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*********************************************** 
WELLS FARGO BANK, N.A. v. JAMES R.

FITZPATRICK ET AL.

(AC 41113)

Keller, Elgo and Bright, Js.

Syllabus

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

owned by the defendants J and M. In May, 2009, the plaintiff sent the

defendants a letter notifying them that their loan was in default and

advising them of the amount required to cure the default and its intent

to accelerate the balance due if the default was not cured. When the

default was not cured, the plaintiff commenced a foreclosure action, in

which the law firm B Co. filed an appearance on behalf of the defendants.

After that action was dismissed for dormancy in May, 2014, H Co., the

law firm acting as counsel for the plaintiff, sent a letter to B Co. in June,

2014, instead of the property address, notifying them that the defendants’

loan was in default. The defendants failed to cure the default and the

plaintiff commenced a second foreclosure action in September, 2014. B

Co. again entered an appearance on behalf of the defendants. Following

a trial, the court denied a motion to dismiss filed by the defendants, in

which they alleged that the plaintiff had failed to establish a notice of

default against the defendants, which is a condition precedent to the

foreclosure. The trial court considered the 2009 letter and the 2014 letter

jointly as substantively affording the defendants the requisite notice. The

trial court then concluded that the plaintiff was entitled to a judgment

of foreclosure by sale, and that although the defendants had proven

their special defense of unclean hands, they failed to prove their special

defenses of laches and failure to mitigate damages. On the defendants’

appeal to this court, held:

1. The defendants’ claim that the plaintiff had failed to provide them with

proper notice as required by the mortgage deed was unavailing; the

trial court properly determined that the 2009 and 2014 letters together

substantially complied with the notice requirements of the mortgage

deed, as counsel for the defendants conceded at trial that the contents

of the 2014 letter satisfied the notice requirements of the mortgage, the

defendants did not dispute that they received the 2014 letter, they

claimed no prejudice from the manner in which they received it, and

they had received the 2009 letter prior to the first foreclosure action in

which they had actively participated, and, therefore, it was indisputable

that they had actual notice of their default and the possibility that they

faced a foreclosure action when the second action was commenced.

2. The trial court’s finding that the defendants did not prove their special

defense of laches was not clearly erroneous; the defendant did not

submit any evidence from which the court could have found that they

were prejudiced by any alleged delay of the plaintiff in pursuing the

foreclosure action, and the trial court reduced the interest that accrued

while the first foreclosure action was pending, which equitably

addressed any delay in the first foreclosure action.

Argued December 12, 2018—officially released May 21, 2019

Procedural History

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

relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Hon. Richard P.

Gilardi, judge trial referee, granted the plaintiff’s

motion to cite in Carbone Financing Services, LLC, as

a party defendant; thereafter, the named defendant et

al. were defaulted for failure to plead; subsequently, the

court, Hon. Alfred J. Jennings, Jr., judge trial referee,

granted the motion filed by the named defendant et al.
to open the default; thereafter, the court, Hon. Alfred J.

Jennings, Jr., judge trial referee, granted the plaintiff’s

motion to dismiss the counterclaim filed by the named

defendant et al.; subsequently, the court, Hon. Alfred

J. Jennings, Jr., judge trial referee, denied the motion

to dismiss filed by the named defendant et al. and

granted in part the plaintiff’s motion for a judgment of

strict foreclosure and rendered a judgment of foreclosure by sale, from which the named defendant et al.

appealed to this court. Affirmed.

Bryan L. LeClerc, for the appellants (defendants).

David M. Bizar, with whom was J. Patrick Kennedy,

for the appellee (plaintiff).
Opinion

ELGO, J. The defendants, James R. Fitzpatrick and

Marsha A. Fitzpatrick,1 appeal from the judgment of

foreclosure by sale rendered by the trial court in favor

of the plaintiff, Wells Fargo Bank, N.A. On appeal, the

defendants claim that the court improperly (1) denied

their motion to dismiss and rendered judgment of foreclosure by sale because the plaintiff did not comply with

the terms of the note and mortgage, namely, compliance

with the notice requirements, and (2) concluded that

the defendants had not proved their special defense of

laches. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the present appeal. On January 31, 2003, the

defendants executed and delivered a promissory note

payable to World Savings Bank, FSB, in the original

principal amount of $315,000. The loan was secured by

a mortgage deed on the property. The mortgage deed

was executed and delivered on January 31, 2003. Effective December 31, 2007, World Savings Bank, FSB, was

renamed Wachovia Mortgage, FSB (Wachovia).

The defendants have been in default on the note and

mortgage deed since March 1, 2009. On May 13, 2009,

Wachovia sent a letter to the defendants at the property

address by first class mail and certified mail, notifying

them that the loan was in default and advising them of

the amount required to cure the default and its intent

to accelerate if the default was not cured (2009 letter).

When the defendants failed to cure the default,

Wachovia elected to accelerate the balance due on the

note, declare the note due in full, and foreclose the

mortgage deed securing the note. Wachovia commenced a foreclosure action against the defendants on

July 27, 2009 (first foreclosure action). Berchem Moses,

P.C. (Berchem Moses),2

filed an appearance on behalf of

the defendants on August 4, 2009. Effective November

1, 2009, Wachovia converted to a national bank with

the name Wells Fargo Bank Southwest, National Association, and merged with and into the plaintiff.3 The first

foreclosure action was in foreclosure mediation for

approximately two years; the mediation period was terminated by the court on September 29, 2011. The first

foreclosure action subsequently was dismissed for dormancy on May 8, 2014.

On June 19, 2014, the law firm formerly known as

Hunt Leibert Jacobson, P.C., acting in its capacity as

counsel to the plaintiff, sent a letter by certified mail,

return receipt requested, to Berchem Moses notifying

them, inter alia, that the note was in default (2014 letter).

The 2014 letter listed the plaintiff as the creditor, the

loan number, and the property address and stated, in

relevant part: ‘‘Dear BERCHEM MOSES & DEVLIN PC:

We are writing to you as counsel for BERCHEM

MOSES & DEVLIN PC, MARSHA A FITZPATRICK*.
Please be advised that this office represents WELLS

FARGO BANK, N.A., who is the holder of a certain Note

(the ‘Note’) and Open-End Mortgage (the ‘Mortgage’)

made by you originally in favor of WORLD SAVINGS

BANK, FSB dated January 31, 2003 in the original principal amount of $315,000.00. This is to advise you that the

above-referenced Note and Mortgage is in DEFAULT

because installments of principal and interest have not

been paid when due. The amount of payments and other

charges due is $218,906.08 as of July 19, 2014 (Please

see attached itemization). If the full amount needed to

bring the loan current has not been paid on/or before

said date, WELLS FARGO BANK, N.A. will declare all

sums secured by the mortgage immediately due and

payable (technically called acceleration) without further demand.’’ A memo sent with the 2014 letter to

Berchem Moses provided in relevant part: ‘‘Pursuant to

the language in the mortgage deed you signed, the

Lender is required to advise you that you have the right

to reinstate after acceleration and the right to assert in

court the non-existence of a default or any other defense

of Borrower to acceleration and foreclosure and sale.

If the default is not cured on or before the date specified

in the notice, Lender at its option may require immediate payment in full of sums secured by the Mortgage

without further demand and may invoke any of the

remedies permitted by Applicable Law.’’

The defendants failed to cure the default and the

plaintiff elected to accelerate the balance due on the

note, to declare the note due in full, and to institute

foreclosure of the mortgage deed securing the note.

The plaintiff then commenced the present foreclosure

action against the defendants on September 26, 2014.

On October 21, 2014, Berchem Moses entered an

appearance on behalf of the defendants. On September

16, 2016, the plaintiff’s motion to default the defendants

for failure to plead was granted. On that same date, the

defendants filed a motion to open the default and filed

their answer with three special defenses and a counterclaim.4 The defendants’ motion to open the default was

granted on September 28, 2016.

The action was tried to the court on July 18, 2017.

At the close of the plaintiff’s case, the defendants moved

to dismiss the case ‘‘based upon the plaintiff’s failure

to establish a prima facie case, specifically their failure

to establish a notice of default against the defendants,

which is a condition precedent to the foreclosure.’’ After

a recess, the court denied the defendants’ motion to

dismiss. The court, relying on Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn. App. 367,

955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420

(2008), considered the 2009 letter and the 2014 letter

jointly as substantively affording the defendants the

requisite notice in paragraph twenty-two of the mortgage deed. The court further noted the absence of any

prejudice to the defendants, and that the 2014 letter was
sent to the defendants’ counsel within approximately

thirty days of the dismissal of the first foreclosure case.

In its memorandum of decision, the court concluded

that the plaintiff was entitled to a judgment of foreclosure by sale against the defendants. The court also

concluded that the defendants had proven their first

special defense of unclean hands,5 but failed to prove

their second and third special defenses of laches and

failure to mitigate damages. This appeal followed. Additional facts will be set forth as necessary.

I

The defendants first claim that the plaintiff failed to

provide them with proper notice as required by paragraphs fifteen and twenty-two of the mortgage deed.

Specifically, the defendants argue that the contents of

the 2014 letter should not be considered by the court

because it was sent to Berchem Moses instead of the

property address and further contend that the 2009

letter considered alone does not constitute sufficient

notice.6

In the alternative, the defendants argue that the

2009 letter and 2014 letter together do not constitute

sufficient notice.

In response, the plaintiff contends that, ‘‘by admitting

the adequacy of [the] notice in their answer to the

complaint and by failing to file a special defense,’’ the

defendants have waived their right to challenge the

sufficiency of the notice. The plaintiff argues that the

defendants admitted that the notice was adequate in

their answer when they did not specifically deny paragraph six of the complaint, which states: ‘‘The plaintiff

has provided written notice in accordance with the note

and mortgage to the defendant(s) of the default under

the note and mortgage, but said defendant(s) have failed

and neglected to cure the default. The plaintiff has

elected to accelerate the balance due on said note, to

declare said note to be due in full and to foreclose the

mortgage securing said note.’’ In response, the defendants answered: ‘‘The allegations of paragraph 6 are

admitted to the extent that the plaintiff declared the

note in default and elected to accelerate the balance

due, declared the note to [be] due in full and commenced a foreclosure of the mortgage. The defendants

deny that monies are owed to the plaintiff.’’ The plaintiff

asks us to read this as a judicially binding admission

by the defendants that the plaintiff had provided them

with compliant notice under the note and mortgage

deed. Although we decline to read the defendants’

answer so broadly, we note that the defendants in their

answer did not deny that they had received the 2014

letter sent to Berchem Moses. Indeed, the defendants

have never advanced that argument and, instead, contend that the 2014 letter was improper notice because

it was not sent to the property address.7

We begin by noting that ‘‘[i]t is well established that

[n]otices of default and acceleration are controlled by
the mortgage documents. Construction of a mortgage

deed is governed by the same rules of interpretation

that apply to written instruments or contracts generally,

and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is

done not only from the face of the instrument, but also

from the situation of the parties and the nature and

object of their transactions. . . . A promissory note

and a mortgage deed are deemed parts of one transaction and must be construed together as such. . . .

‘‘In construing a deed, a court must consider the

language and terms of the instrument as a whole. . . .

Moreover, the words [in the deed] are to be given their

ordinary popular meaning, unless their context, or the

circumstances, show that a special meaning was

intended. . . .

‘‘A promissory note is nothing more than a written

contract for the payment of money, and, as such, contract law applies. . . . In construing a contract, the

controlling factor is normally the intent expressed in

the contract, not the intent which the parties may have

had or which the court believes they ought to have had.

. . . Where . . . there is clear and definitive contract

language, the scope and meaning of that language is

not a question of fact but a question of law. . . . In

such a situation our scope of review is plenary, and is

not limited by the clearly erroneous standard. . . . The

court will not torture words to impart ambiguity where

ordinary meaning leaves no room for ambiguity. . . .

‘‘Notice provisions in mortgage documents usually

require default notices to contain specific information,

which serves a very clear and specific purpose; it

informs mortgagors of their rights so that they may act

to protect them. Therefore, when the terms of the note

and mortgage require notice of default, proper notice

is a condition precedent to an action for foreclosure.

. . . Consequently, we must determine whether such

a condition precedent was satisfied in the present case.’’

(Citations omitted; internal quotation marks omitted.)

Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App.

793, 798–800, 896 A.2d 814, cert. denied, 278 Conn. 919,

901 A.2d 43 (2006).

Paragraphs twenty-two and fifteen of the mortgage

deed contain the relevant notice provisions in the present case. Paragraph twenty-two states in relevant part:

‘‘Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or

agreement in this Security Instrument . . . . The

notice shall specify: (a) the default; (b) the action

required to cure the default; (c) a date, not less than

30 days from the date the notice is given to Borrower,

by which the default must be cured; and (d) that failure

to cure the default on or before the date specified in the

notice may result in acceleration of the sums secured

by this Security Instrument and foreclosure or sale of
the Property. The notice shall further inform Borrower

of the right to reinstate after acceleration and the right

to assert in court the non-existence of a default or any

other defense of Borrower to acceleration and foreclosure or sale.’’ Paragraph fifteen of the mortgage deed

provides in relevant part: ‘‘Any notice to Borrower in

connection with this Security Instrument shall be

deemed to have been given to Borrower when mailed by

first class mail or when actually delivered to Borrower’s

notice address if sent by other means. . . . The notice

address shall be the Property Address unless Borrower

has designated a substitute notice address by notice

to Lender.’’

Although they challenged the manner in which the

2014 letter was sent, the defendants conceded before

the trial court that the contents of the 2014 letter provide

‘‘everything specifically required by the mortgage.’’8

Accordingly, we will not entertain on appeal their claim

that the 2014 letter was substantively inadequate. See

White v. Mazda Motor of America, Inc., 313 Conn. 610,

619, 99 A.3d 1079 (2014) (‘‘Our appellate courts, as a

general practice, will not review claims made for the

first time on appeal. We repeatedly have held that [a]

party cannot present a case to the trial court on one

theory and then seek appellate relief on a different one

. . . .’’ [Internal quotation marks omitted.]).

The defendants principally rely on this court’s decision in Aurora Loan Services, LLC v. Condron, 181

Conn. App. 248, 186 A.3d 708 (2018), to support their

position that, because the 2014 letter was not sent to

them at the property address as required by paragraph

fifteen of the mortgage, ‘‘there is no evidence of actual

delivery as required to set forth a prima facie case.’’ In

Aurora, the defendants claimed that they did not

receive the single notice of default letter sent by the

plaintiff via certified mail, return receipt requested, and

the plaintiff did not offer evidence to confirm actual

delivery of the letter.9

Id., 252–53. As this court noted:

‘‘The plain intent of the notification requirements . . .

of the mortgage deed is to provide notice of a default

to a [mortgagor] prior to the commencement of a foreclosure proceeding.’’ Id., 272. Because the defendants

claimed that they did not receive the noncompliant

notice of default letter and there was no evidence that

they did so, this court determined that the plaintiff

in that case failed to satisfy the contractual condition

precedent to foreclosure. Id., 276. The present case is

materially different. Unlike the defendants in Aurora,

the defendants in the present case do not argue that

they did not receive notice of the default and the possibility that they faced a foreclosure action. In the present

case, the defendants had actual notice of the default

and the possibility that they faced a foreclosure because

they had been through the first foreclosure action and

admittedly received the 2009 letter before the first foreclosure action was commenced against them.
This court has applied the doctrine of substantial

compliance to contract notice provisions. See Mortgage

Electronic Registration Systems, Inc. v. Goduto, supra,

110 Conn. App. 373 (mortgage notice provision required

plaintiff to afford defendants thirty days notice to cure

default); Twenty-Four Merrill Street Condominium

Assn., Inc. v. Murray, 96 Conn. App. 616, 624–25, 902

A.2d 24 (2006) (condominium association bylaws

required written notice within thirty days of decision);

Fidelity Bank v. Krenisky, 72 Conn. App. 700, 714–15,

807 A.2d 968 (mortgage notice provision required plaintiff to inform defendants that they may assert in court

nonexistence of default or other defense), cert. denied,

262 Conn. 915, 811 A.2d 1291 (2002). In Mortgage Electronic Registration Systems, Inc. v. Goduto, supra, 376,

this court affirmed the trial court’s judgment ‘‘on the

alternate ground that by sending a second notice letter,

the plaintiff substantially complied with the notice

requirements in the defendant’s mortgage.’’ It concluded that ‘‘the two notices [of default], read jointly,

substantially afforded the debtor the requisite notice.’’

Id., 368. This court explained that ‘‘[i]n deciding whether

proper notice was given, we . . . look primarily to the

actual notice received rather than asking whether there

has been a punctilious adherence to formality . . . .

Although generally contracts should be enforced as

written, we will not require mechanistic compliance

with the letter of notice provisions if the particular

circumstances of a case show that the actual notice

received resulted in no prejudice and fairly apprised

the noticed party of its contractual rights.’’ (Citation

omitted; internal quotation marks omitted.) Id., 375.

In the present case, counsel for the defendants conceded at trial that the 2014 letter satisfied the notice

requirements in paragraph twenty-two of the mortgage.

The defendants do not dispute that they received the

2014 letter and they claim no prejudice from the manner

in which they received it. In addition, they had received

the 2009 letter prior to the first foreclosure action and

had actively participated in it. Consequently, it is indisputable that they had actual notice of their default and

the possibility that they faced a foreclosure action when

the second action was commenced. Accordingly, we

conclude that the trial court properly determined that,

pursuant to this court’s decision in Goduto, the two

letters together substantially complied with the mortgage deed’s notice requirements.

II

The defendants also claim that the court improperly

failed to find that they had proven their special defense

of laches. In response, the plaintiff argues that the

defendants failed to meet their burden of proving

laches. We agree with the plaintiff.

‘‘The standard of review that governs appellate claims
with respect to the law of laches is well established. A

conclusion that a plaintiff has been guilty of laches is

one of fact for the trier and not one that can be made

by this court, unless the subordinate facts found make

such a conclusion inevitable as a matter of law. . . .

We must defer to the court’s findings of fact unless they

are clearly erroneous. . . .

‘‘The defense of laches, if proven, bars a plaintiff from

seeking equitable relief . . . . First, there must have

been a delay that was inexcusable, and, second, that

delay must have prejudiced the defendant. . . . The

burden is on the party alleging laches to establish that

defense. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the

[opposing party] . . . as where, for example, the

[opposing party] is led to change his position with

respect to the matter in question.’’ (Emphasis added;

internal quotation marks omitted.) R. F. Daddario &

Sons, Inc. v. Shelansky, 123 Conn. App. 725, 737, 3 A.3d

957 (2010).

The defendants argue that they are entitled to a finding of laches because ‘‘the plaintiff has allowed a period

of over nine years to pass in this foreclosure action.

During that time it has failed to pursue this matter with

due diligence, and has failed to comply with the specific

terms of the note and mortgage regarding the alleged

default.’’ The defendants, however, have failed to assert,

before the trial court or on appeal, how they have been

prejudiced. Indeed, no evidence was submitted on

which the court could have found that the defendants

suffered any prejudice and, in fact, the court reduced

the interest that accrued while the first foreclosure

action was pending, which equitably addressed any

delay in the first foreclosure action. See footnote 5

of this opinion. The only evidence presented by the

defendants in this action consisted of their request that

the court take judicial notice of the first foreclosure

action. Accordingly, because the defendants did not

submit any evidence from which the court could have

found that they were prejudiced, we conclude that the

court’s finding that the defendants did not prove their

special defense of laches was not clearly erroneous.

See Wolyniec v. Wolyniec, 188 Conn. App. 53, 68, 203

A.3d 1269 (2019) (‘‘[a]lthough the court made no

express findings of fact with respect to laches . . .

[a]fter examining the record in the present case, we

conclude that no evidence was admitted from which

the court could have found that the plaintiff was prejudiced by the defendant’s delay in filing her motion for

contempt’’ [internal quotation marks omitted]); Carpender v. Sigel, 142 Conn. App. 379, 387, 67 A.3d 1011

(2013) (‘‘In the present case, no evidence was admitted

on which the court could have found that the plaintiff

was prejudiced . . . . Accordingly, the court improperly concluded that the defendants’ claim . . . was

barred by laches.’’).
The judgment is affirmed.

In this opinion the other judges concurred.

1 For convenience, we refer to James R. Fitzpatrick and Marsha A. Fitzpatrick as the defendants in this opinion. We note that the operative complaint

also named the United States of America Internal Revenue Service; Manny

Rodrigues; Homeward Residential, Inc., formerly known as American Home

Mortgage Servicing, Inc., formerly known as Option One Mortgage Corporation; Ford Motor Credit Company, LLC, formerly known as Ford Motor

Credit Company; Capital One Bank; and Carbone Financing Services, LLC,

as defendants in this action.

2 At the time that the first foreclosure action was commenced, Berchem

Moses, P.C., was known as Berchem Moses & Devlin, P.C.

3 The plaintiff filed a motion to substitute a party plaintiff on December

15, 2009, which was granted by the court on January 4, 2010.

4 The defendants alleged the special defenses of (1) unclean hands, (2)

laches, and (3) failure to mitigate damages. In their counterclaim, the defendants sought a discharge of the mortgage pursuant to General Statutes § 49-

13. In a memorandum of decision dated June 20, 2017, that counterclaim

was dismissed by the court. The defendants have not challenged on appeal

the dismissal of their counterclaim.

5 Specifically, the court determined that the defendants were entitled to

an interest credit for proving their first special defense of unclean hands

in the amount of $46,004. The court determined that there were 868 days

of unexplained delay by the plaintiff in pursuing the first foreclosure action

and that the per diem interest on the unpaid principal balance amounted

to $53 per day. The court multiplied the per diem interest by the 868 days

of the unexplained delay to calculate the defendants’ interest credit. The

propriety of that determination is not at issue in this appeal.

6

In particular, the defendants argue that the 2009 letter was inadequate

because it did not comply with subsection (c) of the notice provision, which

states that the notice shall specify ‘‘a date, not less than 30 days from the

date the notice is given to Borrower, by which the default must be cured

. . . .’’ The defendants also argue that the 2009 letter was inadequate because

it did not comply with subsection (d), which states that the notice shall

provide ‘‘that failure to cure the default on or before the date specified in

the notice may result in acceleration of the sums secured by this Security

Instrument and foreclosure or sale of the Property.’’ In light of the fact that

the defendants concede that the 2014 letter was substantively adequate; see

footnote 7 of this opinion; and our conclusion that the 2009 letter and

2014 letter together substantially complied with the mortgage deed’s notice

provisions, we need not address the defendant’s arguments as to the deficiencies of the 2009 letter.

7 The plaintiff also argues that the defendants waived their right to challenge the notice provided by the two letters because they failed to file a

special defense. The plaintiff asserts that our decision in Mortgage Electronic

Registration Systems, Inc. v. Goduto, supra, 110 Conn. App. 367, ‘‘shows

[that the] [d]efendants were required to plead lack of notice or its inadequacy

as a special defense . . . .’’ In that case, this court noted in a footnote

that the defendant asserted a failure to comply with the mortgage’s notice

requirement as a special defense before the trial court. Id., 369 n.2. The

plaintiff misconstrues the observation made by this court in Goduto. Nothing

about that decision implies that the defendant in that case was required to

file a special defense in order to challenge the adequacy of the notice

provided by the plaintiff. Further, because the plaintiff’s obligation to provide

notice is a condition precedent to the foreclosure action and a part of a

prima facie case; see Deutsche Bank National Trust Co. v. Bliss, 159 Conn.

App. 483, 495, 124 A.3d 890 (‘‘[a] plaintiff establishes its prima facie case

in a mortgage foreclosure action by demonstrating by a preponderance of

the evidence that it is the owner of the note, that the defendant mortgagor

has defaulted on the note, and that conditions precedent to foreclosure

have been satisfied’’), cert. denied, 320 Conn. 903, 127 A.3d 186 (2015), cert.

denied, U.S. , 136 S. Ct. 2466, 195 L. Ed. 2d 801 (2016); we decline

to hold that a defendant must plead lack of notice or insufficient notice as

a special defense in order to challenge that condition precedent.

8

In their appellate brief, the defendants challenge only one aspect of the

contents of the 2014 letter, and the plaintiff argues that the defendants have

waived their ability to raise that challenge. We agree. At oral argument before

the trial court, counsel for the defendants acknowledged the deficiencies

of the contents of the 2009 letter but specifically stated that the 2014 letter’s
contents followed the provisions of the mortgage’s notice requirements:

‘‘And if you look at [the 2009 letter], this is not a default letter. One can

call it a default letter, as the witness did. However, the last paragraph on

the first page said it is our intent to declare your loan past due and payable

immediately if the above-mentioned breach is not remedied. And it gives

some options: let’s have a face-to-face meeting; you can contact Connecticut

Housing Finance Authority. It talks about what their future intent is. It is

nowhere close to being the actual default letter as required by the mortgage

itself and as was sent in [the 2014 letter], which is clearly a default letter

which follows the provisions of the mortgage itself with the notifications

required, the amounts, the periods, everything specifically required by the

mortgage. That is a condition precedent; they have not met it.’’ (Emphasis

added.) Furthermore, after counsel for the plaintiff argued that the 2014 letter

should be considered by the court, that the two letters together constituted

substantial compliance, and that, ‘‘on its face, the [2014] letter is clearly

compliant,’’ the court began to go through the contents of the 2014 letter

to see if it complied with the mortgage’s notice requirements, and counsel for

the defendants responded not by discussing any deficiency in the contents

of the 2014 letter, but by again arguing that the letter was not addressed to

the borrower as required by the note.

9 Paragraph fifteen of the mortgage in Aurora Loan Services, LLC v.

Condron, supra, 181 Conn. App. 263–64, like paragraph fifteen of the mortgage in the present case, specified that a presumption of receipt would exist

when notice is sent to the borrowers by first class mail.