*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
CHASE HOME FINANCE, LLC v. DANIEL SCROGGIN

(AC 39191)

Keller, Prescott and Bear, Js.

Syllabus

The plaintiff C Co. sought to foreclose a mortgage on certain real property

owned by the defendant, S, who was defaulted for failure to plead. The

trial court thereafter permitted C Co. to add as a defendant B Co., which

held a mortgage on the property securing a line of credit. Thereafter,

C Co. filed an amended complaint, to which S filed no objection. Count

one of the amended complaint sought foreclosure of C Co.’s mortgage

as in the original complaint, counts two through four concerned whether

B Co.’s mortgage should be equitably subrogated to C Co.’s mortgage,

and counts five and six alleged that S was unjustly and fraudulently

enriched as he continued to borrow against B Co.’s line of credit after

it was closed, all to C Co.’s loss and detriment. Subsequently, T Co. was

substituted as the plaintiff and filed a motion for judgment with respect

to counts two through six of the amended complaint and a motion for

a judgment of strict foreclosure as to count one. Without seeking leave

of the court to open the default entered against him, S filed an answer

to the amended complaint and objections to T Co.’s motions. The trial

court concluded that S’s answer was not operative because he did not

move to open the default entered against him five years previously and

had waited until after the motions for judgment were filed in order to

file a responsive pleading. The court, inter alia, rendered a judgment of

strict foreclosure in favor of T Co. On appeal to this court, S claimed

that the trial court improperly granted the motion for judgment of strict

foreclosure because that judgment was based on a default for failure

to plead in response to the original complaint, but C Co., thereafter,

had significantly amended the pleadings and added additional parties,

which extinguished the default. Held that, under the circumstances of

the present case, the trial court improperly failed to set aside the default

entered against S and abused its discretion by failing to give effect to

his answer to the amended complaint: the filing of an amended complaint

following a finding of default effectively extinguishes the default and

affords a defendant an opportunity to plead in response only when the

amendment reflects a substantial change to the pleadings in effect at

the time that the default was entered, and a comparison of the original

and amended complaints revealed that the amended complaint filed

following the default interjected new material factual allegations and

new legal theories in the case, which were not merely technical in nature

and concerned whether the line of credit extended by B Co. should be

considered as a prior or subsequent lien on the subject property and

whether S had engaged in fraudulent conduct or was unjustly enriched;

moreover, although a default acts as a judicial admission of the facts

set forth in a complaint, the default entered against S with respect to

the original complaint could not be interpreted to apply to the materially

new claims to which he was exposed as set forth in the amended

complaint, which included, but were not limited to, claims of fraud and

unjust enrichment on his part, and in light of the changes to T Co.’s

case that were reflected in the amended complaint, it was inequitable

for the court not to have considered the default entered against S to

have been extinguished.

(One judge dissenting)

Argued September 12—officially released December 19, 2017

Procedural History

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

brought to the Superior Court in the judicial district

of Middlesex, where the defendant was defaulted for

failure to plead; thereafter, Bank of America National
Association was cited in as a defendant and the plaintiff

filed an amended complaint; subsequently, AJX Mortgage Trust 1 was substituted as the party plaintiff; thereafter, the court, Aurigemma, J., granted the substitute

plaintiff’s motion for judgment as to counts two through

six of the amended complaint; subsequently, the court

granted the substitute plaintiff’s motion for a judgment

of strict foreclosure and rendered judgment thereon,

from which the named defendant appealed to this court.

Reversed in part; further proceedings.

Michael J. Habib, with whom, on the brief, was

Thomas P. Willcutts, for the appellant (named

defendant).

Benjamin T. Staskiewicz, for the appellee (substitute plaintiff).
Opinion

KELLER, J. The defendant, Daniel J. Scroggin also

known as Daniel F. Scroggin also known as Daniel

Scroggin, appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute

plaintiff, AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund Society, F.S.B., Trustee.1 The

defendant claims that the court improperly granted the

plaintiff’s motion for judgment of strict foreclosure

because (1) the judgment was based upon a default for

failure to plead in response to the original complaint,

but the plaintiff’s predecessor in this action, thereafter,

had significantly amended the pleadings and added

additional parties to the action, and (2) by operation

of General Statutes § 52-121 (a),2 he was entitled to,

and did, file an answer prior to the hearing on the

plaintiff’s motion for judgment.3 We agree with the

defendant’s first claim. Accordingly, we reverse the

judgment of the trial court and remand the case to that

court for further proceedings.

The relevant procedural history is as follows. In

December, 2009, Chase commenced the present foreclosure action against the defendant. In its original one

count complaint, Chase alleged, in relevant part, that

on July 20, 2007, the defendant executed a promissory

note in the amount of $217,500 in favor of Chase Bank

USA, N.A., and that the loan was secured by a mortgage

of the premises located at 25 Church Street in Portland,

which was owned by and in the possession of the defendant. Chase alleged that the mortgage was recorded

on the Portland land records, that the mortgage was

assigned to it, and that it was the holder of the note

and mortgage. Chase alleged that beginning on July 1,

2009, the defendant failed to make installment payments of principal and interest required by the note

and that it had exercised its option to declare the entire

unpaid balance of the note (in the amount of

$214,939.97) due and payable to it. Chase further alleged

that several encumbrances of record were prior in right

to its mortgage interest, but that no interests were

claimed which were subsequent to its mortgage interest. By way of relief, Chase sought, among other things,

a foreclosure of the mortgage and the immediate possession of the subject premises.4

On June 7, 2010, Chase filed a motion for default for

failure to plead. On that same day, Chase filed a motion

for judgment of strict foreclosure and a finding that it

was entitled to possession of the subject premises. On

June 16, 2010, the clerk of the court granted the motion

for default but, at that time, the court did not rule on

the motion seeking a judgment of strict foreclosure.

On September 8, 2010, Chase filed a request for leave

to amend its complaint and attached a proposed

amended complaint. The defendant did not object.5 The
amended complaint consisted of six counts. The first

count brought against the defendant sought a foreclosure and generally was consistent with the allegations

brought against the defendant in the original one count

complaint, except that in the amended complaint, Chase

alleged in relevant part: ‘‘On the aforementioned piece

of property, the following interests are claimed which

are subsequent to plaintiff’s said mortgage: A mortgage

in favor of . . . [Bank of America] in the original

amount of $100,000, dated 18, 2007, and recorded February 7, 2007 in . . . the Portland land records.’’

The second, third, and fourth counts of the amended

complaint were brought against Bank of America.6

In

these counts, Chase, among other things, raised a claim

of equitable subrogation with respect to Bank of America’s mortgage interest in the subject property, which,

Chase alleged, was recorded prior to its own interest

in the property.7

In count two, Chase alleged in part

that ‘‘[the] plaintiff paid off, as proceeds of its mortgage

set forth herein, a mortgage prior in right to that of

[Bank of America] . . . intending to then obtain a first

mortgage on the property herein being foreclosed, and,

therefore, should be equitably subrogated to the position of that prior mortgage.’’

In count three, Chase alleged in part: ‘‘The plaintiff,

by its agent or attorney, received a payoff letter on or

about July 23, 2007, and [the defendant] . . . executed

. . . Bank of America’s authorization to terminate the

line of credit and authorized the payment in full along

with the closing of a line of credit under . . . Bank of

America’s mortgage. . . . Subsequent thereto . . .

Bank of America . . . made further advances to [the

defendant] . . . after issuing this payoff letter and, as

a result, its mortgage should be equitably subrogated

to the interest of the plaintiff’s mortgage herein.’’

In count four, Chase alleged in part: ‘‘Bank of

America, through its actions in accepting funds after

the credit line was ordered closed, has unjustly

enriched itself.’’

Counts five and six of the amended complaint, both

of which were directed at the defendant, also are related

to Chase’s allegations with respect to Bank of America’s

mortgage interest in the subject property. In count five,

Chase alleged in part: ‘‘Authorizing the payoff of the

mortgage of . . . Bank of America, [the defendant]

. . . continued to obtain further borrowings against

said mortgage and, further [un]justly enriched himself,

all to [the] plaintiff’s loss and damage.’’ In count six,

Chase alleged in part: ‘‘After authorizing the plaintiff,

its agents, and/or attorneys to close the credit line contained in . . . [Bank of America’s] mortgage, the

[defendant] . . . continued to obtain further funds pursuant to said credit line, either by fraud or mistake, all

to [the] plaintiff’s loss and damage.’’
At no time did the defendant move to set aside the

default for failure to plead entered on June 16, 2010.

On November 2, 2015, however, the defendant disclosed

a defense, stating that he ‘‘intend[ed] to challenge the

plaintiff’s alleged right and standing to foreclose upon

the subject mortgage.’’ On the same day, the defendant

filed an answer to Chase’s original complaint.

The plaintiff did not file a motion for default for

failure to plead against the defendant with respect to

the amended complaint. On November 24, 2015, however, the plaintiff filed a motion for judgment against

the defendant with respect to counts two, three, four,

five, and six of the amended complaint. On the same

day, the plaintiff moved that the court enter a judgment

of strict foreclosure and asked that separate law days

be assigned to the defendant, Middconn Federal Credit

Union, and Bank of America. Before the court considered the plaintiff’s motions, the plaintiff filed an

appraisal of the subject property, a foreclosure worksheet, an affidavit of debt, and an affidavit of attorney’s fees.

On April 4, 2016, the defendant filed an answer to

the plaintiff’s amended complaint. In his answer to the

amended complaint, the defendant, among other things,

admitted portions of the allegations made in the first

count and, with respect to other portions of the first

count, left the plaintiff to its proof. Also, on April 4,

2016, the defendant filed an objection to the plaintiff’s

motion for judgment as to count six of the amended

complaint and an objection to the plaintiff’s motion for

judgment of strict foreclosure. On that date, the court

held a hearing on the plaintiff’s motion for judgment.

By order dated April 4, 2016, the court granted the

plaintiff’s motion for judgment with respect to counts

two, three, four, and five of the amended complaint,

but did not rule with respect to counts one or six of

the amended complaint.

Following the hearing, the plaintiff replied to the

defendant’s objection to its motion for judgment of

strict foreclosure, and the defendant filed a memorandum of law in which he further articulated the reasons

underlying his objection to the motion for judgment of

strict foreclosure. At a hearing on April 18, 2016, the

parties appeared and presented additional arguments.

In support of his objection, the defendant argued that

(1) after Chase filed its motion for judgment of strict

foreclosure in 2010, it filed an amended complaint that

substantially changed the nature of the claims and cited

in Bank of America so that the plaintiff would be recognized as a first mortgagee; (2) he answered the amended

complaint and was not defaulted with respect to the

amended complaint; and (3) any delays in the litigation

following the default entered in 2010 were occasioned

by the plaintiff and its predecessors, who did not act

in a timely manner. Essentially, the defendant argued
that the plaintiff had not sought or obtained a default

against him with respect to the amended complaint.

Additionally, the defendant relied on the fact that, pursuant to § 52-121 (a), he had filed a responsive pleading

with respect to the amended complaint prior to the

hearing on the plaintiff’s motion for judgment, and the

court should consider it as the operative answer.

The plaintiff argued that because the court did not

set aside the default entered in 2010, the defendant’s

answer and disclosed defense were inoperative. The

plaintiff emphasized that at no time did the defendant

ask the court to set aside the default and that nearly

six years had passed since it had been entered against

the defendant. Moreover, the plaintiff argued, any claim

that Chase’s request to amend its complaint somehow

extinguished the default was not persuasive because

the defendant did not object to the amended complaint

and did not timely replead after it had been filed. Additionally, the plaintiff argued, the amended complaint

did not substantially change the original one count complaint against the defendant. The plaintiff argued that

‘‘the amended complaint was brought to allege additional counts against . . . Bank of America. There has

been no change to the foreclosure count whatsoever,

there is no prejudice shown to the defendant by the

amendment, nor does the defendant allege such

prejudice.’’

The court, having heard the parties’ arguments,

addressed the defendant as follows: ‘‘Well, in my view,

you should have moved to open a default. You didn’t.

I’ll allow them to go forward with their foreclosure.’’

Thereafter, when the defendant asked the court to

address the applicability of § 52-121 (a), the court

stated: ‘‘You didn’t move to [open] the default, waiting

five years. And you just can’t file an answer once a

motion for judgment has been filed.’’8 The court stated

its belief that the defendant’s actions ‘‘were solely for

the purpose of delay,’’ observing that the despite the

passage of five years, the defendant did not move to

open the default. The court granted the plaintiff’s

motion for judgment of strict foreclosure, set a law day

of May 23, 2016, and rendered judgment on count six

of the plaintiff’s amended complaint in the plaintiff’s

favor. This appeal followed.9

The defendant claims that the court improperly

granted the judgment of strict foreclosure because the

court’s judgment was based upon a default for failure to

plead in response to the original complaint, but Chase,

thereafter, had significantly amended the pleadings and

added additional parties to the action. We agree with

the defendant.

Although, in general terms, the defendant challenges

the court’s ruling granting the plaintiff’s motion for judgment of strict foreclosure, a careful review of the defendant’s brief reflects that the substance of this claim is
that under the circumstances that existed at the time

that it rendered judgment, ‘‘the trial court should have

permitted the defendant’s pleading to the plaintiff’s

amended allegations and opened the default, which was

[entered] as to the original complaint only.’’ The defendant argues that, following the default entered with

respect to the original complaint, Chase, by filing the

amended complaint, materially changed the allegations

in the case by seeking equitable subrogation. Additionally, the defendant observes, the party claiming a right

to foreclose upon the mortgage evolved from Chase

to the plaintiff. Following the filing of the amended

complaint, he disclosed a defense and answered both

complaints. The defendant argues that, in fairness to

him, the default should have been extinguished by the

filing of the amended complaint and that the court

should have given effect to his answer and disclosed

defense.

As is reflected in our recitation of the relevant procedural history, the court did not prohibit the defendant

from filing an answer in response to the amended complaint. The court, however, indicated that it would not

give any effect to the answers filed by the defendant to

the original and amended complaints (and, presumably,

the defendant’s disclosed defense) on the ground that

such filings were untimely, having been presented to

the court more than five years following the default.

The court observed, as well, that in the lengthy period

of time that ensued following the default, the defendant

did not move to set aside that default. To the extent

that the defendant argues that the court should have

‘‘opened the default,’’ his argument implies that the

court should have done so sua sponte.

‘‘In order for foreclosure cases to move as swiftly as

possible through our court system, it is imperative that

a defendant disclose any defenses to the mortgage debt

prior to the hearing. . . . The entry of a default constitutes an admission by the [defaulted party] of the truth

of the facts alleged in the complaint.’’ (Citation omitted;

internal quotation marks omitted.) TD Banknorth, N.A.

v. White Water Mountain Resorts of Connecticut, Inc.,

133 Conn. App. 536, 545, 37 A.3d 766 (2012). Practice

Book § 17-33 (b) provides in relevant part that ‘‘the

effect of a default is to preclude the defendant from

making any further defense in the case so far as liability

is concerned . . . .’’ It also provides that ‘‘at or after

the time it renders the default, [the judicial authority]

. . . may also render judgment in foreclosure cases

. . . provided the plaintiff . . . also [has] made a

motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial

authority.’’ Practice Book § 17-33 (b).

The abuse of discretion standard of review applies

to a court’s ruling on a motion to set aside a default;
Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998);

to a motion to strike a matter from a hearing in damages

list; Spilke v. Wicklow, 138 Conn. App. 251, 270, 53 A.3d

245 (2012), cert. denied, 307 Conn. 945, 60 A.3d 737

(2013); and to a ruling prohibiting a defendant from

filing pleadings with respect to an amended complaint.

Willamette Management Associates, Inc. v. Palczynski,

134 Conn. App. 58, 69, 38 A.3d 1212 (2012). In the present

case, the court made clear that it would not give effect

to the defendant’s answer and did not set aside the

default entered against him. This court previously has

applied the abuse of discretion standard to the type of

claim under consideration, one that involved a court’s

refusal to give effect to a defendant’s answer that was

filed following a default and the court’s refusal to set

aside a default. Richards v. Trudeau, 54 Conn. App.

859, 863, 738 A.2d 215 (1999).

‘‘[A] foreclosure action constitutes an equitable proceeding. . . . In an equitable proceeding, the trial court

may examine all relevant factors to ensure that complete justice is done. . . . The determination of what

equity requires in a particular case, the balancing of

the equities, is a matter for the discretion of the trial

court. . . . This court must make every reasonable presumption in favor of the trial court’s decision when

reviewing a claim of abuse of discretion. . . . Our

review of the trial court’s exercise of legal discretion

is limited to the question of whether the trial court

correctly applied the law and could reasonably have

reached the conclusion that it did.’’ (Citations omitted;

internal quotation marks omitted.) Webster Bank v. Zak,

71 Conn. App. 550, 556–57, 802 A.2d 916, cert. denied,

261 Conn. 938, 808 A.2d 1135 (2002).

In analyzing the issue before us, we are guided by

principles set forth in two decisions of this court, Willamette Management Associates, Inc. v. Palczynski,

supra, 134 Conn. App. 63–69, and Spilke v. Wicklow,

supra, 138 Conn. App. 265–72. In Willamette Management Associates, Inc., a defendant in a breach of contract action was defaulted for failure to plead.

Willamette Management Associates, Inc. v. Palczynski,

supra, 62. Subsequently, the court granted the plaintiff’s

motion to amend the writ of summons and complaint

to correct what it deemed to be a scrivener’s error,

specifically, a defective return date on the writ of summons. Id., 63. After the plaintiff filed an amended complaint, the defendant filed an answer and special

defense. Id. At the hearing in damages, the court

declined to give effect to the answer because it was

filed following the default and the amended complaint

had not substantively changed the allegations brought

against the defendant. Id. Thereafter, the court rendered

judgment in the plaintiff’s favor. Id.

On appeal to this court, the defendant in Willamette

Management Associates, Inc., argued in relevant part
that, in light of the filing of the amended complaint, the

court erroneously had prohibited her from filing the

answer to the amended complaint. Id. In considering

whether the court abused its discretion, this court

appears to have focused on whether it was inequitable

for the court to have permitted the amendment but

not the responsive pleading thereto. In rejecting the

defendant’s claim, this court determined that because

the amended complaint did not reflect a substantial

change in the pleadings, it was not inequitable for the

court to have exercised its discretion in the manner

that it did. Id., 68–69. This court reasoned: ‘‘From all

appearances, the defect in the writ and summons had

nothing at all to do with . . . [the defendant’s] subsequent defaults, and there is, therefore, no equitable reason why a technical amendment to the writ of summons

should create the opportunity to plead responsively.

The only change between the original complaint and

the amended complaint was the return date and the

date of the complaint. All substantive allegations in the

complaint remained precisely the same. The court did

not vacate its entry of a default against the defendant,

and the purpose of amending the complaint was solely

to remedy a typographical error. The defendant’s substantive rights were not affected by the amendment,

and she has not demonstrated prejudice. If the effect

of an amendment of a complaint so made is to substantially change the cause of action originally stated, the

defendant is entitled to file new or amended pleadings

and present further evidence. Also, if the amendment

interjects material new issues, the adversary is entitled

to reasonable opportunity to meet them by pleading

and proof. . . . No change of any kind, and thus certainly not a substantial change, was made to the cause

of action in the present case.’’ (Citation omitted; internal

quotation marks omitted.) Id.

In Spilke v. Wicklow, supra, 138 Conn. App. 265–72,

this court relied on the rationale set forth in Willamette

Management Associates, Inc. After judgment was rendered in favor of the plaintiff in Spilke, the defendants

in Spilke argued, in relevant part on appeal to this court,

that the trial court had abused its discretion by striking

the action against them from the trial list and failing to

open the default against them. Id., 265–66. The defendants in Spilke relied on the fact that, after the court

had entered a default against them, the plaintiff filed

an amended complaint. Id. In Spilke, this court observed

that the issue in the case before it and Willamette Management Associates, Inc., ‘‘primarily was whether the

filing of an amended complaint after a finding of default

extinguished the default and allowed the defendant to

plead in response. In the present case, the plaintiff filed

four amended complaints after the defendants were

defaulted. . . . Although the complaints differed in

some respects from the original complaint, the substantive allegations remained the same. . . . [W]e conclude
that the amendments worked no substantial change in

the cause of action and that the defendants have not

demonstrated any prejudice suffered.’’ Id., 270. This

court concluded that the court did not abuse its discretion in denying the defendants’ motion to strike the

matter from the hearing in damages list or in denying

the defendants’ motion to set aside the default judgment. Id., 270–72.

The analysis set forth in Willamette Management

Associates, Inc., and Spilke reflects that, in determining

whether the filing of an amended complaint following

a finding of default effectively extinguished the default

and afforded a defendant an opportunity to plead in

response, the dispositive inquiry is whether the amendment reflected a substantial change to the pleadings in

effect at the time that the default was entered.10 In

Willamette Management Associates, Inc., this court,

citing Mazulis v. Zeldner, 116 Conn. 314, 317, 164 A.

713 (1933), stated that a primary consideration in this

inquiry was whether the amendment interjected ‘‘material new issues’’ in the case. (Internal quotation marks

omitted.) Willamette Management Associates, Inc. v.

Palczynski, supra, 134 Conn. App. 69.

Although we have characterized our general inquiry

in these types of cases as a review of the trial court’s

exercise of discretion, there is no dispute in our decisional law that, insofar as our review of the court’s

exercise of discretion requires us to interpret the pleadings, we do not afford the court discretion with respect

to this aspect of its ruling. As we have stated, ‘‘[t]he

interpretation of pleadings is always a question [of law]

for the court . . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly

and realistically, rather than narrowly and technically.

. . . Although essential allegations may not be supplied

by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to

give effect to the pleading with reference to the general

theory upon which it proceeded, and do substantial

justice between the parties.’’ (Internal quotation marks

omitted.) American First Federal, Inc. v. Gordon, 173

Conn. App. 573, 584–85, 164 A.3d 776, cert denied, 327

Conn. 909, A.3d (2017). ‘‘Construction of pleadings

is a question of law. Our review of a trial court’s interpretation of the pleadings therefore is plenary.’’ Kovacs

Construction Corp. v. Water Pollution & Control

Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert.

denied, 297 Conn. 912, 995 A.2d 639 (2010).

Our comparison of the original and amended complaints readily reveals that the amended complaint filed

following the default interjected material new issues in

the case, thereby substantially changing the pleadings.

As set forth previously in this opinion, in contrast to

the original, one count complaint brought against the

defendant by Chase, the amended, six count complaint
subsequently brought by Chase raised the issue of

whether the line of credit held by Bank of America

should be considered as a prior or subsequent lien on

the subject property. The amended complaint contained

new counts in which the plaintiff sought equitably to

subordinate the interest of Bank of America to its mortgage interest, and two new counts directed at the defendant. The original complaint, sounding in foreclosure,

invoked the court’s equitable powers. Count five of the

amended complaint sounded in unjust enrichment and

count six accused the defendant of engaging in fraudulent conduct. The amended complaint, which was filed

by Chase, interjected new material factual allegations

and new legal theories on which the plaintiff relied.

The new material factual allegations and legal theories set forth in the amended complaint were not merely

technical in nature. In counts five and six of the

amended complaint, Chase alleged that the defendant

caused it ‘‘loss and damage’’ when he continued to draw

on Bank of America’s line of credit. In its prayer for

relief in the amended complaint, Chase sought, inter

alia, attorney’s fees, costs, and ‘‘such other relief . . .

as may be required.’’11 The amended complaint reasonably could be interpreted to seek monetary damages

for the fraud and unjust enrichment claims set forth in

counts five and six of the amended complaint, and, thus,

the amended complaint materially altered the nature

of the claims against the plaintiff. Because a default

acts as a judicial admission of the facts set forth in a

complaint, it is difficult to afford weight to the plaintiff’s

argument that the default entered with respect to the

original complaint could be interpreted to apply to the

materially new claims to which the defendant was

exposed as set forth in the amended complaint, which

included, but were not limited to, claims of fraud and

unjust enrichment on his part.12

In light of the changes to the plaintiff’s case that were

reflected in the amended complaint, it was inequitable

for the court not to have considered the default entered

in 2010 to have been extinguished.13 Thus, the court

should have considered the defendant’s answer to the

amended complaint as well as his disclosed defense.

Although it was appropriate for the court to have considered the lengthy period of time that followed the

entry of the default, it nonetheless abused its discretion

by failing to consider the effect of the amended complaint upon that default. ‘‘If the effect of an amendment

of a complaint . . . is to substantially change the cause

of action originally stated, the defendant is entitled to

file new or amended pleadings and present further evidence. Also, if the amendment interjects material new

issues, the adversary is entitled to reasonable opportunity to meet them by pleading and proof.’’ Mazulis v.

Zeldner, supra, 116 Conn. 317.

In light of the foregoing analysis, the proper remedy
is to reverse the judgment of strict foreclosure and to

remand the case to the trial court for further proceedings consistent with this opinion.

The judgment granting strict foreclosure is reversed

and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in

all other respects.

In this opinion PRESCOTT, J., concurred.

1

In December, 2009, the named plaintiff, Chase Home Finance, LLC

(Chase), commenced this action against the defendant, Daniel J. Scroggin

also known as Daniel F. Scroggin also known as Daniel Scroggin.

In September, 2010, Chase filed a motion to cite in Bank of America, N.A.

(Bank of America), as a third party defendant. The court granted this motion.

Subsequently, the plaintiff served Bank of America with an amended complaint that alleged that Bank of America was a lien holder. In March, 2011,

Bank of America was defaulted for failure to appear. In January, 2012,

Middconn Federal Credit Union sought to be made a party defendant to the

action as a postjudgment lis pendens holder. The court granted the request.

Later, Middconn Federal Credit Union was defaulted for failure to plead

and failure to disclose a defense.

In June, 2012, Chase moved to substitute JPMorgan Chase Bank, N.A., as

plaintiff in the action. The court granted the motion. In June, 2014, JPMorgan

Chase Bank, N.A., moved to substitute Ventures Trust 2013-I-H-R by MCM

Capital Partners, LLC, its Trustee, as plaintiff in the action. The court granted

the motion. In July, 2015, Ventures Trust 2013-I-H-R by MCM Capital Partners,

LLC, its Trustee, moved to substitute AJX Mortgage Trust I, a Delaware

Trust, Wilmington Savings Fund Society, F.S.B., Trustee as plaintiff in the

action. The court granted the motion. Ultimately, the court rendered judgment in favor of AJX Mortgage Trust I, a Delaware Trust, Wilmington Savings

Fund Society, F.S.B., Trustee and, in this opinion, we will refer to that entity

as the plaintiff, and we will refer to Daniel J. Scroggin also known as Daniel

F. Scroggin also known as Daniel Scroggin as the defendant.

2 General Statutes § 52-121 (a) provides: ‘‘Any pleading in any civil action

may be filed after the expiration of the time fixed by statute or by any rule

of court until the court has heard any motion for judgment by default or

nonsuit for failure to plead which has been filed in writing with the clerk

of the court in which the action is pending.’’

3

In light of our resolution of the plaintiff’s first claim, which is dispositive

of the appeal, we need not reach the merits of the second claim.

4 During parts of 2010, the defendant, with the court’s permission, participated in a foreclosure mediation program. In January, 2011, the mediator

issued a final report terminating mediation and referring the matter back

to the court.

5 Pursuant to Practice Book § 10-60 (a) (3), if the defendant did not object

to the proposed amended complaint within fifteen days, the amendment

was deemed to have been filed by the consent of the defendant.

6 On September 8, 2010, the plaintiff filed a motion to cite in Bank of

America as a party defendant on the ground that it ‘‘[had] an interest in this

action subsequent in right to that of the plaintiff, and therefore, is or may

be liable to the plaintiff, as set forth in the . . . amended complaint.’’ On

September 21, 2010, the court granted the motion. We observe that, in its

proposed amended complaint, the plaintiff alleged that Bank of America’s

mortgage lien was recorded prior to the time that it recorded its interest in

the subject property, but that Bank of America’s interest should be equitably

subrogated to its interest in the property.

7 We note that these allegations are somewhat confusing. In its brief to

this court, the plaintiff indicates that the changes reflected in the amended

complaint were because Chase sought equitable subrogation with respect

to Bank of America’s prior mortgage lien on the subject property. The

plaintiff states that the lien was related to an equity line of credit which

was paid off at the closing transaction between Chase and the defendant

on June 20, 2007, but that Bank of America never released its lien and

thereafter continued to advance funds to the defendant. We note that in its

complaint Chase used the term ‘‘equitable subrogation’’ but, in its brief, the

plaintiff uses the term ‘‘equitable subordination.’’

‘‘In mortgage law, [a] fundamental principle is that a mortgage that is

recorded first is entitled to priority over subsequently recorded mortgages
provided that every grantee has a reasonable time to get his deed recorded.

. . . This principle is referred to as the first in time, first in right rule. . . .

The doctrine of equitable subrogation provides an exception to the first in

time, first in right rule . . . .

‘‘Subrogation is a doctrine which equity borrowed from the civil law

and administers so as to secure justice without regard to form or mere

technicality. . . . It is broad enough to include every instance in which one

party pays a debt for which another is primarily answerable, and which, in

equity and good conscience, should have been discharged by the latter. It

is a legal fiction through which one who, not as a volunteer or in his own

wrong and where there are no outstanding and superior equities, pays the

debt of another, is substituted to all the rights and remedies of the other,

and the debt is treated in equity as still existing for his benefit. . . .

‘‘In numerous cases it has been held that one who advances money to

discharge a prior lien on real or personal property and takes a new mortgage

as security is entitled to be subrogated to the rights under the prior lien

against the holder of an intervening lien of which he was ignorant. . . .

The intention of the parties to the transaction is the controlling consideration. . . . Ultimately, as our Supreme Court has noted, [t]he object of

[legal or equitable] subrogation is the prevention of injustice.’’ (Citations

omitted; internal quotation marks omitted.) AJJ Enterprises, LLP v. JeanCharles, 160 Conn. App. 375, 395–96, 125 A.3d 618 (2015).

8 The plaintiff argues that the court’s decision to disregard the defendant’s

answer was proper in light of Practice Book §§ 17-32 (b) and 17-42. Practice

Book § 17-32 (b) provides: ‘‘If a party who has been defaulted under this

section files an answer before a judgment after default has been rendered

by the judicial authority, the default shall automatically be set aside by

operation of law unless a claim for a hearing in damages or a motion for

judgment has been filed. If a claim for a hearing in damages or a motion

for judgment has been filed, the default may be set aside only by the judicial

authority. A claim for a hearing in damages or motion for judgment shall

not be filed before the expiration of fifteen days from the date of notice of

issuance of the default under this subsection.’’ Practice Book § 17-42 provides: ‘‘A motion to set aside a default where no judgment has been rendered

may be granted by the judicial authority for good cause shown upon such

terms as it may impose. As part of its order, the judicial authority may

extend the time for filing pleadings or disclosure in favor of a party who

has not been negligent. Certain defaults may be set aside by the clerk

pursuant to Sections 17-20 and 17-32.’’ As we will discuss further in this

opinion, this rationale does not apply when, as in the present case, subsequent to obtaining a default, the plaintiff files an amended pleading that

materially alters the claims.

9 The present appeal is from the strict foreclosure judgment entered on

count one of the amended complaint. The defendant has not appealed from

the judgment rendered against him on counts five or six of the amended complaint.

10 This approach is consistent with 49 C.J.S. 300, Judgments § 263 (2009),

which provides: ‘‘Where the declaration or complaint is amended in a matter

of substance after the defendant has defaulted, the amendment opens the

case in default, and a valid default judgment cannot thereafter be entered

on the amended pleading unless the defaulting defendant is properly notified

of or served with the amended pleading and given an opportunity to plead,

and then fails to do so within the proper time, particularly when the damages

are increased in the amended petition. However, where the amendment is

not as to a matter of substance, but only as to an immaterial or formal

matter, notice or service of the amendment is not necessary before entering

judgment by default.

‘‘The filing of an amended complaint invalidates the original complaint,

for purposes of taking a default judgment.’’ (Footnotes omitted.)

11 Consistent with the prayer for relief set forth in the original complaint,

the prayer for relief in the amended complaint also sought: ‘‘(1) A foreclosure

of said mortgage.

‘‘(2) Immediate possession of the mortgaged premises.

‘‘(3) A deficiency judgment. . . .

‘‘(4) The appointment of a receiver to collect rents and profits accruing

from the premises.

‘‘(5) Reasonable attorney’s fees and costs.

‘‘(6) Such other relief and further equitable relief as may be required.’’

12 The plaintiff, while acknowledging that the changes made by way of

the amended complaint were not merely to address a scrivener’s error,
nonetheless argues that the amended complaint did not constitute a material

change in the action. At the time of oral argument before this court, the

plaintiff conceded that, if the changes that it made by means of the amended

complaint were material in nature, then, in light of its failure to obtain a

default with respect to the amended complaint, the court acted improperly

by granting the motion for judgment of strict foreclosure.

13 The dissent argues in part that because the defendant only has appealed

from the judgment rendered on the foreclosure count, there is no error to

consider because that particular count was not materially altered by virtue

of the amended complaint. Assuming, arguendo, that count one was not

materially altered by the allegation regarding Bank of America’s mortgage,

we respectfully suggest that the dissent appears to overlook the fact that,

by failing to consider the defendant’s answer, the court deprived the defendant of an opportunity to extinguish the default on the foreclosure count,

which would have permitted him to defend the foreclosure action in

count one.