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******************************************************
APPENDIX

SEMINOLE REALTY, LLC v. SERGEY SEKRETAEV*

Superior Court, Judicial District of Windham

File No. CV-10-6002259

Memorandum filed October 24, 2014

Proceedings

Memorandum of decision on plaintiff’s action to foreclose mortgage on certain of defendant’s real property.

Judgment in part for the plaintiff.

Sergey Sekretaev, self-represented, the defendant.

Gordon P. Videll, for the plaintiff.
Opinion

BOLAND, J. In this action, plaintiff pursues a foreclosure of a first mortgage on residential property. The

named defendant, who represents himself, is owner of

the equity in the property and the lone defendant in the

case. The matter came before the court for trial on

September 30, 2014, and was continued to a second

day, October 23. In this memorandum, the court will

address: the complaint, dated July 14, 2010; the answer

(#111), dated August 9, 2010,1 which includes special

defenses and counterclaims; plaintiff’s reply to the

answer, defenses and counterclaims, dated September

10, 2010 (#115); and two motions to dismiss defendant

filed on August 28, 2014 (##222 and 223).

As may be obvious from the ‘‘CV 10’’ docket number,

this case has been pending for some time and has seen

a number of issues raised along the way. While the two

recent motions to dismiss challenged the court’s subject

matter jurisdiction and thus required a response, each

depended for resolution upon factual issues requiring

an evidentiary hearing. Since at the time of their filing

trial had already been scheduled to commence on September 30, the court indicated that the parties could

produce their evidence on those jurisdictional matters

in the course of trial and the motions would be taken

under advisement until now.

I

PLAINTIFF’S CASE-IN-CHIEF

Having heard the parties and examined their exhibits,

the court makes the following findings:

a. On April 24, 2009, plaintiff conveyed to defendant

by warranty deed title to a condominium unit in the

town of Sterling, known as Unit No. 4 of River Bend

Condominiums, for a total price of $140,995 (Ex. I);

b. On that same date, to finance the purchase, defendant paid $4000 in cash, and executed a promissory

note (‘‘the note’’) to plaintiff for the amount of $136,995,

with interest only (annual rate: 7.5 percent) payable

monthly, and the entire principal plus any accrued but

unpaid interest due and payable in full on April 24, 2010

(Ex. 2);

c. On that same date, as security for the note, he

issued to plaintiff a mortgage encumbering the condominium unit described in ‘‘a’’; the mortgage was

recorded on April 27, 2009, at volume 127, pages 482-

492 of the Sterling Land Records (Ex. 1);

d. Plaintiff remains the holder of both the note and

the mortgage, and has standing to bring this action;

e. Defendant made only eight of the monthly interest

payments, and has made no payment towards the

principal;
f. Plaintiff declared the defendant to be in default of

the provisions of the note and mortgage on April 10,

2010 (Ex. 5);

g. On the note, plaintiff is owed the following as of

September 30, 2014:

Principal: $136,995.00

Interest: (per affidavit of Sept. 30) $47,263.85

Interest: Oct. 1—24, per diem of $28.15: $675.60

Total: $184,934.45

(postjudgment, per diem interest accrues at $28.15);

h. The value ofthe condominium unit which is encumbered by the mortgage is $75,000 as of October 23,

2014; and

i. Plaintiff has satisfied the requirements of the Emergency Mortgage Assistance Program and the Federal

Loss Mitigation Program.

It is relevant to point out that at the time of the 2009

title transfer and mortgage issuance, defendant had

independent, competent counsel. ‘‘In a mortgage foreclosure action, [t]o make out its prima facie case, [the

foreclosing party] ha[s] to prove by a preponderance

of the evidence that it [is] the owner [or holder] of

the note and mortgage and that [the mortgagor] ha[s]

defaulted on the note.’’ (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas,

73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied,

262 Conn. 937, 815 A.2d 136 (2003). Given the findings,

the court concludes that plaintiff is entitled to a judgment of foreclosure unless the defendant raises a sufficient barrier to that result in his answer or special

defenses.

II

ANSWER

The defendant denies all seven paragraphs of the

plaintiff’s complaint. As to paragraphs 2, 3, and 4, he

adds that he ‘‘can neither admit nor deny’’ the allegations thereof. Throughout the trial, therefore, the court

viewed the plaintiff’s task as to prove that the allegations of its complaint are true by a preponderance of

the evidence, without reliance upon any admissions

by defendant.

III

SPECIAL DEFENSES

The special defenses here number twelve. Plaintiff

has denied all these defenses,2 but never sought to winnow this list by a motion to strike or other means. The

degree to which a defendant in a foreclosure action

may pursue multiple special defenses is an unsettled

question; Peoples United Bank v. E2A, LLC, Superior

Court, judicial district of New London, Docket No. CV-
13-6016368 (December 12, 2013) (Cosgrove, J.).

Because this defendant is a self-represented person, the

court would be acting consistently with authority if it

allowed him some latitude in presenting his proof of

these allegations. More importantly, though, is that here

the relationship of the parties is not exclusively that of

lender and borrower. Plaintiff built and marketed the

condominium sold to defendant, and took back the oneyear note as an accommodation to him but also so as

to enable it to proclaim the property as ‘‘sold’’ even

before defendant qualified for third-party financing.

Additionally, plaintiff managed the condominium development under the trade name ‘‘Riverbend Condominium Association.’’ Defendant’s dissatisfaction with

plaintiff’s work as builder and performance as manager

played a role in his performance as a borrower and

goes beyond the four corners of the lending documents.

‘‘The question to decide is whether the subject of

the defendant’s counterclaim is sufficiently intertwined

with the complaint that it arises from the same transaction.’’ CitiMortgage, Inc. v. Rey, 150 Conn. App. 595,

608, 92 A.3d 278, cert. denied, 314 Conn. 905, 99 A.3d

635 (2014). Because ‘‘a mortgage foreclosure action is

an equitable proceeding, the trial court may consider

all relevant circumstances to ensure that complete justice is done. . . . The determination of what equity

requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.

. . . Where the plaintiff’s conduct is inequitable, a court

may withhold foreclosure on equitable considerations

and principles.’’ (Internal quotation marks omitted.) TD

Bank, N.A. v. M.J. Holdings, LLC, 143 Conn. App. 322,

326, 71 A.3d 541 (2013). The court has these principles in

mind in concluding thatthe allegations ofthe complaint,

the special defenses and the three counterclaims all

involve the same transaction and the same parties.

Therefore, the court will not now peremptorily constrain defendant in pursuing his issues.

First Special Defense

Defendant first claims that plaintiff failed to send him

notice of a default as required by ¶ 17 of the mortgage,

and that such a notice is a condition precedent to acceleration of his debt. Exhibit 5 is a copy of a demand

letter from plaintiff’s counsel to defendant dated April

10, 2010, mailed to him via United States mail addressed

to the post office box which defendant admitted was

his. Attorney Gordon P. Videll, who sent the letter,

testified that it was not returned to him. The defendant

denied receipt of the letter. There can be no argument

that the fact of default was known to defendant, since

he had directed his own letter to plaintiff on March 28,

2010, stating, ‘‘I decided to put the payments on hold

until all repair will be done’’; (Ex. D). Other exhibits

make clear that from February on of that year the parties were in intense negotiation over the problems at
the condo. Videll’s testimony that the letter was mailed

entitles plaintiff to the presumption that the letter was

also received; Garland v. Gaines, 73 Conn. 662, 49 A.

19 (1901). Defendant’s denial is insufficient to rebut

that presumption. Under the circumstances, the court

finds that this special defense is without merit.

Defendant at trial raised a separate claim regarding

this default notice, namely, that plaintiff failed to produce a copy of the notice in response to a production

request filed by defendant in January of 2011. He submitted, as Exhibit L, a copy of the request with plaintiff’s

March 15, 2011 answer attached. He is correct that

plaintiff’s reply, ‘‘All required documents have been

delivered previously as part of the complaint,’’ is a misstatement as it relates to this item, which is not a part

of the material delivered with the complaint; see August

4, 2010 Return of Service, as of record appears. Plaintiff’s counsel characterized the misstatement as an oversight rather than an intentionally deceptive act.

Defendant demands a sanction, up to and including

dismissal of the foreclosure action. Given that defendant had a copy of this very notice obtained by some

other means, that sanction would be grossly disproportionate to any harm done to him by the discovery inaccuracy. The court will, however, consider whether other

sanctions are warranted in response to this circumstance.

Second Special Defense

The Second Special Defense lists a broad array of

charges that plaintiff has failed to service and administer the loan in compliance with federal, state, and local

laws. Key to its applicability is that plaintiff is ‘‘a Banking Corporation’’ subject to such laws and regulations.

Plaintiff is not a banking corporation, but a limited

liability company primarily involved in building and

selling homes. It became a lender in this case under

unusual circumstances. Furthermore, defendant’s evidence did not establish that as a lender plaintiff violated

any pertinent standard. The court therefore finds that

this special defense is without merit.

Third Special Defense

The Third Special Defense claims that plaintiff failed

to comply with a requirement imposed upon lenders

by the National Housing Act, 12 U.S.C. § 1701x, that

each provide an eligible borrower with a preforeclosure

notice outlining what counseling options exist to avoid

loss of the home. Defendant has not attempted to prove

that he is an eligible borrower, defined in the Code as

a person rendered unable to pay by a decline in income.

Defendant offered income evidence only in response

to this court’s questions as to the cost of repairing

damages addressed by his second counterclaim, and

that evidence was sketchy, unsupported by any documentation or other corroborating information, and not
probative in any respect that would have led to a different outcome here. Defendant has insisted throughout

that his decision to not pay even the interest on the loan

as far back as 2010 was made strategically in response to

what he regarded as plaintiff’s nonperformance of its

contractual obligations to him. His income, or lack

thereof, is immaterial to the equities of this case; if

plaintiff had provided the notice, assuming that it was

required,the courtfinds that would have made no difference to the parties’ positions. The court therefore finds

that this special defense is without merit.

Fourth Special Defense

This defense is a composite of parts of the above,

alleging that plaintiff failed to service the loan properly

and failed to afford him access to debt management

and relief options. He offered no proof concerning this

defense at all. It is found to be without merit.

Fifth Special Defense

This defense alleges that plaintiff breached the purchase and sale agreement by failing to underwrite the

first year’s condominium association fees. The court

finds that the allegation is true and that plaintiff owes

defendant $1680. However, that amount will be considered as an offset to plaintiff’s debt, as discussed below.

Equity does not warrant allowing payment of a debt of

approximately $185,000 to be avoided because of an

unpaid bill amounting to less than 1 percent thereof.

Sixth Special Defense

This defense alleges comparative negligence. Comparative negligence has no place in an action to foreclose a mortgage. This special defense is found to be

without merit.

Seventh Special Defense

This defense alleges that plaintiff failed to maintain

its limited liability status with the Office of the Secretary

of the State. He deems this ‘‘questionable.’’ By implication, he is raising the company’s failure to comply with

business update requirements as a full defense to plaintiff’s foreclosure as a whole. Exhibit 7 is uncontroverted

evidence that plaintiff is today a business recognized

by the Secretary of the State. Although with respect to

a corporation rather than a limited liability company,

the futility of this issue as a defense was established

long ago in the case of DiFrancesco v. Kennedy, 114

Conn. 681, 687–88, 160 A. 72 (1932): [a] corporation is

a de facto corporation where there is a law authorizing

such a corporation and where the company has made

an effort to organize under the law and is transacting

business in a corporate name. . . . A de facto corporation is an apparent corporate organization asserted to

be a corporation by its members and actually existing

as such, but lacking the creative fiat of the State. . . .

[B]ecause of failure to comply with some provision of
the law, [it] has no legal right to corporate existence

as against a direct attack by the State . . . [but it] is in

plain English a corporation in fact.’’ (Citations omitted;

internal quotation marks omitted.) Accord ClarkFranklin-Kingston Press, Inc. v. Romano, 12 Conn.

App. 121, 529 A.2d 240, cert. denied, 205 Conn. 803, 531

A.2d 935 (1987). This special defense has no merit.

Eighth Special Defense

This defense claims plaintiff acted with unclean

hands.

In Thompson v. Orcutt, 257 Conn. 301, 777 A.2d 670

(2001), it was held that since an action to foreclose a

mortgage is an equitable proceeding, a party seeking

its benefit must establish that he comes into court with

clean hands. ‘‘The doctrine of unclean hands expresses

the principle that where a plaintiff seeks equitable relief,

he must show that his conduct has been fair, equitable

and honest as to the particular controversy in issue.’’

(Internal quotation marks omitted.) Id., 310. While that

language may seem to place upon plaintiff the burden

of proving its faultlessness as an element of standing

to sue, the Court immediately went on to indicate that

‘‘[u]nless the plaintiff’s conduct is of such a character

as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean

hands does not apply.’’ (Internal quotation marks omitted.) Id. Shortly after Thompson, the Appellate Court

clarified that the burden of proving unclean hands rests

upon the party asserting the defense, when it held, in

Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321,

801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070

(2002), that ‘‘[t]he party seeking to invoke the clean

hands doctrine to bar equitable relief must show that

his opponent engaged in wilful misconduct with regard

to the matter in litigation.’’ (Internal quotation marks

omitted.) Id., 335.

As indicators of ‘‘unclean hands,’’ defendant returns

to the improper servicing procedures raised in the Second and Fourth Defenses, as discussed above. Recharacterizing those claims as evidence of ‘‘unclean hands’’

is not sufficient to sustain defendant’s burden of pleading, let alone proof. In the circumstances present, the

court finds this special defense to be without merit.

Ninth Special Defense

This defense is failure of good faith and fair dealing.

The substance of this nebulous charge is that plaintiff

denied defendant ‘‘access to the residential mortgage

servicing protocols applicable to the subject note and

mortgage.’’ No further factual or legal basis is supplied.

As expressed, this defense reads as a restatement of

the substance of the Second and Fourth Defenses, and

is likewise found to be without merit.

Tenth Special Defense
This speaks to the parties’ disputes as to the physical

condition of the condominium. While the alleged

breaches of warranty by plaintiff with respect to the

condition of the premises may be material, they do not

constitute a special defense to the foreclosure. Instead,

they are appropriately the subject of a counterclaim.

The issues regarding the condominium’s quality or lack

thereof will be discussed below as an aspect of the

second count of the counterclaim.

Eleventh Special Defense

Again, this treats of problems defendant had with

refinancing the one year note as a result of construction

mistakes, and the same observation made as to the

Tenth Special Defense applies.

Twelfth Special Defense

Here, defendant raises the issue of the value of the

condominium at the time he purchased it.3 This is not

a special defense to a foreclosure. The court notes that

the appraisal of present value provided by plaintiff’s

expert matches defendant’s claim in court on September 30 that the condominium unit is today worth

$75,000, as the court has found, above.

IV

COUNTERCLAIMS

Defendant has filed three counterclaims here, briefly

summarized thus:

1. The first count of the counterclaim seeks to have

plaintiff’s mortgage and note declared null and void on

the basis that they resulted from deceptive and fraudulent practices in both their origination and as serviced

by the plaintiff.

2. The second count of the counterclaim alleges failure by plaintiff to comply with the New Home Warranty

Act and the parties’ Purchase Agreement.

3. The third count of the counterclaim alleges failure

of plaintiff to comply with the acceleration clause of

Paragraph 17 of the mortgage.

Plaintiff denies all three.4 The court will first address

the third of these counts. It is a restatement of the same

issues defendant raised in the form of the first special

defense. On the merits, the court has determined that

issue as set forth above. Defendant produced no additional evidence on this score in his case-in-chief, and

the court thus finds that the allegations of the third

count of the counterclaim have been adequately

addressed in the treatment of the special defense.

The first count alleges two distinct violations of federal statutes. First, he claims the benefit of 15 U.S.C.

§ 1635, which permits rescission of the loan transaction

within three days by a debtor. Section 1635 is inapplicable to this case. Section 1602 of title 15 of the United
States Code contains the definitions and rules of construction which must be read in concert with § 1635 to

interpret how this entire paragraph is to be applied,

and in subsection w—now codified as subsection ‘‘x,’’5

it defines ‘‘ ‘residential mortgage transaction’ [as] a

transaction in which a mortgage, deed of trust, purchase

money security interest arising under an installment

sales contract, or equivalent consensual security interest is created or retained against the consumer’s dwelling to finance the acquisition or initial construction of

such dwelling.’’ Section 1635 (e) provides that it ‘‘does

not apply to . . . a residential mortgage transaction as

defined in section 1602 (w) of this title.’’ That is the

type of transaction involved here, and thus no threeday right of rescission was imposed upon the deal.

Next, he claims that 15 U.S.C. § 1639 forbids the

extension of credit to a debtor unless the creditor has

made an adequate investigation of the borrower’s creditworthiness to enter into the original transaction. His

invocation of § 1639 is equally inapplicable. This section

limits a creditor’s privilege to engage a consumer in a

‘‘high cost mortgage,’’ defined as one in which ‘‘the

annual percentage rate at consummation of the transaction will exceed by more than 6.5 percentage points

. . . the average prime offer rate for a comparable

transaction.’’ The limit permitted, therefore, would have

to be lower than the interest rate agreed upon by the

parties here, that is, 7.5 percent. Defendant bears the

burden of showing that plaintiff violated this statute.

He offered no evidence to that effect. Furthermore, the

prime interest rate on April 24, 2009, the court notes,

was 1.25 percent,6 meaning that a loan under 7.75 percent would be outside the scope of § 1639.

The second count is the heart of his case. He contends

that the condition of the premises was defective, and

that plaintiff, in its role as builder, and equally in its role

as condominium manager, refused to make required

repairs. His frustration with plaintiff’s inertia (at best)

or deceptions (at worst) led to his deciding, even before

the due date of the one year note, to refuse (on the

advice of counsel, he claims) to make any payments to

plaintiff or to refinance that obligation as the parties

had agreed upon. He has made no payment since the

beginning of 2010, but has maintained title to and occupancy of the condominium throughout the four-plus

years that this suit has been pending. Throughout that

time, he has vigorously defended this lawsuit.

The court allowed him several hours to enumerate

the building’s defects and the impact they had on the

value of the premises with the intent of allowing him

to prove damages, if any, that would, at the very least,

provide him an offset to the debt plaintiff claims. If

these damages were of sufficient dimension, perhaps

that would lead the court to conclude that plaintiff’s

demand for foreclosure is inequitable. Defendant used
much of this time to argue his entitlement to the multiple legal defenses he believes he enjoys under federal

law, as addressed above, and to express in very nebulous terms the toxic impact plaintiff’s breaches have

had upon his family, his career, and his faith in the

promise of America. Defendant maintains that his

losses in those categories are inestimable, and conceded that he has no evidence of any damages affecting

those concerns which can be translated into dollar

amounts.

With much prodding from this court, he focused in

upon two specific defects. One involved a crack in a

basement wall which led to water accumulating in that

area shortly after he took occupancy. There was no

evidence of the weather conditions at the time this

occurred. Plaintiff met his complaints with indifference.

Eventually, defendant mopped up the water, purchased

concrete and other supplies, and repaired the crack.

Thereafter, although exactly when is unclear, plaintiff

sent in a contractor who replaced some damaged sheetrock. Defendant has not experienced any subsequent

water problems in the ensuing four years. He had no

evidence of any out-of pocket expenditures he incurred

in making this repair. The court finds on the basis of

his testimony that plaintiff failed in its obligation as the

builder of this new residential unit to make a necessary

repair when notified by its buyer to do so, and that

defendant’s labor in making the repairs has a value

of $2000.

His second concern relates to a dead tree which fell

on the property in a storm. It did not hit the condominium, or do any damage to person or property. Defendant

demanded that the condominium association remove

it, which it failed to do. However, he did not relate

whether the tree had previously stood on condominium

property or that of an abutter before it came down,

whether he paid to have it removed, or, indeed, whether

it even has been removed. Instead, he claims that the

danger inherent in this event has ‘‘scared’’ him to the

point of determining that the plaintiff has no equitable

right to demand his payment of its mortgage.

As to the flooded basement problem, the court holds

that allowing him an offset to plaintiff’s debt in the

amount of $2000 is an equitable response. Like the condominium association fee default on plaintiff’s part

noted above, denying plaintiff’s request for a foreclosure as a consequence of this breach would be disproportionate to the harm he suffered.

As to defendant’s emotional response to the fallen

tree—and, moreover, as to the emotional impacts which

he claims his long standoff with plaintiff has had upon

his career and his family—this court will only observe

that while defendant is undoubtedly sincere in his perception of these unfortunate consequences, they lack

any objectively discernible connection to the actual
occurrences on the subject premises. His quest to have

this court determine that plaintiff must forfeit its foreclosure claim against him on the strength of these occurrences is objectively unreasonable.

V

MOTIONS TO DISMISS (##222 AND 223)

Motion to dismiss #222, filed on August 28, claims

that plaintiff is not the real party in interest and thus

lacks standing. His claim is that the limited liability

company is the alter ego of its sole member, Joseph

DiBuono. Aside from that allegation, defendant produced no evidence sufficient to allow a court to pierce

the corporate veil that segregated DiBuono individually

from the business that is the plaintiff here. There is no

factual basis for this motion, and it ought to be denied.

Number 223, filed the same date, claims that plaintiff

lacked formal status with the office of the Secretary of

the State as a result ofits late filing of annual paperwork,

and hence lacks standing to pursue this foreclosure

action. The findings and discussion set forth above

under ‘‘Seventh Special Defense’’ need not be repeated;

the defendant cites a host of cases involving mortgagee

standing to pursue a foreclosure which all arise from

very different factual scenarios. This motion, likewise,

ought to be denied.

These two motions are, notably, the fifth and sixth

motions to dismiss that he has filed in this action. All

four prior motions were accompanied by lengthy memoranda of law, met by plaintiff’s objections, and denied

by this or previous jurists.

VI

CONCLUSION AND ORDERS

The court concludes that the plaintiff has proven by

a preponderance of the evidence that defendant is liable

to it upon the promissory note secured by the mortgage,

and that the defendants’ special defenses (except number five) are legally inapplicable or factually supported

by any material evidence. The first and third counts of

his counterclaim are inapplicable. Defendant has

proven in part the allegations of the second count

thereof, and is entitled to an offset.

It is therefore adjudged, ordered, and decreed:

1. A judgment of strict foreclosure is granted;

2. Plaintiff’s debt of $184,934.45 shall be reduced by

$2000 consistent with the court’s finding on the second

counterclaim, and by $1680 consistent with the court’s

findings on the fifth special defense, to a net amount

of $181,254.45;

3. The first Law Day is December 1, 2014, with subsequent dates for any subsequent encumbrancers in

inverse order of their priority;
4. Plaintiff is awarded no attorney’s fee or costs, in

light of its breaches of warranty and contract;7

5. The motions to dismiss filed August 28, 2014, are

each denied; and

6. Plaintiff shall file an amended answerto the special

defenses and counterclaims not later than November

5, 2014 (see footnote 2 of this opinion).

* Affirmed. Seminole Realty, LLC v. Sekretaev, 162 Conn. App. 167,

A.3d (2015).

1 For no known reason, and without seeking permission of the court,

defendant filed four separate and distinct versions of an answer with special

defenses and counterclaim; the first arrived on July 28, 2010 (#106), the

second on August 4 (#108), and two on August 9 (##109 and 111). The last,

#111, is the operative answer for the purposes of this memorandum.

2 While there are twelve special defenses pled in the fourth iteration

of defendant’s answer, plaintiff’s September 10, 2010, reply to the special

defenses, #115, answered ‘‘denied’’ eleven times. A close perusal of the four

versions of defendant’s pleading reveal that the July 28 edition (#106) had

fifteen special defenses and a single counterclaim; the August 4 version

(#108) had eleven special defenses and two counterclaims; the August 9

version, #1(#109), had ten special defenses and two counterclaims, and the

August 9 version, #2 (#111), which the court is treating as the operative

answer, has twelve special defenses and three counterclaims.

It is evident that the plaintiff replied to the August 4 version and missed

the last special defense and the third counterclaim slipped into the August

9 #2 answer. Ordinarily, this would be a serious concern. Here, where

defendant has papered the file with multiple, multipaged pleadings with

shifting claims and charges, the court regards it as more a matter of form

than of substance. The court notes that plaintiff’s succinct reply to each of

the August 4 special defenses was ‘‘denied,’’ and will impute to plaintiff,

subject to the record being corrected, a ‘‘denial’’ to the twelfth defense also.

A similar problem attends the answer to the counterclaims. Plaintiff’s

answer of September 10 was that ‘‘1’’ and ‘‘2’’ are both denied. There were

two in the August 4 version, but three in August 9’s #2. So, as with the

missing reply to special defense number twelve, the court will impute a

denial to counterclaim three.

To correct the record, however, plaintiff is directed to file an amended

reply to all twelve special defenses not later than November 5. If the replies

differ from the version of September 10, 2010, other than with respect to

these two corrections, the court will conduct further proceedings as necessary.

3 Exhibit M is a sheaf of preclosing e-mails containing various indications

that defendant, who was conducting negotiations while still in Europe, was

concerned about the fair market value of the condominium he was buying.

He was advised by his Realtor to commission an appraisal. Whether or not

he did so then is unclear.

4 See footnote 2 of this opinion.

5 Pub. L. 111-203 recodified § 1602 (w) as § 1602 (x).

6 Source: www.comptroller.tn.gov/shared/. . ./20130906Interest

TableSince2002.

7 The denial of attorney’s fees and costs is also a sufficient sanction for

the discovery mistake discussed in response to the First Special Defense.