one that should

be exercised cautiously. See, e.g., Lopinto v. Haines,

supra, 185 Conn. 539 (‘‘[t]his standard of proof should

operate as a weighty caution upon the minds of all

judges, and it forbids relief whenever the evidence is

loose, equivocal or contradictory’’ (internal quotation

marks omitted)); see also, e.g., Philippine Sugar Estates

Development Co., Ltd. v. Philippine Islands, 247 U.S.

385, 391, 38 S. Ct. 513, 62 L. Ed. 1177 (1918) (stating

that reformation will not be granted ‘‘unless the proof of

mutual mistake [is] of the clearest and most satisfactory

character’’ (internal quotation marks omitted)); cf. 1

Restatement (Second), Contracts § 155, comment (c),

p. 410 (1981) (‘‘[b]ecause experience teaches that mistakes are the exception and not the rule . . . [c]are is

all the more necessary when the asserted mistake

relates to a writing, because the law of contracts . . .

attaches great weight to the written expression of an

agreement’’).

In the present case, it is undisputed that Robert

received an unconditional discharge of his obligations

under the note through the bankruptcy proceeding in

2011. The defendant was not obligated under the terms

of that note, and the plaintiff is not seeking reformation

of that note. Moreover, the parties stipulated, and the

trial court specifically found, that the defendant was

not a guarantor of the note executed by Robert. Instead,

the plaintiff is effectively attempting to make the defendant a surety responsible for Robert’s debt in the event

of default. See, e.g., Bernd v. Lynes, 71 Conn. 733, 736,

43 A. 189 (1899) (‘‘the contract of a surety is a collateral

engagement for another, as distinguished from an original and direct agreement for the party’s own act’’ (internal quotation marks omitted)). We cannot conclude that

the trial court’s refusal to use its equitable power to

reform the mortgage deed was improper under these

circumstances.

To be sure, identifying the obligation secured by a

mortgage deed is not a technical or scrivener’s error.

Reforming the mortgage deed in the manner sought by
the plaintiff without establishing that the change effects

the original intention of the parties changes the defendant’s obligations and creates a new contract between

her and the plaintiff. This court has cautioned that ‘‘[a]n

obstacle to reformation [that] we find insurmountable

arises from the fundamental principle that there can be

no reformation unless there is an antecedent agreement

upon which the minds of the parties have met. The

relief afforded in reforming an instrument is to make

it conform to the previous agreement of the parties.’’

Hoffman v. Fidelity & Casualty Co. of New York, 125

Conn. 440, 443, 6 A.2d 357 (1939). Consequently, ‘‘a

definite agreement on which the minds of the parties

have met must have [preexisted] the instrument in question.’’ Id. It is axiomatic that a ‘‘court cannot supply an

agreement [that] was never made, for it is [a court’s]

province to enforce contracts, not to make or alter

them.’’ Id. The issue here is whether it was clearly

erroneous for the trial court not to find that a prior

agreement existed between JPMorgan Chase and the

defendant that the defendant would execute the mortgage deed in order to secure Robert’s debt.

We recognize that the fact the mortgage deed and

note have matching dates and refer to matching amounts

could have allowed the trial court to infer that the

transactions are related. However, based on the other

evidence presented, which suggests that the defendant

did not intend to secure Robert’s debt, and the absence

of any direct evidence that either party did intend the

mortgage deed to secure a note executed by Robert,

we cannot conclude that the absence of a finding by

the trial court that JPMorgan Chase and the defendant

intended for the defendant to execute the mortgage

deed in order to secure Robert’s note was clearly erroneous.

In its brief, the plaintiff posits the rhetorical question,

what other reason would the defendant have to sign

the mortgage deed if not to secure Robert’s note? This

question and the speculative answer it may yield, however, do not provide anything like dispositive evidence

of the parties’ respective intentions here. The defendant

had no burden to demonstrate what other purpose or

intent motivated her to sign the mortgage deed. It is

the plaintiff, as the party seeking reformation, that must

prove the preexisting agreement that it seeks to effectuate, and it must do so by clear and convincing evidence.

It did not do so to the satisfaction of the trial court,

and we cannot conclude that the trial court’s findings

in this regard were clearly erroneous.

We cannot conclude, on the basis of the evidence

before the trial court, that the absence of a finding by

the court that the parties intended the mortgage deed

signed by the defendant to secure the note signed by

Robert was clearly erroneous. Thus, we conclude that

the Appellate Court properly upheld the trial court’s
decision to decline to reform the mortgage deed.

II

We next consider whether the Appellate Court properly affirmed the judgment of the trial court determining

that the plaintiff was not entitled to foreclose the mortgage executed by the defendant because the defendant

is not a borrower on the note. On appeal, the plaintiff

contends that, even if this court concludes that the

Appellate Court properly upheld the trial court’s denial

of the request for reformation, the plaintiff is nevertheless entitled to foreclose. The plaintiff argues that this

is so because it is undisputed that the defendant entered

into a mortgage transaction and common sense dictates

that she intended her property interest to be security

for the note contemporaneously executed by Robert.

The plaintiff contends that, therefore, foreclosure is the

proper equitable relief. The defendant counters that the

plaintiff cannot foreclose the mortgage without reformation. We agree with the defendant.

As we noted previously, ‘‘[a] foreclosure action is an

equitable proceeding. . . . The determination of what

equity requires is a matter for the discretion of the trial

court.’’ (Internal quotation marks omitted.) Deutsche

Bank National Trust Co. v. Angle, 284 Conn. 322, 326,

933 A.2d 1143 (2007). Thus, on appeal, we employ the

abuse of discretion standard. See, e.g., id.

‘‘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.’’ GMAC Mortgage, LLC v. Ford, 144

Conn. App. 165, 176, 73 A.3d 742 (2013), citing 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. Instead, the defendant

signed only the mortgage deed, and the mortgage deed

does not indicate that it was entered into to secure the

note executed by Robert. The mortgage deed mentions

only a nonexistent promissory note for which the defendant alone is the borrower. Hudson, the plaintiff’s predecessor in interest, conceded that the defendant was

not a borrower on any note.

We find the Appellate Court’s reasoning persuasive

in resolving this claim. The Appellate Court reasoned:

‘‘In reviewing the [trial] 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 [deed], as executed, was a nullity

because it secured a nonexistent debt.’’ JPMorgan Chase
Bank, National Assn. v. Virgulak, supra, 192 Conn.

App. 703. Accordingly, like the Appellate Court majority, we cannot conclude that the plaintiff was entitled

to foreclose a mortgage for a debt for which the defendant was not responsible and that was not referenced

in the mortgage deed.

On the basis of the foregoing, we conclude that the

Appellate Court correctly concluded that the trial court

did not abuse its discretion and properly affirmed the

judgment of the trial court.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* January 11, 2022, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1

‘‘The named plaintiff, JPMorgan Chase Bank, National Association . . .

is no longer a party in this matter . . . [after filing] a motion to substitute

Hudson City Savings Bank as the plaintiff, which the [trial] 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.’’ JPMorgan

Chase Bank, National Assn. v. Virgulak, 192 Conn. App. 688, 691 n.1, 218

A.3d 596 (2019). For convenience, we refer to M&T Bank as the plaintiff in

this opinion.

2 The original summons and complaint also listed the named defendant,

Robert J. Virgulak, and the Department of Revenue Services as defendants.

Subsequently, the named plaintiff, JPMorgan Chase Bank, National Association, withdrew the action against Robert J. Virgulak. Additionally, the Department of Revenue Services was defaulted for failure to plead. Therefore, in

the interest of simplicity, we refer to Theresa Virgulak as the defendant.

3 The trial court explained the following in its memorandum of decision:

‘‘[I]n the second count of its complaint, the plaintiff seeks reformation of

the [note] but not the mortgage deed. However, on page 7 of its posttrial

brief . . . the plaintiff concedes: ‘Quite simply, there is . . . no support

for any notion that the mortgage [deed] was ever intended to secure a note

executed by [the defendant].’ According to the [posttrial] brief, it is now

the plaintiff’s position that the mortgage deed should be reformed ‘to reference the fact that the mortgage [deed] executed by [the defendant] was to

secure the note executed by Robert.’ ’’ (Citation omitted; footnote omitted.)

In its posttrial brief, the plaintiff asserted that the trial court should

consider its new position that the mortgage deed, rather than the note,

should be reformed because, ‘‘in an equitable proceeding such as a mortgage

foreclosure, the trial court may consider equitable principles, even though

they may not have been specifically pleaded, and may consider all relevant

circumstances to [e]nsure that complete justice is done.’’ (Internal quotation

marks omitted.)

Even though the plaintiff did not plead in its complaint that it was entitled

to reformation of the mortgage deed, the trial court considered that claim

and ultimately concluded that ‘‘the plaintiff has not sustained its burden of

proving, by clear and convincing evidence, that it is entitled to the equitable

remedy of reformation of the mortgage deed . . . .’’ (Citation omitted.) The

defendant does not assert that it was improper for the trial court or the

Appellate Court to consider reforming the mortgage deed instead of the

note, so we also consider that claim.

4

In its response to the defendant’s request for admissions, Hudson, the

plaintiff’s predecessor in interest, admitted, inter alia, that the defendant

did not borrow any money from Hudson or JPMorgan Chase and did not

owe them any money. See JPMorgan Chase Bank, National Assn. v. Virgulak, supra, 192 Conn. App. 715–16. Approximately two weeks after trial, the

plaintiff filed a motion seeking to withdraw and amend the responses to

the defendant’s request for admissions, which the court ultimately denied.

See id., 695–96.

5 The trial court elucidated that ‘‘[it] has . . . consider[ed] all of the testimony given by Robert and [the defendant] to the extent that their credibility

is at issue.’’

6 See footnote 5 of this opinion.

7

In its response to the defendant’s request for admissions, Hudson also
conceded that the defendant never borrowed any money from Hudson or

JPMorgan Chase. See footnote 4 of this opinion.