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

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. 

*********************************************** 
JPMORGAN CHASE BANK, NATIONAL ASSN. v. ROBERT J.

VIRGULAK—DISSENT

BEAR, J., dissenting. The plaintiff, Manufacturers and

Traders Trust Company, also known as M&T Bank (M&

T Bank),1

successor in interest to the named plaintiff

JPMorgan Chase Bank, National Association (JPMorgan Chase), appeals from the judgment of the trial court

rendered in favor of the defendant Theresa Virgulak.2

On appeal, the plaintiff claims that the trial court abused

its discretion by (1) failing to consider the plaintiff’s

foreclosure claim against the defendant as a stand-alone

claim independent from its other causes of action and,

thus, failing to grant the plaintiff the equitable remedy

of foreclosure to which it was entitled on the facts

of this case, (2) declining to reform the note and/or

mortgage deed at issue in this case, (3) denying its

motion to amend its responses to the defendant’s

requests for admission, (4) concluding that the plaintiff’s admissions limited its recovery under its unjust

enrichment count, and (5) denying the plaintiff’s motion

for reargument. The majority disagrees with the plaintiff

as to all of its claims and concludes that the court did

not abuse its discretion in refusing to consider those

claims. I respectfully disagree with the majority’s disposition of this case and, rather, would reverse the judgment of the court on the ground that the court both

abused its discretion and erred in failing to properly

consider the plaintiff’s stand-alone foreclosure claim.

The court should have allowed the plaintiff to proceed

with its foreclosure claim.

The plaintiff argues that the court abused its discretion in failing to consider its foreclosure claim and,

therefore, erred in failing to exercise its equitable powers to render a judgment of foreclosure against the

defendant. Specifically, plaintiff asserts that, even without reformation of the note or mortgage, the court had

discretion to consider its foreclosure claim and, in light

of the evidence presented at trial, abused that discretion. The plaintiff also argues that it is entitled to proceed with the foreclosure complaint as a matter of law.

The following facts are evident from the record and

are undisputed. The defendant and her husband, Robert

J. Virgulak (Robert), on this and prior occasions, had

a practice of borrowing money from banks whereby

Robert would execute a note for the amount to be

borrowed, and the defendant would execute a mortgage

as security for the note. In this case, there is no dispute

that Robert, on December 11, 2006, executed a note to

JPMorgan Chase in the amount of $533,000 and that he

received and expended that $533,000 for the benefit of

himself and the defendant. There is also no dispute that

on December 11, 2006, the defendant signed an openend mortgage deed to JPMorgan Chase for the defen-
dant’s real property known as 14 Bayne Court, Norwalk

(real property), and that she initialed each page of that

fifteen page form mortgage document, which was

recorded on the Norwalk land records. The defendant

was listed in the form mortgage document as the ‘‘Borrower . . . THERESA VIRGULAK, MARRIED,’’ a reference to her marriage to Robert, the maker of the note.

The note, however, incorrectly was described in the

mortgage document as being signed by the defendant,

instead of Robert. Consistently with the note signed by

Robert, the mortgage referred to a note dated December

11, 2006, in the amount of $533,000.

On December 11, 2016, the defendant also signed a

U.S. Department of Housing and Urban Development

form, RESPA HUD1A (HUD-1), that included the following disbursements to pay off encumbrances on the

defendant’s real property: (1) to M&T Mortgage Corporation in the amount of $14,889.38; (2) to Wachovia

Bank, N. A., in the amount of $240,993.18; (3) to The

Greater Norwalk Area Credit Union, Inc., in the amount

of $18,285.47; (4) to Bank of America in the amount of

$27,921.82; (5) to Wachovia in the amount of $27,647.94;

(6) to Chase in the amount of $16,950.47; (7) to the

Norwalk Tax Collector in the amount of $4640; and (8)

to James P. Murphy & Assoc. in the amount of $1274

for an unpaid insurance premium. The encumbrances

on the defendant’s real property that were paid off for

her benefit at the closing thus totaled approximately

$370,000.

In rejecting the plaintiff’s foreclosure claim, the

majority looks to the trial court’s memorandum of decision and the plaintiff’s pleadings filed thereafter and

concludes that the court properly exercised its discretion in determining that the plaintiff’s claim was inadequately briefed and ‘‘without merit.’’ Moreover, the

majority, relying on our well established mortgage foreclosure case law that ‘‘the plaintiff must prove by a

preponderance of the evidence that it is the owner of

the note and mortgage, that the defendant mortgagor

has defaulted on the note and that the conditions precedent to foreclosure . . . have been satisfied;’’ Bank of

America, N.A. v. Gonzalez, 187 Conn. App. 511, 514,

202 A.3d 1092 (2019); concludes that because the defendant did not sign the promissory note and the mortgage

did not refer to any obligation for which the defendant

was legally responsible, ‘‘the subject mortgage, as executed, was a nullity because it purported to secure

a nonexistent debt.’’ I respectfully disagree with the

majority’s conclusion.

When the essence of a transaction is clear, as it is in

this case, a court must look to its substance, instead

of relying upon errors of form, to determine its enforceability against a party to it. As our Supreme Court

observed, ‘‘[e]quity always looks to the substance of a

transaction and not to mere form . . . and seeks to
prevent injustice.’’ (Citation omitted; internal quotation

marks omitted.) Natural Harmony, Inc. v. Normand,

211 Conn. 145, 149, 558 A.2d 231 (1989). Accordingly,

‘‘[t]he governing motive of equity in the administration

of its remedial system is to grant full relief, and to adjust

in the one suit the rights and duties of all the parties,

which really grow out of or are connected with the

subject-matter of that suit.’’ (Internal quotation marks

omitted.) Maruca v. Phillips, 139 Conn. 79, 82–83, 90

A.2d 159 (1952). ‘‘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. . . . In determining whether the trial court

abused its discretion, this court must make every reasonable presumption in favor of its action.’’ (Citation

omitted; internal quotation marks omitted.) AvalonBay

Communities, Inc. v. Sewer Commission, 270 Conn.

409, 417, 853 A.2d 497 (2004); see also Connecticut

National Bank v. Chapman, 153 Conn. 393, 216 A.2d

814 (1966).

‘‘[F]oreclosure is peculiarly an equitable action, and

the court may entertain such questions as are necessary

to be determined in order that complete justice may

be done.’’ (Internal quotation marks omitted.) Federal

Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn.

153, 170–71, 659 A.2d 138 (1995). ‘‘[T]he determination

of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the

trial court. . . . Discretion means a legal discretion, to

be exercised in conformity with the spirit of the law

and in a manner to subserve and not to impede or defeat

the ends of substantial justice. . . . For that reason,

equitable remedies are not bound by formula but are

molded to the needs of justice.’’ (Citations omitted;

internal quotation marks omitted.) McKeever v. Fiore,

78 Conn. App. 783, 788–89, 829 A.2d 846 (2003) (concluding ‘‘that in light of the [trial] court’s inherent equitable powers in a foreclosure action, the court did not

improperly consider the equitable doctrine of unclean

hands without it being specifically pleaded’’).

‘‘While it is normally true that this court will refrain

from interfering with a trial court’s exercise of discretion . . . this presupposes that the trial court did in

fact exercise its discretion. . . . Where . . . the trial

court is properly called upon to exercise its discretion,

its failure to do so is error.’’ (Citation omitted; emphasis

altered; internal quotation marks omitted.) Higgins v.

Karp, 243 Conn. 495, 504, 706 A.2d 1 (1998); State v.

Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986).

Additionally, a court must apply common sense in

analyzing and interpreting all relevant documents and

the entire transaction. See Gazo v. Stamford, 255 Conn.

245, 266, 765 A.2d 505 (2001) (‘‘[c]ommon sense also
informs us that the plaintiff’s contract claim is in reality

his negligence claim cloaked in contract garb’’); see

also State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68

(1985) (‘‘[i]t is an abiding principle of jurisprudence

that common sense does not take flight when one enters

a courtroom’’); Lawson v. Whitey’s Frame Shop, 241

Conn. 678, 697 A.2d 1137 (1997) (‘‘[e]ven if we were to

assume, without deciding, that the contract’s failure to

refer to subsection (g) meant that the entire statute

applies, the Appellate Court’s conclusion that the defendant could not dispose of vehicles that were not specifically designated by [General Statutes] § 14-150 is contrary to common sense and to a plain reading of the

contract as a whole’’); Gino’s Pizza of East Hartford,

Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984)

(contract must be given common sense interpretation,

and in construing contract, court must view written

document as expression of parties’ intent).

In the present case, the first count of the plaintiff’s

amended complaint unambiguously sets forth a claim

for foreclosure of a valid mortgage, independent of any

claim for reformation. In connection with the defendant’s motion for summary judgment, the court, Hon.

Kevin Tierney, judge trial referee, in its memorandum

of decision denying that motion, framed the issue as

whether a foreclosure action could be maintained ‘‘by

a lender who has a mortgage deed executed by a named

defendant, the sole property owner who has not executed the note.’’ At trial, the plaintiff’s counsel and the

court, Tobin, J., further discussed this issue:

‘‘[The Plaintiff’s Counsel]: [T]his is a three count

complaint for foreclosure, equitable reformation of the

note and unjust enrichment. We have essentially stipulated by virtue of our stipulation of facts that all the

prerequisites to foreclosure have been satisfied, but

there is a legal issue raised by the defendants that

remains. . . . The defendant’s contention is that the

foreclosure action is not valid by virtue of the fact that

the note does not secure the mortgage because two

different parties executed those documents . . .

* * *

‘‘The Court: Okay. Now, I can understand how you

might prevail if you’re—you’ve got your equitable remedy in the form of reformation of the note, and I understand what you’re seeking is to have the [defendant]

added as a maker of the note, and that would make the

recitations of the mortgage deed accurate. . . . But

it—it strikes me that the manner in which you introduced your case you suggested that you believe the

plaintiff can prevail in this case even if it is not successful in demonstrating the requisites to have the

note reformed?’’

‘‘[The Plaintiff’s Counsel]: That’s correct, Your Honor.

We are proceeding out of three different [bases] essen-
tially. We believe that foreclosure itself is appropriate.

Now we have added the other causes of action, but we

believe that we can foreclose under these circumstances

regardless of those causes of action to answer Your

Honor’s question.’’ (Emphasis added.)

The plaintiff asserted, as well, in its posttrial brief

‘‘that, under both the law and equitably, it is entitled

to foreclosure of the mortgage in issue and equitable

relief.’’ In support of its claim for foreclosure, the plaintiff argued that it had established a prima facie case

for foreclosure, and that ‘‘the only issue remaining in

this matter results from a technical reading of the mortgage, which, based on a literal reading of its terms,

describes [the defendant] as the ‘Borrower.’ ’’ The plaintiff concluded by requesting that the trial court enter

‘‘an order of judgment of foreclosure in its favor or, in

the alternative, order appropriate equitable relief.’’

It is thus clear that the plaintiff adequately articulated

to the court the merits of his claim for foreclosure.

Rather than substantively addressing this claim, however, the court summarily rejected it on the basis that

‘‘the plaintiff does not argue that the law would permit

the plaintiff to foreclose a mortgage . . . without first

obtaining equitable reformation of the mortgage note

and/or deed.’’ In reaching this conclusion, the court

erred both as a matter of law and as a matter of equity.

It did not consider the plaintiff’s adequately argued

and briefed foreclosure claim, including whether the

plaintiff was entitled to any remedies upon the default

of the obligor on the underlying debt. The majority’s

conclusion that the court did exercise its discretion by

explaining that ‘‘the plaintiff’s claim was inadequately

briefed and was unsupported by any citation to support

its contention’’ compounds this error and runs counter

to the inherently equitable nature of foreclosure

actions. This conclusion is also inconsistent with our

law that requires a court to be guided by the substance

of the transaction, in the present case the note and the

mortgage, which although signed separately, constituted one unified transaction through the joint and concerted actions, with full knowledge of the consequences, of the defendant and Robert, and resulted in

them obtaining $533,000 from JPMorgan Chase while

also providing security for repayment of the loan.3 Any

limitation or defect in the mortgage form that did not

correctly describe the defendant or the maker of the

note is in the nature of a technical defect, or a scrivener’s or otherwise harmless error; see, e. g., Boisvert v.

Gavis, 332 Conn. 115, 122 n.4, 210 A.3d 1 (2019); Do v.

Commissioner of Motor Vehicles, 330 Conn. 651, 665,

200 A.3d 681 (2019); and as a matter of law cannot bar

the enforcement of the valid mortgage, the terms of

which were known and agreed to by both parties to

the document; see, e.g., Wiley v. London & Lancashire

Fire Ins. Co., 89 Conn. 35, 43, 92 A. 678 (1914); where

JPMorgan Chase’s disbursement of $533,000 to or for
the benefit of the defendant and Robert is far more

than sufficient consideration for Robert’s execution of

the note and the defendant’s agreement to and execution of the mortgage document.

In the context of this case, therefore, I respectfully

disagree with the majority’s conclusion that, absent a

reformation of the mortgage or note, the court is precluded from foreclosing on the mortgage. Under the

particular circumstances of this case, the defendant’s

failure to sign the promissory note executed by Robert

did not protect her from a foreclosure of the valid security interest she had granted to JPMorgan Chase in the

real property. The trial court and the majority erroneously have concluded that the mortgage fails to

expressly refer to any obligation for which the defendant is legally responsible. The appropriate approach

in this case is to view the note and mortgage as elements

of one transaction; see, e. g., Wiley v. London & Lancashire Fire Ins. Co., supra, 89 Conn. 43–44; or alternatively, to view the mortgage from the defendant to

JPMorgan Chase as a grant of security, in the nature

of a guarantee, for the repayment of Robert’s note to

JPMorgan Chase.

There are certain fundamental principles underlying

both the right of a party to initiate and prosecute a

foreclosure action and an action on a guarantee,

whether it is secured or unsecured: ‘‘Upon a mortgagor’s default on an underlying obligation, the mortgagee

is entitled to pursue various remedies against the mortgagor including its remedy at law for the amount due

on the note, its remedy in equity to foreclose on the

mortgage, or both remedies in one consolidated cause

of action. . . . To understand who are proper parties

when a mortgagee pursues the remedy of foreclosure,

one must recognize that Connecticut follows the title

theory of mortgages, which provides that on the execution of a mortgage on real property, the mortgagee holds

legal title and the mortgagor holds equitable title to the

property. . . . As the holder of equitable title, also

called the equity of redemption, the mortgagor . . .

has the right to redeem the legal title on the performance of certain conditions contained within the mortgage instrument. . . . The purpose of the foreclosure

is to extinguish the mortgagor’s equitable right of

redemption that he retained when he granted legal title

to his property to the mortgagee following the execution

of the mortgage. . . .

‘‘Unlike the equitable nature and aims of foreclosure,

a claim on the note at law is grounded in contract, and

is enforceable as between the parties to that contract—

the debtor and the creditor . . . . Thus, any deficiency

judgment sought in connection with the foreclosure

arises from the contractual relationship between the

parties to the promissory note.

‘‘When payment of a promissory note secured by a
mortgage is further protected by a separate guarantee,

in addition to the aforementioned potential remedies

against the mortgagor, the mortgagee may pursue a

claim against the guarantors to recover any of the

unpaid debt of the mortgagor. . . . A guarantee is a

promise to answer for another’s debt, default or failure

to perform a contractual obligation. . . . As a contractual obligation separate from the contractual agreement

between the lender and borrower, a guarantee imports

the existence of two different obligations: the obligation

of the borrower and the obligation of the guarantor.’’

(Citations omitted; internal quotation marks omitted.)

JP Morgan Chase Bank, N.A. v. Winthrop Properties,

LLC, 312 Conn. 662, 675, 94 A.3d 622 (2014).

It is well established that ‘‘a contract of guarant[ee]

creates a secondary liability’’ and, therefore, ‘‘a guarantor is not bound to do what the principal has contracted

to do but only to answer for the consequences of the

default of the principal.’’ (Footnote omitted.) 23 S. Williston, Contracts (4th Ed. 2019) § 61:2; see also JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC,

supra, 312 Conn. 676 (‘‘a guarantor’s liability does not

arise from the debt or other obligation secured by the

mortgage; rather, it flows from the separate and distinct

obligation incurred under the guarantee contract’’);

Carpenter v. Thompson, 66 Conn. 457, 464, 34 A. 105

(1895) (‘‘[t]he contract of the guarantor is his own separate undertaking in which the principal does not join’’

[internal quotation marks omitted]). As such, it has been

‘‘recognized that, in the absence of a statute expressly

pertaining to guarantors, such secondary obligors are

not proper parties to a claim seeking the foreclosure

of a mortgage and their obligations are not limited by

the extinguishment of the mortgagor’s rights and obligations.’’ JP Morgan Chase Bank, N.A. v. Winthrop Properties, supra, 677. In JP Morgan Chase Bank, N.A. v.

Winthrop Properties, supra, 682–83, our Supreme Court

reversed the judgment of this court and concluded that

the judgment of strict foreclosure that had been rendered against the mortgagor had no effect on the plaintiff’s ability to recover damages from the guarantors

for the remaining unpaid debt. Although our Supreme

Court determined that the plaintiff mortgagee could not

properly make the guarantors parties to the foreclosure

claim because they were not parties to the mortgage

or the note, it concluded that the guarantors’ obligation

that separately arose under the guarantee could still be

enforced. Id. In the present case, the defendant provided security in connection with, but only to the extent

of, her equity in the real property.

The principle that a guarantor may be held liable for

an unpaid debt on a promissory note applies to the

particular factual circumstances of the present case.

The mortgage document signed by the defendant makes

specific reference to the terms of the underlying note,

demonstrating her intent that the mortgage operate as
her promise to pay in the event of a default by Robert

on the terms of the note.4 Specifically, the document

transfers the ‘‘Borrower’s’’ rights in the real property

to JPMorgan Chase, and its successors in interest. Moreover, the mortgage describes JPMorgan Chase as the

‘‘lender’’ and ‘‘mortgagee,’’ which it was at the initiation

of the mortgage from the defendant, and sets forth the

exact amount of the note obligation. Not only is the

mortgage dated the same date as the note, but it also

defines itself as the ‘‘Security Instrument.’’ Further evidence that the mortgage was intended to provide the

plaintiff with a security interest in the defendant’s property in the event Robert failed to make payments on

the note is contained in the following documents signed

by the defendant: (1) the HUD-1 form; (2) the Transfer

of Servicing Disclosure Statement where she confirmed

that her acknowledgement of that document was part

of the mortgage loan application; (3) the Federal Truth

in Lending Statement containing details of the loan

including that ‘‘[you] are giving a security interest in

certain real property located at 14 Bayne Court, Norwalk;’’ and (4) the Notice of Right to Cancel, that set

forth, inter alia: ‘‘You are entering into a transaction

that will result in a mortgage/security interest in your

home. . . . If you cancel the transaction, the mortgage/

security interest is also cancelled.’’

The present case is distinguishable from JP Morgan

Chase Bank, N.A. v. Winthrop Properties, supra, 312

Conn. 662, in that the defendant is the mortgagor of

the real property, as well as the guarantor of Robert’s

note. Nevertheless, this distinction, in addition to the

references in the mortgage, the note, and the ancillary

documents that demonstrate that the note and mortgage, although signed separately by each party, were

designed to be part of the same transaction, supports

the position that the defendant, as mortgagor and guarantor, is the proper party defendant in the underlying

foreclosure action.

The majority relies on the defendant’s failure to sign

the promissory note executed by her husband and the

mortgage’s identification of her as the borrower on the

note for the conclusion that without reformation,5

the

mortgage secured a nonexistent debt and, thus, as executed, was a nullity. I disagree and, instead, note that

strict compliance with a specific form, statutory or otherwise, is not necessary for the execution of a valid

mortgage between parties to a transaction. See New

Orleans National Banking Assn. v. Adams, 109 U.S.

211, 214, 3 S. Ct. 161, 27 L. Ed. 910 (1883) (‘‘no precise

form of words is necessary to constitute a mortgage’’);

Harding v. Trenor, 157 F. Supp. 350, 356 (D.N.D. 1957)

(standard form for mortgage prescribed by statute ‘‘neither mandatory nor exclusive’’); Wolf v. Schumacher,

477 N.W.2d 827, 828 (N.D. 1991) (compliance with standard form for mortgage ‘‘not necessary to create a valid

mortgage between the parties to a transaction’’). Rather,
the validity of a mortgage rests on (1) whether there

is some evidence that the transaction was intended as

a mortgage in consideration for some debt; see New

Orleans National Banking Assn. v. Adams, supra, 214

(to constitute mortgage, ‘‘there must be a present purpose of the mortgagor to pledge his land for the payment

of a sum of money, or the performance of some other

act’’), and Wolf v. Schumacher, supra, 829 (documentary

evidence and testimony established that transaction

between parties was intended as mortgage and could

be enforced as such); and (2) whether the mortgage

‘‘provides reasonable notice to third parties of the obligation that is secured.’’ (Internal quotation marks omitted.) Connecticut National Bank v. Esposito, 210 Conn.

221, 227, 554 A.2d 735 (1989).

Furthermore, a mortgage that is not properly executed or contains technical defects may be enforced

through equity. See Ketchum v. St. Louis, 101 U.S. 306,

317, 25 L. Ed. 999 (1879) (‘‘It is well stated that a party

may, by express agreement, create a charge or claim

in the nature of a lien on real as well as on personal

property of which he is the owner or in possession,

and that equity will establish and enforce such charge

or claim . . . . In addition to these formal instruments

which are properly entitled to the designation of mortgages, deeds, and contracts, which are wanting in one

or both of these characteristics of a common-law mortgage, are often used by parties for the purpose of pledging real property, or some interest in it, as security for

a debt or obligation, and with the intention that they

shall have effect as mortgages. Equity comes to the aid

of the parties in such cases, and gives effect to their

intentions.’’ [Citation omitted; internal quotation marks

omitted.]); Union Planters Bank, N.A. v. New York, 988

So. 2d 1007, 1011 (Ala. 2008) (‘‘[w]hen a mortgage is

invalid due to a technical defect, equity will give effect

to the intent of the parties according to the substance

of the transaction’’ [internal quotation marks omitted]).

It is also well established that ‘‘[e]rrors and omissions

in the recorded mortgage that would not mislead a title

searcher as to the true nature of the secured obligation

do not affect the validity of the mortgage against third

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

Bank, N.A. v. Kelepecz, 289 Conn. 692, 702, 960 A.2d

563 (2008); Dart & Bogue Co. v. Slosberg, 202 Conn.

566, 581, 522 A.2d 763 (1987) (‘‘[F]ailure to state the

maximum term of a promissory note . . . does not, of

itself, render a mortgage invalid. . . . [A] mortgage

need not set forth all of the terms of the underlying

obligation provided that it gives notice of the nature

and amount of the obligation, so that subsequent lien

creditors are not misled.’’ [Citations omitted.]).

In the present case, there is no dispute that the mortgage was properly recorded in the land records,

although as between the parties, that is not necessary

to its validity. Wiley v. London & Lancashire Fire Ins.
Co., supra, 89 Conn. 45 (‘‘[t]he deed, when delivered

and accepted, is good between the parties, irrespective

of the date of its record, and when the title of the grantee

is in issue, and the rights of no one are prejudiced by

the failure to record, that title is to be determined for

all purposes by the fact of title, and not by the record

evidence of it’’). Thus, although the mortgage contained

an inaccuracy by describing the defendant as the ‘‘Borrower’’ and as the maker of the note, this did not undermine the validity of the mortgage between the parties.

In this case, the mortgage also provided reasonable

notice6

to any third party that it secured a debt for the

amount listed. Moreover, as previously discussed, the

references in the mortgage and note to each other demonstrate that they were designed to be part of the same

transaction. When read together, the mortgage and the

note clearly establish that the consideration for the

mortgage was the amount of $533,000 made available

by JPMorgan Chase to Robert, approximately $370,000

of which was used to pay off and release encumbrances

on the defendant’s real property, and the rest for making

improvements to the defendant’s real property or for

Robert’s personal use. Accordingly, I conclude that the

trial court erred as a matter of law in failing to view

the mortgage on the defendant’s real property as a valid

mortgage, or, more generally, as the defendant’s guarantee to answer for any default by Robert pursuant to the

terms of the note.

I also conclude that, to the extent it is necessary to

consider the equities of this matter, they clearly favor

the plaintiff, the successor to JPMorgan Chase. The

defendant and Robert clearly benefitted from the

$533,000 they received from JPMorgan Chase, and there

is nothing in the record to provide the defendant with

any equitable or legal defense to the plaintiff’s foreclosure of the mortgage.7

For the foregoing reasons, I would reverse the judgment and remand the case to the trial court with direction to proceed on the first count of the plaintiff’s complaint for foreclosure of the mortgage on the

defendant’s real property.

1 As the majority notes in footnote 1 of its opinion, JPMorgan Chase Bank,

National Association, is no longer a party in this matter, and M&T Bank

filed a motion to substitute itself as the plaintiff.

2 As noted in footnote 2 of the majority opinion, this action was withdrawn

against Robert J. Virgulak, and the state of Connecticut, Department of

Revenue Services, was defaulted for failure to plead.

3 Both the defendant and Robert signed two documents at the closing:

(1) the Transfer of Servicing Disclosure Statement, in which both stated

that they understood that their acknowledgements were a ‘‘required part of

the mortgage loan application;’’ and (2) the Federal Truth in Lending Statement, which contained the following statement: ‘‘You are giving a security

interest in certain real property located at 14 Bayne Court, Norwalk, CT,

06851.’’

4

‘‘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.’’ (Internal

quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 547, 830

A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d

244 (2004); Sunset Mortgage v. Agolio, 109 Conn. App. 198, 202, 952 A.2d

65 (2008).

5 As the majority states, ‘‘[a] cause of action for reformation of a contract

rests on the equitable theory that the instrument sought to be reformed

does not conform to the real contract agreed upon and does not express

the intention of the parties and that it was executed as the result of mutual

mistake, or mistake of one party coupled with actual or constructive fraud,

or inequitable conduct on the part of the other.’’ (Internal quotation marks

omitted.) Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981). ‘‘Reformation is not granted for the purpose of alleviating a hard or oppressive

bargain, but rather to restate the intended terms of an agreement when the

writing that memorializes that agreement is at variance with the intent of

both parties.’’ (Internal quotation marks omitted.) Kaplan v. Scheer, 182

Conn. App. 488, 502, 190 A.3d 31, cert. denied, 330 Conn. 913, 193 A.3d

49 (2018),

6

‘‘Reasonable notice’’ is defined as ‘‘notice of the nature and amount of

the encumbrance which the mortgagor intends to place upon the land.’’

(Internal quotation marks omitted.) Connecticut National Bank v. Esposito,

supra, 210 Conn. 228.

7 Reformation of a document is ordinarily the appropriate equitable remedy in circumstances such as an unknown mutual mistake. See Lopinto v.

Haines, supra, 185 Conn. 532 (‘‘The remedy of reformation is appropriate

in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto,

through mistake, common to both parties, the written instrument fails to

express the real agreement or transaction. . . . In short, the mistake, being

common to both parties, effects a result which neither intended.’’ [Citations

omitted; internal quotation marks omitted.]); Deutsche Bank National Trust

Co. v. Perez, 146 Conn. App. 833, 839, 80 A.3d 910 (2013) (‘‘[t]he relief

afforded in reforming an instrument is to make it conform to the previous

agreement of the parties’’), appeal dismissed, 315 Conn. 542, 109 A.3d 452

(2015). I do not write separately on the ground of reformation, however,

because the particular factual circumstances of this case do not require

reformation of the note or mortgage, given the substance of the transaction

created by the defendant and Robert, upon which the plaintiff relied. Simply

put, the defendant was aware of the nature and consequences of her transaction with JPMorgan Chase, and an unnecessarily strict adherence to the

concept of documentary perfection should not shield her from her resulting

obligation to JPMorgan Chase and its successors, into which she knowingly

and voluntarily entered.