Capital for Change, Inc. v. Wall Street Associates, LLC

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2 ,0 0 Conn. App. 646
Capital for Change, Inc. v. Wall Street Associates, LLC

CAPITAL FOR CHANGE, INC. v.
WALL STREET ASSOCIATES,
LLC, ET AL.
(AC 47420)
Alvord, Cradle and DiPentima, Js.*

Syllabus

The defendants, W Co. and D, appealed from the trial court’s judgment of
strict foreclosure rendered for the plaintiff. The defendants claimed, inter
alia, that the court improperly rendered summary judgment as to liability
only because the court improperly concluded as a matter of law that the
defendants could not prevail with respect to their special defense alleging
a violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-
110a et seq.).

This court concluded that D, as a guarantor who was not a party to the
notes, amended notes, mortgages, or mortgage modification agreement,
lacked standing to challenge the trial court’s judgment of strict foreclosure,
and, accordingly, this court dismissed the appeal from the judgment of strict
foreclosure as to D.

The trial court properly determined that a CUTPA violation may not be
asserted as a special defense in a foreclosure action and did not preclude
the rendering of summary judgment in the plaintiff’s favor.

This court declined to review W Co.’s claim that the trial court should have
construed its special defense alleging a CUTPA violation as alleging unclean
hands, as W Co. failed to plead or raise a claim of unclean hands at any
time before the trial court and, thus, the claim was not properly before
this court.
Argued November 19, 2024—officially released May 20, 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 court, Hon. Charles T.
Lee, judge trial referee, granted the plaintiff’s motion
for summary judgment as to liability only; thereafter,
the court, Hon. Robert L. Genuario, judge trial referee,
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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Capital for Change, Inc. v. Wall Street Associates, LLC

rendered a judgment of strict foreclosure, from which
the defendants appealed to this court. Appeal dis-
missed in part; affirmed.
Igor G. Kuperman, for the appellants (defendants).
Philip G. Kent, for the appellee (plaintiff).
Opinion

ALVORD, J. In this commercial foreclosure action,
the defendants, Wall Street Associates, LLC (Wall Street
Associates), and Ganga Duleep,1 appeal following the
trial court’s judgment of strict foreclosure rendered in
favor of the plaintiff, Capital for Change, Inc.2 On appeal,
the defendants claim that the court improperly rendered
summary judgment as to liability only in favor of the
plaintiff because the court (1) improperly concluded as
a matter of law that the defendants could not prevail
with respect to their special defense alleging a violation
of the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq., and (2) failed to
construe their special defense alleging a CUTPA viola-
tion as alleging unclean hands. We dismiss the appeal
as to Duleep and affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. From March 24, 2017,
through August 27, 2019, the plaintiff provided financing
to Wall Street Associates to rehabilitate and to recon-
struct commercial properties owned by Wall Street
Associates (project). This financing was secured by
mortgages on the project property, as well as another
property owned by Wall Street Associates (additional
property). Wall Street Associates defaulted on its pay-
ments. The plaintiff accelerated the notes and made
1
We refer to Wall Street Associates and Duleep collectively as the defen-
dants, and we refer to them individually by name where appropriate.
2
The plaintiff, a nonprofit corporation, is a community development finan-
cial institution.
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4 ,0 0 Conn. App. 646
Capital for Change, Inc. v. Wall Street Associates, LLC

demand for payment on August 30, 2021, from Wall
Street Associates, as a borrower and mortgagor, and
Duleep, as a guarantor.
In March, 2022, the plaintiff commenced this foreclo-
sure action against the defendants. The plaintiff sought
to foreclose the mortgages on the project property and
the additional property under the loan documents and
to enforce the guarantees given by Duleep. On March
1, 2023, the defendants filed an amended answer and
three special defenses, alleging (1) lack of proper notice
and specificity as to the 2019 loan documents, (2) failure
to plead the remedy of strict foreclosure in any of the
complaint’s counts, and (3) violation of CUTPA. The
plaintiff filed its reply on March 13, 2023.
The plaintiff subsequently filed a motion for summary
judgment. In its memorandum of law in support of the
motion, the plaintiff argued that the defendants were
liable as a matter of law because there was no genuine
issue of material fact as to the making, validity, and
enforcement of the loan documents. Furthermore, the
plaintiff asserted that summary judgment was proper
because the defendants’ special defenses lacked merit.
The defendants then filed their opposition to the motion
for summary judgment and an accompanying memoran-
dum of law.
On October 27, 2023, the court, Hon. Charles T. Lee,
judge trial referee, issued a memorandum of decision
wherein it rendered summary judgment as to liability
only in favor of the plaintiff. The court found that the
plaintiff had established a prima facie case for its fore-
closure action and rejected the defendants’ three spe-
cial defenses. With respect to the CUTPA special
defense, the court concluded that ‘‘controlling authority
plainly holds that CUTPA may not be asserted as a
special defense in a foreclosure action.’’ On January 31,
2024, the plaintiff filed a motion for judgment of strict
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Capital for Change, Inc. v. Wall Street Associates, LLC

foreclosure, which the court, Hon. Robert L. Genuario,
judge trial referee, granted on February 28, 2024. The
court rendered a judgment of strict foreclosure with the
law days commencing on March 26, 2024. This appeal
followed.
I
We first address a threshold jurisdictional question.
Following oral argument, this court sua sponte asked
the parties to provide supplemental memoranda
addressing whether the appeal should be dismissed only
as to Duleep because a guarantor lacks standing to
appeal from the judgment of strict foreclosure; see JP
Morgan Chase Bank, N.A. v. Winthrop Properties, LLC,
312 Conn. 662, 682–83, 94 A.3d 622 (2014); Benchmark
Municipal Tax Services, Ltd. v. 899 ETG Associates,
LLC, 227 Conn. App. 474, 480–81, 322 A.3d 1118 (2024);
World Business Lenders, LLC v. 526-528 North Main
Street, LLC, 197 Conn. App. 269, 272–79, 231 A.3d 386
(2020); and because it appears that at least two counts
of the complaint remain pending to the extent the plain-
tiff seeks to enforce personal guarantees against
Duleep. See World Business Lenders, LLC v. 526-528
North Main Street, LLC, supra, 279–80; see also
Deutsche Bank National Trust Co. v. Thompson, 163
Conn. App. 827, 831, 136 A.3d 1277 (2016) (‘‘the question
of subject matter jurisdiction, because it addresses the
basic competency of the court, can be raised . . . by
the court sua sponte, at any time’’ (internal quotation
marks omitted)). Having received the parties’ briefing
on these issues, we conclude that the appeal must be
dismissed as to Duleep. We examine each issue in turn.
‘‘[I]n World Business Lenders, LLC, this court
observed that the guarantor in that case was not a party
to the mortgage or the note and had neither a legal
interest in the property securing the note, nor an equita-
ble or statutory right of redemption in the property.
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Capital for Change, Inc. v. Wall Street Associates, LLC

. . . As such, this court held that, [b]ecause [the guar-
antor] was not and could not be a party to the foreclo-
sure claim, she [had] no standing to challenge the fore-
closure judgment on appeal.’’ (Citation omitted; internal
quotation marks omitted.) Benchmark Municipal Tax
Services, Ltd. v. 899 ETG Associates, LLC, supra, 227
Conn. App. 480–81; id., 481 (determining guarantor
defendants did not have standing as they were not party
to note, mortgage, or modification agreement). In addi-
tion, this court determined that there was no judgment
rendered as to the count relating to the claims against
the guarantor.3 World Business Lenders, LLC v. 526-
528 North Main Street, LLC, supra, 197 Conn. App.
279–80. Specifically, the appeal was dismissed ‘‘because
the court did not render a judgment with respect to
the claim against [the guarantor defendant] under the
guarantee in [that count] and the matter concerning
[that count was] still pending before the court . . . .’’
Id., 280.

In the present case, it is undisputed that Duleep is
not a party to the notes, amended notes, mortgages, or
mortgage modification agreement.4 Duleep concedes in
her supplemental memorandum that, ‘‘to the extent that
she was named as a guarantor in the proceedings below,
she does not have standing to challenge the trial court’s
judgment of strict foreclosure on counts one, three and
four of the plaintiff’s complaint.’’ In accordance with
this court’s precedents, we conclude that Duleep lacks
standing to challenge the trial court’s judgment of strict
foreclosure and, thus, we dismiss Duleep’s appeal from
3
That count ‘‘alleged that ‘[the guarantor defendant] is liable to the . . .
plaintiff for payment of the debt due under the note, pursuant to the guaran-
t[ee]’ and that ‘[the guarantor defendant] has refused to pay the debt due
to the . . . plaintiff.’ ’’ World Business Lenders, LLC v. 526-528 North Main
Street, LLC, supra, 197 Conn. App. 271.
4
Although Duleep signed all of these documents, she did so on behalf of
Wall Street Associates.
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Capital for Change, Inc. v. Wall Street Associates, LLC

the judgment of strict foreclosure against Wall Street
Associates.
In addition, as to the plaintiff’s claim against Duleep,
the record does not reveal any judgment rendered by
the trial court with respect to the second and fifth
counts of the complaint.5 Because the court did not
render a judgment with respect to the claim against
Duleep under the guarantee in the second and fifth
counts and the matter concerning both counts is still
pending before the court, the appeal must be dismissed
as to those counts for lack of a final judgment. Accord-
ingly, we dismiss the appeal as to Duleep.
II
Having resolved the threshold jurisdictional question,
we turn to the merits of Wall Street Associates’ claims
on appeal. Wall Street Associates first claims that the
court erred in concluding that its CUTPA special
defense was not legally viable. We disagree.
We begin by setting forth our standard of review and
other relevant legal principles. ‘‘Appellate review of the
trial court’s decision to grant summary judgment is
plenary. . . . [W]e must [therefore] decide whether
[the trial court’s] conclusions are legally and logically
correct and find support in the facts that appear in the
5
The second count alleged that ‘‘[t]he note and the amended note as well
as all future loans, advances, liabilities, indebtedness, charges and expenses
chargeable against [Wall Street Associates] are unconditionally, jointly and
severally guaranteed by Ganga Duleep’’ and that ‘‘[t]he plaintiff has been
damaged as a result of [Duleep’s] failure to pay sums due under the first
guaranty.’’ The fifth count alleged that ‘‘[t]he construction loan agreement,
construction note, amended construction note, as well as all future loans,
advances, liabilities, indebtedness, charges and expenses chargeable against
[Wall Street Associates], including but not limited to the pledge, bridge note,
amended bridge note, loan agreement and modification, and bridge loan
modification agreement, are unconditionally, jointly, and severally guaran-
teed by Ganga Duleep’’ and that ‘‘[t]he plaintiff has been damaged as a result
of [Duleep’s] failure to pay sums due under the second guaranty.’’
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Capital for Change, Inc. v. Wall Street Associates, LLC

record.’’ (Internal quotation marks omitted.) Bayview
Loan Servicing, LLC v. Park City Sports, LLC, 180
Conn. App. 765, 774, 184 A.3d 1277, cert. denied, 330
Conn. 901, 192 A.3d 426 (2018).
This court has stated: ‘‘[A] special defense operates
as a shield, to defeat a cause of action, and not as a
sword, to seek a judicial remedy for a wrong. Against
this backdrop, we readily conclude that a CUTPA viola-
tion may not be asserted as a special defense. In reach-
ing this conclusion, we are mindful that, by its express
terms, CUTPA provides a cause of action for its viola-
tion, but it does not expressly provide a defense by
invalidating, or otherwise rendering unenforceable,
agreements that are the product of unfair trade prac-
tices.’’ Bank of America, N.A. v. Aubut, 167 Conn. App.
347, 374, 143 A.3d 638 (2016); see also Bayview Loan
Servicing, LLC v. Park City Sports, LLC, supra, 180
Conn. App. 779 n.5 (‘‘[t]his court [in Bank of America,
N.A. v. Aubut, supra, 374] held that a CUTPA violation
may not be asserted as a special defense in a foreclosure
action’’).
Wall Street Associates first argues that this court
should reconsider its holding in Aubut. Wall Street
Associates did not, however, file a motion requesting
that this court hear its appeal en banc. ‘‘[I]t is axiomatic
that one panel of this court cannot overrule the prece-
dent established by a previous panel’s holding. . . . As
we often have stated, this 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.’’ (Internal quotation
marks omitted.) Bank of New York Mellon v. Mangia-
fico, 198 Conn. App. 722, 729, 234 A.3d 1115 (2020).
Accordingly, we decline the invitation to revisit our
precedent.
Wall Street Associates also contends that, under the
reasoning of Connecticut National Bank v. Voog, 233
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Capital for Change, Inc. v. Wall Street Associates, LLC

Conn. 352, 659 A.2d 172 (1995), CUTPA can be asserted
as a special defense in this foreclosure action. In Voog,
the plaintiff sought to recover the balance due on two
promissory notes executed by the defendant. Id., 353–
54. The defendant filed ‘‘his amended answer, in which
he set forth a general denial, four special defenses and
a three count counterclaim. [The defendant] claimed
in his special defenses that: (1) [the plaintiff] had con-
spired with employees of [a limited partnership] to offer
financing in order to sell investments in a partnership
that it knew to be valueless; (2) the notes that are the
subject of the complaint were given without consider-
ation; (3) [the plaintiff] violated . . . CUTPA; and (4)
[the plaintiff] is equitably estopped from enforcing the
notes that are the subject of this action. On the basis
of the conduct alleged in his first special defense, [the
defendant] claimed that he had suffered damages as a
result of [the plaintiff’s] fraudulent misrepresentations,
and that [the plaintiff’s] activities constituted a violation
of the Racketeer Influenced and Corrupt Organizations
Act (RICO) and CUTPA.
‘‘[The plaintiff] objected to the amendment, primarily
on the grounds that the allegations were prejudicial and
would unnecessarily delay the proceedings. . . . [T]he
trial court, Austin, J., sustained [the plaintiff’s] objec-
tions, not on the grounds [the plaintiff] had asserted,
but on the basis that ‘[t]he issues attempted to be raised
by [the defendant] may be raised in a separate cause
of action, unrelated to this case, as they are not proper
in this cause of action.’ . . . [The defendant] filed a
motion to stay the case pending a decision by the court
regarding his request to transfer the case into [a] related
litigation program. The court denied both requests.’’
(Footnotes omitted.) Id., 356–59.
The court later rendered judgment in favor of the
plaintiff. Id., 362. The defendant appealed, raising four
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Capital for Change, Inc. v. Wall Street Associates, LLC

issues, including that the trial court abused its discre-
tion ‘‘in sustaining [the plaintiff’s] objection to his
request for leave to amend.’’ Id., 363. The Supreme
Court concluded that ‘‘the special defenses and the
counterclaim were material to the [defendant’s] defense
of [the plaintiff’s] action on the note.’’ Id., 369. In con-
cluding that the trial court’s denial of the defendant’s
request to amend his pleadings ‘‘was not premised on
‘sound reason,’ ’’ the Supreme Court reversed the judg-
ment and remanded the case. Id.
Contrary to Wall Street Associates’ contentions, Voog
is factually and procedurally distinguishable from the
case before us. At the outset, Voog was not a foreclosure
case. Rather, Voog was a collection action that arose
from a debtor’s execution of two promissory notes in
favor of a bank. Id., 353–54. Furthermore, in response
to the action commenced by the bank, the defendant
in Voog asserted both a special defense based on CUTPA
and a CUTPA counterclaim; id., 356–57; whereas Wall
Street Associates solely asserted a special defense alleg-
ing a violation of CUTPA. As a result of the defendant’s
decision to assert a CUTPA counterclaim parallel to his
special defense, the procedural posture of the case was
different from the present case. In addition, the
Supreme Court in Voog did not address whether CUTPA
was a valid special defense, instead it addressed
whether, inter alia, the trial court properly denied the
defendant’s request for leave to amend his pleadings.
Id., 365–70.
Because Voog significantly differs both factually and
procedurally from the present case, it is not controlling.
Accordingly, the court properly concluded, under
Aubut, that the alleged CUTPA violation was not a valid
special defense and did not preclude the rendering of
summary judgment in the plaintiff’s favor. See Bank of
America, N.A. v. Aubut, supra, 167 Conn. App. 374.
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Capital for Change, Inc. v. Wall Street Associates, LLC

III
Wall Street Associates also claims that, in rendering
summary judgment on its CUTPA defense; see part II
of this opinion; the court erred by not construing the
defense as one alleging unclean hands. Specifically,
Wall Street Associates concedes that its ‘‘allegations
were styled as a CUTPA violation,’’ but nonetheless
argues that the ‘‘trial court should have recognized [the
defense of unclean hands] on the face of the pleadings
. . . .’’ Because we conclude that Wall Street Associ-
ates’ claim is unpreserved, we decline to review it.
‘‘It is well known that this court is not bound to
consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial. Practice Book
§ 60-5. The requirement that [a] claim be raised dis-
tinctly means that it must be so stated as to bring to
the attention of the court the precise matter on which
its decision is being asked. . . . The reason for the rule
is obvious: to permit a party to raise a claim on appeal
that has not been raised at trial—after it is too late for
the trial court . . . to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party.’’ (Emphasis omit-
ted.) United Cleaning & Restoration, LLC v. Bank of
America, N.A., 225 Conn. App. 702, 714–15, 317 A.3d
2 (2024).
Our examination of the record reveals that this appeal
is the first time Wall Street Associates has raised the
claim that the plaintiff’s conduct was not ‘‘fair, equitable
and honest as to the particular controversy in issue’’;
M&T Bank v. Lewis, 349 Conn. 9, 32, 312 A.3d 1040
(2024); Wall Street Associates failed to plead or raise
unclean hands at any time before the trial court. Wall
Street Associates’ claim, therefore, is not properly
before this court, and we decline to review it.
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Capital for Change, Inc. v. Wall Street Associates, LLC

The appeal is dismissed with respect to Ganga
Duleep; the judgment is affirmed and the case is
remanded for the purpose of setting new law days.
In this opinion the other judges concurred.