Bank of New York Mellon v. Savanella

Sep 1, 2026

AC49141

Syllabus

The defendants, P and J, appealed from the trial court‘s judgment denying their motion to open the entry of default against them for failure to plead and to set aside the judgment of foreclosure by sale for the plaintiff. They claimed, inter alia, that the court abused its discretion in denying their motion to open because the motion for default was served on J‘s deceased attorney and it was never served on J. Held:

This court declined to review the defendants’ claim that the court abused its discretion in denying their motion to open, as the claim was deemed to be abandoned.

This court declined to review the defendants’ claim that the trial court abused its discretion in denying them equitable relief given their allegations regarding their illnesses and their belief that the loan servicer for the plaintiff had represented that there was a hardship forbearance in place, as the claim was inadequately briefed.

Procedural History

Action to foreclose a mortgage on certain real property owned by the defendant James D. Savanella, and for other relief, brought to the Superior Court in the judicial district of Litchfield, where Deutsche Bank National Trust Company as Trustee of the Indymac Residential Asset-Backed Trust, Series 2004-LH1, was cited in as an additional defendant; thereafter, the named defendant et al. were defaulted for failure to plead and the defendant Robert J. Partridge et al. were defaulted for failure to appear; subsequently, the action was withdrawn as to the defendant Todd R. Ouellette et al.; thereafter, the Department of Revenue Services et al. were cited in as additional party defendants; subsequently, the defendant Department of the Treasury, Internal Revenue Services, et al. were defaulted for failure to appear; thereafter, the court, Roraback, J., rendered a judgment of foreclosure by sale; subsequently, the court, Roraback, J., denied the motion of the named defendant et al. to open the judgment of default and to set aside the judgment of foreclosure by sale, from which the named defendant et al. appealed to this court. Affirmed.

Opinion

ALVORD, J. In this foreclosure action, the defendants Patricia L. Savanella (Patricia) and James D. Savanella (James)¹ appeal from the judgment of the trial court denying their motion to open the entry of default against them for failure to plead and to set aside the judgment of foreclosure by sale. On appeal, the defendants claim that the court abused its discretion in denying their motion to open because the motion for default was served on James’ deceased attorney and it was never served on James. The defendants also claim that the court abused its discretion in denying them equitable relief given their allegations regarding their illnesses and the representations by the loan servicer for the plaintiff, The Bank of New York Mellon, formerly known as The Bank of New York as Trustee for the Certificateholders of the CWABS, Inc., Asset-Backed Certificates, Series 2005-AB4, that there was a hardship forbearance in place. We affirm the judgment of the trial court.

The following facts, as found in the record, and procedural history are relevant to our disposition of this appeal. The defendants have been married for more than forty years. On May 19, 2005, they executed a mortgage in favor of the plaintiff‘s predecessor in interest, Mortgage Electronic Registration Systems, Inc., as Nominee for Wilmington Finance, a Division of AIG Federal Savings Bank, with respect to their property located at 179 Wildcat Hill Road in Harwinton to secure a note in the amount of $333,000. In 2010, Patricia assigned her interest in the property to James via a quitclaim deed. In 2012, the mortgage was assigned to the plaintiff. The plaintiff commenced the present foreclosure action by service of process on March 26, 2019, and alleged in its complaint that the defendants had not made a payment on the note since September 1, 2018. Patricia filed an appearance form listing and signed by herself and James as self-represented parties on April 23, 2019. Shortly thereafter, on May 8, 2019, the Law Offices of Ellery E. Plotkin, LLC, entered appearances on behalf of both defendants. The appearance form filed by Attorney Plotkin on behalf of Patricia indicated that his appearance was in addition to her appearance already on file; the form filed on behalf of James contained no such indication.

On December 20, 2022, the plaintiff filed a motion for default for failure to plead against the defendants, which was granted on December 29, 2022. The certification page of the motion provided in relevant part that it was served on Patricia and on Attorney Plotkin. The plaintiff then filed a motion for a judgment of strict foreclosure on August 31, 2023. The certification page of the motion provided in relevant part that it was served on Patricia and James through Attorney Plotkin. The trial court rendered a judgment of foreclosure by sale on October 30, 2023, finding the debt to be $540,652.03 and the fair market value of the property to be $437,700, and ordered the sale to be held on February 24, 2024.

On February 14, 2024, Patricia, in a self-represented capacity, filed a notice that she had filed for bankruptcy pursuant to chapter 13 of the United States Bankruptcy Code. The plaintiff subsequently filed a motion on April 29, 2025, stating that it had obtained an order from the United States Bankruptcy Court for the District of Connecticut granting relief from the automatic stay imposed by Patricia‘s bankruptcy filing and asking the trial court in relevant part to reenter the judgment of foreclosure. On May 30, 2025, the law firm of Withers Bergman LLP entered appearances on behalf of the defendants. The trial court scheduled a hearing on the plaintiff‘s April 29, 2025 motion to be held on July 21, 2025. That day, the defendants filed a “Motion to Open Judgment of Default and Set Aside Judgment of Foreclosure by Sale.”

The defendants’ motion to open provided in relevant part that James had been diagnosed with spinal conditions in 2017 and Patricia with a brain tumor in 2018; that the defendants and the loan servicing company for the plaintiff had been engaged in communications regarding a forbearance since 2019 and that the loan servicer had accepted mortgage payments from the defendants in January, February and March 2025; and that the motion for default had been served on Attorney Plotkin even though Attorney Plotkin died in April 2020 and his law firm was dissolved in September 2022. The defendants argued that the trial court “should open and set aside the default judgment and foreclosure” because James was not served with the motion for default under Practice Book § 10-12 (b)² in that it was served on Attorney Plotkin, whose representation of the defendants had terminated by virtue of his death. The defendants also argued that the failure of the plaintiff to serve James with the motion for default constituted newly discovered evidence that warranted opening and setting aside the entry of default and the judgment of foreclosure by sale. Furthermore, the defendants argued that the trial court should open and set aside the entry of default and judgment of foreclosure by sale for equitable reasons, namely, their illnesses, Attorney Plotkin‘s death, and their communications with the plaintiff‘s loan servicer that “caused [them] to believe that a hardship forbearance was granted . . . as early as October of 2019 . . . [and] was still in effect and would be through December of 2025.” The defendants supplemented their motion to open with affidavits given by Patricia and counsel for the defendants.

During the July 21, 2025 hearing, the trial court ordered that the judgment of foreclosure by sale be opened, modified, and reentered, with a new sale date set for September 27, 2025. The corresponding July 21, 2025 order entered by the trial court provided that the debt was $575,016.45 and that the fair market value of the property was $505,000. The trial court also noted the filing of the defendants’ motion to open but stated that it was “not ripe for adjudication today” and that “we can adjudicate the motion to open when it appears on the calendar.” Counsel for the defendants stated during the hearing that he was “not expressing to the court that [Patricia] had no knowledge. She did have knowledge, and [he] even noted that service was ineffective with respect to [James]. But [counsel] did just want to clear the record in that [he was] not suggesting that [Patricia] was not aware of the judgment.” The plaintiff filed an objection to the defendants’ motion to open on August 18, 2025.³

A hearing on the defendants’ motion to open was held on August 18, 2025. The parties presented their respective positions on the merits of the motion to the trial court, as well as the possibility that the defendants could reinstate or pay off the mortgage, resulting in the plaintiff withdrawing the action. Counsel for the defendants also represented that Patricia was selling her majority interest in a company “that was probably worth . . . a few million dollars,” that “we are waiting for the proceeds,” and that “we plan to resolve this.” The trial court accordingly scheduled another hearing for September 15, 2025, so that the parties could conduct further negotiations and counsel for the defendants could obtain further information regarding the defendants’ ability to reinstate or pay off the mortgage. The defendants thereafter filed a motion on August 27, 2025, again asking the trial court to open the judgment of foreclosure by sale and further asking that it extend the sale date of September 27, 2025, by sixty days, in light of Patricia‘s expected payment for the liquidation of her majority business interest.

At the September 15, 2025 hearing, the trial court first addressed the defendants’ July 21, 2025 motion to open after confirming that the motion had been continued following the August 18, 2025 hearing. In support of its argument that it effectuated proper service of the motion for default on Attorney Plotkin as James’ counsel of record, the plaintiff directed the trial court‘s attention to Deutsche Bank National Trust Co. v. Fritzell, 185 Conn. App. 777, 198 A.3d 642 (2018), cert. denied, 330 Conn. 963, 199 A.3d 1080 (2019), in which this court determined that “[s]ending notice to the defendant‘s address as listed on his appearance form provided the defendant with the process that he was due” notwithstanding his claim that he did not receive actual notice of the foreclosure judgment at issue. Id., 785. The plaintiff‘s counsel also reiterated her argument that the defendants were “actively communicating” and that Patricia “ha[d] been an active participant in this case,” such that “it‘s very difficult to believe that [James] wasn‘t on actual notice of what was happening given the facts.” In support of their argument that equitable considerations, primarily the health of the defendants and Attorney Plotkin‘s death, warranted opening and setting aside the judgments of default and foreclosure by sale, the defendants cited U.S. Bank National Assn. v. Rothermel, 339 Conn. 366, 260 A.3d 1187 (2021), which held in relevant part that a trial court has continuing jurisdiction to decide a motion to open a judgment of strict foreclosure even after the passage of the law day if the motion makes a colorable claim sounding in equity. Id., 372–73, 380.

The trial court orally decided the defendants’ July 21, 2025 motion to open from the bench and stated: “So, I‘m going to deny that motion. It was more than two and a half years that passed between the [entry] of the default and the motion to reopen that default. So, that default is going to remain in place.” After hearing argument from counsel for the parties and testimony by Patricia regarding the defendants’ August 27, 2025 motion to open, the trial court also orally denied that motion. The trial court thereafter entered summary orders denying both of the defendants’ motions to open “[f]or the reasons articulated on the record . . . on September 15, 2025.” This appeal followed.

The defendants claim on appeal that the trial court abused its discretion in denying their July 21, 2025 motion to open the judgment of default and to set aside the judgment of foreclosure by sale. Specifically, the defendants argue that James was prejudiced by the plaintiff‘s failure to serve and provide notice to him of the motion for default and the motion for judgment, rather than to Attorney Plotkin, who no longer represented him when the motions were filed and decided per the rationale set forth in Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179 (1939), that “the death of the attorney, rendering performance impossible, terminates the contract” of legal services with his or her client. (Internal quotation marks omitted.) Id., 467. The defendants also claim that the trial court abused its discretion in denying them equitable relief given their illnesses and their belief that there was a hardship forbearance in place based on the representations of the plaintiff‘s loan servicer and given that, “[i]n the absence of equitable relief, [they] will suffer a loss wholly disproportionate to the injury to the plaintiff.”⁴

“The standard of review of [a denial of a motion to open] a judgment of foreclosure by sale . . . is whether the trial court abused its discretion. . . . A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court‘s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citation omitted; internal quotation marks omitted.) Crossing Condominium Assn., Inc. v. Miller, 228 Conn. App. 431, 439, 325 A.3d 326 (2024).

“A motion to open a judgment upon default is governed by General Statutes § 52-212 and Practice Book § 17-43,⁵ pursuant to which the movant must make a two part showing that (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause. . . . The party moving to open a default judgment must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments]. . . . [B]ecause the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.” (Footnote in original; internal quotation marks omitted.) Reverse Mortgage Solutions, Inc. v. Widow(er), Heir(s) and/or Creditors of the Estate of Beryl E. Rowland, 231 Conn. App. 761, 773–74, 334 A.3d 1054 (2025).

“[O]nce the § 52-212 (a) four month window expires, the trial court has inherent authority, independent of [any] statutory provisions, to open a judgment obtained by fraud, in the actual absence of consent, or by mutual mistake at any time. . . . The two part test prescribed by § 52-212 (a) does not apply to untimely motions filed outside the four month window. Rather, to prevail on a motion to open filed outside this window, a movant must establish that the judgment was obtained by fraud, duress or mutual mistake or, under certain circumstances, where newly discovered evidence exists to challenge the judgment . . . .” (Citations omitted; internal quotation marks omitted.) Mercedes-Benz Financial v. 1188 Stratford Avenue, LLC, 348 Conn. 796, 805, 312 A.3d 16 (2024).

The defendants’ July 21, 2025 motion sought to open and set aside the December 29, 2022 entry of default and the October 30, 2023 judgment of foreclosure by sale, both of which are outside of the four month window set forth in § 52-212. The defendants argued in the motion that General Statutes § 52-212a,⁶ which provides that a civil judgment rendered in the trial court may not be opened and set aside unless a motion to open or set aside is filed within four months following the date on which notice of the judgment is sent, expressly “does not apply in cases in which the court has continuing jurisdiction, such as the court does here.” The defendants did not provide any analysis or citations in support of their argument that the trial court had continuing jurisdiction such that they were not subject to the timing requirements of §§ 52-212 and 52-212a. They nonetheless presented argument in support of their motion for opening and setting aside the entry of default and the judgment of foreclosure by sale under the standards for both timely and untimely motions to open.

The trial court did not expressly address which standard applied to the defendants’ motion.⁷ The only reasoning provided by the trial court in denying the defendants’ motion during the September 15, 2025 hearing was that “more than two and a half years . . . passed between the [entry] of the default and the motion to reopen that default. So, that default is going to remain in place.”⁸

In their principal brief to this court, the defendants invoke only the standard for timely motions to open, although they do invoke the standard for untimely motions to open in their reply brief. This court has observed on multiple occasions that “a motion to open a judgment of foreclosure by sale must be filed within the four month restriction of . . . § 52-212a.” (Internal quotation marks omitted.) Norwich v. GHT Trust, 232 Conn. App. 781, 794, 339 A.3d 632 (2025); see also, e.g., Quicken Loans, Inc. v. Rodriguez, 227 Conn. App. 806, 825, 324 A.3d 167 (2024), cert. denied, 351 Conn. 905, 330 A.3d 133 (2025). Therefore, despite the defendants’ legally unsupported argument before the trial court that § 52-212a “does not apply in cases in which the court has continuing jurisdiction, such as the court does here,” and their reliance on the standards for both timely and untimely motions to open in both this court and the trial court, our review of the defendants’ claim that the trial court abused its discretion in denying their motion to open and set aside the entry of the default and the judgment of foreclosure by sale involves only the standard for untimely motions to open.

As previously noted, before the trial court, the defendants attempted to apply the standard for untimely motions to open to their motion by arguing that the failure of the plaintiff to serve James with the motion for default constituted newly discovered evidence that warranted opening and setting aside the entry of default and the judgment of foreclosure by sale. “A court may grant a motion for a new proceeding based on newly discovered evidence if the movant establishes by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new [proceeding]; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new [proceeding].” (Internal quotation marks omitted.) Karen v. Loftus, 210 Conn. App. 289, 299, 270 A.3d 126 (2022). On appeal, however, the defendants do not make any reference to newly discovered evidence in their principal brief to this court, let alone the standard for determining whether newly discovered evidence warrants the granting of an untimely motion to open.

“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [When] a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . For a reviewing court to judiciously and efficiently . . . consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” (Citation omitted; internal quotation marks omitted.) Burton v. Dept. of Environmental Protection, 337 Conn. 781, 803, 256 A.3d 655 (2021). “[P]arties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Internal quotation marks omitted.) Vaccaro v. D‘Angelo, 184 Conn. App. 467, 488, 195 A.3d 443 (2018). “Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Moore v. Bryant-Mitchell, 234 Conn. App. 378, 396, 344 A.3d 222 (2025). The defendants provide no substantive discussion or citation of authorities to support their position that the plaintiff‘s failure to serve James with the motion for default constituted newly discovered evidence and that the trial court abused its discretion in denying their motion to open in light thereof, such that they have not clearly set forth their arguments in a manner that would allow this court to judiciously and efficiently consider their claim.⁹ We therefore deem the defendants’ first claim on appeal to be abandoned and decline to review it.

We also decline to review the defendants’ second claim on appeal on the ground that it is inadequately briefed. The defendants’ claim that the trial court abused its discretion in denying equitable relief to them is addressed in four paragraphs in their principal brief to this court with (1) an introductory paragraph, (2) a paragraph that broadly states the abuse of discretion standard, (3) a paragraph that notes their illnesses and their belief that there was a hardship forbearance in place, and (4) a final paragraph that repeats the abuse of discretion standard language without elaborating upon it and summarily argues with conclusory citations to two cases that the trial court “failed to remain mindful that it should liberally interpret equitable principles in working out, as far as possible, a just result” and that, “[i]n the absence of equitable relief, [they] will suffer a loss wholly disproportionate to the injury to the plaintiff.” The defendants’ briefing of their equitable relief claim contains abstract assertions rather than meaningful analysis, lacks substantive discussion, and cites legal principles without analyzing the relationship between the facts of the present case and the law cited. We accordingly deem this claim to also be abandoned due to inadequate briefing and decline to review it as well.

The judgment is affirmed and the case is remanded for further proceedings according to law.¹⁰

In this opinion the other judges concurred.

Notes

The following are also defendants in this foreclosure action: University Physicians; University of Connecticut Health Center—John Dempsey Hospital; Charlotte Hungerford Hospital; Satellite Agency Network Group, Inc.; Robert J. Partridge; Vincent P. Vizzo; Tidy Services, LLC; Deutsche Bank National Trust Company as Trustee of the Indymac Residential Asset-Backed Trust, Series 2004-LH1; United States Department of the Treasury, Internal Revenue Services; and the Department of Revenue Services. These defendants did not participate in the trial court proceedings relevant to this appeal and are not involved in this appeal. All references to the defendants hereinafter in this opinion refer to Patricia and James only.

Practice Book § 10-12 (b) provides in relevant part: “It shall be the responsibility of counsel or a self-represented party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion. . . .”
The motion for default in the present action, however, was filed for failure to plead pursuant to Practice Book § 10-8 and not for failure to appear. Practice Book § 17-31 is captioned “Procedure where Party Is in Default” and provides in relevant part that, when a party is in default for failure to plead pursuant to § 10-8, the adverse party may file a written motion for default to be served “upon each adverse party as provided by Sections 10-12 through 10-17 . . . .” Relevant with respect thereto is Practice Book § 10-12 (a), which provides in relevant part that “[i]t is the responsibility of counsel . . . to serve on each other party who has appeared one copy of [inter alia] every pleading subsequent to the original complaint [and] every written motion . . . . When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority.”
The defendants also cite Practice Book § 17-30 in setting forth the requirements that governed the plaintiff‘s service of the motion for default. This rule, however, is titled “Summary Process; Default and Judgment for Failure to Appear or Plead” and is inapplicable to the present action, which sounds in foreclosure and not summary process.

The plaintiff first argued that the motion for default was properly granted against James when he was properly served with it because he did not obtain new counsel or file an appearance as a self-represented party after Attorney Plotkin‘s death, such that Attorney Plotkin remained counsel of record for James when the plaintiff filed the motion and served it on Attorney Plotkin. The plaintiff then argued that the trial court should deny the defendants’ motion to open and set aside the entry of default and the judgment of foreclosure by sale on the basis of equity. Specifically, the plaintiff argued that (1) the defendants had not made a payment on their mortgage since 2018 other than the 2025 payments that the plaintiff was forced to accept as part of Patricia‘s chapter 13 bankruptcy plan, (2) the defendants had not shown that they could make the plaintiff whole within a reasonable amount of time, (3) the property was worth less than the defendants’ debt, and (4) the defendants could have made a claim of inequitable forfeiture well before their July 21, 2025 motion, given that Patricia had an appearance as a self-represented party throughout the action and that the defendants’ claimed circumstances had been present when the judgment of foreclosure by sale was initially rendered in 2023.

The defendants do not challenge on appeal the trial court‘s denial of their August 27, 2025 motion to open and extend the sale date.

”General Statutes § 52-212 provides in relevant part: ‘(a) Any judgment rendered or decree passed upon a default . . . may be set aside, within four months following the date on which the notice of judgment . . . was sent . . . upon the . . . written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment . . . and that the . . . defendant was prevented by mistake, accident or other reasonable cause from . . . making the defense. . . .’ Practice Book § 17-43 (a) mirrors § 52-212 and imposes the same requirements.” .

General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which the notice of judgment or decree was sent. . . .” (Emphasis added.)

We note that, although the defendants’ motion was filed more than four months after the October 30, 2023 judgment of foreclosure by sale, that judgment was superseded while the motion was pending in the trial court by the July 21, 2025 judgment of foreclosure.

Our review of the record and procedural history indicates that the trial court did not provide any other express or implied ground for its denial. This includes the defendants’ assertion, which is unsupported by any factual or legal analysis, that the trial court “ostensibly found that service of a motion for default and a subsequent motion for judgment on a dissolved solo practice law office of a dead attorney constitutes effective service on a then rendered unrepresented party.”

In their reply brief, the defendants make only cursory reference to newly discovered evidence and provide no analysis as to whether the trial court abused its discretion in denying their untimely motion to open because their proffered evidence was newly discovered, would be material in a new proceeding, was not merely cumulative, and was likely to produce a different result in a new proceeding. To the extent that the defendants would rely on their reply brief, “[i]t is . . . a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) .

See .