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2 , 0 0 Conn. App. 1

Deutsche Bank National Trust Co. v. Speer

DEUTSCHE BANK NATIONAL TRUST COMPANY,

TRUSTEE v. SHERI A.

SPEER ET AL.

(AC 46046)

Bright, C. J., and Elgo and Sheldon, Js.

Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property

owned by the defendant S, who filed an answer and ten special defenses.

Approximately two years later, S filed a request for leave to amend her

answer and special defenses to include a five count counterclaim, seeking damages for, inter alia, alleged property damage and trespass. In

the counterclaim, S claimed that the plaintiff’s agents had, inter alia,

broken a door to the property, taken certain construction materials from

it, and replaced the locks, which S alleged interfered with her ability

to rent and repair the property. The plaintiff objected to S’s request,

arguing that her allegations were unfounded, that the counterclaim was

not made on the basis of new information, and that S failed to show

good cause to allow the amendment at that stage of the proceedings.

The trial court sustained the plaintiff’s objection. S filed a second request

for leave to amend her answer, which included a counterclaim asserting

the same five counts, but added that the plaintiff’s agents had more

recently trespassed on her property. The trial court again sustained the

plaintiff’s objection to the request, which contained the same grounds

as the first objection. The plaintiff thereafter withdrew the foreclosure

action. S appealed to this court, claiming that the trial court abused its

discretion in sustaining the plaintiff’s objections because her proposed

amendments were timely and would not have prejudiced the plaintiff.

Held:

1. The plaintiff could not prevail on its claim that this appeal should be

dismissed as moot because, having withdrawn its action before any

counterclaim had been filed against it, no practical relief could be

afforded to S on the basis of any such unfiled claim: this court concluded

that the appeal was not moot because it could provide practical relief

to S if it decided her claim on the merits, despite the plaintiff having

withdrawn its foreclosure action, namely, that, if this court were to

determine that S should have been permitted to file her proposed counterclaim, it could remand this case to the trial court with direction to

restore the case to the docket and conduct further proceedings with

respect to S’s proposed counterclaim; moreover, although S’s proposed

counterclaims were not yet filed when the action was withdrawn because

the court had effectively denied her requests for leave to amend her

answer to assert the proposed counterclaims when it sustained the

plaintiff’s objections, the plaintiff’s withdrawal would not have impaired
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Deutsche Bank National Trust Co. v. Speer

her right to proceed with the proposed counterclaims had she otherwise

been permitted to file them.

2. S could not prevail on her claim that the trial court abused its discretion

in sustaining the plaintiff’s objections to her requests for leave to amend

her answer to assert a counterclaim: the trial court record provided a

sound basis for the court’s conclusion that permitting S’s amendments

would have caused an unreasonable delay, as the foreclosure action

had already been pending for approximately two years, and, during

that time, S had filed several unmeritorious motions in addition to two

interlocutory appeals that had been dismissed, and the court could have

considered S’s request to amend her answer to be an additional dilatory

tactic; moreover, S’s proposed counterclaims were not based on information that she recently had obtained or learned after filing her answer,

thereby potentially making it unreasonable for her to wait for almost

two years after she was served before seeking leave of court to assert

the counterclaims, and, although S alleged that agents of the plaintiff

had recently trespassed onto the property, she also alleged that there

were at least fifty forceable entries onto the property during the term

of her mortgage, and S did not claim that she only recently learned of

the alleged misconduct underlying her proposed counterclaims at the

time she filed her request for leave to amend her answer, and, thus, the

court could have considered that S’s requests were not made seasonably.

Argued February 1—officially released May 14, 2024

Procedural History

Action to foreclose a mortgage on certain real property owned by the named defendant, and for other relief,

brought to the Superior Court in the judicial district of

New London, where the court, Calmar, J., sustained

the plaintiff’s objections to the named defendant’s two

requests for leave to amend her answer to assert a

counterclaim; thereafter, the plaintiff withdrew the

action, and the named defendant appealed to this court.

Affirmed.

Sheri A. Speer, self-represented, the appellant

(named defendant).

Victoria L. Forcella, for the appellee (plaintiff).
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Deutsche Bank National Trust Co. v. Speer

Opinion

SHELDON, J. Following the unconditional withdrawal of this foreclosure action by the plaintiff,1

Deutsche Bank National Trust Company, as trustee for

HSI Asset Securitization Corporation Trust 2006-OPT4,

Mortgage Pass-Through Certificates, Series 2006-OPT4,

the defendant Sheri A. Speer2 appeals from the trial

court’s decisions sustaining the plaintiff’s objections to

the defendant’s two prior requests for leave to amend

her answer to assert a counterclaim. On appeal, the

defendant claims that the court abused its discretion

in sustaining the plaintiff’s objections because her proposed amendments were timely and would not have

prejudiced the plaintiff. We disagree with the defendant’s claims of error and, accordingly, affirm the trial

court’s decisions sustaining the plaintiff’s objections to

the requests for leave to amend.

The following procedural history is relevant to this

appeal. On March 20, 2019, the plaintiff served the

defendant with a summons and complaint, seeking to

foreclose a mortgage on a parcel of real property owned

by the defendant located at 107 Oakridge Street in Norwich (property). In its complaint, the plaintiff alleged

that the defendant had executed and delivered to Option

One Mortgage Corporation, its predecessor in interest,

a note in the amount of $159,800, of which the plaintiff

1 ‘‘Under [the] law, the effect of a withdrawal, so far as the pendency of

the action is concerned, is strictly analogous to that presented after the

rendition of a final judgment . . . .’’ (Internal quotation marks omitted.)

Doe v. Bemer, 215 Conn. App. 504, 513–14, 283 A.3d 1074 (2022); see also,

e.g., Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292

Conn. 459, 471 n.16, 974 A.2d 626 (2009). 2 The Second Injury Fund also was named as a defendant in the present

action, as the plaintiff alleged that it may claim an interest in the property

by virtue of a real estate lien in the amount of $24,327.15 related to a workers’

compensation matter. Because the Second Injury Fund is not participating

in this appeal, all references in this opinion to the defendant are to Sheri

A. Speer.
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Deutsche Bank National Trust Co. v. Speer

became the holder, secured by a mortgage on the property. The plaintiff further alleged that the note and mortgage were in default due to the defendant’s nonpayment

of monthly installments due thereunder since June 1,

2018. On March 20, 2020, the self-represented defendant

filed an answer to the plaintiff’s complaint and asserted

ten special defenses.

On January 25, 2021, the defendant filed a request

for leave to amend her answer and special defenses to

include a five count counterclaim, to which she

attached a copy of her proposed amended pleading.

The proposed five count counterclaim sought damages

for (1) property damage, (2) trespass, (3) fraud, (4)

conversion and civil theft, and (5) a violation of the

Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The alleged factual basis for the

defendant’s counterclaim was that agents of the plaintiff

had forcibly entered the property on at least fifty occasions, most recently on December 23, 2020. The defendant alleged that the plaintiff’s agents had, among other

things, broken a door to the property, taken certain

construction materials from it, and replaced its locks,

all of which interfered with her ability to rent and repair

the property.

The plaintiff filed an objection to the defendant’s

request for leave to amend, arguing that the defendant’s

allegations were unfounded and that the defendant had

failed to show good cause to allow an amendment at

that stage of the proceedings, approximately two years

after the action had been commenced, where the counterclaim was not made on the basis of new information.

The court issued an order on February 22, 2021, sustaining the plaintiff’s objection, thereby denying the

defendant’s request to amend. The defendant subsequently filed a motion for reconsideration, which the

court denied.
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Deutsche Bank National Trust Co. v. Speer

On June 9, 2021, the defendant filed a second request

for leave to amend her answer. The proposed amended

answer attached to that request included a counterclaim

setting forth the same five counts as the defendant’s

first proposed counterclaim, with only one additional

factual allegation: that the plaintiff’s agents had again

trespassed on the property on or about May 26, 2021.

The plaintiff filed an objection to the defendant’s second

request for leave to amend, arguing that that request

was nearly identical to her first such request and, thus,

that it should be denied for the same reasons as the

first request. By order dated June 28, 2021, the court

sustained the plaintiff’s objection to the defendant’s

second request for leave to amend, thereby denying

that request. The plaintiff subsequently withdrew the

foreclosure action. This appeal followed.

After filing the present appeal, the defendant filed a

motion for articulation requesting an explanation from

the trial court for its denial of both of her requests for

leave to amend, which the court denied.3 The defendant

subsequently filed with this court a motion for review

of the denial of her motion for articulation. This court

granted the defendant’s motion for review but denied

the relief requested therein.

I

Before we address the merits of the defendant’s claim

on appeal, we must address the plaintiff’s claim that

we should dismiss this appeal as moot. Specifically, the

plaintiff, relying on Sovereign Bank v. Harrison, 184

Conn. App. 436, 194 A.3d 1284 (2018), claims that,

because it withdrew the underlying foreclosure action

before any counterclaim had been filed against it, no

3 The defendant also filed a ‘‘notice of demand for decision,’’ which the

court denied. The court explained: ‘‘A memorandum of decision is not

required for the orders requested as these orders are not covered by Practice

Book § 64-1 (a).’’
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Deutsche Bank National Trust Co. v. Speer

practical relief can now be afforded to the defendant

on the basis of any such unfiled claim. ‘‘Mootness presents a circumstance wherein the issue before the court

has been resolved or had lost its significance because

of a change in the condition of affairs between the

parties.’’ (Internal quotation marks omitted.) GMAT

Legal Title Trust 2014-1 v. Catale, 213 Conn. App. 674,

694, 278 A.3d 1057, cert. denied, 345 Conn. 905, 282

A.3d 980 (2022). ‘‘[M]ootness implicates [this] court’s

subject matter jurisdiction and is thus a threshold matter for us to resolve before we may reach the merits

of an appeal. . . . It is a [well settled] general rule that

the existence of an actual controversy is an essential

requisite to appellate jurisdiction; it is not the province

of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the

determination of which no practical relief can follow.

. . . An actual controversy must exist not only at the

time the appeal is taken, but also throughout the pendency of the appeal.’’ (Citation omitted; internal quotation marks omitted.) CT Freedom Alliance, LLC v. Dept.

of Education, 346 Conn. 1, 12, 287 A.3d 557 (2023).

In the present case, we conclude that the appeal is

not moot because, although the plaintiff withdrew its

foreclosure action, this court could provide practical

relief to the defendant if it decided her claim on the

merits. Specifically, if this court determined that the

defendant should have been permitted to file her proposed counterclaim, it could remand this case to the

trial court with direction to restore the case to the

docket and conduct further proceedings with respect

to the defendant’s proposed counterclaim. ‘‘Although

the plaintiff’s right . . . to withdraw [its] action before

a hearing on the merits . . . is absolute and unconditional . . . such withdrawal in no way impairs the right

of the defendant to prosecute a previously filed counterclaim.’’ (Citation omitted; emphasis in original; internal
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Deutsche Bank National Trust Co. v. Speer

quotation marks omitted.) Sovereign Bank v. Harrison,

supra, 184 Conn. App. 442–43; see also Practice Book

§ 10-55 (‘‘[t]he withdrawal of an action after a counterclaim, whether for legal or equitable relief, has been

filed therein shall not impair the right of the defendant

to prosecute such counterclaim as fully as if said action

had not been withdrawn, provided that the defendant

shall, if required by the judicial authority, give bond to

pay costs as in civil actions’’).

The plaintiff’s reliance on Sovereign Bank v. Harrison, supra, 184 Conn. App. 436, to support its position

is misplaced. In Sovereign Bank, the issue was whether

the trial court erred in interpreting the defendant’s special defense as a counterclaim and, therefore, lacked

the authority to restore that claim to the docket following the plaintiff’s voluntary withdrawal of its action.

Id., 438. This court’s resolution of that issue turned on

the differences between special defenses and counterclaims. Id., 444–46. Ultimately, this court determined

that the defendant’s special defense ‘‘[could not] reasonably be construed as stating an independent cause of

action, and, therefore, the trial court erred in construing

it as a counterclaim. Because there was no pending

counterclaim as of the date of the withdrawal, the court

lacked the authority to restore the case to the docket.’’

Id., 447. In contrast to Sovereign Bank, it is undisputed

that the defendant in the present case sought to amend

her answer to assert a counterclaim, as opposed to a

special defense.4 Although the defendant’s proposed

counterclaims were not yet filed or pending when this

action was withdrawn—because the court had effectively denied her requests for leave to amend her answer

to assert the proposed counterclaims when it sustained

the plaintiff’s objections to her requests for leave to

4 On appeal, the defendant is not seeking relief to pursue the separate

special defenses that she had asserted in relation to the foreclosure action

that has been withdrawn.
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Deutsche Bank National Trust Co. v. Speer

amend—the fact remains that the plaintiff’s withdrawal

would not have impaired her right to proceed with

those proposed counterclaims had she otherwise been

permitted to file them. See id. Accordingly, we proceed

to the merits of the defendant’s appeal.

II

The defendant claims that the court abused its discretion in sustaining the plaintiff’s objections to her

requests for leave to amend her answer because each

claim in her proposed counterclaim was timely asserted

and no such claim would have prejudiced the plaintiff.

We disagree.

Pursuant to General Statutes § 52-130, ‘‘a party, as a

matter of right, may make substantive amendments to

any pleading. That right is subject only to the court’s

discretion to award costs or to limit an amendment if

doing so is necessary to prevent undue delay of a trial.’’

(Emphasis omitted.) Ocwen Loan Servicing, LLC v.

Mordecai, 209 Conn. App. 483, 498, 268 A.3d 704 (2021).

Similarly, ‘‘Practice Book § 10-60 (a) provides that a

party may amend his or her pleadings in three ways:

by order of the judicial authority, by written consent

of the adverse party, or by filing a request for leave to

file such amendment, with the amendment appended.

If no party files an objection, the amendment is deemed

to have been filed by consent, but if an objection is

filed, the matter is placed upon the next short calendar

for consideration of the court. Practice Book § 10-60

(a) (3). ‘The judicial authority may restrain such amendments so far as may be necessary to compel the parties

to join issue in a reasonable time for trial.’ Practice

Book § 10-60 [c].’’ GMAC Mortgage, LLC v. Ford, 144

Conn. App. 165, 184, 73 A.3d 742 (2013).

‘‘The granting or denial of a motion to amend the

pleadings is a matter within the trial court’s discretion.
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Deutsche Bank National Trust Co. v. Speer

. . . In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason,

refusal to allow an amendment is an abuse of discretion.

. . . The trial court is in the best position to assess

the burden which an amendment would impose on the

opposing party in light of the facts of the particular

case. The essential tests are whether the ruling of the

court will work an injustice to either the plaintiff or

the defendant and whether the granting of the motion

will unduly delay a trial. . . . In exercising its discretion with reference to a motion for leave to amend, a

court should ordinarily be guided by its determination

of the question whether the greater injustice will be

done to the mover by denying him his day in court on

the subject matter of the proposed amendment or to

his adversary by granting the motion, with the resultant

delay. . . . The law of this state favors courts allowing

amendments in the absence of some sound basis for

not doing so . . . particularly if the record fails to disclose some significant injustice or prejudice to the nonmoving party.’’ (Citations omitted; emphasis omitted;

internal quotation marks omitted.) Ocwen Loan Servicing, LLC v. Mordecai, supra, 209 Conn. App. 498–99.

‘‘While our courts have been liberal in permitting

amendments . . . this liberality has limitations.

Amendments should be made seasonably. Factors to

be considered in passing on a motion to amend are the

length of the delay, fairness to the opposing parties

and the negligence, if any, of the party offering the

amendment. . . . The motion to amend is addressed

to the trial court’s discretion which may be exercised

to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . .

Whether to allow an amendment is a matter left to the

sound discretion of the trial court. This court will not

disturb a trial court’s ruling on a proposed amendment

unless there has been a clear abuse of that discretion.
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Deutsche Bank National Trust Co. v. Speer

. . . It is the [defendant’s] burden in this case to demonstrate that the trial court clearly abused its discretion.’’

(Internal quotation marks omitted.) Perugini v. Giuliano, 148 Conn. App. 861, 871–72, 89 A.3d 358 (2014).

In the present case, the record afforded the court a

sound basis for sustaining the plaintiff’s objections to

the defendant’s requests for leave to amend her answer

to assert a counterclaim.5 See Ocwen Loan Servicing,

LLC v. Mordecai, supra, 209 Conn. App. 500–501 (where

trial court failed to provide any explanation for its decision, reviewing court examined record to determine

whether it reflected sound reason for denial of defendants’ request to amend their special defenses). Specifically, the court reasonably could have concluded, as

the plaintiff repeatedly argued, that permitting the

defendant’s amendments would have caused an unreasonable delay. See Perugini v. Giuliano, supra, 148

Conn. App. 872. By the time the defendant filed her

requests for leave to amend, the foreclosure action

already had been pending for approximately two years.

During that time, the defendant had filed several unmeritorious motions, in addition to two interlocutory

appeals that were dismissed, and the court could have

considered the defendant’s requests to amend her

5 We note that, in the plaintiff’s objections to the defendant’s requests for

leave to amend her answer, the plaintiff also referenced the general legal

principle requiring that a counterclaim arises out of the same transaction

as the complaint. The plaintiff did not, however, address the application of

that principle in the particular context of foreclosure actions, where our

case law has established that, for a defendant’s counterclaims in such an

action to be valid, they must relate to the making, validity, or enforcement

of the note or mortgage. See, e.g., Wells Fargo Bank, N.A. v. Melahn, 198

Conn. App. 151, 169 n.12, 232 A.3d 1201, cert. denied, 335 Conn. 947, 238

A.3d 19 (2020); see also U.S. Bank National Assn. v. Blowers, 332 Conn.

656, 667, 212 A.3d 226 (2019). Because the plaintiff did not base its objections

to the defendant’s proposed counterclaims on any alleged violation of that

rule, we have no occasion to consider whether the counterclaims at issue

here sufficiently related to the making, validity, or enforcement of the note

or mortgage to make them legally valid.
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Deutsche Bank National Trust Co. v. Speer

answer as an additional dilatory tactic. See Ocwen Loan

Servicing, LLC v. Mordecai, supra, 501 (considering

whether defendants had engaged in dilatory behavior

before filing request for leave to amend special defenses

by, among other things, filing improper interlocutory

appeals or excessive and unproductive motions).

Moreover, this was not an instance where either of

the defendant’s proposed counterclaims was based on

information that she recently had obtained or learned

after filing her answer, thereby potentially making it

reasonable for her to wait for almost two years after

she was served before seeking leave of court to assert

the counterclaim. See id., 500 (concluding that it was

reasonable for defendants to wait to amend special

defenses on basis of information that could be obtained

during discovery related to those defenses). To the contrary, although the defendant alleged that the plaintiff’s

‘‘most recent’’ trespasses onto her property had

occurred on December 23, 2020, and May 26, 2021, she

also alleged that there had been at least fifty forcible

entries onto the property during the term of her mortgage. The plaintiff did not claim that she only recently

learned of the alleged misconduct underlying her proposed counterclaims at the time she filed her requests

for leave to amend her answer.6 Thus, the court could

have considered that the defendant’s requests had not

been ‘‘made seasonably.’’ (Internal quotation marks

omitted.) Perugini v. Giuliano, supra, 148 Conn. App.

872. On that basis, we cannot conclude that the court

abused its discretion in sustaining the plaintiff’s objections to the defendant’s requests for leave to amend

her answer to assert a counterclaim.

The judgment is affirmed.

In this opinion the other judges concurred.

6 Indeed, the defendant’s original answer filed in March, 2020, indicates

that she already had knowledge of the alleged misconduct underlying her

proposed counterclaims at that time. Specifically, in her second special
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Deutsche Bank National Trust Co. v. Speer

defense, the defendant alleged that ‘‘[t]he plaintiff has, during the pendency

of this action, caused one or more of its agents to set foot on the property,

which constituted an act of criminal trespass.’’