Bank of America, N.A. v. Klein

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Bank of America, N.A. v. Klein

BANK OF AMERICA, N.A. v.
SAMUEL KLEIN ET AL.
(AC 47407)
Moll, Cradle and Seeley, Js.*

Syllabus

The defendant appealed from the trial court’s approval of the committee
sale and the committee deed in a residential foreclosure action on certain
real property owned by the defendant. The defendant claimed, inter alia,
that the court erred in granting the committee’s motion for approval without
providing him with an evidentiary hearing. Held:

The defendant’s claim that the trial court erred in approving the committee
sale because the motion for approval did not attach the committee report
reflecting the bidding history or the successful bid was inadequately briefed,
and, therefore, this court deemed that claim abandoned.

The trial court did not abuse its discretion by approving the committee sale
without providing the defendant with an evidentiary hearing, as the record
reflected that the defendant did not actually request an evidentiary hearing
prior to the court’s approval of the committee sale and there had been a
prior evidentiary hearing on the motion for judgment of foreclosure that
addressed the issue of valuation.
Submitted on briefs February 11—officially released April 15, 2025

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
Stamford-Norwalk, where the defendants FJPetey, LLC,
et al. were defaulted for failure to appear and the defen-
dants Choice Hotels International, Inc., et al. were
defaulted for failure to disclose defense; thereafter, the
court, Spader, J., granted the plaintiff’s motion for sum-
mary judgment as to liability only; subsequently, the
court, Hon. Robert L. Genuario, judge trial referee,
rendered a judgment of foreclosure by sale; thereafter,
the court, Hon. Kevin Tierney, judge trial referee,
* The listing of judges reflects their seniority status on this court as of
the date the appeal was submitted on the briefs.
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Bank of America, N.A. v. Klein

granted the plaintiff’s motion for approval of the com-
mittee sale, and the named defendant appealed to this
court. Affirmed.

Jeffrey Hellman filed a brief for the appellant (named
defendant).
Donald Frechette filed a brief for the appellee (plain-
tiff).

Opinion

MOLL, J. In this residential foreclosure action, the
defendant Samuel Klein appeals from the trial court’s
approval of the committee sale and the committee deed
in favor of the plaintiff, Bank of America, N.A.1 On
appeal, the defendant claims that the trial court erred
in granting the committee’s motion for approval of the
committee sale because (1) the motion itself did not
attach the committee report and/or (2) the court granted
the motion without providing the defendant with an
evidentiary hearing. The judgment is affirmed.
The following procedural history is relevant to our
resolution of this appeal. In July, 2019, the plaintiff
commenced this action against, inter alia, the defen-
dant, seeking to foreclose a mortgage on property
located at 131 Pecksland Road in Greenwich (property).
On June 29, 2022, the trial court, Spader, J., granted
the plaintiff’s motion for summary judgment as to liabil-
ity only. On November 22, 2022, the plaintiff filed a
motion for judgment of strict foreclosure and a finding
1
FJPetey, LLC, Choice Hotels International, Inc., Meyers, Harrison & Pia,
LLC, Hawthorne Brothers Tree Service, Inc., Ed Mitchells, Inc., doing busi-
ness as Richards of Greenwich, Bank of America, N.A., the United States
Department of Internal Revenue Services, and Zisholtz & Zisholtz, LLP, also
were named as defendants in the complaint. Those parties were defaulted
in the trial court and are not participating in this appeal (other than Bank
of America, N.A., in its role as plaintiff). Accordingly, we refer to Klein as
the defendant.
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of entitlement to possession, along with an accompa-
nying affidavit of debt and an appraisal assessing the
fair market value of the property at $5 million as of
August 30, 2022. On December 15, 2022, the plaintiff
filed an appraisal assessing the fair market value of the
property at $4,975,000 as of November 28, 2022. On May
15, 2023, the defendant filed a letter addressed to the
court, which indicated, among other things, that the
court previously had suggested that he obtain his own
appraisal but that he was thus far unable to do so. On
August 28, 2023, the defendant filed an objection to the
plaintiff’s motion for judgment of strict foreclosure.
On September 20, 2023, following an evidentiary hear-
ing, the court, Hon. Robert L. Genuario, judge trial
referee, ‘‘granted’’ the plaintiff’s motion for judgment
of strict foreclosure but, presumably because the prop-
erty is encumbered by a federal tax lien, rendered a
judgment of foreclosure by sale; see 28 U.S.C. § 2410
(c) (2018); finding the fair market value of the property
to be $8 million and the amount of the debt to be
$6,888,661.03, and setting a sale date of January 20, 2024.
On January 10, 2024, the committee filed an appraisal
assessing the fair market value of the property at
$6,100,000 as of January 4, 2024.
After the January 20, 2024 committee sale, on January
22, 2024, the committee filed its motion for approval
of the committee sale and committee deed and for
acceptance of the committee report (motion for
approval). On February 1, 2024, the committee filed (1)
the committee report, which indicated, inter alia, that
the plaintiff submitted the winning bid of $4,515,965,
and (2) an affidavit of the committee’s fees and
expenses. On February 2, 2024, the defendant objected
to the motion for approval, arguing that the motion
was deficient because it failed to attach the committee
report and proposed deed. The defendant’s objection
nonetheless contained a response to the committee
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Bank of America, N.A. v. Klein

report, in which the defendant argued that the winning
bid was significantly lower than the $8 million fair mar-
ket value set by the court in the judgment of foreclosure
by sale and that the approval of the sale would subject
him to a deficiency judgment of more than $2.5 million.
On February 14, 2024, the plaintiff filed its reply,
arguing, inter alia, that it ‘‘believes its bid of $4,515,965
is a fair and reasonable bid, and represents the value
of a distressed property, in disrepair, with significant
tax liens and occupied by a hostile borrower.’’2 The
plaintiff attached to its reply an appraisal assessing the
fair market value of the property at $4,700,000 as of
June 28, 2023.
On February 26, 2024, the court, Hon. Kevin Tierney,
judge trial referee, granted the committee’s motion for
approval and overruled the defendant’s objection, rul-
ing in part: ‘‘The committee received substantial interest
before the bidding that is reflected in [its] report. No
other bidder signed up so only one bidder, [the plaintiff],
was an approved bidder. The plaintiff’s bid was
$4,515,965. The court could not find an appraisal in the
file justifying the court finding of $8 million as the
property value as of the date of judgment on [September
20, 2023]3 . . . . The court reviewed the following real
estate appraisals in the court file: $5 million dated
[August 30, 2022] . . . $4,975,000 dated [November 28,
2022] . . . $6,100,000 dated [January 4, 2024] . . . and
$4,700,000 dated [June 28, 2023] . . . . Based on its
review of these real estate appraisals in the court file,
the court approves the bid of $4,515,965.’’ (Citations
omitted; footnote added.) Accordingly, the court
approved the committee sale, approved the committee
2
The plaintiff’s reply suggests that the $8 million fair market value set by
the court in the judgment of foreclosure by sale was based on or affected
by the defendant’s testimony at the September 20, 2023 hearing, as opposed
to any appraisal. We note that neither party filed any hearing transcripts in
this appeal.
3
See footnote 2 of this opinion.
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deed subject to review by the trial court clerk’s office,
accepted the committee report, and directed the com-
mittee to file for court review an affidavit of its fees
and expenses, including real estate appraisal costs. This
appeal followed.4
We begin by setting forth the applicable standard of
review. ‘‘A foreclosure action is an equitable proceed-
ing. . . . 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 dis-
cretion, 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 reason-
ably have reached the conclusion that it did. . . . The
trial court in a foreclosure matter acts as a court of
equity and has full authority to refuse to confirm a sale
on equitable grounds where an unfairness has taken
place or where the price bid was inadequate. . . . The
court must exercise its discretion and equitable powers
with fairness not only to the foreclosing mortgagee, but
also to subsequent encumbrancers and the owners.’’
After the appeal was filed, on March 4, 2024, the trial court, sua sponte,
4

opened the February 26, 2024 judgment and issued an order modifying the
judgment by awarding the following fees and expenses to the committee:
$5600 for its fees, $176 for liability insurance, $340.32 for a sign, $295 for
a title search, and $350 for a real estate appraisal. On March 5, 2024, the
defendant attempted to amend his appeal to include the court’s March 4,
2024 order modifying the judgment by filing a corrected appeal form rather
than an amended appeal form. The Office of the Appellate Clerk returned
the corrected appeal form as improper under Practice Book § 61-9.
We recognize that ‘‘there is a substantive distinction between opening a
judgment to modify or to alter incidental terms of the judgment, leaving the
essence of the original judgment intact, and opening a judgment to set it
aside. Under the latter circumstances, the original judgment necessarily has
been rendered void and any appeal therefrom would be rendered moot.’’
RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 690, 899
A.2d 586 (2006). We consider the court’s March 4, 2024 modification to
reflect the former circumstances.
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Bank of America, N.A. v. Klein

(Citation omitted; internal quotation marks omitted.)
Ridgefield Bank v. Stones Trail, LLC, 95 Conn. App.
279, 282–83, 898 A.2d 816, cert. denied, 279 Conn. 910,
902 A.2d 1069 (2006).
I
The defendant first cursorily claims, without citing
any relevant legal authority, that the court erred in
approving the committee sale because the motion for
approval did not attach the committee report reflecting
the bidding history or the successful bid. We conclude
that the defendant’s claim is inadequately briefed, and,
therefore, we deem this claim abandoned. See Robb v.
Connecticut Board of Veterinary Medicine, 204 Conn.
App. 595, 611, 254 A.3d 915 (‘‘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 aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. . . . The parties may not merely cite a legal
principle without analyzing the relationship between
the facts of the case and the law cited.’’ (Internal quota-
tion marks omitted.)), cert. denied, 338 Conn. 911, 259
A.3d 654 (2021).5
II
The defendant further claims that the court abused
its discretion by approving the committee sale without
5
Even if we were to reach the merits of the defendant’s claim, we would
nonetheless reject it. In the absence of any claim that the defendant was
prejudiced by the late filing of the committee report, and in light of the fact
that it was filed prior to the defendant’s opposition, we deem the committee’s
February 1, 2024 filing of its report to have cured the failure either to attach
or to file simultaneously the committee report.
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Bank of America, N.A. v. Klein

providing the defendant with an evidentiary hearing.
This claim fails because the record reflects that the
defendant did not actually request an evidentiary hear-
ing.6
We begin by noting that ‘‘[d]ue process does not man-
date a particular procedure but rather requires only
that certain safeguards exist in whatever procedural
form is afforded. . . . The [due process clause] in no
way undertakes to control the power of a [s]tate to
determine by what process legal rights may be asserted
or legal obligations be enforced, provided the method of
procedure adopted for these purposes gives reasonable
notice and affords fair opportunity to be heard before
the issues are decided. . . . Moreover, there is no vio-
lation of due process when a party in interest is given
the opportunity of a meaningful time for a court hearing
to litigate the question . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) Northeast Savings, F.A.
v. Hintlian, 241 Conn. 269, 273–74, 696 A.2d 315 (1997).
As an initial matter, the defendant correctly cites
Northeast Savings, F.A. v. Hintlian, supra, 241 Conn.
269, for the proposition that, ‘‘prior to the court’s action
on [a] motion to approve the sale, the defendants are
entitled to the opportunity to present evidence challeng-
ing the appraiser’s valuation of the property.’’ Id., 277.
He ignores, however, the related principle that ‘‘funda-
mental fairness requires that such a hearing be allowed
upon a proper request . . . .’’ (Emphasis added.) Id.,
To the extent that the defendant also claims that the court abused its
6

discretion by approving the committee sale at a sale price ‘‘far below’’ the
appraised value of $6,100,000 as of January 4, 2024, reached by the court-
appointed appraiser, this claim fails. See, e.g., National City Real Estate
Services, LLC v. Tuttle, 155 Conn. App. 290, 295–98, 109 A.3d 932 (2015)
(trial court did not abuse its discretion by approving foreclosure sale notwith-
standing that price obtained at foreclosure sale was substantially less than
property’s fair market value determined by court at time of foreclosure
judgment).
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277–78; see also id., 278 (‘‘a foreclosure court necessar-
ily has the inherent, equitable power under [General
Statutes] § 49-257 to grant such a request’’ (footnote
added)).

In the present action, the defendant did not properly
request an evidentiary hearing prior to the court’s
approval of the committee sale. That is, in his objection
to the committee’s motion for approval, the defendant
made no request for an evidentiary hearing, nor did he
file a motion for a second appraisal pursuant to § 49-
25. We further highlight that there was an evidentiary
hearing on the motion for judgment of foreclosure that
addressed the issue of valuation. During that hearing,
the defendant evidently testified as to his opinion of
the property’s fair market value and had the opportunity
to present an appraisal of his own. See footnote 2 of
this opinion. On the basis of the foregoing, we conclude
that the court did not abuse its discretion by approving
the committee sale and overruling the defendant’s
objection without holding an evidentiary hearing. See
Ridgefield Bank v. Stones Trail, LLC, supra, 95 Conn.
App. 285–87 (holding that, in absence of request for
evidentiary hearing, trial court did not abuse its discre-
7
General Statutes § 49-25 provides: ‘‘When the court in any such proceed-
ing is of the opinion that a foreclosure by sale should be decreed, it shall,
in its decree, appoint a person to make the sale and fix a day therefor, and
shall direct whether the property shall be sold as a whole or in parcels, and
how the sale shall be made and advertised; but, in all cases in which such
sale is ordered, the court shall appoint one disinterested appraiser who
shall, under oath, appraise the property to be sold and make return of the
appraisal to the clerk of the court. Upon motion of the owner of the equity
of redemption, the court shall appoint a second appraiser in its decree. If
the plaintiff is the purchaser at sale, or if the property is redeemed at any
time prior to the approval of the sale, or if for any reason the sale does not
take place, the expense of the sale and appraisal or appraisals shall be paid
by the plaintiff and be taxed with the costs of the case. If, after judgment
has been rendered, the amount found to be due and for which foreclosure
is decreed, together with the interest and the costs, is paid to the plaintiff
before the sale, all further proceedings in the suit shall be stayed.’’
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tion by overruling defendant’s objection to confirmation
of sale without evidentiary hearing).
The judgment is affirmed.
In this opinion the other judges concurred.