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CITY OF HARTFORD v. BRIAN MCKEEVER ET AL.

(SC 19099)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Vertefeuille, Js.

Argued March 26—officially released October 28, 2014

Christopher M. Reeves, for the appellant (named

defendant).

Catharine H. Freeman, assistant corporation counsel, for the appellee (plaintiff).
Opinion

VERTEFEUILLE, J. The primary issue that we must

resolve in this certified appeal is whether the Appellate

Court properly determined as a matter of law that the

plaintiff, the city of Hartford, as assignee of the note

and mortgage executed by the defendant Brian

McKeever,1 did not take the note and mortgage subject

to the defendant’s affirmative claims against the

assignor, or, instead, the Appellate Court should have

recognized and applied an equitable exception to this

rule because the assignor or its predecessors had

received overpayments on the note on the plaintiff’s

behalf. The plaintiff, as the assignee of a promissory

note and mortgage executed by the defendant, brought

an action to foreclose the mortgage. The defendant

filed a five count counterclaim seeking, inter alia, an

accounting of amounts paid pursuant to the note and

recoupment of any excess amounts paid, including

amounts that he had paid to the entity that had assigned

the note and mortgage to the plaintiff and that entity’s

predecessors in interest. The trial court rendered judgment in favor of the defendant on his counterclaim

and awarded him damages of $195,909. The plaintiff

appealed from the judgment of the trial court to the

Appellate Court, which reversed the judgment and

remanded the case for further proceedings. Hartford

v. McKeever, 139 Conn. App. 277, 288, 55 A.3d 787

(2012). We then granted the defendant’s petition for

certification to appeal to this court. Hartford v.

McKeever, 307 Conn. 956, 59 A.3d 1191 (2013). The issue

that we must address on appeal is whetherthe Appellate

Court properly determined that the plaintiff, as the most

recent assignee and current holder of the defendant’s

note, could not be held liable to repay the defendant

for sums that were overpaid on the note before it was

assigned to the plaintiff.2 We answer this question in

the affirmative and, therefore, affirm the judgment of

the Appellate Court.

The opinion of the Appellate Court sets forth the

following facts and procedural history. ‘‘In May, 1983,

the defendant owned a building in Hartford, known

as 206–208 Hamilton Street (property). The property

contained multiple units that the defendant rented to

tenants. On May 5, 1983, the defendant borrowed a total

of $143,065 in two separate loans from the Community

Development Corporation (corporation). In one loan

transaction (loan one), the defendant and the corporation entered into a promissory note agreement with a

principal amount of $28,879. In the other loan transaction (loan two), the defendant and the corporation

entered into a promissory note agreement with a principal amount of $114,186. Each loan was secured by a

separate mortgage on the property. At the time they

entered into the loan agreements, the defendant and

the corporation also entered into a separate agreement,
entitled ‘Collateral Assignment of Leases and Rentals’

(assignment of rents agreement), pursuant to which the

corporation was empowered to collect rent directly

from the defendant’s tenants if he defaulted on his obligation to make payments on the notes.

‘‘Although the corporation immediately assigned its

interest in the notes to Colonial Bank, which later

became State Street Bank & Trust Company of Connecticut (State Street Bank), the corporation continued to

service the loans. In July, 2001, State Street Bank

assigned loan two to the plaintiff for the sum of [$1].

By that time, the defendant had fully paid loan one, but

the plaintiff determined that the defendant had

defaulted on his payment obligations as to loan two.

Accordingly, in 2003, the plaintiff brought an action

against the defendant to foreclose on the property.

‘‘On April 21, 2003, the defendant filed a five count

counterclaim against the plaintiff, claiming: (1) violation of the Connecticut Unfair Trade Practices Act

(CUTPA), General Statutes § 42-110a et seq.; (2) violation of the Connecticut Creditors’ Collection Practices

Act, General Statutes (Rev. to 1993) § 36-243a; (3)

breach of the implied covenant of good faith and fair

dealing; and (4) breach of a modification agreement

previously agreed to by himself and the plaintiff. [The

defendant] also sought, in the fifth count, an accounting

as to all payments that his tenants had made under the

assignment of rents agreement.

‘‘The plaintiff subsequently withdrew its foreclosure

complaint, conceding that the defendant had overpaid

loan two by $17,397.93. Accordingly, [the plaintiff]

offered to compensate [the defendant] in that amount.

The defendant, however, declined the plaintiff’s offer,

electing instead to proceed to trial on his counterclaim

to recover what he claimed to have been an overpayment of $195,909 on loan two. The plaintiff filed an

answerto the counterclaim, denying its essential allegations, and pleaded as a special defense that CUTPA

does not apply to municipalities.

‘‘After a five day trial,the court issued a memorandum

of decision in which it concluded that the plaintiff was

liable to the defendant for the total amount he claimed

to have overpaid on loan two to the plaintiff and all

other prior holders of the note. The court therefore

awarded him damages of $195,909, albeit without specifying the count of the counterclaim under which it made

that award. . . . [A]pproximately eleven months after

the court’s November 9, 2010 decision, the plaintiff filed

a motion for articulation, requesting for the first time

that the court explain, inter alia, under which count of

the counterclaim it had found in the defendant’s favor.

The court responded that, without having access to the

court file, it was unable to identify the specific count

of the counterclaim under which it had found in the

defendant’s favor.’’3

(Footnotes omitted.) Hartford v.
McKeever, supra, 139 Conn. App. 280–82.

The plaintiff appealed to the Appellate Court claiming

thatthe trial courtincorrectly had concluded as a matter

of law that, as an assignee, it was liable for the defendant’s overpayments to the assignor, State Street Bank,

or to any other prior holders of the note. Id., 282–83.

The defendant contended that there was no need for

the Appellate Court to consider whether, as a legal

matter, an assignee can be held liable for the conduct

of its assignor, ‘‘because the trial court found, as a

factual matter, that the plaintiff was involved from the

beginning and specifically that [the corporation] was

acting, throughout the history of the loan, as an agent of

Colonial Bank which in turn was the plaintiff’s trustee.’’4

Hartford v. McKeever, Conn. Appellate CourtRecords &

Briefs, April Term, 2012, Defendant’s Brief pp. 7–8. The

defendant contended that the claim that the plaintiff

had made in its brief that the corporation was not an

agency of the plaintiff was contradicted by a deed of

restrictive covenants that had been executed in connection with a regulatory agreement that the defendant

entered into as a condition for receiving the loans, and

that stated that the plaintiff ‘‘has adopted redevelopment plans . . . and has issued and sold [b]onds in the

aggregate principal amount of $10,000,000 to provide

loans for the financing of the rehabilitation . . . of certain residential real property within the geographical

boundaries of the [c]ity of Hartford . . . .’’5

A majority of the Appellate Court agreed with the

plaintiff’s legal claim. Accordingly, it reversed the judgment of the trial court and remanded the case forfurther

proceedings. Judge Gruendel authored a dissenting

opinion in which he contended that the court should

‘‘generally preclude affirmative claims against an

assignee arising from the acts or liabilities of the

assignor, while at the same time permitting equitable

claims that merit exception therefrom.’’ Hartford v.

McKeever, supra, 139 Conn. App. 298. Judge Gruendel

further argued that ‘‘[t]he present case is a quintessential example of the need for, and the appropriateness

of, that exception. . . . [T]he plaintiff here was

involved in the loan transactions from the beginning,

as the trial court specifically found and as the plaintiff

admitted in its answer.’’ (Citation omitted.) Id., 303

(Gruendel, J., dissenting). In support of this conclusion,

Judge Gruendel pointed out that the plaintiff had admitted the portion of the defendant’s counterclaim alleging

that he had ‘‘executed two promissory notes to [the

plaintiff] in exchange for [the] loans . . . .’’6

Id., 303

n.14. Judge Gruendel also contended that ‘‘the two

promissory notes in question were assigned to the

trustee bank the very day they were entered into, and

thereafter were held at all times by the trustee bank

on behalf of the plaintiff.’’ Id., 303. In addition, Judge

Gruendel pointed out that the plaintiff had admitted in

its answer to the defendant’s counterclaim that ‘‘the
rentals were being collected pursuant to a collateral

assignment of leases and rentals. . . . [A] third party

was collecting the rent on behalf of [the plaintiff].’’7

(Emphasis in original; internal quotation marks omitted.) Id., 305.

In response to Judge Gruendel’s argument, the majority of the Appellate Court stated that ‘‘the trial court

made no finding as to the making or significance of the

[plaintiff’s] alleged admission [that rents were collected

on its behalf] and based no legal conclusion upon it. It

is thus not within our power to consider the factual

and legal ramifications of the admission on the issues

before us . . . .’’8

Id., 283 n.7. The majority further

stated that, ‘‘where the trial court expressly referred to

the plaintiff as the assignee and to State Street Bank

and its predecessors in title as the assignors of the

subject notes and mortgages—without making any of

the findings proposed by the dissent as to the supposed

unity of interest between them—we cannot join the

dissent in concluding that there was no distinction

between the plaintiff, as assignee, and its assignor, or

that the transfer of the notes and mortgages between

them should be treated as something other than an

assignment.’’ Id.

On appeal to this court, the defendant does not challenge the Appellate Court’s legal conclusion that, ‘‘[i]n

the absence of an express contract provision, an

assignee generally does not assume the original responsibilities of the assignor, but he or she may be liable

for breach of the terms of the assignment or for his or

her failure to perform obligations of the assignor which

he or she has assumed.’’ (Emphasis in original; internal

quotation marks omitted.) Id., 285, quoting 6A C.J.S.

511, Assignments § 115 (2004).9 He claims, however,

that this court should follow Judge Gruendel’s approach

and hold that this general rule should not be applied

when it would be inequitable to do so. The defendant

further contends that it would be inequitable to apply

the rule in the present case because the trial court

found that the plaintiff had been ‘‘involved from the

very beginning.’’10 Thus, the defendant implicitly contends that the judgment of the trial court was premised

on a holding that the defendant was entitled to recover

the full amount of the overpayments from the plaintiff

because the corporation was acting as the plaintiff’s

agent and Colonial Bank and State Street Bank were

acting as the plaintiff’s trustees. The defendant further

contends that the Appellate Court improperly placed

the burden of providing an adequate record on appeal

on the defendant, who was the appellee in the appeal

to the Appellate Court, instead of on the plaintiff, as

the appellant. We conclude that the trial court did not

hold that the defendant was entitled to recover the full

amount of the overpayment from the plaintiff because

the corporation, Colonial Bank and State Street Bank

were acting on the plaintiff’s behalf. Rather, it con-
cluded as a matter of law that the plaintiff, as an

assignee, was liable for any claims that the defendant

had against the corporation and the banks, as assignors.

We further conclude that, because the trial court had

not addressed the claim that the defendant raised in

the Appellate Court as an alternative ground for

affirming the judgment, the Appellate Court was not

required to review it.

We begin with the standard of review. The defendant’s claim that the trial court held that the defendant

was entitled to recover the full amount of the overpayments from the plaintiff because the corporation, Colonial Bank and State Street Bank were acting on its

behalf requires us to interpret the judgment of the trial

court. ‘‘The interpretation of a trial court’s judgment

presents a question of law over which our review is

plenary. . . . As a general rule, judgments are to be

construed in the same fashion as other written instruments. . . . The determinative factor is the intention

of the court as gathered from all parts of the judgment.

. . . The interpretation of a judgment may involve the

circumstances surrounding the making of the judgment.

. . . Effect must be given to that which is clearly

implied as well as to that which is expressed. . . . The

judgment should admit of a consistent construction as

a whole.’’ (Citation omitted; internal quotation marks

omitted.) Sosin v. Sosin, 300 Conn. 205, 217–18, 14 A.3d

307 (2011).

In support of its legal conclusion that the defendant

was entitled to recover the full amount that he overpaid

on the note from the plaintiff, the trial court relied

exclusively on cases and treatises addressing the scope

of an obligor’s right as a matter of law to recover from

the obligee’s assignee.11 After citing these legal authorities, the court concluded that the plaintiff ‘‘taking the

assignment under the obligations of its predecessors is

liable to [the defendant] for the full $195,909 . . . .’’

The court also stated that the defendant had ‘‘proven

that the [plaintiff] is liable for said overpayments by

being an assignee of State Street Bank, which in turn

was an assignee of [the corporation], and the [plaintiff]

took the assignment with all of the obligations it and

its predecessors had in these transactions.’’ Although

the trial court stated in the conclusion to its memorandum of decision that ‘‘it would be highly inequitable for

the [plaintiff, the corporation] and/or State Street Bank

to be unjustly enriched by mon[eys] paid by [the defendant] that were not in fact due,’’ the court did not refer

to any of the equitable principles relied on by Judge

Gruendel in his dissenting opinion regarding the effect

of a ‘‘ ‘close relationship and participation between the

assignor and assignee’ ’’; Hartford v. McKeever, supra,

139 Conn. App. 302; on the scope of an obligor’s rights

against the assignee.12 See id. (Gruendel, J., dissenting)

(‘‘[T]he ‘close relationship and participation between

the assignor and assignee put [the assignee] on notice
of the claims which might arise. Due to his knowledge

and participation, [the assignee] was vulnerable to the

[obligor’s] counterclaim.’ ’’), quoting Massey-Ferguson

Credit Corp. v. Brown, 173 Mont. 253, 260–61, 567 P.2d

440 (1977).Accordingly, the mostreasonable interpretation of the court’s statement is that the court concluded

that it would be inequitable to deny recovery of the full

amount of the defendant’s overpayments regardless of

whether the plaintiff had such a close relationship with

the corporation, Colonial Bank and State Street Bank

that it was or should have been on notice of the defendant’s overpayments when it executed the assignment

in July, 2001. In other words, the court concluded that

the law governing the scope of an obligor’s rights

against an assignee, as the court understood it, was

supported by the principle that it is inequitable to prevent an obligor from recovering overpayments to an

assignor from the assignee. It did not conclude that a

close relationship between the assignor and the

assignee supports an equitable claim that an assignee

should be subject to affirmative claims based on the

conduct of the assignor. We conclude, therefore, that

the trial court did not hold that the defendant was

entitled to recover the full amount of the overpayments

from the plaintiff because the corporation, Colonial

Bank and State Street Bank were acting on behalf of

the plaintiff. Rather, it concluded that the plaintiff was

liable to the defendant as a matter of law by virtue of

its status as an assignee of the note and mortgage.

Indeed, neither the trial court nor the defendant has

pointed to any evidence that (1) the plaintiff had any

reason to know when it became the assignee of the

note and mortgage that the defendant had overpaid the

loan, or (2) the plaintiff was unjustly enriched by the

overpayments.13 The only evidence in the record regarding any benefit received by the plaintiff is the testimony

of Arthur Greenblatt; see footnote 7 of this opinion;

that the plaintiff’s bondholders were paid with moneys

paid on the defendant’s loan, which was clearly contemplated by the regulatory agreement and related documents, such as the deed of restrictive covenants.14

Although the trial court was entitled to discredit

Greenblatt’s testimony, it could not have concluded that

the plaintiff was aware of or had benefited from the

overpayments to its predecessors in the absence of any

evidence to that effect.15 Builders Service Corp., Inc.

v. Planning & Zoning Commission, 208 Conn. 267,

293, 545 A.2d 530 (1988)(‘‘a trier of fact cannot, from the

disbelief of one party’s testimony, inferthat an opposing

party’s allegation, unsupported by any evidence, is correct’’). Accordingly, even if the trial court had relied on

the equitable principles that Judge Gruendel cited in

his dissenting opinion; see Hartford v. McKeever, supra,

139 Conn. App. 303–305; any conclusion that those principles warrant an exception to the general rule that

an assignee does not take an assignment subject to
affirmative claims against the assignor would find little,

if any, support in the evidence or findings of the trial

court. Accordingly, we conclude that the Appellate

Court properly determined that the trial court had made

no factual findings as to the significance of the relationship between the plaintiff, on the one hand, and the

corporation, Colonial Bank and State Street Bank, on

the other hand, and that the judgment of the trial court

was not based on this relationship or any equitable

considerations that flowed from it.

We therefore reject the defendant’s claim that the

Appellate Court improperly placed the burden of providing an adequate record on appeal on him instead of

on the plaintiff. The judgment of the trial court was

based solely on its conclusion that, as a matter of law,

the defendant, as mortgagor, was entitled to assert any

affirmative claims that he had against the corporation,

Colonial Bank and State Street Bank against the plaintiff, as assignee of the note and mortgage, and that was

the holding that the plaintiff successfully challenged on

appeal to the Appellate Court.16 The Appellate Court

was not required to review an alternative ground for

affirmance that the defendant had not distinctly raised

and the trial court had not directly addressed, especially

when the record was inadequate for review of the claim

because the trial court had not made the requisite factual findings.17 See Blumberg Associates Worldwide,

Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.

123, 164, 84 A.3d 840 (2014) (when appellant would be

entitled to directed judgment upon prevailing on appeal,

‘‘the reviewing court may review an unpreserved, alternative ground for affirmance, or raise the issue sua

sponte, only if the claim merits review under the plain

error doctrine or [State v. Golding, 213 Conn. 233, 239–

40, 567 A.2d 823 (1989)], or under exceptional circumstances’’).18

Finally, we address the question ofthe proper disposition of this case. The Appellate Court concluded that

the case must be remanded to the trial court, apparently

for a determination of the amount owed by the plaintiff

to the defendant, if any, in light of the Appellate Court’s

determination that the plaintiff was not liable for the

overpayments to the corporation, Colonial Bank or

State Street Bank. See Hartford v. McKeever, supra,

139 Conn. App. 287 n.10 (‘‘[T]he [trial] court did not

make a determination as to the value of the promissory

note at the time that State Street Bank assigned it to

the plaintiff. As such, setoff may be warranted.’’). Our

review of the record reveals, however, that the trial

court expressly found that the note had ‘‘been paid in

full prior to the assignment’’ and that the amount of

the overpayments that had been made to the plaintiff

was $56,930. The trial court based these findings on

the testimony of the defendant, which the court found

credible. Indeed, even in the absence of this express

finding, a finding that nothing was due on the note when
it was assigned to the plaintiff was implicit in the trial

court’s finding that the defendant had overpaid the loan

before the assignment. Accordingly, we conclude that

the Appellate Court’s determination that the trial court

had made no finding on this issue was incorrect.19

We note that on appeal to the Appellate Court, the

plaintiff challenged this finding of the trial court on the

ground that the trial court ‘‘did not rely on competent

evidence from which [it] could determine the amount of

debt because it relied on [the defendant’s] self-serving

documents . . . .’’ Hartford v. McKeever, Conn. Appellate Court Records & Briefs, supra, Plaintiff’s Brief,

Appendix A-5 p. 16. The plaintiff also contended that

the defendant’s testimony was ‘‘speculative’’ because it

was not supported by ‘‘e-mails, faxes [or] charts that

were exchanged between the parties.’’ Id., Plaintiff’s

Reply Brief p. 3. Although the Appellate Court failed to

address the plaintiff’s claim that the trial court’s finding

was not supported by the evidence, we may do so.20

See State v. James, 261 Conn. 395, 411, 802 A.2d 820

(2002) (‘‘Normally, when we conclude that the Appellate Court has improperly failed to reach an issue concerning a decision by the trial court, we remand the

case to that court for consideration of the merits of

that issue. Under our supervisory powers over proceedings on appeal, however, this court also has the authority to address the subject of the trial court’s decision.’’

[Internal quotation marks omitted.]). We disagree with

the plaintiff’s claim. First, we are bound by the fact

finder’s credibility determinations. State v. Gauthier,

73 Conn. App. 781, 787, 809 A.2d 1132 (2002) (‘‘[i]t is

the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of

witnesses’’ [internal quotation marks omitted]), cert.

denied, 262 Conn. 937, 815 A.2d 137 (2003). Second, the

defendant testified that his calculations were based on

printouts that the corporation had sent him purporting

to show the payments that had been made against the

loan. Indeed, the plaintiff ultimately conceded in its

brief to the Appellate Court that the defendant’s calculations as to the amounts that had been overpaid ‘‘could

possibly have been used for a defense or setoff but not

for a viable claim against the [plaintiff].’’21 Hartford

v. McKeever, Conn. Appellate Court Records & Briefs,

supra, Plaintiff’s Brief, Appendix A-5 p. 17. Accordingly,

there is no need for a remand to determine the amount

owed by the plaintiff to the defendant.

The remaining issue is the defendant’s claim for attorney’s fees and interest. The defendant contends that,

at trial, the trial court indicated that it would consider

the issue of attorney’s fees after it rendered its decision

on the defendant’s counterclaim provided that the

defendant filed a request for attorney’s fees within thirty

days of the decision, and the plaintiff agreed with that

procedure. The trial court rendered its decision on

November 9, 2010, and on November 23, 2010, the defen-
dant filed: (1) a document captioned ‘‘motion for postjudgment interest’’ in which he stated that ‘‘[t]he

defendant hereby moves for an [o]rder awarding postjudgment attorney’s fees’’; (2) a motion for attorney’s

fees; and a motion for clarification in which he asked

the court to clarify its decision with regard to whether

he was entitled to prejudgment interest. The trial court

apparently never acted on these motions.22 Accordingly,

we conclude that the matter should be remanded for

further proceedings on those issues.

The judgment of the Appellate Court is affirmed and

the case is remanded to that court with direction to

remand the case to the trial court for further proceedings consistent with the preceding paragraph.

In this opinion ROGERS, C. J., and ZARELLA, EVELEIGH and ESPINOSA, Js., concurred.

1 Webster Bank, Helene Fishman, as trustee, and the Metropolitan District

were also named as defendants, but they are not parties to this appeal.

References herein to the defendant are to McKeever only.

2 The issue on which we granted certification was: ‘‘Did the Appellate

Court properly determine that the plaintiff, as the most recent assignee and

current holder of the defendant’s note, could not be held liable to repay the

defendant for sums he overpaid on the note?’’ Hartford v. McKeever, supra,

307 Conn. 956. We have reframed the certified question to conform to the

issue actually presented. See, e.g., State v. Ouellette, 295 Conn. 173, 184,

989 A.2d 1048 (2010) (court may reformulate certified question to conform

to issue actually presented).

3 The Appellate Court concluded that, because the plaintiff had not filed

a motion for review of this articulation, its claim that the trial court improperly had failed to specify the basis for its award of damages was unreviewable. Hartford v. McKeever, supra, 139 Conn. App. 279 n.2. The plaintiff has

not challenged this conclusion on appeal to this court.

4 The trial court had concluded that ‘‘[the corporation] is apparently an

agency of the [plaintiff], Colonial Bank which then became [State Street

Bank] was acting as trustee for the [plaintiff], so throughout, [the plaintiff]

had an interest in the very beginning and over the years in the execution

and administration of the mortgages.’’ The court cited no subordinate facts

in support of this determination.

5

It is unclear why the defendant believed that this language quoted from

the deed of restrictive covenants showed that the corporation was an agency

of the plaintiff. It is possible that he was contending that the language

showed that the plaintiff had ‘‘provide[d] [the] loans’’ and, therefore, the

corporation must have been acting on the plaintiff’s behalf when it serviced

the loans.

6 The defendant alleged in his counterclaim that ‘‘[o]n or about May 5,

1983, the [defendant] executed two promissory notes to [the plaintiff] in

exchange forloans of $114,186 and $28,879. Also on said date,the [defendant]

executed a mortgage to the [plaintiff] to secure payment of said loans . . . .’’

The plaintiff admitted these allegations. The promissory note attached to

the plaintiff’s foreclosure complaint provides, however, that ‘‘FOR VALUE

RECEIVED, the undersigned [defendant] . . . promises to pay to [the corporation] . . . the principal sum of ONE HUNDRED FOURTEEN THOUSAND ONE HUNDRED EIGHTY SIX (114,186.00) DOLLARS . . . .’’ The

associated mortgage deed, also attached to the foreclosure complaint, provided that ‘‘[t]his MORTGAGE DEED [is] made this 5th day of May 1983,

by and between [the defendant] . . . and [the corporation], a Delaware

[c]orporation having its office and principal place of business at 928 Farmington Avenue, West Harford . . . .’’

7 AftertheAppellate Court had issued its decision reversing the trial court’s

judgment and we had granted the defendant’s petition for certification to

appeal from that decision, the defendant filed a motion for articulation in

which he requested that the trial court articulate the basis for its finding

that Colonial Bank was acting in its capacity as trustee for the plaintiff and

that the plaintiff was involved in the matter ‘‘from the beginning.’’ The trial

court then issued an articulation in which it stated that ‘‘[f]rom testimony
and the mortgage documents, it is clear[the corporation] granted the original

mortgages and assigned them to Colonial Bank which was trustee for the

[plaintiff] . . . .’’ Specifically, the trial court had relied on the July 6, 2001

assignment from State Street Bank to the plaintiff, which stated that ‘‘STATE

STREET BANK . . . as [t]rustee under the [t]rust [i]ndenture dated as of

August 1, 1982 . . . by and among the [plaintiff], [a]cting [b]y and [t]hrough

the [r]edevelopment [a]gency of the [plaintiff] (the ‘[i]ssuer’) and the

[t]rustee, in consideration of the sum of ONE DOLLAR . . . does hereby

grant, bargain, sell, assign, transfer and set over to [the plaintiff], acting by

and through the Hartford Economic Development Commission . . . all the

right, title and interest of the [t]rustee in and to the [s]ervice [a]greement

as amended and restated as of June 29, 1994 . . . among the [i]ssuer, the

[corporation] . . . and the [t]rustee, the [r]ehabiltation [l]oans, the [a]uxiliary [l]oan [a]ccount [l]oans, the [l]oan [a]greements, the [m]ortgage [n]otes

and the related [m]ortgages . . . .’’ In addition, the trial court stated that

it had relied on the corporation’s assignment of its interest in the notes and

mortgages to Colonial Bank and on trial testimony by Arthur Greenblatt, a

former employee of the corporation, that Colonial Bank had become State

Street Bank. The plaintiff contends that we should not consider this articulation because it was untimely. We conclude that the articulation is irrelevant

to our resolution of this appeal because, as we discuss later in this opinion,

the fact that the plaintiff was involved ‘‘from the beginning’’ was not the

basis for the trial court’s judgment. Accordingly, we need not address the

question of whether a trial court may issue an articulation on a decision

after a reviewing court has issued its ruling on an appeal from the trial

court’s decision.

8

Judge Gruendel stated in his dissenting opinion that ‘‘the plaintiff has

not presented this court with an adequate record to determine the distinct

legal basis of the [trial] court’s decision’’; Hartford v. McKeever, supra, 149

Conn. App. 306 n.18; but he concluded that the Appellate Court should

‘‘presume that the [trial] court properly considered the plaintiff’s admission

[that the overpayments were collected on its behalf] as conclusive on [the

Appellate Court] . . . .’’ Id.

9 See also Standard Insulation & Window Co. v. Dorrell, 309 S.W.2d 701,

704 (Mo. App. 1958) (‘‘It is well settled that in an action by an assignee

[against the obligor], a claim in favor of [the] defendant against the assignor

can be allowed as a set-off, counterclaim, or reconvention only to the extent

of the claim sued on, and judgment cannot be rendered against the assignee

for the excess. [The] [d]efendant is entitled to use his claim defensively,

and not offensively . . . .’’ [Internal quotation marks omitted.]).

The Appellate Court stated that, although this court ‘‘has recognized that

the Uniform Commercial Code [UCC], General Statutes § 42a-1-101 et seq.,

is formally limited to transactions involving personal property, it has determined that the [UCC] may furnish a guide for the law governing real property

mortgages. See Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983).’’

Hartford v. McKeever, supra, 139 Conn. App. 285 n.8. Accordingly, the court

relied on General Statutes § 42a-3-305, governing defenses and claims in

recoupment, for guidance. Id. We note that, although a mortgage is not

subject to the UCC, a promissory note that is secured by a mortgage is

subject to the UCC if it meets the definition of a negotiable instrument set

forth in General Statutes § 42a-3-104 (a), which provides that a writing may

be a negotiable instrument if it (1) is payable to order or to bearer, (2) is

payable on demand or at a definite time, and (3) contains an unconditional

promise or order to pay a fixed amount of money, with or without interest

or other charges, and no other promise, order, obligation or power is given

by the maker or drawer except as otherwise authorized. See Lenares v.

Miano, 74 Conn. App. 324, 328 n.4, 811 A.2d 738 (2002). The note at issue

in the present case is not a negotiable instrument because it is not made

payable to order or to bearer. We agree with the Appellate Court that, even

when not applicable on its terms, the UCC can provide guidance in a case

such as the present one.

10 In our opinion, both the defendant and the dissent place far too much

emphasis on the trial court’s vague finding that the plaintiff was ‘‘involved’’

with the financial transaction that gave rise to the defendant’s claim.

11 For example, the trial court relied on this court’s decision in Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 228, 828 A.2d 64 (2003),

for the proposition that ‘‘[t]he assignee of a chose in action stands in the

shoes of the assignor. . . . Indeed, [s]uccession by an assignee to exclusive

ownership of all or part of the assignor’s rights respecting the subject matter

of the assignment, and a corresponding extinguishment of those rights in
the assignor, is precisely the effect of a valid assignment.’’ (Citation omitted;

internal quotation marks omitted.) The court concluded without any citation

to authority that ‘‘[t]he same is also true as to the liabilities of an assignor.’’

12 Similarly, although the trial court stated in its memorandum of decision

that ‘‘Colonial Bank was acting as trustee for the [plaintiff] so [the plaintiff]

was involved from the beginning’’ and, in a footnote, that ‘‘[i]t is interesting

to note that [the corporation] is apparently an agency of the [plaintiff],

Colonial Bank which then became State Street Bank . . . was acting as

trustee for the [plaintiff], so throughout, the [plaintiff] had an interest from

the very beginning and over the years in the execution and administration

of the mortgages,’’ these statements were essentially dicta. The court did

not subject these findings to any legal analysis and did not rely on them to

support its statement that it would be inequitable to deny recovery of the

overpayments from the plaintiff.

13 To the extent that the defendant and Judge Gruendel in his dissenting

opinion contend that the plaintiff should be held vicariously liable for the

conduct of the corporation, Colonial Bank and State Street Bank, because

those entities were acting on the plaintiff’s behalf, regardless of whether

the plaintiff knew or had reason to know of the overpayments or benefited

from them, they have cited no authority for that proposition. Rather, they

rely exclusively on equitable principles. We cannot perceive, however, why

it is more equitable to subject an innocent assignee to a loss than to subject

the obligor to the loss, especially when, as here, there is evidence the obligor

was on notice of the conduct by the assignor that caused the loss and there

is no evidence that the assignee was on notice of such conduct. (The trial

court found that the defendant had attempted repeatedly and unsuccessfully

to obtain an accurate accounting from the corporation before the loan and

mortgage were assigned to the plaintiff.) To the extent that the trial court

or Judge Gruendel concluded that the corporation’s knowledge could be

imputed to the plaintiff because the corporation was an ‘‘agency’’ of the

plaintiff, that conclusion is not supported by any evidence in the record or

findings by the trial court. Rather, the corporation is consistently referred

to in the various loan documents as a Delaware corporation with an office

in West Hartford. Although we recognize that, if certain criteria are met, a

private corporation may be treated as a governmental entity for certain

purposes; see generally Gordon v. H.N.S. Management Co., 272 Conn. 81,

98, 861 A.2d 1160 (2004) (identifying ‘‘criteria for determining whether a

corporate entity is an arm of the state entitled to assert sovereign immunity

as a defense’’); the defendant makes no claim, and there is no evidence in

the record or finding by the trial court, that the corporation meets these

criteria. Finally, we note that nothing prevented the defendant from bringing

a claim against the corporation, Colonial Bank or State Street Bank for

overpayments that were made to them.

14 Greenblatt testified that the plaintiff had issued $10,000,000 in bonds

in 1982, the proceeds of which were delivered to Colonial Bank as trustee

for the plaintiff. Those funds were used to finance the loans to the defendant.

The deed of restrictive covenants provides that ‘‘[i]n order to induce the

[plaintiff], through the [corporation] and the [t]rustee, to issue and sell

[b]onds, in order to induce the [corporation] to originate and service the

[r]ehabilitation [l]oans, and in order to induce [b]ondholders to purchase

[b]onds, the [defendant] has read and understood and is willing to be bound

by and comply with the terms and conditions of the [m]aster [d]eclaration . . . .’’

Greenblatt also testified that, if the defendant had made all of his loan

payments in a timely manner, the total repayment amount would have been

$248,331.60, and the loan would have been paid in full after fifteen years.

Because the defendant fell behind on his payments, however, he was ultimately required to pay much more over a much longer period. Greenblatt did

not know precisely how much more the defendant was ultimately required to

pay as the result of his default. The trial court ultimately found that

Greenblatt was not a credible witness.

With respect to Judge Gruendel’s argument in his dissenting opinion that

the plaintiff had admitted that the corporation, Colonial Bank and State

Street Bank had collected the amounts due on the loan on its behalf; see

Hartford v. McKeever, supra, 139 Conn. App. 304; the fact that those entities

may have used a portion of the loan payments to pay off the plaintiff’s

obligations to its bondholders does not necessarily mean that the entire

amount of the loan payments was collected on the plaintiff’s behalf or that

the plaintiff actually benefited in any way from the overpayments. With

respect to Judge Gruendel’s argument that the plaintiff had admitted the
portion of the defendant’s counterclaim alleging he had ‘‘ ‘executed two

promissory notes to [the plaintiff] in exchange for [the] loans’ ’’; id., 303

n.14; on the basis of the record before us, we can only state that this

admission is inexplicable in light of the uncontroverted evidence that the

promissory notes named the corporation as the payee. See footnote 6 of

this opinion. Indeed, in his reply brief to the trial court, the defendant

admitted that ‘‘the original loan was made . . . from [the corporation] to

[the defendant].’’ Perhaps the plaintiff intended to admit that it now had

the rights of a payee on the subject notes pursuant to the assignment. In any

event, neither the trial court nor the defendant has relied on this admission.

The dissent contends that, to the contrary, ‘‘the [plaintiff’s] admissions

are not inexplicable. Indeed, the [plaintiff] explained them to this court at

length at oral argument.’’ (Emphasis in original.) Specifically, the dissent

points out that counsel for the plaintiff stated at oral argument before this

court that the corporation was the mortgage holder, that the plaintiff was

legally obligated to retain a trustee to collect the money and that the trustee

was doing so for the benefit of the plaintiff. Thus, the dissent appears to

contend that counsel’s representation to this court that the plaintiff was

legally prohibited from taking promissory notes from persons like the defendant who received loans from the bond proceeds somehow explains the

plaintiff’s admission that the defendant executed the notes in favor of the

plaintiff. We disagree. The plaintiff and its respective trustees are separate

entities, and the nature of the legal relationship between the plaintiff and

its trustees and the rights and obligations that flowed from that relationship

were not litigated in the present case. Thus, nothing in the record supports

the defendant’s allegation that he executed the promissory notes in favor

of the plaintiff or explains the plaintiff’s admission of that allegation. Finally,

we take issue with the dissent’s statement that we have repeatedly asserted

thatthe record is inadequate to review the defendant’s claim that the corporation, Colonial Bank and State Street Bank were acting at all times on behalf

of the plaintiff and for the benefit of the plaintiff. We have concluded only

that the record is inadequate to determine (1) the legal ramifications of the

fact that those entities, as trustees, were obligated to act on the plaintiff’s

behalf, and (2) whether the plaintiff actually benefited from the overpayments. See footnote 15 of this opinion.

15 The dissent disagrees and would conclude that there is evidence that

the plaintiff was unjustly enriched because the plaintiff ‘‘never has denied

that the overpayments were collected by [its predecessors in interest] on

its behalf, as required by law, and that the money went directly to the

[plaintiff] and its bondholders. Indeed, during oral argument, counsel for

the [plaintiff] stated that it would have been ‘fatal’ to the [plaintiff’s] tax

exempt bond program if the money had been used for any other purpose.’’

The dissent further states in footnote 4 of its opinion that ‘‘the evidence

adduced at trial establishes that the plaintiff benefited from its loan program

and that it was equitably liable for the defendant’s losses with respect

thereto.’’ The dissent does not indicate where in the record the plaintiff

admitted that the money collected by its predecessors in interest ‘‘went

directly to the [plaintiff] and its bondholders.’’ The dissent also does not

indicate where in the record the defendant articulated the theory underlying

his equitable claim or presented evidence that ‘‘establishes’’ that the plaintiff

was equitably liable forthe defendant’s overpayments. Presumably, however,

the dissent is relying on the plaintiff’s admission that the corporation, Colonial Bank and State Street Bank had all been acting on the plaintiff’s behalf

when collecting amounts due on the loans. See footnote 14 of this opinion.

The fact that those entities were acting on the plaintiff’s behalf in collecting

the money does not necessarily mean, however, that the plaintiff actually

received or benefited from the amounts that they collected. It is possible,

for example, that the defendant was overcharged because one or more

of those entities imposed and pocketed improper service charges on the

defaulted loans. Indeed, Greenblatt testified at trial that the corporation had

charged late fees on the loans and kept them. In any event, the defendant

presented no evidence whatsoever that would support a finding that the

overpayments made by the defendant before the mortgage was assigned to

the plaintiff actually ended up in the plaintiff’s coffers, and counsel for the

plaintiff stated at trial that ‘‘[t]he [plaintiff] didn’t lend any of the money.

The [plaintiff] wasn’t receiving any of the money. The [plaintiff] wasn’t

doing an accounting of the money. The [plaintiff] wasn’t receiving Section

8 payments or anything. We were not involved. Technically, we are not

involved . . . .’’ The dissent, Judge Gruendel, the trial court and the defendant also have not cited any authority for the proposition that a trust benefi-
ciary is deemed to have benefited from any action taken by the trustee in

the name of the beneficiary that benefited the trustee—a question on which

we express no opinion because it was not before the trial court and is not

before us. Rather, the defendant’s claim that the plaintiff was the actual

party in interest, the trial court’s statement that the plaintiff was ‘‘involved’’

from the beginning, and Judge Gruendel’s conclusion that the plaintiff could

be held liable on equitable principles appear to have been premised on

the unfounded assumption that the overpayments actually inured to the

plaintiff’s benefit. See, e.g., Hartford v. McKeever, supra, 139 Conn. App.

304 (Gruendel, J., dissenting) (‘‘the plaintiff admitted that all overpayments

giving rise to the defendant’s counterclaim were collected on its behalf, and

thus inured to its benefit’’).

The dissent states, however, that the plaintiff has never claimed that ‘‘the

trial court incorrectly had concluded orfailed to address [in its memorandum

of decision the plaintiff’s] claim that it was not liable for overpayments

collected by the trustee . . . .’’ See footnote 4 of the dissenting opinion.

The plaintiff had no reason to raise such a defense in its posttrial brief,

however, because the defendant has never claimed that the plaintiff was

liable for the overpayments as a trust beneficiary. Indeed, when the plaintiff

argued at trial that ‘‘the trustee bears full liability . . . [and the] beneficiary

doesn’t bear liability if the loan is somehow mismanaged,’’ the trial court

stated that it was ‘‘not questioning the [loan] to Colonial [Bank] as [t]rustee.

I understand you’re the beneficiary.’’ Similarly, the court later stated, ‘‘I

understand on Colonial [Bank] where the beneficiary is not liable.’’ Thus,

the court agreed with the plaintiff’s position. Presumably, the defendant

declined to make a claim in his posttrial brief, or anywhere else, that the

plaintiff was vicariously liable as a trust beneficiary for the mismanagement

of the loans by the corporation, Colonial Bank and/or State Street Bank

because he agreed with the plaintiff and the trial court that that was not

the case. Indeed, the only comment that counsel for the defendant made

in response to the plaintiff’s argument at trial that it was not liable as a

trust beneficiary was, ‘‘I would think the trustee is [the plaintiff’s] agent.’’

The defendant never briefed the claim, however, that the plaintiff was liable

as a principal for its agents’ mismanagement of the loans. Accordingly, the

dissent’s argument that the trial court’s statement that the plaintiff had not

proven any of its defenses somehow applied to the plaintiff’s unopposed

argument during trial that it was not liable as a trust beneficiary is simply

untenable. There was absolutely no reason for the trial court to conclude

that the plaintiff had not proven a defense to a claim that the defendant

had never raised.

16 As we have indicated, the defendant does not challenge on appeal to

this court the Appellate Court’s conclusion that, as a matter of law, an

assignee does not take an assignment subject to affirmative claims against

the assignor arising from the assignor’s prior conduct without express

assumption of such liability by the assignee. See Hartford v. McKeever,

supra, 139 Conn. App. 286.

17 The defendant claimed in his posttrial brief to the trial court that the

plaintiff ‘‘was involved in this [t]rust [i]ndenture even before the loan to

[the defendant] was made,’’ but he did not contend that the plaintiff was

aware of or benefited from the overpayments to the corporation, Colonial

Bank or State Street Bank. Nor did the defendant cite any of the cases or

equitable principles that Judge Gruendel relied on in his dissenting opinion.

The dissent contends that ‘‘[t]he trial court’s finding that the [plaintiff]

was involved in the transactions from the beginning is obviously responsive

to this contention’’ by the defendant. Even if that were the case, it is reasonable to conclude that the trial court declined to issue a ruling on the defendant’s claim that the plaintiff was liable for the overpayments because it

was the actual party in interest because the defendant failed to brief it

adequately. For the reasons that we have explained, even if the plaintiff was

involved in the transaction from the beginning, and even if the corporation,

Colonial Bank and State Street Bank were acting on the plaintiff’s behalf,

those facts, standing alone, would not support the conclusion that the plaintiff is liable to the defendant for the overpayments in the absence of any

legal analysis of those facts, which the defendant did not provide.

18 In the present case, although, as we discuss later in this opinion, there

will be further proceedings on the defendant’s claim for attorney’s fees and

interest, there will be no further proceedings on the defendant’s claim that

he is entitled to recover from the plaintiff overpayments that were made

to the corporation, Colonial Bank or State Street Bank.

19 We recognize that on appeal to this court the defendant did not challenge
the Appellate Court’s determination that the trial court had made no finding

as to the amount owing on the note when it was assigned to the plaintiff.

It was not entirely clear from the Appellate Court’s opinion, however, why

the court was remanding the case to the trial court for further proceedings.

Moreover, the Appellate Court gave no indication that it had considered

and agreed with the plaintiff’s claim that the trial court’s determination that

the defendant had overpaid $195,909 on the note was not supported by the

evidence. Rather, the Appellate Court stated that the trial court ‘‘did not

make a determination’’ on that issue. Hartford v. McKeever, supra, 139 Conn

App. 287 n.10. Thus, it appears that the Appellate Court simply overlooked

the trial court’s statement that the note had been paid in full. Indeed, if

the Appellate Court had determined that the trial court’s finding was not

supported by the evidence, the proper disposition would have been to

remand the case for a new trial, not further proceedings, as the questions

of whether the defendant had overpaid the note and, if so, by how much,

were the very issues that had been tried.

20 The plaintiff did not file a cross appealraising the claim thattheAppellate

Court had failed to address its evidentiary claim, presumably because it

believed that the Appellate Court had concluded that a new determination

of the amount that the defendant had overpaid must be made on remand.

As we have indicated, to the extent that the Appellate Court made such a

determination, it was based on an incorrect belief that the trial court had

not already made a finding as to the amount due on the note when it was

assigned to the plaintiff. See footnote 19 ofthis opinion. Although the plaintiff

did not file a cross appeal, it has effectively renewed its insufficiency of

the evidence claim on appeal to this court, acknowledging in its brief that

it owes $17,397.93 in overpayments to the defendant, but claiming it is not

responsible for any excess sum based on the defendant’s calculations. We

conclude that we may address the claim because, even if it was not properly

raised, the plaintiff cannot prevail. See Blumberg Associates Worldwide,

Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 157–58

(‘‘[r]eview of an unpreserved claim may be appropriate . . . when the minimal requirements for review are met and . . . the party who raised the

unpreserved claim cannot prevail’’ [citation omitted; emphasis omitted]).

21 In other words, the plaintiff effectively conceded that the real issue was

not the competence or sufficiency of the defendant’s evidence on damages,

but,rather, whetherthe trial court properly had concluded thatthe defendant

could recover from the plaintiff overpayments that had been made to the

corporation, Colonial Bank or State Street Bank.

22 The plaintiff contends that the defendant has waived these claims

because the trial court’s failure to act on these motions was the effective

equivalent of a denial, and the defendant failed to file a motion for review.

In support of this claim, the plaintiffrelies on the Appellate Court’s statement

that the trial court’s ‘‘inability to respond to the plaintiff’s articulation request

was the functional equivalent of a denial of the motion’’; Hartford v.

McKeever, supra, 139 Conn. App. 279 n.2; and the Appellate Court’s conclusion that the plaintiff’s claim that the basis for the trial court’s opinion was

unclear could not be reviewed on direct appeal, but only pursuant to a

motion for review filed pursuant to Practice Book § 66-7. Id. Nothing in

§ 66-7, however, authorizes, much less requires, a party to seek review of

a denial of a motion for interest or attorney’s fees by way of a motion for

review. Moreover, the plaintiff has provided no authority for the proposition

that the unexplained failure of the trial court to rule on a request for attorney’s fees or interest constitutes a denial as a matter of law. Cf. Ahneman

v. Ahneman, 243 Conn. 471, 478–80, 706 A.2d 960 (1998) (affirmative refusal

to consider posttrial motions constitutes functional equivalent of denial for

purposes of establishing appellate jurisdiction). In the present case, we have

no way of knowing whether the trial court intended to deny the defendant’s

motions, inadvertently overlooked them, orintended to wait until this appeal

was finally resolved to address them.