Deutsche Bank National Trust Co. v. Speer

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Deutsche Bank National Trust Co. v. Speer

DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. SHERI A.
SPEER ET AL.
(AC 46046)
Bright, C. J., and Elgo and Sheldon, Js.

Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant S, who filed an answer and ten special defenses.
Approximately two years later, S filed a request for leave to amend her
answer and special defenses to include a five count counterclaim, seek-
ing damages for, inter alia, alleged property damage and trespass. In
the counterclaim, S claimed that the plaintiff’s agents had, inter alia,
broken a door to the property, taken certain construction materials from
it, and replaced the locks, which S alleged interfered with her ability
to rent and repair the property. The plaintiff objected to S’s request,
arguing that her allegations were unfounded, that the counterclaim was
not made on the basis of new information, and that S failed to show
good cause to allow the amendment at that stage of the proceedings.
The trial court sustained the plaintiff’s objection. S filed a second request
for leave to amend her answer, which included a counterclaim asserting
the same five counts, but added that the plaintiff’s agents had more
recently trespassed on her property. The trial court again sustained the
plaintiff’s objection to the request, which contained the same grounds
as the first objection. The plaintiff thereafter withdrew the foreclosure
action. S appealed to this court, claiming that the trial court abused its
discretion in sustaining the plaintiff’s objections because her proposed
amendments were timely and would not have prejudiced the plaintiff.
Held:
1. The plaintiff could not prevail on its claim that this appeal should be
dismissed as moot because, having withdrawn its action before any
counterclaim had been filed against it, no practical relief could be
afforded to S on the basis of any such unfiled claim: this court concluded
that the appeal was not moot because it could provide practical relief
to S if it decided her claim on the merits, despite the plaintiff having
withdrawn its foreclosure action, namely, that, if this court were to
determine that S should have been permitted to file her proposed coun-
terclaim, it could remand this case to the trial court with direction to
restore the case to the docket and conduct further proceedings with
respect to S’s proposed counterclaim; moreover, although S’s proposed
counterclaims were not yet filed when the action was withdrawn because
the court had effectively denied her requests for leave to amend her
answer to assert the proposed counterclaims when it sustained the
plaintiff’s objections, the plaintiff’s withdrawal would not have impaired
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Deutsche Bank National Trust Co. v. Speer
her right to proceed with the proposed counterclaims had she otherwise
been permitted to file them.
2. S could not prevail on her claim that the trial court abused its discretion
in sustaining the plaintiff’s objections to her requests for leave to amend
her answer to assert a counterclaim: the trial court record provided a
sound basis for the court’s conclusion that permitting S’s amendments
would have caused an unreasonable delay, as the foreclosure action
had already been pending for approximately two years, and, during
that time, S had filed several unmeritorious motions in addition to two
interlocutory appeals that had been dismissed, and the court could have
considered S’s request to amend her answer to be an additional dilatory
tactic; moreover, S’s proposed counterclaims were not based on informa-
tion that she recently had obtained or learned after filing her answer,
thereby potentially making it unreasonable for her to wait for almost
two years after she was served before seeking leave of court to assert
the counterclaims, and, although S alleged that agents of the plaintiff
had recently trespassed onto the property, she also alleged that there
were at least fifty forceable entries onto the property during the term
of her mortgage, and S did not claim that she only recently learned of
the alleged misconduct underlying her proposed counterclaims at the
time she filed her request for leave to amend her answer, and, thus, the
court could have considered that S’s requests were not made seasonably.

Argued February 1—officially released May 14, 2024

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
New London, where the court, Calmar, J., sustained
the plaintiff’s objections to the named defendant’s two
requests for leave to amend her answer to assert a
counterclaim; thereafter, the plaintiff withdrew the
action, and the named defendant appealed to this court.
Affirmed.

Sheri A. Speer, self-represented, the appellant
(named defendant).

Victoria L. Forcella, for the appellee (plaintiff).
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Deutsche Bank National Trust Co. v. Speer

Opinion

SHELDON, J. Following the unconditional with-
drawal of this foreclosure action by the plaintiff,1
Deutsche Bank National Trust Company, as trustee for
HSI Asset Securitization Corporation Trust 2006-OPT4,
Mortgage Pass-Through Certificates, Series 2006-OPT4,
the defendant Sheri A. Speer2 appeals from the trial
court’s decisions sustaining the plaintiff’s objections to
the defendant’s two prior requests for leave to amend
her answer to assert a counterclaim. On appeal, the
defendant claims that the court abused its discretion
in sustaining the plaintiff’s objections because her pro-
posed amendments were timely and would not have
prejudiced the plaintiff. We disagree with the defen-
dant’s claims of error and, accordingly, affirm the trial
court’s decisions sustaining the plaintiff’s objections to
the requests for leave to amend.
The following procedural history is relevant to this
appeal. On March 20, 2019, the plaintiff served the
defendant with a summons and complaint, seeking to
foreclose a mortgage on a parcel of real property owned
by the defendant located at 107 Oakridge Street in Nor-
wich (property). In its complaint, the plaintiff alleged
that the defendant had executed and delivered to Option
One Mortgage Corporation, its predecessor in interest,
a note in the amount of $159,800, of which the plaintiff
‘‘Under [the] law, the effect of a withdrawal, so far as the pendency of
1

the action is concerned, is strictly analogous to that presented after the
rendition of a final judgment . . . .’’ (Internal quotation marks omitted.)
Doe v. Bemer, 215 Conn. App. 504, 513–14, 283 A.3d 1074 (2022); see also,
e.g., Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292
Conn. 459, 471 n.16, 974 A.2d 626 (2009).
2
The Second Injury Fund also was named as a defendant in the present
action, as the plaintiff alleged that it may claim an interest in the property
by virtue of a real estate lien in the amount of $24,327.15 related to a workers’
compensation matter. Because the Second Injury Fund is not participating
in this appeal, all references in this opinion to the defendant are to Sheri
A. Speer.
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became the holder, secured by a mortgage on the prop-
erty. The plaintiff further alleged that the note and mort-
gage were in default due to the defendant’s nonpayment
of monthly installments due thereunder since June 1,
2018. On March 20, 2020, the self-represented defendant
filed an answer to the plaintiff’s complaint and asserted
ten special defenses.
On January 25, 2021, the defendant filed a request
for leave to amend her answer and special defenses to
include a five count counterclaim, to which she
attached a copy of her proposed amended pleading.
The proposed five count counterclaim sought damages
for (1) property damage, (2) trespass, (3) fraud, (4)
conversion and civil theft, and (5) a violation of the
Connecticut Unfair Trade Practices Act, General Stat-
utes § 42-110a et seq. The alleged factual basis for the
defendant’s counterclaim was that agents of the plaintiff
had forcibly entered the property on at least fifty occa-
sions, most recently on December 23, 2020. The defen-
dant alleged that the plaintiff’s agents had, among other
things, broken a door to the property, taken certain
construction materials from it, and replaced its locks,
all of which interfered with her ability to rent and repair
the property.
The plaintiff filed an objection to the defendant’s
request for leave to amend, arguing that the defendant’s
allegations were unfounded and that the defendant had
failed to show good cause to allow an amendment at
that stage of the proceedings, approximately two years
after the action had been commenced, where the coun-
terclaim was not made on the basis of new information.
The court issued an order on February 22, 2021, sus-
taining the plaintiff’s objection, thereby denying the
defendant’s request to amend. The defendant subse-
quently filed a motion for reconsideration, which the
court denied.
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Deutsche Bank National Trust Co. v. Speer

On June 9, 2021, the defendant filed a second request
for leave to amend her answer. The proposed amended
answer attached to that request included a counterclaim
setting forth the same five counts as the defendant’s
first proposed counterclaim, with only one additional
factual allegation: that the plaintiff’s agents had again
trespassed on the property on or about May 26, 2021.
The plaintiff filed an objection to the defendant’s second
request for leave to amend, arguing that that request
was nearly identical to her first such request and, thus,
that it should be denied for the same reasons as the
first request. By order dated June 28, 2021, the court
sustained the plaintiff’s objection to the defendant’s
second request for leave to amend, thereby denying
that request. The plaintiff subsequently withdrew the
foreclosure action. This appeal followed.
After filing the present appeal, the defendant filed a
motion for articulation requesting an explanation from
the trial court for its denial of both of her requests for
leave to amend, which the court denied.3 The defendant
subsequently filed with this court a motion for review
of the denial of her motion for articulation. This court
granted the defendant’s motion for review but denied
the relief requested therein.
I
Before we address the merits of the defendant’s claim
on appeal, we must address the plaintiff’s claim that
we should dismiss this appeal as moot. Specifically, the
plaintiff, relying on Sovereign Bank v. Harrison, 184
Conn. App. 436, 194 A.3d 1284 (2018), claims that,
because it withdrew the underlying foreclosure action
before any counterclaim had been filed against it, no
The defendant also filed a ‘‘notice of demand for decision,’’ which the
3

court denied. The court explained: ‘‘A memorandum of decision is not
required for the orders requested as these orders are not covered by Practice
Book § 64-1 (a).’’
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Deutsche Bank National Trust Co. v. Speer

practical relief can now be afforded to the defendant
on the basis of any such unfiled claim. ‘‘Mootness pre-
sents a circumstance wherein the issue before the court
has been resolved or had lost its significance because
of a change in the condition of affairs between the
parties.’’ (Internal quotation marks omitted.) GMAT
Legal Title Trust 2014-1 v. Catale, 213 Conn. App. 674,
694, 278 A.3d 1057, cert. denied, 345 Conn. 905, 282
A.3d 980 (2022). ‘‘[M]ootness implicates [this] court’s
subject matter jurisdiction and is thus a threshold mat-
ter for us to resolve before we may reach the merits
of an appeal. . . . It is a [well settled] general rule that
the existence of an actual controversy is an essential
requisite to appellate jurisdiction; it is not the province
of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal.’’ (Citation omitted; internal quota-
tion marks omitted.) CT Freedom Alliance, LLC v. Dept.
of Education, 346 Conn. 1, 12, 287 A.3d 557 (2023).
In the present case, we conclude that the appeal is
not moot because, although the plaintiff withdrew its
foreclosure action, this court could provide practical
relief to the defendant if it decided her claim on the
merits. Specifically, if this court determined that the
defendant should have been permitted to file her pro-
posed counterclaim, it could remand this case to the
trial court with direction to restore the case to the
docket and conduct further proceedings with respect
to the defendant’s proposed counterclaim. ‘‘Although
the plaintiff’s right . . . to withdraw [its] action before
a hearing on the merits . . . is absolute and uncondi-
tional . . . such withdrawal in no way impairs the right
of the defendant to prosecute a previously filed counter-
claim.’’ (Citation omitted; emphasis in original; internal
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Deutsche Bank National Trust Co. v. Speer

quotation marks omitted.) Sovereign Bank v. Harrison,
supra, 184 Conn. App. 442–43; see also Practice Book
§ 10-55 (‘‘[t]he withdrawal of an action after a counter-
claim, whether for legal or equitable relief, has been
filed therein shall not impair the right of the defendant
to prosecute such counterclaim as fully as if said action
had not been withdrawn, provided that the defendant
shall, if required by the judicial authority, give bond to
pay costs as in civil actions’’).
The plaintiff’s reliance on Sovereign Bank v. Har-
rison, supra, 184 Conn. App. 436, to support its position
is misplaced. In Sovereign Bank, the issue was whether
the trial court erred in interpreting the defendant’s spe-
cial defense as a counterclaim and, therefore, lacked
the authority to restore that claim to the docket follow-
ing the plaintiff’s voluntary withdrawal of its action.
Id., 438. This court’s resolution of that issue turned on
the differences between special defenses and counter-
claims. Id., 444–46. Ultimately, this court determined
that the defendant’s special defense ‘‘[could not] reason-
ably be construed as stating an independent cause of
action, and, therefore, the trial court erred in construing
it as a counterclaim. Because there was no pending
counterclaim as of the date of the withdrawal, the court
lacked the authority to restore the case to the docket.’’
Id., 447. In contrast to Sovereign Bank, it is undisputed
that the defendant in the present case sought to amend
her answer to assert a counterclaim, as opposed to a
special defense.4 Although the defendant’s proposed
counterclaims were not yet filed or pending when this
action was withdrawn—because the court had effec-
tively denied her requests for leave to amend her answer
to assert the proposed counterclaims when it sustained
the plaintiff’s objections to her requests for leave to
4
On appeal, the defendant is not seeking relief to pursue the separate
special defenses that she had asserted in relation to the foreclosure action
that has been withdrawn.
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amend—the fact remains that the plaintiff’s withdrawal
would not have impaired her right to proceed with
those proposed counterclaims had she otherwise been
permitted to file them. See id. Accordingly, we proceed
to the merits of the defendant’s appeal.
II
The defendant claims that the court abused its discre-
tion in sustaining the plaintiff’s objections to her
requests for leave to amend her answer because each
claim in her proposed counterclaim was timely asserted
and no such claim would have prejudiced the plaintiff.
We disagree.
Pursuant to General Statutes § 52-130, ‘‘a party, as a
matter of right, may make substantive amendments to
any pleading. That right is subject only to the court’s
discretion to award costs or to limit an amendment if
doing so is necessary to prevent undue delay of a trial.’’
(Emphasis omitted.) Ocwen Loan Servicing, LLC v.
Mordecai, 209 Conn. App. 483, 498, 268 A.3d 704 (2021).
Similarly, ‘‘Practice Book § 10-60 (a) provides that a
party may amend his or her pleadings in three ways:
by order of the judicial authority, by written consent
of the adverse party, or by filing a request for leave to
file such amendment, with the amendment appended.
If no party files an objection, the amendment is deemed
to have been filed by consent, but if an objection is
filed, the matter is placed upon the next short calendar
for consideration of the court. Practice Book § 10-60
(a) (3). ‘The judicial authority may restrain such amend-
ments so far as may be necessary to compel the parties
to join issue in a reasonable time for trial.’ Practice
Book § 10-60 [c].’’ GMAC Mortgage, LLC v. Ford, 144
Conn. App. 165, 184, 73 A.3d 742 (2013).
‘‘The granting or denial of a motion to amend the
pleadings is a matter within the trial court’s discretion.
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. . . In the interest of justice courts are liberal in per-
mitting amendments; unless there is a sound reason,
refusal to allow an amendment is an abuse of discretion.
. . . The trial court is in the best position to assess
the burden which an amendment would impose on the
opposing party in light of the facts of the particular
case. The essential tests are whether the ruling of the
court will work an injustice to either the plaintiff or
the defendant and whether the granting of the motion
will unduly delay a trial. . . . In exercising its discre-
tion with reference to a motion for leave to amend, a
court should ordinarily be guided by its determination
of the question whether the greater injustice will be
done to the mover by denying him his day in court on
the subject matter of the proposed amendment or to
his adversary by granting the motion, with the resultant
delay. . . . The law of this state favors courts allowing
amendments in the absence of some sound basis for
not doing so . . . particularly if the record fails to dis-
close some significant injustice or prejudice to the non-
moving party.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Ocwen Loan Servic-
ing, LLC v. Mordecai, supra, 209 Conn. App. 498–99.
‘‘While our courts have been liberal in permitting
amendments . . . this liberality has limitations.
Amendments should be made seasonably. Factors to
be considered in passing on a motion to amend are the
length of the delay, fairness to the opposing parties
and the negligence, if any, of the party offering the
amendment. . . . The motion to amend is addressed
to the trial court’s discretion which may be exercised
to restrain the amendment of pleadings so far as neces-
sary to prevent unreasonable delay of the trial. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. This court will not
disturb a trial court’s ruling on a proposed amendment
unless there has been a clear abuse of that discretion.
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. . . It is the [defendant’s] burden in this case to demon-
strate that the trial court clearly abused its discretion.’’
(Internal quotation marks omitted.) Perugini v. Giuli-
ano, 148 Conn. App. 861, 871–72, 89 A.3d 358 (2014).
In the present case, the record afforded the court a
sound basis for sustaining the plaintiff’s objections to
the defendant’s requests for leave to amend her answer
to assert a counterclaim.5 See Ocwen Loan Servicing,
LLC v. Mordecai, supra, 209 Conn. App. 500–501 (where
trial court failed to provide any explanation for its deci-
sion, reviewing court examined record to determine
whether it reflected sound reason for denial of defen-
dants’ request to amend their special defenses). Specifi-
cally, the court reasonably could have concluded, as
the plaintiff repeatedly argued, that permitting the
defendant’s amendments would have caused an unrea-
sonable delay. See Perugini v. Giuliano, supra, 148
Conn. App. 872. By the time the defendant filed her
requests for leave to amend, the foreclosure action
already had been pending for approximately two years.
During that time, the defendant had filed several unmer-
itorious motions, in addition to two interlocutory
appeals that were dismissed, and the court could have
considered the defendant’s requests to amend her
5
We note that, in the plaintiff’s objections to the defendant’s requests for
leave to amend her answer, the plaintiff also referenced the general legal
principle requiring that a counterclaim arises out of the same transaction
as the complaint. The plaintiff did not, however, address the application of
that principle in the particular context of foreclosure actions, where our
case law has established that, for a defendant’s counterclaims in such an
action to be valid, they must relate to the making, validity, or enforcement
of the note or mortgage. See, e.g., Wells Fargo Bank, N.A. v. Melahn, 198
Conn. App. 151, 169 n.12, 232 A.3d 1201, cert. denied, 335 Conn. 947, 238
A.3d 19 (2020); see also U.S. Bank National Assn. v. Blowers, 332 Conn.
656, 667, 212 A.3d 226 (2019). Because the plaintiff did not base its objections
to the defendant’s proposed counterclaims on any alleged violation of that
rule, we have no occasion to consider whether the counterclaims at issue
here sufficiently related to the making, validity, or enforcement of the note
or mortgage to make them legally valid.
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Deutsche Bank National Trust Co. v. Speer

answer as an additional dilatory tactic. See Ocwen Loan
Servicing, LLC v. Mordecai, supra, 501 (considering
whether defendants had engaged in dilatory behavior
before filing request for leave to amend special defenses
by, among other things, filing improper interlocutory
appeals or excessive and unproductive motions).
Moreover, this was not an instance where either of
the defendant’s proposed counterclaims was based on
information that she recently had obtained or learned
after filing her answer, thereby potentially making it
reasonable for her to wait for almost two years after
she was served before seeking leave of court to assert
the counterclaim. See id., 500 (concluding that it was
reasonable for defendants to wait to amend special
defenses on basis of information that could be obtained
during discovery related to those defenses). To the con-
trary, although the defendant alleged that the plaintiff’s
‘‘most recent’’ trespasses onto her property had
occurred on December 23, 2020, and May 26, 2021, she
also alleged that there had been at least fifty forcible
entries onto the property during the term of her mort-
gage. The plaintiff did not claim that she only recently
learned of the alleged misconduct underlying her pro-
posed counterclaims at the time she filed her requests
for leave to amend her answer.6 Thus, the court could
have considered that the defendant’s requests had not
been ‘‘made seasonably.’’ (Internal quotation marks
omitted.) Perugini v. Giuliano, supra, 148 Conn. App.
872. On that basis, we cannot conclude that the court
abused its discretion in sustaining the plaintiff’s objec-
tions to the defendant’s requests for leave to amend
her answer to assert a counterclaim.
The judgment is affirmed.
In this opinion the other judges concurred.

6
Indeed, the defendant’s original answer filed in March, 2020, indicates
that she already had knowledge of the alleged misconduct underlying her
proposed counterclaims at that time. Specifically, in her second special
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defense, the defendant alleged that ‘‘[t]he plaintiff has, during the pendency
of this action, caused one or more of its agents to set foot on the property,
which constituted an act of criminal trespass.’’