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*********************************************** 
CITY OF STAMFORD v. ISMAT RAHMAN ET AL.

(AC 40883)

Alvord, Elgo and Bright, Js.

Syllabus

The plaintiff city sought to foreclose a blight lien on certain real property

owned by the defendant R. In October, 2007, R executed a promissory

note in the amount of $624,000 in favor of the predecessor of the defendant W Co., which was secured by a mortgage on the subject property

that was recorded in the city land records. Approximately six months

later, R executed a promissory note in the amount of $417,000 in favor

of the predecessor of the defendant B Co., which was secured by a

second mortgage on the subject property that was recorded in the city

land records. Less than one month later, R executed a promissory note

in the amount of $500,000 in favor of the defendant J Co., which was

secured by a third mortgage on the subject property that was recorded

in the city land records. At the closings of the two subsequent mortgages,

R presented a fraudulent satisfaction of mortgage document that he had

forged, which purported to release W Co.’s mortgage on the property.

The satisfaction was not recorded in the city land records. Following the

commencement of the foreclose action, all of the defendants, including

R and W Co., were defaulted for failure to either appear or plead.

Thereafter, the trial court rendered a judgment of foreclosure by sale, the

property was sold and the remaining proceeds of the sale, approximately

$348,097, were paid to the court clerk. B Co. subsequently filed a motion

for a supplemental judgment requesting that the trial court disperse the

remaining proceeds to it, arguing that W Co. had been defaulted and

had not filed an affidavit of debt by which the court could determine

what, if any, amount remained owed to it. B Co. further argued that W

Co. had commenced and later withdrew a prior foreclosure proceeding

related to the subject property, in which B Co.’s predecessor appeared

and asserted a special defense that W Co. had received payment in full

and that the W Co. mortgage had been released by the satisfaction. The

trial court rejected the motion for a supplemental judgment, stating that

it needed verification of the release of the W Co. mortgage. Thereafter,

B Co. filed a motion for reconsideration, in which it acknowledged that

the satisfaction was never recorded in the land records but that, if the

court denied its motion, the proceeds from the sale would be held

indefinitely by the court, without any indication that any moneys were

owed under the W Co. mortgage. The trial court reconsidered its decision

and granted B Co.’s motion for a supplemental judgment, ordering the

court clerk to disburse the remaining sale proceeds to B Co. More than

three years later, counsel for W Co. filed an appearance, a motion

to open the supplemental judgment and a motion for a supplemental

judgment, arguing that the supplemental judgment had been procured

by R’s fraud in forging the satisfaction and that such fraud provided the

court with authority to open the judgment after the four month limitation

period set forth in the statute (§ 52-212a) that governs the opening of

civil judgments. The trial court, applying the factors set forth in Varley

v. Varley (180 Conn. 1), granted the motion to open the supplemental

judgment, concluding that W Co. had sufficiently established fraud to

invoke the fraud exception to the four month limitation in § 52-212a.

The court then granted W Co.’s motion for a supplemental judgment

and ordered B Co. to pay the subject proceeds to the court clerk and

ordered the clerk to pay the proceeds to W Co. On B Co.’s appeal to

this court, held:

1. The trial court erred in opening the supplemental judgment beyond the

four month limitation period on the basis of fraud because its finding

that W Co. satisfied the second Varley factor requiring diligence in trying

to discover and expose the fraud was clearly erroneous: that court’s

finding that W Co. had proven diligence was improperly supported by

its finding that W Co., as the holder of the first mortgage on the property,

had no reason to be aware of the recordation of any subsequent mortgages, W Co. having been in the best position to discover R’s fraud in
forging and presenting the fraudulent satisfaction, which occurred in

2008, but having failed to exercise any diligence in attempting to do so

for more than nine years, as the trial court took judicial notice of two

foreclosure actions instituted by W Co. or its predecessor with respect

to the subject property, during the second action, which was commenced

in 2009, B Co.’s predecessor had filed a special defense alleging that

the W Co.’s note had been paid off and attached the satisfaction in

support thereof, and, therefore, as of 2009, W Co. was aware of the

existence of the satisfaction purporting to release its mortgage on the

property, yet it did nothing to investigate the validity of the satisfaction

for eight years; moreover, the trial court erred in determining, in support

of its finding of diligence, that W Co. was entitled to notice of the

proceedings on B Co.’s motion for a supplemental judgment, despite its

default for failure to appear, as the relevant rule of practice (§ 10-12

[a]) does not require service of motions on nonappearing, defaulted

parties; furthermore, W Co. failed to demonstrate how its access to

information regarding the satisfaction was limited in any way during

the present action, it would have received notice of B Co.’s motion for

a supplemental judgment, to which the satisfaction was attached, and

its subsequent motion for reconsideration, which informed the court

that the satisfaction had not been recorded in the land records, if it had

filed an appearance, and W Co.’s counsel conceded during oral argument

before this court that W Co. discovered the fraud in 2017 upon a review

of its own files, and, thus, its apparent failure to conduct such a review

sooner repudiated any diligence in trying to uncover fraud.

2. The trial court lacked the authority to open the supplemental judgment

more than four years after it was rendered, as the judgment was not

obtained by any fraud on the part of B Co.: the only claimed fraudulent

conduct was committed by R years prior to the present litigation during

which he was defaulted and did not participate, and W Co. failed to

provide any authority to support the conclusion that fraud committed

by a defaulted party years prior to litigation can support the opening

of a judgment following the expiration of the four month period; moreover, W Co. stipulated that both it and B Co. were unaware of any

evidence that B Co. had acted fraudulently with regard to the supplemental judgment, and the circumstances surrounding the supplemental judgment belied the conclusion that it was obtained by fraud, as a review

of the relevant procedural history indicated that the trial court apparently

was persuaded by B Co.’s argument that the court should not hold the

remaining sale proceeds indefinitely, given W Co.’s default and failure

to file any claim to the remaining sale proceeds.

Argued October 23, 2018—officially released February 26, 2019

Procedural History

Action to foreclose a blight lien on certain of the

named defendant’s real property, and for other relief,

brought to the Superior Court in the judicial district of

Stamford-Norwalk, where the named defendant et al.

were defaulted for failure to appear and the defendant

Countrywide Home Loans, Inc., et al. were defaulted

for failure to plead; thereafter, the court, Mintz, J.,

granted the plaintiff’s motion for a judgment of foreclosure by sale and rendered judgment thereon; subsequently, Bank of America, N.A., was substituted as a

defendant; thereafter, the court, Truglia, J., rejected

the motion for a supplemental judgment filed by the

defendant Bank of America, N.A.; subsequently, the

court, Truglia, J., granted the motion for reconsideration filed by the defendant Bank of America, N.A.,

granted the motion for a supplemental judgment and

rendered a supplemental judgment for the defendant

Bank of America, N.A.; thereafter, the court, Tierney, J.,

granted the motions to open the supplemental judgment

and for a supplemental judgment filed by the defendant

Wells Fargo Bank, National Association, and rendered
a supplemental judgment for the defendant Wells Fargo

Bank, National Association, from which the defendant

Bank of America, N.A., appealed to this court. Reversed;

judgment directed.

Gerald L. Garlick, for the appellant (defendant Bank

of America, N.A.).

Patrick T. Uiterwyk, for the appellee (defendant

Wells Fargo Bank, National Association).
Opinion

ALVORD, J. The defendant Bank of America, N.A.

(Bank of America), appeals from the judgment of the

trial court opening the supplemental judgment that had

been rendered in its favor and, thereafter, rendering a

supplemental judgment in favor of the defendant Wells

Fargo Bank, National Association (Wells Fargo), in the

amount of $348,097.16.1 On appeal, Bank of America

claims that the court erred in granting Wells Fargo’s

motion to open the supplemental judgment more than

four months after it was rendered on the basis of fraud

committed by a homeowner in securing multiple mortgages years before this action to foreclose a blight lien

commenced. We agree that the court erred and reverse

the judgment of the trial court.2

The following facts, as found by the trial court or as

stipulated to by the parties,3 and procedural history

are relevant to this appeal. On October 29, 2007, the

defendant Ismat Rahman acquired title to property

located at 150 Doolittle Road in Stamford for a purchase

price of $780,000. He executed a promissory note in

favor of World Savings Bank, in the principal amount

of $624,000. To secure the note, Rahman executed a

mortgage in favor of World Savings Bank (Wells Fargo

mortgage),4 which was recorded in the Stamford land

records in volume 9187 at page 347.

Approximately six months later, on April 8, 2008,

Rahman executed a promissory note in favor of Countrywide Home Loans Servicing, LP, in the principal

amount of $417,000, which note was secured with a

mortgage on the property (Bank of America mortgage).5

The Bank of America mortgage was recorded in volume

9318 at page 259 of the Stamford land records. Less

than one month later, on May 2, 2008, Rahman executed

a promissory note in favor of Washington Mutual Bank

in the principal amount of $500,000, which note was

secured with a mortgage on the property (JPMorgan

Chase mortgage).6 The JPMorgan Chase mortgage was

recorded in volume 9346 at page 260 of the Stamford

land records.

At the closing of the Bank of America mortgage, Rahman presented a document titled ‘‘Satisfaction of Mortgage’’ purportedly executed by Mortgage Electronic

Registrations System, Inc., as nominee for World Savings Bank (satisfaction). The satisfaction was fraudulent and was never recorded on the Stamford land

records. Rahman also presented the satisfaction at the

closing of the JPMorgan Chase mortgage.

The defendant JPMorgan Chase Bank, National Association, filed a claim against its title insurance policy

issued by the defendant Chicago Title Insurance Company, now known as Fidelity National Title Group, arising out of Rahman’s presentation of the fraudulent

satisfaction at the time of acquiring the JPMorgan Chase
mortgage. Chicago Title Insurance Company, in turn,

instituted a fraud action against Rahman and, on March

17, 2011, obtained judgment in its favor in the amount

of $627,730.67 plus 6 percent per annum postjudgment

interest. See Chicago Title Ins. Co. v. Rahman, Superior

Court, judicial district of Stamford-Norwalk, Docket

No. CV-10-5013365-S (March 17, 2011). A judgment lien

was recorded in the Stamford land records at volume

10193 at page 257 as to the property. Bank of America

was neither a party to, nor had any knowledge of, the

fraud action against Rahman.

Prior to this foreclosure action, three other foreclosure actions were commenced with respect to the property. The first was commenced on November 4, 2008,

by Wells Fargo’s predecessor, which withdrew the

action on March 4, 2010. See Wachovia Mortgage, FSB v.

Rahman, Superior Court, judicial district of StamfordNorwalk, Docket No. CV-08-5009298-S. The second was

commenced on January 13, 2009, by JPMorgan Chase

Bank, National Association, and was dismissed by the

court on October 8, 2010, pursuant to Practice Book

§ 14-3, governing dismissal for lack of diligence. See

JPMorgan Chase Bank, National Assn. v. Rahman,

Superior Court, judicial district of Stamford-Norwalk,

Docket No. CV-09-5010015-S (October 8, 2010). Wells

Fargo’s predecessor also commenced a third foreclosure action in 2009. Bank of America appeared in that

action and filed an answer and special defense, dated

May 5, 2010, based on the satisfaction, which it attached

to its pleading.7

On August 14, 2012, the plaintiff commenced the present action by way of a one count complaint seeking

foreclosure of a blight lien held by the plaintiff and

recorded in the Stamford land records. The complaint

also named other defendants, including Wells Fargo,

and alleged that these defendants may claim an interest

in the property. See footnote 1 of this opinion. On October 23, 2012, the plaintiff filed a motion for default

against Wells Fargo for failure to appear, which was

granted by the clerk of the court on November 7, 2012.

On February 19, 2013, the court rendered judgment of

foreclosure by sale. The court found the total debt and

attorney’s fees due the plaintiff to be $28,618.75 and

the fair market value of the property to be $410,000.

The court set a sale date for May 4, 2013, and the

property was sold for $400,000. On July 29, 2013, the

plaintiff filed a motion for determination of priorities

and supplemental judgment and subsequently filed a

revised motion, which the court granted.8 The remaining

proceeds from the sale, in the amount of $348,097.16,

were paid to the clerk of the court.

On February 6, 2014, Bank of America filed a motion

for a supplemental judgment in which it claimed that

the amount owed to it exceeded the remaining sale

proceeds. It therefore requested a supplemental judg-
ment disbursing the remaining sale proceeds to it. Bank

of America argued that Wells Fargo had been defaulted

for failure to appear and had not filed an affidavit of

debt by which the court could determine what, if any,

amount remained owed to Wells Fargo. It further argued

that Wells Fargo had commenced a prior foreclosure

proceeding, in which Bank of America appeared and

asserted a special defense, that Wells Fargo had

received payment in full and that the Wells Fargo mortgage had been released by the satisfaction. Bank of

America argued that after it filed a request for production seeking documents related to payment and release

of the Wells Fargo mortgage, Wells Fargo withdrew its

prior foreclosure complaint without having produced

any such documents.

The court rejected Bank of America’s motion for a

supplemental judgment, stating that it needed ‘‘verification of release of the Wells Fargo mortgage that was

filed on the land records prior to [the Bank of America

mortgage].’’ On April 1, 2014, Bank of America filed a

motion for reconsideration, in which it acknowledged

that the satisfaction was never recorded on the land

records. It argued, however, that in the event the court

were to deny Bank of America’s motion, ‘‘the net proceeds from the sale of this property will be held indefinitely by the court, without any indication that any

money is still owed under the Wells Fargo mortgage.’’

On April 17, 2014, the court reconsidered its decision

and granted Bank of America’s motion for a supplemental judgment, ordering the clerk of the court, following

the expiration of the twenty day appeal period, to disburse to Bank of America $348,097.16, the amount of

the sale proceeds remaining with the clerk.

More than three years later, on June 2, 2017, counsel

for Wells Fargo filed an appearance and a motion to

open the supplemental judgment, arguing that the judgment had been procured by fraud or mutual mistake.

Wells Fargo contended that Rahman’s fraud in forging

the satisfaction provided the court with authority to

open the judgment after the four month period set forth

in General Statutes § 52-212a. Wells Fargo did not contend that Bank of America, itself, had engaged in fraud

but, rather, claimed that Bank of America had ‘‘unknowingly perpetuated [Rahman’s] conduct when seeking

the supplemental judgment.’’ Wells Fargo requested

that the supplemental judgment be opened and the

remaining proceeds from the foreclosure sale be paid

to Wells Fargo. Bank of America filed an objection,

in which it argued, inter alia, that the supplemental

judgment had not been procured by fraud because the

court had been made aware that the satisfaction was

never recorded and, thus, that Wells Fargo’s mortgage

had not been released from the land records.

On August 30, 2017, Bank of America and Wells Fargo

appeared before the court for a hearing on the motion
to open.9 The parties subsequently submitted supplemental briefing concerning the legal standard applicable to a motion to open a judgment on the basis of

fraud.10 On September 22, 2017, the court issued a memorandum of decision in which it granted Wells Fargo’s

motion to open the supplemental judgment and its

motion for a supplemental judgment.

The court first found that Wells Fargo sufficiently

had established fraud to invoke the exception to the

four month limitation on opening or setting aside a

judgment pursuant to § 52-212a. Applying the factors

set forth in Varley v. Varley, 180 Conn. 1, 3–4, 428 A.2d

317 (1980); see footnote 10 of this opinion; the court

found that there was no laches or unreasonable delay

on the part of Wells Fargo. The court stated: ‘‘Due to

the massive and continuing fraud perpetrated on three

separate banks, that had the banks scrambling to protect their own interests, it is understandable to this

court that considerable delay and confusion presented

itself before [Wells Fargo] had a full understanding of

all the facts.’’ It further concluded that there was no

indication of prejudice to Bank of America as a result

of the delay.

Turning to the second Varley factor of diligence in

trying to discover the fraud, the court found that Wells

Fargo, as the holder of the first mortgage on the property, had no reason to be aware of the recordation

of any mortgages executed and recorded thereafter. It

further concluded that Wells Fargo, having been

defaulted for failure to appear, had not received notice

of the motion for a supplemental judgment or the

motion for reconsideration. Concluding that ‘‘[t]he supplemental judgment is a separate statutory proceeding

and equity requires notice to all encumbrancers even

if defaulted in the first part of the foreclosure action,’’

the court determined that the ‘‘failure of notice itself

should open the judgment.’’

The court then found that Wells Fargo had established the third and fourth Varley factors. As to the

third factor of clear proof of the fraud, the court found

that Rahman’s presentation of the forged satisfaction

at the time of the closing of the Bank of America and

JPMorgan Chase mortgages, which was confirmed by

the civil judgment obtained by Chicago Title Insurance

Company, satisfied this factor. Lastly, as to the fourth

factor, the court determined that the Wells Fargo mortgage was first in time and, therefore, had priority over

the Bank of America mortgage, such that there was a

substantial likelihood that the result of a new trial would

be different. Having concluded that Wells Fargo established all four Varley factors, the court granted its

motion to open the supplement judgment. The court

then granted Wells Fargo’s motion for a supplemental

judgment and ordered Bank of America to pay

$348,097.16 to the clerk of the court and further ordered
the clerk of the court to pay that sum to Wells Fargo.

This appeal followed.

We first set forth the applicable legal principles. Section 52-212a provides in relevant part: ‘‘Unless otherwise provided by law and except in such cases in which

the court has continuing jurisdiction, a civil judgment

or decree rendered in the Superior Court may not be

opened or set aside unless a motion to open or set aside

is filed within four months following the date on which

it was rendered or passed. . . .’’ ‘‘Courts have interpreted the phrase, [u]nless otherwise provided by law, as

preserving the common-law authority of a court to open

a judgment after the four month period. . . . It is well

established that [c]ourts have intrinsic powers, independent of statutory provisions authorizing the opening

of judgments, to vacate [or open] any judgment

obtained by fraud, duress or mutual mistake.’’ (Citation

omitted; internal quotation marks omitted.) Simmons

v. Weiss, 176 Conn. App. 94, 99, 168 A.3d 617 (2017).

‘‘The party claiming fraud has the burden of proof.’’

Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375,

cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). ‘‘Fraud

consists in deception practiced in order to induce

another to part with property or surrender some legal

right, and which accomplishes the end designed . . . .

The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement

was untrue and known to be so by its maker; (3) the

statement was made with the intent of inducing reliance

thereon; and (4) the other party relied on the statement

to his detriment.’’ (Internal quotation marks omitted.)

Sousa v. Sousa, 173 Conn. App. 755, 765, 164 A.3d 702,

cert. denied, 327 Conn. 906, 170 A.3d 2 (2017).

‘‘For claims of fraud brought in a civil action, our

Supreme Court has established the criteria necessary

for a party to overcome the statutory time limitation

governing a motion to open and set aside judgment.

. . . To have a judgment set aside on the basis of fraud

which occurred during the course of the trial upon a

subject on which both parties presented evidence is

especially difficult. . . . The question presented by a

charge of fraud is whether a judgment that is fair on

its face should be examined in its underpinnings concerning the very matters it purports to resolve. Such

relief will only be granted if the unsuccessful party is

not barred by any of the following restrictions: (1) There

must have been no laches or unreasonable delay by the

injured party after the fraud was discovered . . . (2)

There must have been diligence in the original action,

that is, diligence in trying to discover and expose the

fraud11 . . . (3) There must be clear proof of the perjury or fraud . . . [and] (4) There must be a substantial

likelihood that the result of the new trial will be different.’’12 (Footnote added; internal quotation marks omitted.) Turner v. Commissioner of Correction, 163 Conn.
App. 556, 564, 134 A.3d 1253, cert. denied, 323 Conn.

909, 149 A.3d 980 (2016). A party seeking to overcome

the statutory limitation on opening a judgment must

satisfy all four Varley factors. See id., 565 (‘‘[b]ecause

the petitioner cannot succeed on the first Varley factor,

we need not consider the remaining factors’’).

I

We begin by addressing Bank of America’s alternative

claim that the court erred in opening the supplemental

judgment because Wells Fargo failed to satisfy the Varley factors. Specifically, it argues that Wells Fargo failed

to satisfy the second factor requiring diligence in trying

to discover and expose the fraud. We agree.

We first note the general standard of review applicable to a motion to open a judgment.13 ‘‘Whether proceeding under the common law or a statute, the action of

a trial court in granting or refusing [a motion] to open

a judgment is, generally, within the judicial discretion

of such court, and its action will not be disturbed on

appeal unless it clearly appears that the trial court has

abused its discretion.’’ (Internal quotation marks omitted.) Dougherty v. Dougherty, 109 Conn. App. 33, 38–39,

950 A.2d 592 (2008).

In the context of a motion to open a judgment beyond

the four month time limitation on the basis of fraud, a

court’s ‘‘determinations as to the elements of fraud are

findings of fact that we will not disturb unless they are

clearly erroneous.’’ (Internal quotation marks omitted.)

Sousa v. Sousa, supra, 173 Conn. App. 766; see also

Cromwell Commons Associates v. Koziura, 17 Conn.

App. 13, 16–17, 549 A.2d 677 (1988) (‘‘[t]he existence

of fraud for purposes of opening and vacating a judgment is a question of fact’’). The determination as to

whether the moving party used diligence in seeking to

discover the fraud is also a factual determination, which

may be rejected only upon a determination that it is

clearly erroneous. See Jucker v. Jucker, 190 Conn. 674,

679, 461 A.2d 1384 (1983) (‘‘A factual finding may be

rejected by this court only if it is clearly erroneous.

. . . The evidence bearing on the factual [matter] of

. . . the plaintiff’s exercise of due diligence adequately

support[s] the conclusions drawn by the court. It cannot

be said, therefore, that the finding was as a matter of

law unsupported by the record, incorrect, or otherwise

mistaken. . . . This court may not substitute its own

opinion . . . for the factual finding of the trial court.’’

[Citations omitted; internal quotation marks omitted.]).

‘‘When a party seeks to open and vacate a judgment

based on new evidence allegedly showing the judgment

is tainted by fraud, he must show, inter alia, that he

was diligent during trial in trying to discover and expose

the fraud . . . .’’ Chapman Lumber, Inc. v. Tager, 288

Conn. 69, 107, 952 A.2d 1 (2008). In Chapman Lumber,

Inc., our Supreme Court considered an appeal challeng-
ing the trial court’s refusal to conduct an evidentiary

hearing in connection with the defendant attorney’s

motion to open the judgment rendered against him in

an action arising out of allegedly improper conduct

in connection with his representation of a remodeling

contractor. Id., 72. In affirming the trial court’s denial

of the motion to open, our Supreme Court stated that

the issues the defendant wanted to explore at the hearing ‘‘had occurred years before trial and were related

to proceedings to which the defendant had complete

access.’’ Id., 108. Citing Varley, the court held that ‘‘the

defendant clearly had not exercised the requisite diligence in uncovering the purported malfeasance.’’ Id.

In the present case, we are convinced that the trial

court’s finding that Wells Fargo had proven diligence

is clearly erroneous. The court’s determination improperly was supported by its finding that Wells Fargo, as

the holder of the first mortgage on the property, had no

reason to be aware of the recordation of any mortgages

executed and recorded thereafter. The fraud of which

Wells Fargo complained occurred in April and May,

2008, when Rahman, in what the trial court described

as ‘‘blatant acts of forgery,’’ presented the fraudulent

satisfaction to two lenders in an effort to obtain multiple

mortgages on the property. More than nine years later,

on June 2, 2017, Wells Fargo filed a motion to open the

supplemental judgment in this action. During that nine

year period, Wells Fargo itself was in the best position

to discover Rahman’s fraud but failed to exercise any

diligence in attempting to do so.

In fact, the trial court took judicial notice of not one,

but two foreclosure actions instituted by Wells Fargo

or its predecessor with respect to the property. In the

second foreclosure action, commenced in October,

2009, Bank of America’s predecessor had filed a special

defense alleging that the Wells Fargo note had been

paid off and attached the satisfaction. After the filing

of the special defense and satisfaction, Wells Fargo

withdrew its complaint.14 Accordingly, as of 2009, Wells

Fargo was aware of the existence of the satisfaction

purporting to release its mortgage on the property, yet

it did nothing to investigate the validity of the satisfaction for eight years.

We also reject the determination underlying the

court’s finding of diligence that Wells Fargo was entitled

to notice of the supplemental judgment proceedings

despite its default for failure to appear ‘‘in the first part

of the foreclosure action.’’ Our rules of practice do not

require service of motions on nonappearing, defaulted

parties. See Practice Book § 10-12 (a) (‘‘[i]t is the

responsibility of counsel or a self-represented party

filing the same to serve on each other party who has

appeared one copy of every pleading subsequent to the

original complaint, every written motion other than one

in which an order is sought ex parte and every paper
relating to discovery, request, demand, claim, notice or

similar paper’’ [emphasis added]).15

Moreover, Wells Fargo did not demonstrate how its

access to information regarding the satisfaction was

limited in any way during the present action. In fact,

during the hearing on the motion to open, Wells Fargo

declined to offer any evidence at all beyond the stipulation.16 Had it appeared in the present action, it would

have received notice of the supplemental judgment proceedings, including Bank of America’s motion for a

supplemental judgment, to which it attached the satisfaction, and its subsequent motion for reconsideration,

which informed the court that the satisfaction had not

been recorded on the land records.

Lastly, we note that counsel for Wells Fargo conceded

during oral argument before this court that Wells Fargo

discovered the fraud in 2017 upon a review of its own

files. Wells Fargo’s apparent failure to conduct such

a review sooner, either by its predecessor during the

pendency of the two foreclosure actions it initiated or

during the course of the present action, repudiates any

diligence in trying to uncover fraud. Accordingly, we

conclude that the trial court’s finding that Wells Fargo

had satisfied Varley’s second factor of ‘‘diligence in the

original action, that is, diligence in trying to discover

and expose the fraud,’’ is clearly erroneous.17 Because

Wells Fargo failed to satisfy the second Varley factor,18

the court erred in opening the supplemental judgment

on the basis of fraud beyond the four month time limitation.

II

Bank of America also claims that the court erred in

opening the supplemental judgment because the judgment was not procured by any fraud on its part. We

agree.

The conclusion underlying the trial court’s opening

of the supplemental judgment, that the fraudulent

action of a defaulted party prior to the litigation at issue

satisfies the exception to the four month limitation for

judgments obtained by fraud, is a question of law.

‘‘When . . . the trial court draws conclusions of law,

our review is plenary and we must decide whether its

conclusions are legally and logically correct and find

support in the facts as they appear in the record.’’ (Internal quotation marks omitted.) Saggese v. Beazley Co.

Realtors, 155 Conn. App. 734, 751, 109 A.3d 1043 (2015);

see also Rome v. Album, 73 Conn. App. 103, 108, 807

A.2d 1017 (2002) (plaintiff’s challenge to court’s general

authority under § 52-212a to grant defendant’s motion

presents question of statutory construction over which

review is plenary).

In response to Bank of America’s claim of error, Wells

Fargo has not provided this court with any authority

to support the conclusion that fraud committed by a
defaulted party years prior to litigation can support the

opening of a judgment following the expiration of the

four month period. Cf. Grayson v. Grayson, 4 Conn.

App. 275, 296, 494 A.2d 576 (1985) (‘‘[w]here . . . a

clear case is made under applicable law that a fraudulent and material misrepresentation by one party

resulted in a substantial injustice to the other party,

we must not hesitate to act’’ [emphasis added; internal

quotation marks omitted]), appeal dismissed, 202 Conn.

221, 520 A.2d 225 (1987). Although not binding on this

court, we find instructive rule 60 (b) of the Federal

Rules of Civil Procedure, which provides in relevant

part that ‘‘the court may relieve a party or its legal

representative from a final judgment . . . for the following reasons . . . fraud . . . misrepresentation, or

misconduct by an opposing party . . . .’’ (Emphasis

added.) Under rule 60 (b) (3) of the Federal Rules of

Civil Procedure, ‘‘the movant must show that such fraud

prevented him or her from fully and fairly presenting

his or her case, and that the fraud is attributable to the

party or, at least, to counsel.’’ (Internal quotation marks

omitted.) L.I. Head Start Child Development Services,

Inc. v. Economic Opportunity Commission of Nassau

County, Inc., 956 F. Supp. 2d 402, 410 (E.D.N.Y. 2013).

Although Rahman was named as a defendant in this

action, he never appeared before the trial court and

was defaulted for failure to appear on November 7,

2012. He did not oppose, nor did he participate in, the

supplemental judgment proceedings. His fraudulent

actions did not occur during the course of this action.

Cf. Turner v. Commissioner of Correction, supra, 163

Conn. App. 564 (‘‘[t]o have a judgment set aside on the

basis of fraud which occurred during the course of the

trial upon a subject on which both parties presented

evidence is especially difficult’’ [emphasis added; internal quotation marks omitted]). Moreover, Wells Fargo

stipulated that both it and Bank of America ‘‘are

unaware of any evidence that Bank of America acted

fraudulently with regard to the entry of the supplemental judgment in this action.’’ See Sousa v. Sousa, supra,

173 Conn. App. 772 (recognizing that ‘‘the defendant’s

failure to establish the plaintiff’s knowledge of the

alleged misrepresentation is dispositive of the defendant’s fraud claim’’).

In fact, we note that the circumstances surrounding

the supplemental judgment belie the conclusion that

the supplemental judgment was ‘‘obtained by fraud.’’

After initially rejecting Bank of America’s motion for a

supplemental judgment on the basis of its failure to

provide verification of the release of the Wells Fargo

mortgage, the court ultimately granted that motion after

being informed by Bank of America in its motion for

reconsideration that the satisfaction had never been

recorded on the land records. The court apparently

was persuaded by Bank of America’s argument that

the court should not hold the remaining sale proceeds
indefinitely, given Wells Fargo’s default and failure to

file any claim to the sale proceeds.

Accordingly, we agree with Bank of America that the

supplemental judgment was not ‘‘obtained by fraud,’’

where the only claimed fraudulent conduct was committed by Rahman years prior to the present litigation

during which he was defaulted and did not participate.

Thus, the court lacked authority to open the supplemental judgment more than four months after it was

rendered.

The judgment is reversed and the case is remanded

with direction to deny the motion to open the supplemental judgment.

In this opinion the other judges concurred.

1 The plaintiff, the city of Stamford, also named as defendants in this

action Ismat Rahman; JPMorgan Chase Bank, National Association; Fidelity

National Title Group, Successor in Interest to Chicago Title Insurance Company; Countrywide Home Loans Servicing, LP; and Countrywide Home

Loans, Inc., but they were defaulted for failure to appear or plead.

2 Because we reverse the judgment of the court on the basis that it abused

its discretion in opening the supplemental judgment, we need not address

Bank of America’s claim that the trial court committed plain error.

3 On August 28, 2017, the parties filed a stipulation of facts, which was

accepted by the court.

4 World Savings Bank was acquired by, and changed its name to, Wachovia

Mortgage, FSB, which, later in 2009, merged with and became Wells Fargo.

5

In July, 2008, Countrywide Home Loans Servicing, LP, was acquired by

Bank of America.

6

In 2008, Washington Mutual Bank was acquired by the defendant JPMorgan Chase Bank, National Association.

7 The trial court also noted that Bank of America’s predecessor had commenced a foreclosure action, which was dismissed in 2009. The court stated

that Bank of America admitted in its complaint in that action that the Wells

Fargo mortgage had priority over the Bank of America mortgage.

8 Bank of America filed a memorandum of law in support of the plaintiff’s

motion and attached to it the satisfaction. The court, in its order granting

the plaintiff’s motion for a supplemental judgment, directed Bank of America

to file a separate motion for a supplemental judgment, which it filed on

February 6, 2014.

9 Both parties declined the opportunity to offer evidence during the hearing

and presented oral argument only.

10 Specifically, the parties were directed to address the following cases,

Varley v. Varley, 180 Conn. 1, 3–4, 428 A.2d 317 (1980), and Turner v.

Commissioner of Correction, 163 Conn. App. 556, 564, 134 A.3d 1253, cert.

denied, 323 Conn. 909, 149 A.3d 980 (2016). Turner, quoting Varley, provides:

‘‘The question presented by a charge of fraud is whether a judgment that

is fair on its face should be examined in its underpinnings concerning the

very matters it purports to resolve. Such relief will only be granted if the

unsuccessful party is not barred by any of the following restrictions: (1)

There must have been no laches or unreasonable delay by the injured party

after the fraud was discovered . . . (2) There must have been diligence in

the original action, that is, diligence in trying to discover and expose the

fraud . . . (3) There must be clear proof of the perjury or fraud . . . [and]

(4) There must be a substantial likelihood that the result of the new trial

will be different.’’ (Internal quotation marks omitted.) Turner v. Commissioner of Correction, supra, 564.

11 Our Supreme Court subsequently abandoned the diligence factor

imposed by Varley in the marital litigation context. See Billington v. Billington, 220 Conn. 212, 222, 595 A.2d 1377 (1991).

12 Our Supreme Court later modified the fourth factor: ‘‘[W]e disavow the

phrasing employed in Varley and rephrase the fourth prong to require a

movant to demonstrate a reasonable probability, rather than a substantial

likelihood, that the result of a new trial will be different.’’ Duart v. Dept.

of Correction, 303 Conn. 479, 491, 34 A.3d 343 (2012).

13 The parties dispute the applicable standard of review. Bank of America
argues that the proper standard of review is plenary because the ‘‘court’s

decision was based solely on a stipulation of facts and the oral and written

arguments of counsel.’’ Wells Fargo maintains that the decision to grant a

motion to open a judgment is within the trial court’s discretion and that

appellate review requires every reasonable presumption in favor of the

court’s action.

14 In the 2009 action, Bank of America’s predecessor filed a motion for

nonsuit on the basis of Wells Fargo’s failure to respond to its requests for

production. Although that motion was granted, a later motion for an extension of time to respond to the requests for production was also granted. In

its motion for a supplemental judgment, Bank of America maintained that

Wells Fargo never produced any documents in response to its requests for

production, which it represented sought documentation regarding the Wells

Fargo mortgage and payment and release of that mortgage. It is not clear

from the file what documents were sought by the requests for production

and whether Wells Fargo ever responded to the requests. It is clear, however,

that Wells Fargo ultimately withdrew its complaint in that action.

15 In its motion for default for failure to appear, the plaintiff’s counsel

certified that a copy of the motion was delivered to Wells Fargo, and the

notice granting the motion for default indicates that Wells Fargo was provided notice of that order. See Practice Book § 10-12 (b) (‘‘[i]t shall be the

responsibility of counsel or a self-represented party at the time of filing a

motion for default for failure to appear to serve the party sought to be

defaulted with a copy of the motion’’).

Practice Book § 10-12 (c) requires that ‘‘[a]ny pleading asserting new or

additional claims for relief against parties who have not appeared or who

have been defaulted shall be served on such parties.’’ Wells Fargo has not

provided us with any authority, and we are aware of no such authority,

that such a rule requires service on a defaulted party of a motion for a

supplemental judgment.

16 With respect to why Wells Fargo failed to respond to the complaint in

this action, its counsel stated during the hearing on the motion to open that

‘‘I know that we’ve tried to figure out with Wells Fargo to determine why—

who did—why didn’t they respond to the original complaint. And this happened so long ago that we’ve—they simply say we have no idea why we

weren’t involved earlier.’’

17 In one paragraph of its appellate brief, Wells Fargo claims that the

supplemental judgment was procured by mutual mistake, arguing that ‘‘at

the very least, both Wells Fargo and Bank of America were deceived by

. . . Rahman’s fraudulent satisfaction . . . which Bank of America ultimately submitted to the court.’’ Bank of America responds that there is no

evidence to support the claim that the supplemental judgment was based

on a mutual mistake and argues that Wells Fargo failed to raise its claim

of mutual mistake in the trial court. Although the trial court recognized

Wells Fargo’s claim as one of both fraud and mutual mistake, it did not

make any finding as to mutual mistake.

‘‘A mutual mistake is one that is common to both parties and effects a

result that neither intended.’’ (Internal quotation marks omitted.) Davis v.

Hebert, 105 Conn. App. 736, 741, 939 A.2d 625 (2008). ‘‘[A] unilateral mistake

will not be sufficient to open the judgment.’’ (Internal quotation marks

omitted.) Richards v. Richards, 78 Conn. App. 734, 740, 829 A.2d 60, cert.

denied, 266 Conn. 922, 835 A.2d 473 (2003). We agree with Bank of America

that there was no evidence before the court to support a finding that the

supplemental judgment was procured by mutual mistake. Wells Fargo, having been defaulted, did not participate in the supplemental judgment proceedings, during which it now claims mutual mistake. Moreover, Bank of

America acknowledged in its motion for reconsideration that the satisfaction

had never been recorded on the land records. Because there was no finding

of mutual mistake and, indeed, no evidence in the record to support any

such finding, we reject Wells Fargo’s claim.

18 Because we conclude that Wells Fargo failed to satisfy the second

Varley factor, we need not consider the remaining factors. See Turner v.

Commissioner of Correction, supra, 163 Conn. App. 565.