U.S. Bank National Assn. v. Rago

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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 nonap-
pearing 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 prop-
erty 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 judg-
ment 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 defen-
dant 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 defen-
dant).
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 Mort-
gage 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 prop-
erty 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 inter-
est to Chase Bank USA, N.A., as provided in a promis-
sory note. To secure the note, the defendant and Rondi-
nello 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 Strat-
ford 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 Rondi-
nello. 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 foreclo-
sure, 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 foot-
note 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 Mar-
ket Value: $320,000.’’ The result of this modified judg-
ment 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 fore-
closure, 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 with-
out 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 guid-
ing 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 con-
strue 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 extrane-
ous to the issues and purposes of the remand, they
may be brought into the remand hearing.’’ (Emphasis
altered; internal quotation marks omitted.) TDS Paint-
ing & 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 judg-
ment of strict foreclosure should be opened and substi-
tuted 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. Christo-
phersen, 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 foreclo-
sure 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 pur-
pose 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 pre-
sented 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 participat-
ing 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 nonap-
pearing 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,’’ pro-
vides: ‘‘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 appel-
late 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. Zucker-
man, 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 post-
remand 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.