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*********************************************** 
U.S. BANK NATIONAL ASSOCIATION, TRUSTEE v.

FRANK V. RAGO ET AL.

(AC 43761)

Prescott, Moll and Flynn, Js.

Syllabus

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

owned by the defendants, F and L, following their default on a promissory

note secured by the mortgage. The trial court granted the plaintiff’s

motion for summary judgment as to liability against the defendants and

rendered a judgment of strict foreclosure. The trial court later vacated

the summary judgment rendered against L only, as he was a nonappearing party. Thereafter, the trial court granted the plaintiff’s motion

for default against L for failure to plead. On L’s appeal from the judgment

of strict foreclosure, this court affirmed the judgment and remanded

the matter for the purpose of setting new law days. Thereafter, the

plaintiff filed a motion to reset the law days. It later filed an updated

affidavit of debt, a new appraisal of the property, and an affidavit of

the appraiser, although it did not file an accompanying motion requesting

that the trial court update the amount of the debt or the fair market

value of the property. Following a short calendar proceeding on the

motion, which the defendants did not attend as they were not provided

with notice, the trial court issued an order reopening, modifying and

reentering the judgment of strict foreclosure to increase both the amount

of the debt and the fair market value of the property. It also set new

law days. On F’s appeal to this court, held that the trial court erred

in rendering the subsequent judgment of strict foreclosure by making

updated findings sua sponte and without providing the parties with

adequate notice and an opportunity to be heard: the plaintiff’s motion

sought only to reset the law days in accordance with this court’s remand

order, and the trial court exceeded the scope of that motion and the

remand order by modifying the judgment to substitute updated fair

market value and debt findings; moreover, F was not afforded due

process in connection with the trial court’s making of the updated

findings because he was not notified that the court was considering

modifying the judgment in such a manner; accordingly, this court

remanded the case with direction to reinstate the original judgment and

for the purpose of setting new law days.

Argued October 4, 2021—officially released October 25, 2022

Procedural History

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

brought to the Superior Court in the judicial district of

Fairfield, where the court, Hon. Alfred J. Jennings, Jr.,

judge trial referee, granted the plaintiff’s motion for

summary judgment as to liability and rendered judgment of strict foreclosure; thereafter, the court, Hon.

Alfred J. Jennings, Jr., judge trial referee, vacated the

summary judgment rendered against the defendant

Louis A. Rondinello; subsequently, the court, Hon.

Alfred J. Jennings, Jr., judge trial referee, granted the

plaintiff’s motion for default against the defendant Louis

A. Rondinello for failure to plead; thereafter, the defendant Louis A. Rondinello appealed from the judgment

of strict foreclosure to this court, Prescott, Elgo and

Pellegrino, Js., which affirmed the judgment, and the

case was remanded for the purpose of setting new law

days; subsequently, the plaintiff filed a motion to reset
the law days; thereafter, the court, Spader, J., opened

and modified the judgment and rendered a judgment

of strict foreclosure, from which the named defendant

appealed to this court. Reversed; judgment directed.

Brian E. Lambeck, for the appellant (named defendant).

Kevin C. Sandberg, for the appellee (plaintiff).
Opinion

MOLL, J. This matter returns to us following our

decision in U.S. Bank National Assn. v. Rago, 189 Conn.

App. 902, 203 A.3d 718 (2019), in which this court, by

memorandum decision, affirmed a judgment of strict

foreclosure rendered in favor of the plaintiff, U.S. Bank

National Association, as trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2007-MX1,

and remanded the case ‘‘for the purpose of setting new

law days.’’ Id. The defendant Frank V. Rago1 now

appeals from the trial court’s subsequent judgment of

strict foreclosure rendered, on remand, in favor of the

plaintiff. On appeal, the defendant claims, inter alia,

that the court, in rendering the subsequent judgment

of strict foreclosure, improperly exceeded the scope of

the remand order in opening the judgment and making

updated findings, sua sponte and without providing to

the parties adequate notice and an opportunity to be

heard, with respect to the fair market value of the property and the amount of the debt at issue.2 We agree, and,

accordingly, we reverse the judgment of the trial court.

The record reveals the following facts. On June 23,

2006, the defendant and Louis A. Rondinello promised

to pay the principal sum of $380,000 payable with interest to Chase Bank USA, N.A., as provided in a promissory note. To secure the note, the defendant and Rondinello executed a mortgage on real property located

at 1392–1398 South Avenue in Stratford (property), of

which they are the owners of record. The mortgage

deed, which is conditioned on the payment of the note

and the performance of certain covenants and other

conditions, was recorded on July 25, 2006, in the Stratford land records. Following certain assignments, the

plaintiff became, and remains, the current holder of

the note and mortgage. The payments of principal and

interest due on December 1, 2011, and each and every

month thereafter, have not been made. Accordingly,

the plaintiff exercised its option to declare the entire

balance on the note due and payable.

On November 2, 2015, the plaintiff commenced this

foreclosure action. On March 3, 2016, the defendant

filed his answer, in which he acknowledged that he and

Rondinello were the current owners of the property

and were in possession thereof. On August 15, 2016,

the plaintiff filed a motion for summary judgment as

to liability only, with an accompanying memorandum

of law and exhibits, against the defendant and Rondinello. On September 11, 2017, the trial court, Hon.

Alfred J. Jennings, Jr., judge trial referee, granted the

plaintiff’s motion for summary judgment against both

the defendant and Rondinello.3 On October 27, 2017,

the plaintiff filed a motion for judgment of strict foreclosure, which the court granted on December 11, 2017.

In rendering the original judgment of strict foreclosure,

the court found, inter alia, the fair market value of the
property to be $280,000 and the amount of the debt to

be $627,647.93.4

On January 3, 2018, Rondinello appealed from the

original judgment of strict foreclosure. On April 2, 2019,

this court affirmed the judgment and, in a memorandum

decision, remanded the case ‘‘for the purpose of setting

new law days.’’ Id.

On October 2, 2019, the plaintiff filed, pursuant to

Practice Book § 17-10,5 a motion titled ‘‘Motion to Reset

Law Days.’’ In that motion, the plaintiff did not request

that the court update the findings as to the fair market

value of the property or the amount of the debt, as

set forth in the original judgment of strict foreclosure.

Nevertheless, on October 17, 2019, the plaintiff filed,

without any accompanying motion, inter alia, (1) an

affidavit of debt, which included an updated calculation

of the defendant’s debt,6

(2) a new appraisal of the

property, which included an updated fair market value

of the property, and (3) an affidavit of the appraiser.

The plaintiff’s motion to reset the law days appeared

on the October 21, 2019 short calendar; the plaintiff

marked it ‘‘ready’’ and appeared accordingly before the

court, Spader, J., on October 21, 2019. The defendant

did not attend the short calendar proceeding. See footnote 2 of this opinion. That same day, the court issued

an order stating in relevant part that the ‘‘[j]udgment

of strict foreclosure is hereby reopened, modified and

reentered as follows: Debt: $727,162.61 . . . Fair Market Value: $320,000.’’ The result of this modified judgment was to increase the amount of the debt from

$627,647.93, as found by Judge Jennings, to $727,162.61

and to increase the fair market value from $280,000, as

found by Judge Jennings, to $320,000. The court also

set new law days to commence on November 26, 2019.

On November 12, 2019, the defendant filed a motion to

reargue the October 21, 2019 order, claiming not to

have received notice of the plaintiff’s short calendar

‘‘ready’’ marking. On December 10, 2019, the court

denied the defendant’s motion to reargue.7 This appeal

followed.8

The defendant claims on appeal that the court

improperly exceeded the scope of this court’s remand

order in Rago by making updated findings, sua sponte,

regarding the fair market value of the property and the

amount of the debt at issue. The plaintiff responds that

the court properly performed its equitable function in

making updated findings regarding the debt and fair

market value of the property to confirm that strict foreclosure, as opposed to foreclosure by sale, was still

appropriate. We agree with the defendant that the court

erred in making updated findings sua sponte and without providing to the parties adequate notice and an

opportunity to be heard.

We begin by setting forth the applicable standard of
review and relevant legal principles. Determining the

scope of a remand is a question of law over which

our review is plenary. State v. Tabone, 301 Conn. 708,

713–14, 23 A.3d 689 (2011). ‘‘Well established principles

govern further proceedings after a remand by this court.

In carrying out a mandate of this court, the trial court

is limited to the specific direction of the mandate as

interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . It

is the duty of the trial court on remand to comply strictly

with the mandate of the appellate court according to

its true intent and meaning. . . . The trial court should

examine the mandate and the opinion of the reviewing

court and proceed in conformity with the views

expressed therein. . . . We have rejected efforts to construe our remand orders so narrowly as to prohibit a

trial court from considering matters relevant to the

issues upon which further proceedings are ordered

that may not have been envisioned at the time of the

remand. . . . So long as these matters are not extraneous to the issues and purposes of the remand, they

may be brought into the remand hearing.’’ (Emphasis

altered; internal quotation marks omitted.) TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc.,

73 Conn. App. 492, 506–507, 808 A.2d 726, cert. denied,

262 Conn. 925, 814 A.2d 379 (2002).

Mindful of the foregoing principles, we recognize that

updating prior findings concerning fair market value

and the amount of debt at issue can serve important

policy reasons that are not extraneous to the purposes

of a remand in the foreclosure context. Depending on

the circumstances, such updated findings may inure to

the benefit of the lender, the borrower, or both. Most

notably, changes in such findings based on a sufficient

evidentiary showing may inform the court that a judgment of strict foreclosure should be opened and substituted with a judgment of foreclosure by sale.9 See Toro

Credit Co. v. Zeytoonjian, 341 Conn. 316, 330, 267 A.3d

71 (2021) (‘‘foreclosure by sale is the preferred ‘decree’

in situations in which the property’s fair market value

exceeds the debt’’); US Bank National Assn. v. Christophersen, 179 Conn. App. 378, 394, 180 A.3d 611 (‘‘when

the value of the property substantially exceeds the value

of the lien being foreclosed, the trial court abuses its

discretion when it refuses to order a foreclosure by

sale’’ (internal quotation marks omitted)), cert. denied,

328 Conn. 928, 182 A.3d 1192 (2018). In addition, an

updated judicial finding concerning the amount of the

debt owed to the plaintiff affects the right to redeem.

See Ocwen Federal Bank, FSB v. Charles, 95 Conn.

App. 315, 323, 898 A.2d 197 (‘‘[a] decree of strict foreclosure finds the amount due under the mortgage, orders

its payment within a designated time and provides that

should such payment not be made, the debtor’s right

and equity of redemption will be forever barred and

foreclosed’’ (emphasis omitted; internal quotation
marks omitted)), cert. denied, 279 Conn. 909, 902 A.2d

1069 (2006); see also Practice Book § 23-17 (b) (1).

Therefore, especially because ‘‘foreclosure is peculiarly

an equitable action’’; (internal quotation marks omitted)

U.S. Bank National Assn. v. Rothermel, 339 Conn. 366,

374, 260 A.3d 1187 (2021); it is not difficult to conceive

of a post-remand posture in which, on a proper motion

with an evidentiary showing and due notice and an

opportunity to be heard, such findings could be made

and deemed ‘‘not extraneous to the issues and purposes

of the remand’’; (internal quotation marks omitted) TDS

Painting & Restoration, Inc. v. Copper Beech Farm,

Inc., supra, 73 Conn. App. 507; notwithstanding a prior

affirmance of a judgment of strict foreclosure and an

attendant remand for the purpose of setting new law

days.

In the present case, the question remains, therefore,

whether the trial court erred in making such updated

findings sua sponte and without providing to the parties

adequate notice and an opportunity to be heard. We

conclude that it did.

This court’s decision in Townsley v. Townsley, 37

Conn. App. 100, 103, 654 A.2d 1261 (1995), is instructive.

In Townsley, a marital dissolution action, the plaintiff

filed a motion to open a judgment for the limited purpose of either suspending her obligation to make the

first of four installment payments in accordance with

the dissolution judgment or allowing her to deposit that

payment into an escrow account. Id., 102. The court

opened the judgment, however, ‘‘as to all issues except

the dissolution itself.’’ Id. On appeal, this court held

that the trial court erred in opening the judgment as to

all issues because ‘‘the defendant was not afforded due

process because he was not notified that the court was

considering opening the judgment as to all issues

. . . .’’ Id., 104. The situation in the present case is

analogous to that in Townsley in that the plaintiff filed a

motion seeking only to reset the law days in accordance

with our remand order, and the court exceeded the

scope of that motion and our remand by modifying the

judgment, sua sponte and without adequate notice to

the parties, to substitute updated fair market value and

debt findings. Furthermore, akin to the defendant in

Townsley, the defendant in the present case did not

have notice that the court was considering modifying

the judgment in such a manner. This contravenes the

long-standing principle that ‘‘no matter shall be decided

unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon

the issue.’’ (Internal quotation marks omitted.) Urich

v. Fish, 58 Conn. App. 176, 181, 753 A.2d 372 (2000).

In sum, on the basis of the notice considerations

rooted in due process as articulated in Townsley and

its progeny, we conclude that the court erred in making

updated findings, sua sponte and without providing to
the parties adequate notice and an opportunity to be

heard, concerning the fair market value of the property

and the amount of debt.10

The judgment is reversed and the case is remanded

with direction to reinstate the original judgment and

for the purpose of setting new law days.

In this opinion the other judges concurred.

1 Although the plaintiff’s complaint also named Louis A. Rondinello as a

defendant, Rondinello was defaulted for failure to plead and is not participating in this appeal. See footnote 3 of this opinion. For the sake of simplicity,

we refer in this opinion to Frank V. Rago as the defendant and to Rondinello

by name.

2 The defendant embeds this claim within his primary claim on appeal

that the plaintiff failed to provide proper notice to him regarding its short

calendar ‘‘ ‘ready’ ’’ marking of its motion to reset the law days pursuant to

Practice Book § 17-10. The defendant also claims that the court erred in

denying his motion to reargue the October 21, 2019 judgment of strict

foreclosure. In light of our conclusion herein, we need not address these

other claims of error.

3 On November 9, 2017, the court issued a revised ruling on the plaintiff’s

motion for summary judgment as to liability only, vacating the summary

judgment rendered against Rondinello because Rondinello was then a nonappearing party who had not (yet) been defaulted. The summary judgment

rendered against the defendant remained in effect. On November 20, 2017,

Rondinello filed an appearance through counsel. Thereafter, on December

6, 2017, the plaintiff filed a motion for default against Rondinello for failure

to plead, which the court granted on December 11, 2017.

4 We note that, in the original judgment of strict foreclosure, the property

was identified as 1392 South Avenue, Stratford, Connecticut, a description

that went undisturbed in the subsequent judgment of strict foreclosure and

that is not challenged on appeal. Several documents, however, including

the complaint and answer, the original appraisal, and the assignment of

the mortgage, describe the property as 1392–1398 South Avenue, Stratford,

Connecticut. The November 6, 2017 appraiser affidavit identifies the property

as ‘‘the commercial premises known as 1392–1398 South Avenue, also known

as 1392 South Avenue, Stratford, Connecticut.’’

5 Practice Book § 17-10, titled ‘‘Modifying Judgment after Appeal,’’ provides: ‘‘If a judgment fixing a set time for the performance of an act is

affirmed on appeal by the Supreme Court and such time has elapsed pending

the appeal, the judicial authority which rendered the judgment appealed

from may, on motion and after due notice, modify it by extending the time.’’

6 The plaintiff acknowledges in its appellate brief that it did not timely

send a copy of the affidavit of debt to the defendant, either electronically

or by mail.

7

In denying the motion to reargue, which was pending at the time the

law days were set in the October 21, 2019 order, the court set new law

days to commence on January 14, 2020. The defendant filed this appeal on

December 31, 2019.

8 On February 10, 2020, the plaintiff filed a motion to terminate the appellate stay. On March 4, 2020, the trial court granted that motion. On June

18, 2020, this court granted the defendant’s timely motion for review of

termination of stay and granted the relief requested therein, thereby vacating

the order terminating the stay.

9 We recognize that the question of whether, on remand from a decision

by this court affirming a judgment of strict foreclosure and remanding the

case for the purpose of setting new law days, a trial court may entertain a

motion to open the judgment for the purpose of ordering a foreclosure by

sale instead of a strict foreclosure was addressed almost thirty years ago

in Connecticut National Bank v. Zuckerman, 31 Conn. App. 440, 441, 624

A.2d 1163 (1993). By way of background, in Zuckerman, in a prior appeal,

this court affirmed the trial court’s denial of a motion to open a judgment

of strict foreclosure and remanded the case ‘‘for the purpose of setting new

law days.’’ Connecticut National Bank v. Zuckerman, 29 Conn. App. 541,

546, 616 A.2d 814 (1992). On remand, the plaintiff filed a motion to modify

the judgment for the limited purpose of setting new law days, whereupon

the defendants filed a motion to modify the judgment of strict foreclosure,

seeking, instead, a foreclosure by sale. Connecticut National Bank v. Zuckerman, supra, 31 Conn. App. 441. The trial court granted the plaintiff’s motion,
denied the defendants’ motion, and set new law days. Id. The defendants

appealed therefrom. Id.

On appeal, this court rejected the defendants’ claim that ‘‘the court had

an option to deviate from our direction and, instead, order foreclosure by

sale.’’ Id. This court reasoned that ‘‘[i]t is well settled that on a remand from

an appellate court, a trial court cannot deviate from the directions given

by the appellate court.’’ Id.; see also id., 441–42 (collecting cases). This court

further stated that ‘‘the trial court . . . could not have taken any action on

remand other than to set new law days . . . .’’ Id., 442.

Considering the sound policy reasons supporting a trial court’s postremand fact-finding to update prior findings concerning fair market value

and the amount of debt at issue, we have concerns that this court wrongly

decided Zuckerman, which this court may wish to revisit en banc in an

appropriate case. See Consiglio v. Transamerica Ins. Group, 55 Conn. App.

134, 138 n.2, 737 A.2d 969 (1999) (‘‘[T]his court’s policy dictates that one

panel should not, on its own, [overrule] the ruling of a previous panel. The

[overruling] may be accomplished only if the appeal is heard en banc.’’).

The court need not do so in the present appeal, however, in light of our

holding that it was error for the trial court to make such updated findings

concerning fair market value and the amount of the debt in the absence of

either (1) a motion to open the judgment for such purpose or (2) notice to

the parties of the court’s intention to update such findings and an opportunity

to be heard thereon following such notice.

10 We note that the plaintiff argued in its appellate brief that this appeal

is moot because, regardless of whether the defendant prevails in this court,

he ‘‘effectively gets what he seeks,’’ namely, an opportunity on remand

for argument on the motion to reset the law days. The plaintiff expressly

abandoned its mootness claim during oral argument before this court.

Because a reversal of the judgment negates the updated findings as explained

in this opinion, we reject the plaintiff’s mootness claim in any event.