U.S. Bank Trust, National Assn. v. Shuey

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2 MAY, 2025 232 Conn. App. 618
U.S. Bank Trust, National Assn. v. Shuey

U.S. BANK TRUST, NATIONAL ASSOCIATION v.
GEORGE KENNETH SHUEY ET AL.
(AC 46985)
Alvord, Westbrook and Bear, Js

Syllabus

The defendants appealed from the trial court’s judgment of foreclosure
by sale rendered for the plaintiff. They claimed, inter alia, that the court
improperly dismissed their counterclaim for lack of standing because, con-
trary to the conclusion reached by the court, they were not required to
identify the counterclaim as an asset on a bankruptcy petition they had filed
prior to the foreclosure proceeding. Held:

The trial court properly considered the defendants’ special defense of
unclean hands and determined that the defendants had not sustained their
burden of producing evidence that supported that defense and created a
genuine issue of material fact, there having been no basis in the record for
the defendants’ claim that the court determined that their defense had been
pleaded insufficiently.

The trial court properly rendered summary judgment for the plaintiff, as
the defendants did not meet their burden of providing an evidentiary basis
to establish the existence of a genuine issue of material fact as to their
unclean hands special defense.

The trial court properly determined that the counts of the defendants’ coun-
terclaim, sounding in a violation of the Connecticut Unfair Trade Practices
Act (§ 42-110a et seq.), negligence, and misrepresentation and fraud, existed
as recognized causes of action at the time the defendants filed their bank-
ruptcy petition, and all counts of the counterclaim had accrued prior to
the filing of their bankruptcy petition and, thus, remained property of the
bankruptcy estate.

The trial court properly dismissed the defendants’ counterclaim because
the defendants were required to schedule the counterclaim as an asset when
they filed their bankruptcy petition and their failure to do so deprived them
of standing to assert the counterclaim in the foreclosure proceeding.
Argued October 9, 2024—officially released May 20, 2025

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
New Haven, where the defendants filed a counterclaim;
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232 Conn. App. 618 MAY, 2025 3
U.S. Bank Trust, National Assn. v. Shuey

thereafter, the court, Cirello, J., granted the plaintiff’s
motion for summary judgment with respect to liability
only; subsequently, the court, Spader, J., granted the
plaintiff’s motion to dismiss the defendants’ counter-
claim and rendered a judgment of foreclosure by sale,
from which the defendants appealed to this court.
Affirmed.
Ridgely Whitmore Brown, for the appellants (defen-
dants).
Christa A. Menge, for the appellee (plaintiff).
Opinion

BEAR, J. The defendants, George Kenneth Shuey and
Mary J. Shuey, appeal from the judgment of foreclosure
by sale rendered in favor of the substitute plaintiff, U.S.
Bank Trust, National Association, not in its individual
capacity but solely as owner trustee for RCF 2 Acquisi-
tion Trust. On appeal, the defendants claim that the
court (1) improperly rendered summary judgment as
to liability in favor of the plaintiff1 on the basis that
the defendants failed to establish a genuine issue of
material fact as to their special defense of unclean
hands and, thereafter, (2) improperly dismissed their
counterclaim for lack of standing because, contrary to
the conclusion reached by the court, they were not
1
The original plaintiff, Wilmington Savings Fund Society, FSB, doing busi-
ness as Christiana Trust, as Trustee for Normandy Mortgage Loan Trust,
Series 2015-1 (Wilmington), commenced this foreclosure action and filed
the motion for summary judgment as to liability only. Wilmington thereafter
assigned the mortgage to Normandy Mortgage Acquisition, which then
assigned it to MTGLQ Investors, LP, which then assigned it to the substitute
plaintiff. On December 13, 2021, the court granted the plaintiff’s motion to
substitute U.S. Bank Trust National Association, not in its individual capacity
but solely as owner trustee for RCF 2 Acquisition Trust, as plaintiff. In doing
so, the court specified that its ‘‘order shall in no way affect prior pleadings.’’
For ease of discussion, we will refer to U.S. Bank Trust National Association,
not in its individual capacity but solely as owner trustee for RCF 2 Acquisition
Trust, as the plaintiff throughout this opinion unless otherwise noted.
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4 MAY, 2025 232 Conn. App. 618
U.S. Bank Trust, National Assn. v. Shuey

required to identify their counterclaim as an asset on
a bankruptcy petition they filed in 2012. We affirm the
judgment and remand this case for the purpose of set-
ting a new sale date.2
The record reveals the following facts and procedural
history. On or about May 2, 2010, the defendants
defaulted on a note they had executed in January, 2002,
in favor of World Savings Bank, FSB, for the principal
2
In their preliminary statement of issues on appeal, the defendants list
seven issues, including that the court, Cirello, J., improperly denied their
September 2, 2021 motion to dismiss the complaint because, they claim,
the plaintiff failed to comply with the ‘‘Connecticut Emergency Mortgage
Assistance Program (EMAP) notice requirements’’ and thus failed to satisfy
a mandatory condition precedent to the bringing of this foreclosure action.
See, e.g., KeyBank, N.A. v. Yazar, 347 Conn. 381, 386, 297 A.3d 968 (2023).
The ‘‘Statement of Issues’’ set forth in the defendants’ appellate brief, how-
ever, identifies only two issues: (1) whether ‘‘the court’s grant of summary
judgment . . . [was] clearly erroneous’’ and (2) whether ‘‘the court err[ed]
in dismissing the [defendants’] counterclaim.’’ Even so, the last subsection
of the argument the defendants advance in support of their challenge to
the dismissal of their counterclaim is captioned: ‘‘The note and the mortgage
both require notice by first class mail as a condition precedent to filing the
foreclosure action.’’ The defendants posit in that subsection that the plain-
tiff’s mailing, which was sent ‘‘by certified mail return receipt requested’’
and which they claim not to have received, was not sufficient for notice
purposes. Consequently, they aver that, ‘‘[e]ven though this [issue] is not
technically jurisdictional . . . the plaintiff failed to give proper notice and
. . . the action should be dismissed.’’ They further aver, in the conclusion
to their brief, that the judgment ‘‘in favor of the plaintiff and counterclaim
defendant should be reversed and the case remanded with instructions to
restore the case to the docket or dismiss it for violating the proper notice
condition precedent.’’ (Emphasis added.) Apart from these vague, conclu-
sory assertions, however, the defendants have not identified expressly any
error by the trial court in its assessment of the plaintiff’s compliance with
the notice requirements, nor have they explained how any such error should
entitle them to the relief they are seeking on appeal. To the extent that the
defendants have attempted to do so as part of their argument that the
court should not have dismissed their counterclaim, their briefing is wholly
inadequate, and we deem any such claim abandoned. See Bank of New York
Mellon v. Mangiafico, 198 Conn. App. 722, 723 n.3, 234 A.3d 1115 (2020)
(‘‘We 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.’’ (Internal quotation marks omitted.)).
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232 Conn. App. 618 MAY, 2025 5
U.S. Bank Trust, National Assn. v. Shuey

amount of $241,000. The note was secured by a mort-
gage on real property located at 300 Mungertown Road
in Madison (property), which the defendants owned.
In August, 2010, one of the plaintiff’s predecessors in
interest initiated a foreclosure action against the defen-
dants.3
On April 18, 2012, while that foreclosure action was
pending, the defendants jointly filed for Chapter 7 bank-
ruptcy protection in the United States Bankruptcy Court
for the District of Connecticut, thereby invoking the
stay provisions of 11 U.S.C. § 362 (a) (1) (2012).4 The
defendants identified their interests in the property on
the Schedule A form they filed in support of their peti-
tion. They also indicated on the Schedule D form they
filed that ‘‘Wells Fargo Bank’’ and ‘‘Bank of America’’
were creditors with claims secured by the property, by
way of first and second mortgages, but they did not
indicate that those claims were in any way disputed.
Moreover, on the Schedule B form they filed, on which
they were required to itemize their personal property,
they checked ‘‘none’’ where asked to describe and esti-
mate the value of ‘‘[o]ther contingent and unliquidated
claims of every nature, including . . . counterclaims
of the debtor[s], and rights to setoff claims.’’ (Emphasis
added.) The Bankruptcy Court issued an order of dis-
charge on July 18, 2012, and the bankruptcy case was
closed on August 10, 2012. The prior foreclosure action
3
Wells Fargo Bank, N.A. v. Shuey, Superior Court, judicial district of New
Haven, Docket No. CV-XX-XXXXXXX-S.
4
Title 11 of the United States Code, § 362 (a), provides in relevant part:
‘‘[A] petition filed under section 301, 302, or 303 of this title . . . operates
as a stay, applicable to all entities, of—
‘‘(1) the commencement or continuation, including the issuance or employ-
ment of process, of a judicial, administrative, or other action or proceeding
against the debtor that was or could have been commenced before the
commencement of the case under this title, or to recover a claim against
the debtor that arose before the commencement of the case under this
title . . . .’’
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6 MAY, 2025 232 Conn. App. 618
U.S. Bank Trust, National Assn. v. Shuey

ultimately was dismissed thereafter on December 12,
2014.5

The present foreclosure action was commenced in
August, 2015, by way of a one count foreclosure com-
plaint. See footnote 1 of this opinion. On October 12,
2016, after participation in the foreclosure mediation
program terminated, the defendants filed an answer,
special defenses, and a three count counterclaim. The
defendants asserted two special defenses: (1) laches,
predicated on the allegation that the plaintiff had not
‘‘properly and diligently prosecuted this foreclosure
action’’ and (2) unclean hands, predicated on allega-
tions that the defendants entered into a mortgage modi-
fication agreement in 2009 with ‘‘the plaintiff’s prede-
cessor in interest Wachovia,’’ which ‘‘the plaintiff’’ then
breached; the loan in question was ‘‘predatory’’; and
the ‘‘plaintiff has not properly and diligently prosecuted
this case.’’6 In their counterclaim, the defendants asserted
the following three counts: (1) violation of the Connecti-
cut Unfair Trade Practices Act (CUTPA), General Stat-
utes § 42-110a et seq., (2) negligence, and (3) misrepre-
sentation and fraud. As relief, the defendants sought,
inter alia, ‘‘compensatory damages,’’ ‘‘common-law prac-
tice damages,’’ and ‘‘CUTPA compensatory double and
treble damages.’’

On February 11, 2020, the plaintiff filed a motion for
summary judgment as to liability only on its foreclosure
complaint and as to all issues related to the defendants’
counterclaim. In support of its motion, the plaintiff filed
a memorandum of law, an affidavit of Kerry Walthall
5
The parties agree in their briefs to this court that this dismissal was for
‘‘dormancy’’ and/or ‘‘failure to prosecute.’’
6
When the defendants filed their special defenses on October 12, 2016,
Wilmington Savings Fund Society, FSB, doing business as Christiana Trust,
as Trustee for Normandy Mortgage Loan Trust, Series 2015-1, was still the
named plaintiff.
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232 Conn. App. 618 MAY, 2025 7
U.S. Bank Trust, National Assn. v. Shuey

with appended exhibits,7 and a copy of the mortgage
and assignments. The plaintiff argued that it had estab-
lished its prima facie case for foreclosure and that the
defendants’ special defenses raised no genuine issue of
material fact relative to their liability on the note. The
plaintiff further argued that the counts of the counter-
claim were not ‘‘viable.’’ As such, the plaintiff argued
that it was entitled to judgment as a matter of law as
to liability on its foreclosure complaint and as to the
counterclaim.
More than two years later, on April 1, 2022, the defen-
dants filed an objection to the plaintiff’s motion for
summary judgment,8 a two page memorandum of law
in support thereof, and an affidavit of the defendant
George Kenneth Shuey.9 The defendants asserted that
‘‘this case pended for years before it was ultimately
dismissed for lack of due diligence,’’ that ‘‘[t]here is . . .
damage to credit and other such claims as described
in U.S. Bank National Assn. v. Blowers, 332 Conn. 656,
7
Walthall was an employee of the loan servicer for the plaintiff’s predeces-
sor in interest, MTGLQ Investors, LP. See footnote 1 of this opinion. A ‘‘true
and correct’’ copy of the note and a copy of the notice of default issued to
the defendants were attached as exhibits to Walthall’s affidavit.
8
The record reflects that, before they filed their April 1, 2022 objection
to the motion for summary judgment, the defendants filed four motions for
extension of time to respond thereto, a motion to dismiss the complaint,
and an objection to the court considering the plaintiff’s motion for summary
judgment before it addressed, among other things, their motion to dismiss
the complaint. Moreover, the defendants acknowledge in their brief that
‘‘[t]he interruption of the COVID-19 pandemic . . . delayed the prosecution
of the foreclosure action.’’ See, e.g., CT Freedom Alliance, LLC v. Dept. of
Education, 346 Conn. 1, 5–6, 287 A.3d 557 (2023) (Governor Ned Lamont
issued, on March 10, 2020, declaration of public health and civil preparedness
emergencies due to COVID-19 which was renewed multiple times).
9
In his affidavit, George Kenneth Shuey averred, inter alia, that the ‘‘loan
has been in default since May 1, 2010,’’ that, ‘‘[s]ince the date of default,
interest has accrued at various rates,’’ and that, on the basis of ‘‘[a] blended
approximate rate of 6 [percent],’’ interest in the amount of $173,520 accrued
‘‘during delays caused by the plaintiff’s lack of diligence.’’ He further averred
that he and the codefendant, Mary J. Shuey, ‘‘have both suffered damage
to [their] credit.’’
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[212 A.3d 226] (2019),’’ and that ‘‘[t]here are disputes
as of record and this case does not meet the criteria
for summary judgment because these facts are in dis-
pute . . . .’’
On April 4, 2022, the court, Cirello, J., held a hearing
on the plaintiff’s motion for summary judgment. During
the hearing, the court asked the defendants’ counsel to
‘‘summarize why there is a genuine issue of material
fact here,’’ and counsel stated, in reply, that ‘‘[t]here
was a prior suit that was filed and never pursued. It
was dismissed for lack of diligence in prosecution. It
pended for a long period of time. And then it was dis-
missed. They waited to refile. And . . . some of this
is due to the pandemic, but it’s still ultimately going to
be a question of fact as to who bears the burden of delay.
‘‘Under [U.S. Bank National Assn. v.] Blowers,
[supra, 332 Conn. 656], I filed a special defense that
alleges the delay and the dismissal for lack of due dili-
gence. And we have years and years of interest . . . .’’
The court interjected by stating that ‘‘any motion for
summary judgment that’s filed in foreclosure court is
based on liability. And you are making arguments that
there may be a . . . defense with regard to the amount
that’s due.’’ After the defendants’ counsel explained, in
response to the court’s observation, that his ‘‘clients’
credit and money out of pocket for my fees and interest
are very substantial amounts of money,’’ and referred
to cases that ‘‘resulted in interest adjustments,’’ the
court reiterated that ‘‘we’re getting back to the amount
of money that’s owed, and not the underlying liability
on the debt.’’ The following colloquy then ensued:
‘‘[The Defendants’ Counsel]: I don’t think it should
be postured that way, Your Honor. It’s not the amount
that’s owed because it’s not just an offset. It’s damages.
My clients have been damaged by having to pay me.
And . . . it’s . . . the offset to the debt is that would
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232 Conn. App. 618 MAY, 2025 9
U.S. Bank Trust, National Assn. v. Shuey

just reduce the debt. The liability on that, equitable or
under Blowers is liability. It’s a counter liability. It’s a
question of fact for the ultimate fact finder.
‘‘The Court: So because they weren’t diligent in pursu-
ing their claim, you are claiming that . . . your client is
no longer liable for the debt? Is that what you’re saying?
‘‘[The Defendants’ Counsel]: That would be to take
my argument to the extreme. . . . [T]his case for years
and years [was] . . . just sitting there and [was] dis-
missed . . . for failure to prosecute [which is] tanta-
mount to unclean hands. . . .
‘‘Judges certainly have the discretion to do an offset
on the debt so you wind up with the same debt owed
. . . and just an offset as you postured. But . . . the
courts could find that my clients’ house has been under
water for quite some time and that this case pending
against them precluded [the] possibility of . . . other
credit, refinancing, any of the things that people com-
monly do.
‘‘The Court: Well, we’re . . . not here for purposes
of speculation as to what genuine issues of material
fact might be out there. It’s your burden to show—well,
it’s the plaintiff’s burden to show that there’s no genuine
issue of material fact. But in your objection . . . you
cite some case law but you are not outlining . . . what
those genuine issues of material fact are that you just
speculated about a moment ago.’’
After hearing from the plaintiff’s counsel, the court
again asked the defendants’ counsel, during his rebuttal
argument, to ‘‘outline the exact facts that you believe
that are in dispute because you don’t . . . do it [in
your memorandum in support of your objection].’’ The
defendants’ counsel stated, in response, that ‘‘[o]ne of
the fact[s] that counters their arguments on liability is
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10 MAY, 2025 232 Conn. App. 618
U.S. Bank Trust, National Assn. v. Shuey

the fact that we have a Blowers situation here.10 . . .
How much . . . my fees are. Should . . . there be
sanctions? Should there be a finding of unclean hands?
All . . . those are the related interest computations.’’
Following the hearing, the court granted the plain-
tiff’s motion for summary judgment with respect to
liability only and denied it as to the defendants’ counter-
claim. In its April 4, 2022 order, after acknowledging
that it was required ‘‘to ‘view the evidence in the light
most favorable to the nonmoving party,’ ’’ the court
noted that ‘‘[t]his does not mean . . . that the nonmov-
ing party can prevail simply by invoking the mantra
‘genuine issue of material fact’ over and over . . . . ’’
It then stated that the plaintiff ‘‘has shown that there
are no genuine issues of material fact as to the defen-
dants’ . . . liability.
‘‘The defendants’ objection to the motion . . . is
merely a recitation of law and conclusions of fact. The
court fails to find that the defendants raised any specific
facts that are in dispute regarding the defendants’ liabil-
ity to [the plaintiff].’’ With respect to the counts of the
counterclaim, the court explained that the claims of a
‘‘[v]iolation of [CUTPA]; negligence, and misrepresenta-
tion and fraud . . . are fact intensive and cannot be
determined as a matter of law.’’
Thereafter, this matter was scheduled for a court
trial, to take place on April 6, 2023. While the plaintiff’s
10
In U.S. Bank National Assn. v. Blowers, supra, 332 Conn. 675, our
Supreme Court determined that ‘‘allegations that the mortgagee has engaged
in conduct that wrongly and substantially increased the mortgagor’s overall
indebtedness, caused the mortgagor to incur costs that impeded the mort-
gagor from curing the default, or reneged upon modifications are the types
of misconduct that are ‘directly and inseparably connected’ . . . to enforce-
ment of the note and mortgage,’’ and that ‘‘[s]uch allegations, therefore,
provide a legally sufficient basis for special defenses in [a] foreclosure
action,’’ even though such conduct occurred after the origination of the
loan. Id., 676. Notably, despite their many references during the trial court
proceedings to Blowers, the defendants have not cited to Blowers in their
brief to this court.
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232 Conn. App. 618 MAY, 2025 11
U.S. Bank Trust, National Assn. v. Shuey

counsel was preparing for trial, she became aware of
the defendants’ 2012 bankruptcy action and learned that
the defendants had not scheduled their counterclaim, or
claimed any rights to offset claims, on their bankruptcy
petition. On March 3, 2023, following that discovery,
the plaintiff filed a motion to dismiss the defendants’
counterclaim for lack of subject matter jurisdiction, a
memorandum of law in support of that motion and
supporting exhibits. The plaintiff argued in support of
that motion that, because the defendants had not sched-
uled their counterclaim in their bankruptcy filings, the
claims belonged to the bankruptcy estate, and the
defendants did not have standing to pursue them. The
plaintiff also argued, in the alternative, that the counter-
claim was barred by judicial estoppel and the relevant
statutes of limitations.
The defendants filed an objection to the motion to
dismiss and a supporting memorandum of law on April
21, 2023. They argued that they were not required to
schedule their counterclaim when they filed for bank-
ruptcy in 2012 because (1) ‘‘Connecticut had not recog-
nized ‘predatory lending’ as a defense or affirmative
counterclaim and, therefore, any such claim was not a
recognized cause of action that would qualify as ‘prop-
erty’ ’’ they had to disclose; (2) even if the counts of
their counterclaim were recognized as causes of action
in 2012, the counterclaim was not their ‘‘property’’ at
that time because their interests therein had not yet
accrued; and (3) it would have run counter to the poli-
cies underlying the United States Bankruptcy Code to
consider their counterclaim to be property they had to
disclose.
The plaintiff filed a reply to the defendants’ objection
and, following a hearing, the trial court, Spader, J.,
granted the plaintiff’s motion and issued an order on
May 16, 2023, dismissing the defendants’ counterclaim
for lack of standing. In doing so, the court concluded
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that the defendants’ counterclaim should have been
scheduled as part of their bankruptcy petition and that,
because it was not, the counterclaim was an asset of
the defendants’ bankruptcy estate and the defendants
did not have standing to pursue it. Further, the court
rejected the defendants’ counter arguments, determin-
ing, instead, that the defendants had alleged ‘‘CUTPA,
negligence and misrepresentation/fraud [as counts of
their counterclaim]—not ‘predatory lending,’ ’’ that
causes of action generally accrue at the time the con-
duct giving rise to the claim occurs, and that requiring
the defendants to litigate their counterclaim during an
adversarial bankruptcy proceeding was consistent with
policy.

Thereafter, on September 18, 2023, the trial court,
Spader, J., rendered a judgment of foreclosure by sale
in favor of the plaintiff and set a sale date of January
13, 2024.11 This appeal followed. Additional facts will
be set forth as necessary.

I

The defendants first claim that the court improperly
rendered summary judgment against them as to liability
on the foreclosure complaint because their ‘‘special
defense of unclean hands based on failure to prosecute
a foreclosure with diligence is a recognized defense to
foreclosure, and [they] presented uncontroverted evi-
dence to the court that the plaintiff had failed to prose-
cute a previous foreclosure action based on the same
11
The plaintiff had filed a motion for judgment of strict foreclosure on
September 1, 2023. At the September 18, 2023 hearing on the motion, how-
ever, the court determined, and the plaintiff’s counsel agreed, that there
was sufficient equity in the property for a sale. As such, the court rendered
a judgment of foreclosure by sale and set a January 13, 2024 sale date.
Neither party disputes the form of the judgment.
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232 Conn. App. 618 MAY, 2025 13
U.S. Bank Trust, National Assn. v. Shuey

alleged default for nearly five years until it was dis-
missed for dormancy, resulting in the accrual of approx-
imately $172,000 in interest on the debt during that
period.’’12 We are not persuaded.

We begin by setting forth the relevant standard of
review and legal principles that guide our analysis.
‘‘Although the party seeking summary judgment has the
burden of showing the nonexistence of any material
fact . . . a party opposing summary judgment must
substantiate its adverse claim by showing that there is
a genuine issue of material fact together with the evi-
dence disclosing the existence of such an issue. . . .
A material fact is one that makes a difference in the
outcome of a case. . . .

‘‘Summary judgment shall be granted if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . The trial court must view the evidence in the light
most favorable to the nonmoving party. . . .

‘‘[T]o establish a prima facie case in a mortgage fore-
closure action, the plaintiff must prove by a preponder-
ance of the evidence that it is the owner of the note
and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure . . . have been satisfied. . . . Thus, a
12
As stated previously in this opinion, the defendants asserted two special
defenses, laches and unclean hands, both of which were predicated, at least
in part, on the plaintiff’s alleged failure to diligently prosecute its claim
for foreclosure. We note, however, that, apart from making two passing
references to ‘‘laches’’ in challenging the court’s decision to grant summary
judgment as to their liability, they focus exclusively on ‘‘unclean hands.’’
We therefore deem any claim the defendants may have had regarding the
court’s treatment of their laches special defense abandoned as a result
of the defendants’ inadequate briefing. See Bank of New York Mellon v.
Mangiafico, 198 Conn. App. 722, 723 n.3, 234 A.3d 1115 (2020).
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14 MAY, 2025 232 Conn. App. 618
U.S. Bank Trust, National Assn. v. Shuey

court may properly grant summary judgment as to liabil-
ity in a foreclosure action if the complaint and support-
ing affidavits establish an undisputed prima facie case
and the defendant fails to assert any legally sufficient
special defense. . . .
‘‘[T]he party raising a special defense has the burden
of proving the facts alleged therein. . . . If the plaintiff
in a foreclosure action has shown that it is entitled to
foreclose, then the burden is on the defendant to pro-
duce evidence supporting its special defenses in order
to create a genuine issue of material fact . . . . Legally
sufficient special defenses alone do not meet the defen-
dant’s burden. The purpose of a special defense is to
plead facts that are consistent with the allegations of
the complaint but demonstrate, nonetheless, that the
plaintiff has no cause of action. . . . Further . . .
[t]he applicable rule regarding the material facts to be
considered on a motion for summary judgment is that
the facts at issue are those alleged in the pleadings.
. . . [B]ecause any valid special defense raised by the
defendant ultimately would prevent the court from ren-
dering judgment for the plaintiff, a motion for summary
judgment should be denied when any [special] defense
presents significant fact issues that should be tried.
. . .
‘‘On appeal, [w]e must decide whether the trial court
erred in determining that there was no genuine issue
as to any material fact and that the moving party is
entitled to judgment as a matter of law. . . . Because
the trial court rendered judgment for the [plaintiff] as
a matter of law, our review is plenary and we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Citation omitted; internal quota-
tion marks omitted.) Deutsche Bank National Trust
Co. v. Bretoux, 225 Conn. App. 455, 462–63, 317 A.3d
152 (2024).
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U.S. Bank Trust, National Assn. v. Shuey

A
The first argument the defendants make in support
of their claim that the court improperly granted the
plaintiff’s motion for summary judgment is that they
‘‘sufficiently plead[ed] a special defense for . . .
unclean hands on the basis of the failure to prosecute
with diligence’’ and that, ‘‘[t]o the extent that [the
court’s decision to grant summary judgment] may have
been based on a determination that the defendants had
not sufficiently plead[ed] a defense of unclean hands
. . . that decision was clearly erroneous.’’ Our plenary
review of the court’s order granting the motion for
summary judgment, however, reveals that the court
properly considered the defendants’ special defense of
unclean hands; see, e.g., Homebridge Financial Ser-
vices, Inc. v. Jakubiec, 223 Conn. App. 517, 539, 309
A.3d 1223 (‘‘[b]ecause an action to foreclose a mortgage
is an equitable proceeding, the doctrine of unclean hands
may be applicable’’ (internal quotation marks omitted)),
cert. denied, 349 Conn. 909, 314 A.3d 602 (2024); and
rejected it because the defendants had not sustained
their burden of producing evidence that supported that
defense and created a genuine issue of material fact.
See Deutsche Bank National Trust Co. v. Bretoux, supra,
225 Conn. App. 462–63; see also Iadanza v. Toor, 226
Conn. App. 736, 749, 320 A.3d 979 (interpretation of
trial court judgment is question of law), cert. denied,
350 Conn. 908, 323 A.3d 1092 (2024).
Indeed, the court stated that the plaintiff had ‘‘shown
that there are no genuine issues of material fact as to
the defendants’ . . . liability’’ and that it did not ‘‘find
that the defendant[s] raised any specific facts that are
in dispute, regarding [their] liability to [the plaintiff].’’
The court had made repeated attempts during the oral
argument regarding the motion for summary judgment
to have the defendants’ counsel ‘‘summarize why there
is a genuine issue of material fact here’’ and to ‘‘outline
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the exact facts that you believe that are in dispute’’ and,
ultimately, stated in its order that the party opposing
summary judgment cannot ‘‘prevail simply by invoking
the mantra ‘genuine issue of material fact’ over and
over . . . .’’ There is simply no basis in the record to
conclude that the court granted summary judgment
because it determined that the defendants’ unclean
hands special defense was pleaded insufficiently and,
thus, the predicate for the defendants’ first argument
fails. See Iadanza v. Toor, supra, 749 (‘‘to determine
the meaning of a judgment, we must ascertain the intent
of the court from the language used and, if necessary,
the surrounding circumstances’’ (internal quotation
marks omitted)).
B
We turn next to the defendants’ argument that they
‘‘presented sufficient evidence in George Kenneth
Shuey’s affidavit to establish a genuine issue of material
fact with respect to the failure to prosecute diligently.’’
We do not agree that the defendants established that
a genuine issue of material fact existed with respect
to their unclean hands special defense and, thus, we
conclude that the court properly rendered summary
judgment in favor of the plaintiff.
At the outset, we note that, in their appellate brief,
the defendants take issue with the plaintiff for present-
ing ‘‘no affidavits to sustain its burden of proving that
no genuine issue of material fact existed with respect
to the special defenses.’’ The defendants posit that they
‘‘submitted an affidavit showing that there were genuine
issues of material fact with regard to the special
defenses . . . [and that] [b]ecause [the] plaintiff did
not otherwise submit affidavits showing that there was
no genuine issue of material fact with regard to the
special defenses to counter the [defendants’ affidavit],
the plaintiff failed to sustain its burden of showing that
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232 Conn. App. 618 MAY, 2025 17
U.S. Bank Trust, National Assn. v. Shuey

there was no genuine issue of material fact with regard
to the special defenses. Therefore, the trial court’s
granting of the plaintiff’s motion for summary judgment
was clearly erroneous and legally and logically incor-
rect.’’ (Footnote omitted.)
The plaintiff, however, did not have to demonstrate
that a genuine issue of material fact existed with respect
to the defendants’ special defense; the defendants did.
See Deutsche Bank National Trust Co. v. Bretoux,
supra, 225 Conn. App. 463. It was the plaintiff’s burden
to establish its prima facie case and to show that it
was entitled to foreclose, and the defendants have not
claimed on appeal that the plaintiff failed to do so. See
id., 462–63. As such, it became the defendants’ burden
to produce evidence supporting their special defense
in order to establish that a genuine issue of material
fact existed with respect to the plaintiff’s purported
unclean hands, and we conclude that they failed to do
so. See id., 463.
‘‘It is a fundamental principle of equity jurisprudence
that for a complainant to show that he is entitled to
the benefit of equity he must establish that he comes
into court with clean hands. . . . The clean hands doc-
trine is applied not for the protection of the parties but
for the protection of the court. . . . It is applied not
by way of punishment but on considerations that make
for the advancement of right and justice. . . . The doc-
trine of unclean hands expresses the principle that
where a plaintiff seeks equitable relief, he must show
that his conduct has been fair, equitable and honest as
to the particular controversy in issue. . . . Unless the
plaintiff’s conduct is of such a character as to be con-
demned and pronounced wrongful by honest and fair-
minded people, the doctrine of unclean hands does not
apply. . . . The party seeking to invoke the clean hands
doctrine to bar equitable relief must show that his oppo-
nent engaged in wilful misconduct with regard to the
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matter in litigation. . . . The trial court enjoys broad
discretion in determining whether the promotion of
public policy and the preservation of the courts’ integ-
rity dictate that the clean hands doctrine be invoked.
. . . Wilful misconduct has been defined as intentional
conduct designed to injure for which there is no just
cause or excuse. . . . [Its] characteristic element is the
design to injure either actually entertained or to be
implied from the conduct and circumstances. . . . Not
only the action producing the injury but the resulting
injury also must be intentional.’’ (Internal quotation
marks omitted.) Homebridge Financial Services, Inc.
v. Jakubiec, supra, 223 Conn. App. 539–40.
The only evidence the defendants submitted in sup-
port of their opposition to the plaintiff’s motion for
summary judgment was George Kenneth Shuey’s affida-
vit, which the defendants claim ‘‘establish[ed] a genuine
issue of material fact with respect to the failure to
prosecute diligently’’ and, thus, their unclean hands spe-
cial defense. The contents of that affidavit can be sum-
marized as follows. The defendants defaulted on their
loan on May 1, 2010, and interest has been accruing
since then ‘‘at various rates.’’ Since the default, two
foreclosure actions have been instituted. The first fore-
closure action ‘‘was ultimately dismissed by the court
on December 12, 2014.’’13 The second foreclosure action
is the present action. On the basis of a ‘‘blended approxi-
mate [interest] rate of 6 percent,’’ $173,520 in interest
had accrued ‘‘during delays caused by the plaintiff’s
lack of diligence.’’ Moreover, George Kenneth Shuey
had paid nearly $22,000 in legal fees to defend the fore-
closure actions, and he and Mary J. Shuey have ‘‘both
13
We note that, although the parties appear to agree in their briefs to this
court that the initial foreclosure action was dismissed for ‘‘dormancy’’ and/
or ‘‘failure to prosecute’’; see footnote 5 of this opinion; George Kenneth
Shuey’s affidavit merely references the dismissal without a description as
to the basis therefor.
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232 Conn. App. 618 MAY, 2025 19
U.S. Bank Trust, National Assn. v. Shuey

suffered damage to [their] credit.’’ Those bare allega-
tions do not support an inference that the plaintiff
engaged in wilful misconduct with the purpose of preju-
dicing the defendants’ rights. Indeed, apart from aver-
ring that the plaintiff instituted two foreclosure actions
based on the defendants’ admitted default on their loan,
those allegations do not aver that the plaintiff engaged
in any conduct whatsoever.
Although George Kenneth Shuey averred that there
were ‘‘delays caused by the plaintiff’s lack of diligence,’’
he provided no explanation as to what those delays
were or to otherwise support that conclusory allegation.
This is particularly significant given that the record
reflects that there were delays in the plaintiff’s pursuit
of foreclosure, but that the majority of those delays,
i.e., the automatic bankruptcy stay, the length of time
it took the defendants to respond to the plaintiff’s
motion for summary judgment and delays attendant to
the COVID-19 pandemic; see footnote 6 of this opinion;
involved circumstances that were out of the plaintiff’s
control.
Moreover, the assertion regarding damage the defen-
dants allegedly sustained to their credit is equally
unsupported, and the blind reliance on an unexplained
‘‘blended approximate’’ rate of 6 percent, during unspeci-
fied periods of alleged delays, to calculate the amount
of interest that purportedly accrued during those
alleged delays is pure, unsubstantiated speculation. As
such, the defendants’ unsupported and speculative alle-
gations are insufficient to raise a genuine issue of mate-
rial fact. See, e.g., Hoskins v. Titan Value Equities
Group, Inc., 252 Conn. 789, 793–94, 749 A.2d 1144 (2000)
(‘‘[a] conclusory assertion . . . does not constitute evi-
dence sufficient to establish the existence of a disputed
material fact for purposes of a motion for summary
judgment’’); see also CitiMortgage, Inc. v. Coolbeth,
147 Conn. App. 183, 194, 81 A.3d 1189 (2013) (affidavit
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20 MAY, 2025 232 Conn. App. 618
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‘‘rooted in surmise’’ is insufficient to raise genuine issue
of material fact), cert. denied, 311 Conn. 925, 86 A.3d
469 (2014). Because the defendants did not meet their
burden of providing an evidentiary basis to establish
the existence of a genuine issue of material fact as to
their unclean hands special defense, the court properly
rendered summary judgment as to liability for the plain-
tiff.
II
We now turn to the defendants’ claim that the court,
Spader, J., improperly dismissed their counterclaim
upon concluding that it remained an asset of the defen-
dants’ bankruptcy estate and that, consequently, the
defendants lacked standing to pursue it. We disagree.
We begin by setting forth our standard of review and
the general legal principles that are germane to our
analysis. ‘‘The issue of standing implicates subject mat-
ter jurisdiction and is therefore a basis for granting a
motion to dismiss. . . . [I]t is the burden of the party
who seeks the exercise of jurisdiction in his favor . . .
clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute. . . .
In addition, because standing implicates the court’s sub-
ject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any time.’’ (Cita-
tion omitted; internal quotation marks omitted.) Rubin
v. Brodie, 228 Conn. App. 617, 630–31, 325 A.3d 1096
(2024).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
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U.S. Bank Trust, National Assn. v. Shuey

to request an adjudication of the issue . . . . Because a
determination regarding the trial court’s subject matter
jurisdiction raises a question of law, [the standard of]
review is plenary.’’ (Internal quotation marks omitted.)
U.S. Bank, National Assn. v. Madison, 196 Conn. App.
267, 272, 229 A.3d 1104 (2020), appeal dismissed, 341
Conn. 809, 268 A.3d 64 (2022).
‘‘In considering the standing issue raised in this case
. . . we first are guided by certain fundamental princi-
ples of bankruptcy law. When a debtor files for bank-
ruptcy protection, a bankruptcy estate is created. . . .
Title 11 of the United States Code, § 541, prescribes
the property interests of the debtor that comprise the
bankruptcy estate. Subject to a few exceptions, such
property is defined as ‘all legal or equitable interests
of the debtor in property as of the commencement of
the case.’ . . . 11 U.S.C. § 541 (a) (1) (2012). It is well
settled that such property includes causes of action
possessed by the debtor at that time. . . . A bank-
ruptcy debtor does not have standing to pursue claims
that constitute property of a bankruptcy estate.’’ (Cita-
tions omitted; emphasis in original; footnote omitted.)
Weiss v. Smulders, 313 Conn. 227, 239–40, 96 A.3d
1175 (2014).
‘‘As noted by our Supreme Court, the integrity of the
bankruptcy system depends on full and honest disclo-
sure by debtors of all their assets. The courts will not
permit a debtor to obtain relief from the [B]ankruptcy
[C]ourt by representing that no claims exist and then
subsequently to assert those claims for his own benefit
in a separate proceeding. . . .
‘‘The act of filing a bankruptcy petition transfers a
debtor’s assets to the bankruptcy estate, and these
assets remain assets of the bankruptcy estate unless
returned to the debtor by the operation of law. . . .
[I]t is a basic tenet of bankruptcy law . . . that all
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assets of the debtor, including all [prepetition] causes
of action belonging to the debtor, are assets of the
bankruptcy estate that must be scheduled for the bene-
fit of creditors . . . . [A]n asset must be properly
scheduled in order to pass to the debtor through aban-
donment under 11 U.S.C. § 554 (c).14 . . .
‘‘[W]here a debtor fails to list a claim as an asset
on a bankruptcy petition, the debtor is without legal
capacity to pursue the claim on his or her own behalf
[postdischarge]. . . . This is so regardless of whether
the failure to schedule causes of action is innocent.’’
(Citation omitted; emphasis in original; footnote in orig-
inal; internal quotation marks omitted.) U.S. Bank,
National Assn v. Madison, supra, 196 Conn. App. 272–
73.
There is no dispute in the present case that the defen-
dants did not list their counterclaim as an asset on their
bankruptcy petition. Rather, the defendants dispute the
propriety of their having to do so, either because the
counts of their counterclaim purportedly were not
legally cognizable causes of action in 2012, or because
they had not yet accrued by 2012. Specifically, they
argue, as they did in the trial court, that, when they
filed their petition, ‘‘predatory lending’’ was not recog-
nized as ‘‘a defense or affirmative counterclaim and
therefore, any such CUTPA claim based on predatory
lending was not a recognized cause of action that would
qualify as ‘property’ ’’ under the bankruptcy code. They
14
‘‘Title 11 of the 2012 edition of the United States Code, § 554 (c), provides:
‘Unless the court orders otherwise, any property scheduled under section
521 (a) (1) of this title not otherwise administered at the time of the closing
of a case is abandoned to the debtor and administered for purposes of
section 350 of this title.’
‘‘Title 11 of the 2012 edition of the United States Code, § 521 (a), provides
in relevant part: ‘The debtor shall— (1) file— (A) a list of creditors; and
(B) unless the court orders otherwise— a schedule of assets and liabilities
. . . .’ ’’ U.S. Bank, National Assn v. Madison, supra, 196 Conn. App. 273 n.6.
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232 Conn. App. 618 MAY, 2025 23
U.S. Bank Trust, National Assn. v. Shuey

further argue that a requirement to schedule an unrec-
ognized cause of action runs afoul of the ‘‘fresh start’’
policy underlying the bankruptcy code and would
‘‘potentially embroil the Bankruptcy Court in costly,
time consuming adversary proceedings that would fur-
ther delay the distribution of the estate and the debtor’s
fresh start.’’15 Finally, they argue that, even if the counts
of their counterclaim were recognized as causes of
action in 2012 when they initiated their bankruptcy
action, they did not constitute their ‘‘property’’ at that
time because their claims had not yet accrued.16
The plaintiff argues, in response, that the defendants’
failure to identify their counterclaim as an asset when
they filed for bankruptcy deprives them of standing to
pursue it. We agree with the plaintiff.
A
With respect to the defendants’ argument that their
‘‘counterclaim counts sound in a claim for predatory
lending and therefore assert a cause of action that sim-
ply did not exist in 2012’’ when they filed their petition
for bankruptcy, they posit that ‘‘Connecticut first recog-
nized a defense of ‘predatory lending’ in Bank of
America, N. A. v. Aubut, 167 Conn. App. 347, 381–82,
15
More specifically, they posit that, ‘‘[i]n this case, the counterclaim plain-
tiffs’ cause of action was not recognized by the state when the bankruptcy
petition was filed. If they had scheduled the cause of action and the bank-
ruptcy trustee chose to pursue it in an adversary proceeding, the Bankruptcy
Court would have been required to apply Connecticut law. Because Connecti-
cut had not recognized the defense or affirmative cause of action for preda-
tory lending, the Bankruptcy Court would not have been able to adjudicate
that claim. The only real practical effect of such an ancillary proceeding
would be to add to the costs and delay of the discharge of the bank-
ruptcy estate.’’
16
The defendants also argue in their brief to this court that their counter-
claim was not barred by the doctrine of judicial estoppel and that the plaintiff-
counterclaim defendant’s argument that the counterclaim was barred by
statutes of limitations was improper. The trial court did not dismiss the
defendants’ counterclaim for either of these reasons, however, and, thus,
we do not address these arguments.
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143 A.3d 638 (2016),17 four years after [they] had filed
their bankruptcy petition’’ and that, consequently, they
‘‘did not have at [the] time [they filed their bankruptcy
petition] ‘a legally cognizable interest in the cause of
action . . . under the applicable state law’ ’’ to list or
schedule. (Emphasis in original; footnote added.) More-
over, they argue that, had they scheduled an unrecog-
nized claim, the Bankruptcy Court ultimately ‘‘would
not have been able to adjudicate’’ it and, thus, ‘‘[t]he
only real effect [of their doing so] would be to add to
the costs and delay of the discharge of the bankruptcy
estate,’’ which runs counter to the purposes of the bank-
ruptcy code.
To this end, the defendants take issue with the court’s
conclusion that ‘‘the [counterclaim counts] are CUTPA,
negligence and misrepresentation/fraud—not ‘preda-
tory lending’ ’’ and they focus on the court’s treatment
of ‘‘the CUTPA claim’’ in particular. ‘‘The interpretation
of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of
the pleadings therefore is plenary.’’ (Internal quotation
marks omitted.) Asnat Realty, LLC v. United Illumi-
nating Co., 204 Conn. App. 313, 322, 253 A.3d 56, cert.
denied, 337 Conn. 906, 252 A.3d 366 (2021).
We begin by noting that, although the defendants
posit that the ‘‘court’s description of the CUTPA claim
mischaracterizes the counterclaim,’’ they expressly
acknowledge that their claim ‘‘is a CUTPA claim based
on ‘predatory lending’ as a necessary element of the
first prong of the CUTPA action, i.e., a claim based on
17
In Bank of America v. Aubut, supra, 167 Conn. App. 376–83, this court
analyzed the equitable special defenses available in a foreclosure action. In
doing so, this court did not expressly recognize a defense entitled ‘‘predatory
lending’’ but, rather, determined that the factual underpinnings of the ‘‘preda-
tory lending’’ defense the defendants alleged in that case fell within the
legal ambit of the recognized equitable defenses of fraud, unclean hands,
unconscionability, and equitable estoppel and was, therefore, viable.
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232 Conn. App. 618 MAY, 2025 25
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‘immoral, unscrupulous, oppressive’ conduct.’’ (Empha-
sis added.) In other words, they describe their CUTPA
claim in a manner that is consistent with, and in fact
supports, the court’s interpretation thereof.
Indeed, the first count of the counterclaim bears the
title ‘‘Connecticut Unfair Trade Practices’’ and it
includes ‘‘allegations’’ which, according to the defen-
dants, ‘‘constitute violations of [CUTPA] . . . on the
part of . . . the [plaintiff] and its predecessor in title
and assignors in that said actions . . . by the [plaintiff]
were immoral, oppressive and unscrupulous . . . .’’ It
makes reference to ‘‘fraudulent predatory real estate
lending practices’’ by the plaintiff and alleges, among
other things, that ‘‘it is plain that the practice of issuing
a loan with reckless disregard of the risk of foreclosure
was within at least the penumbra of some common-
law, statutory, or other established concept of
unfairness and, therefore, an unfair trade practice under
[CUTPA].’’ It concludes by alleging that the alleged
‘‘unlawful, unfair, unscrupulous or fraudulent practices
are a substantial factor in proximately causing . . .
[the defendants] substantial damages’’ and seeks ‘‘dou-
ble or treble damages and such other relief as may be
afforded under CUTPA.’’
It is clear to us, on the basis of our plenary review of
these allegations, that the first count of the defendants’
counterclaim is a CUTPA claim, the basis for which
includes alleged unfair or deceptive predatory lending
practices by the plaintiff and/or its predecessors in
interest, as the defendants acknowledge and as the
court found. See, e.g., Bank of America, N.A. v. Aubut,
supra, 167 Conn. App. 373 (‘‘[t]he public policy underly-
ing CUTPA is to encourage litigants to act as private
attorneys general and to engage in bringing actions that
have as their basis unfair or deceptive trade practices’’
(internal quotation marks omitted)); see also Coppola
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Construction Co. v. Hoffman Enterprises Ltd. Partner-
ship, 157 Conn. App. 139, 197, 117 A.3d 876 (‘‘[t]o prevail
on a CUTPA claim, the [counterclaim] plaintiffs must
[plead and] prove that (1) the [counterclaim] defendant
engaged in unfair or deceptive acts or practices in the
conduct of any trade or commerce . . . and (2) each
class member claiming entitlement to relief under
CUTPA has suffered an ascertainable loss of money or
property’’ (citation omitted; internal quotation marks
omitted)), cert. denied, 318 Conn. 902, 122 A.3d 631
(2015), and cert. denied, 318 Conn. 902, 123 A.3d 882
(2015). Given that CUTPA was enacted originally in
1973; see Public Acts 1973, No. 73-615, § 1; the defen-
dants asserted a recognized cause of action that existed
in 2012 and could have been scheduled as part of their
bankruptcy petition. Thus, we reject their argument to
the contrary.18
B
Finally, the defendants contend that, even if the
counts of their counterclaim were recognized as causes
of action in 2012, the counterclaim was not their ‘‘prop-
erty’’ at that time. Relying on Butner v. United States,
440 U.S. 48, 55, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979),
in which the United States Supreme Court held that
‘‘[p]roperty interests are created and defined by state
law,’’ the defendants maintain that they did not acquire
any interest in their counterclaim until that claim
accrued, and that this ‘‘did not occur until the foreclo-
sure judgment was entered’’ because they had not suf-
fered any injury, or harm, until then. As such, the defen-
dants maintain that their counterclaim accrued after
the commencement of the bankruptcy case, and they
have standing to pursue the postpetition claim. The
18
In reaching this conclusion, we express no opinion as to whether a
cause of action for ‘‘predatory lending’’ existed in Connecticut in 2012 and/
or exists presently. We simply conclude that the defendants asserted a cause
of action that was recognized in 2012.
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U.S. Bank Trust, National Assn. v. Shuey

plaintiff responds that the defendants’ counterclaim
accrued prepetition and thus, remains property of the
bankruptcy estate by virtue of the defendants’ failure
to schedule it. We agree with the plaintiff.
In Weiss v. Smulders, supra, 313 Conn. 227, our
Supreme Court addressed ‘‘whether a cause of action
that was instituted postpetition constitutes the property
of the debtor at the time the bankruptcy case has com-
menced, namely, by the filing of the petition.’’ (Empha-
sis in original.) Id., 240. In doing so, it explained that
‘‘[t]he federal courts are split on the proper approach
to resolve this question. Some courts, relying on Butner
v. United States, [supra] 440 U.S. 48 . . . have deter-
mined that applicable state law determines when a
cause of action accrues and therefore consider that
date in relation to the date on which the petition was
filed. . . . These courts reason that [a]lthough federal
bankruptcy law determines the outer boundary of what
may constitute property of the estate, state law deter-
mines the nature of a debtor’s interest in a given item.
. . . Therefore, whereas federal law instructs us that
[a cause of action] may constitute property of [the
debtor’s] estate, state law determines whether [the
debtor’s] interest in the cause of action is sufficient to
confer on the estate a property right in the action. . . .
The Second Circuit, whose decisions carry particularly
persuasive weight in our resolution of issues of federal
law . . . follows this approach. . . .
‘‘Other courts, relying on Segal v. Rochelle, 382 U.S.
375, 86 S. Ct. 511, 15 L. Ed. 2d 428 (1966), deem the
purposes of federal bankruptcy law controlling, namely,
to secure for creditors everything of value the debtor
may possess in alienable or leviable form when he files
his petition, while leaving the debtor free after the peti-
tion date to accumulate new wealth in the future. . . .
These courts consider whether, even if a cause of action
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accrued postpetition under state law, that action none-
theless was sufficiently rooted in the pre-bankruptcy
past and so little entangled with the bankrupt’s ability
to make an unencumbered fresh start that it should be
regarded as property of the bankruptcy estate. . . .
Under this approach, if the claim has sufficient roots
in the prebankruptcy past but does not materially impair
the bankrupt’s ability to obtain the fresh start intended
under bankruptcy law, the claim belongs exclusively to
the estate.’’ (Citations omitted; emphasis in original;
footnotes omitted; internal quotation marks omitted.)
Weiss v. Smulders, supra, 313 Conn. 240–43.
In Weiss, our Supreme Court expressly declined to
resolve this split of authority and determine which
approach is correct because the claim presented in that
case failed under both approaches.19 Likewise, in the
present case, under either approach, the defendants’
claim that their interests in their counterclaim did not
accrue until after they filed their petition for bank-
ruptcy fails.
As previously stated, the first approach requires us
to look to applicable state law. See id., 241. ‘‘A plaintiff
acquires an interest in a cause of action at the time it
accrues. If, as of the [p]etition [d[ate, the [counterclaim]
had accrued under Connecticut law, [it] became prop-
erty of the estate and the [t]rustee, standing ‘in the
shoes’ of the [d]ebtors, has standing to assert [it]. On
the other hand, if the [counterclaim] did not accrue
until after the petition was filed, it is property of the
[d]ebtors, not the estate, and the [d]ebtors have stand-
ing to pursue it.’’ In re de Hertogh, 412 B.R. 24, 30
(Bankr. D. Conn. 2009). ‘‘In Connecticut, a cause of
action accrues when a plaintiff suffers actionable
19
We note that, in Weiss, it was the defendants’ challenge to the plaintiff’s
standing to bring a promissory estoppel claim the defendants claimed
belonged to the plaintiff’s bankruptcy estate that failed. Weiss v. Smulders,
supra, 313 Conn. 237–47.
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U.S. Bank Trust, National Assn. v. Shuey

harm. . . . Actionable harm occurs when the plaintiff
discovers or should discover, through the exercise of
reasonable care, that he or she has been injured and that
the defendant’s conduct caused such injury.’’ (Citation
omitted.) Champagne v. Raybestos-Manhattan, Inc.,
212 Conn. 509, 521, 562 A.2d 1100 (1989).
In the present case, the defendants allege, as support
for each count of their counterclaim, that, prior to an
‘‘October 2006’’ merger between Golden West Financial
Corporation, including its subsidiary World Savings
Bank (Golden West) and the plaintiff’s predecessor in
interest, Wachovia Corporation, Golden West ‘‘engaged
in a pattern of unlawful, unfair or fraudulent predatory
real estate lending practices causing the counter-
claimant and other victims of such behavior throughout
the state of Connecticut, to lose or be in jeopardy of
losing their homes through foreclosure.’’ (Emphasis
added.) They further allege to ‘‘have suffered substan-
tial damages including but not limited to compensatory
damages from payment of the terms of the predatory
loan, foreclosure, payment of mortgage broker and
other fees . . . emotional distress . . . and other
monetary and special damages.’’ They expressly attri-
bute these alleged damages, in each count of their coun-
terclaim, to ‘‘Golden West’s unlawful, unfair, unscrupu-
lous or fraudulent practices.’’ (Emphasis added.)
Golden West, however, is alleged to have ‘‘ceased opera-
tions’’ following the October, 2006 merger. The defen-
dants, therefore, have plainly alleged that they suffered
actionable harm prior to October, 2006, well before
they filed their bankruptcy petition on April 18, 2012.
Accordingly, under the first approach, we conclude that
the defendants’ counterclaim accrued prepetition and,
given that it was not scheduled, it remains property of
the bankruptcy estate.
With respect to the second approach, courts that have
employed it ‘‘have indicated that a cause of action does
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30 MAY, 2025 232 Conn. App. 618
U.S. Bank Trust, National Assn. v. Shuey

not become property of the bankruptcy estate merely
because it has some prepetition roots; rather, the facts
forming the cause of action determine whether it is
sufficiently rooted in the prepetition past. . . . Some
courts have strictly construed the test to require that
all or most of the facts constituting the cause of action
exist at the commencement of the bankruptcy case . . .
while other courts have applied the test expansively to
include contingent and unripe claims as property of
the estate.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Weiss v. Smulders,
supra, 313 Conn. 245–46. As stated previously, the
defendants expressly have predicated their counter-
claim on acts and omissions that preceded the com-
mencement of their bankruptcy case by nearly six years.
As such, under either construction of the second test,
their counterclaim remains property of the bank-
ruptcy estate.
For these reasons, we conclude that the defendants
were required to schedule their counterclaim when they
filed their bankruptcy petition and that their failure to
do so deprives them of standing to pursue it now. As
such, the court properly dismissed their counterclaim.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
In this opinion the other judges concurred.