Hudson City Savings Bank v. Hellman

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Hudson City Savings Bank v. Hellman

HUDSON CITY SAVINGS BANK v.
CHARLES D. HELLMAN ET AL.
(AC 46642)
Elgo, Suarez and Clark, Js.

Syllabus

The defendant homeowners, C and H, appealed from the trial court’s judg-
ment of foreclosure by sale rendered for the substitute plaintiff, M Co. The
defendants executed and delivered a note payable to B Co., which endorsed
the note in blank and assigned the note and mortgage to the plaintiff, H
Co., which later merged into M Co. B Co. remained the servicer of the loan.
The defendants claimed, inter alia, that the trial court improperly denied
their motion for a continuance in order to conduct further discovery. Held:

The trial court did not abuse its discretion in its discovery rulings or in
denying the defendants’ motion for a continuance, as the defendants failed
to seek timely remedies available under our rules of practice and their
request for relief on the eve of trial was untimely.

The trial court correctly determined that M Co. had sustained its burden of
proof, as there was sufficient evidence to establish that M Co. had authorized
B Co. to act on its behalf.

The trial court’s conclusion that M Co. had established that a notice of
default had been sent to the defendants by first class mail was not clearly
erroneous, as it was supported by ample evidence.

The trial court did not abuse its discretion by excluding certain testimony
as to conversations between C and agents of B Co. as inadmissible hearsay,
as the defendants failed to establish the scope of the authority or the identity
of the purported agents of B Co.

This court declined to address the defendants’ inadequately briefed claim
that the trial court improperly overruled the defendants’ objection to testi-
mony that addressed certain business practices.

The trial court’s sua sponte comments as to the sufficiency of M Co.’s
evidence and regarding testimony from a witness for M Co., although unnec-
essary, did not rise to the level of judicial bias, as the comments were
situated within the context of a scheduling concern and did not rise to the
level of being so egregious as to demand a reversal of the court’s judgment
pursuant to the plain error doctrine.

The trial court did not abuse its discretion in failing to grant the defendants’
equitable relief under the doctrine of unclean hands, as the defendants
offered little evidence to establish that special defense.
Argued October 16, 2024—officially released July 29, 2025
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Hudson City Savings Bank v. Hellman

Procedural History

Action to foreclose a mortgage on certain real prop-
erty of the named defendant et al., and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where Manufacturers and Traders
Trust Company was substituted as the plaintiff; there-
after, the court, Spader, J., sustained the substitute
plaintiff’s objections to discovery requests by the named
defendant et al.; subsequently, the court, Genuario, J.,
denied the motion for a continuance and request for
adjudication of the discovery issues filed by the named
defendant et al.; thereafter, the case was tried to the
court, Genuario, J.; judgment of foreclosure by sale;
subsequently, the court, Genuario, J., sustained the
substitute plaintiff’s objection to the motion to open
the evidence filed by the named defendant et al. and
denied the motion to reargue filed by the named defen-
dant et al., and the named defendant et al. appealed to
this court. Affirmed.
Charles D. Hellman, self-represented, for the appel-
lants (named defendant et al.).
Pierre-Yves Kolakowski, for the appellee (substitute
plaintiff).
Opinion

ELGO, J. The defendants Charles D. Hellman and
Holly H. Hellman appeal from the judgment of foreclo-
sure by sale rendered by the trial court in favor of the
substitute plaintiff, Manufacturers and Traders Trust
Company (M&T).1 We note at the outset that this is the
1
For convenience, we refer to Charles D. Hellman and Holly H. Hellman
individually by first name and collectively as the defendants in this opinion.
Charles is a licensed attorney, and he represents both himself and Holly in
this matter. Bank of America, N.A. (BANA), was also named as a defendant
in the complaint for its claimed interest in the property by way of a mortgage
dated October 28, 2002.
Hudson City Savings Bank (HCSB) merged with M&T in 2015, which was
substituted as the plaintiff, over the defendants’ objection, in 2017. For
clarity we will refer to HCSB and M&T by name when necessary. Any
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second time the parties have appeared before this court
on this matter. In Hudson City Savings Bank v. Hell-
man, 196 Conn. App. 836, 231 A.3d 182 (2020), we
reversed the summary judgment rendered by the trial
court in favor of the plaintiff and remanded the case
for further proceedings consistent with our opinion. In
Hellman, we concluded that summary judgment had
been granted improperly because a genuine issue of
material fact existed as to whether the plaintiff had
provided the defendants with the required EMAP
notice.2 Id., 849. On remand, the trial court addressed
the EMAP notice requirement, fully litigated the matter
and rendered a judgment of foreclosure by sale. On
appeal, the defendants claim that the trial court improp-
erly (1) denied their motion for a continuance in order
to conduct further discovery, (2) deemed sufficient the
evidence offered by the plaintiff, (3) admitted testimony
offered by the plaintiff and excluded testimony offered
by the defendants, (4) admitted the testimony of a wit-
ness due to judicial bias, and (5) failed to grant the
defendants equitable relief under the doctrine of
unclean hands. We affirm the judgment of the trial court.
In the prior appeal, this court set forth the following
facts and procedural history. ‘‘On May 22, 2007, the
defendants executed and delivered a note payable to
Bank of America, N.A. (BANA), in the original principal
amount of $532,000. The loan was secured by a mort-
gage deed on real property located in Westport, exe-
cuted that same day, and recorded on the Westport
land records. BANA endorsed the note in blank. The
defendants have been in default on the note and mort-
gage since September, 2011.
reference to the plaintiff in this opinion refers to M&T as the substituted
plaintiff in the foreclosure action.
2
‘‘EMAP stands for the Emergency Mortgage Assistance Program. General
Statutes §§ 8-265cc through 8-265kk.’’ (Internal quotation marks omitted.)
7 Germantown Road, LLC v. Danbury, 351 Conn. 169, 185 n.8, 329 A.3d
927 (2025).
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‘‘On January 7, 2013, BANA assigned both the note
and the mortgage to [Hudson City Savings Bank
(HCSB)], with that assignment subsequently recorded
on the Westport land records on January 14, 2013. On
June 2, 2013, BANA, as the servicer for the note, sent
a letter to the defendants notifying them of their rights
under the mortgage relief program pursuant to the pro-
visions of General Statutes §§ 8-265cc through 8-265kk.
On June 21, 2013, BANA sent a letter to the defendants
providing notice that the loan was in serious default and
information with respect to the total amount required
to cure the default. The notice of default also provided
that, should the default not be cured on or before July
31, 2013, the mortgage payments would be accelerated.
‘‘When no payments followed, HCSB commenced the
present foreclosure action against the defendants on
December 4, 2013. HCSB filed the operative complaint,
its third revised complaint, on June 29, 2016. On January
20, 2017, the defendants filed an answer that included
thirteen special defenses alleging, inter alia, that (1)
HCSB lacked the right or capacity to maintain the action
as a corporation, (2) HCSB lacked standing, (3) the
assignment of the note and mortgage was not actual
and bona fide, (4) BANA’s conduct with respect to the
mortgage constituted unclean hands, and (5) HCSB was
estopped from enforcing the mortgage.
‘‘On August 4, 2017, HCSB moved for summary judg-
ment as to liability, arguing that there was no genuine
issue of material fact with respect to the defendants’
liability on the note and mortgage. Attached to that
motion was the affidavit of Regina Rhodes. In the
Rhodes affidavit, the affiant averred, in relevant part,
that (1) she was authorized to sign the affidavit on
behalf of HCSB as an assistant vice president for BANA,
(2) BANA maintained records for the loan in question,
and part of her responsibilities was to be familiar with
the types of records maintained by BANA in connection
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Hudson City Savings Bank v. Hellman

with the loan, (3) she had personal knowledge of
BANA’s procedures for creating the records, (4) as of
May 22, 2007, the defendants owed $532,000 as evi-
denced by the note payable to BANA, (5) on or before
November 25, 2013, HCSB ‘became and at all times
since then has been the party entitled to collect the
debt evidenced by the [n]ote and is the party entitled
to enforce the [m]ortgage securing the debt,’ (6) the
note and mortgage are in default for nonpayment as of
September 1, 2011, (7) the defendants were given notice
of default, ‘by certified mail, postage fully prepaid,’ on
June 21, 2013, and (8) HCSB ‘directly or through an
agent, has possession of the promissory note. [HCSB]
is the assignee of the security instrument for the refer-
enced loan.’ Accompanying the Rhodes affidavit were
copies of the note, a June 21, 2013 notice of default
addressed to the defendants, a quitclaim deed of the
property, the mortgage, the assignment of the note and
mortgage from BANA to HCSB, and a June 2, 2013 notice
addressed to the defendants that contained information
pursuant to §§ 8-265cc through 8-265kk.

‘‘After being granted an extension of time to respond,
the defendants filed their opposition to HCSB’s motion
for summary judgment on October 27, 2017. In support
of their opposition, the defendants submitted the affida-
vit of Charles . . . . In that affidavit, Charles . . .
averred that, during 2012, BANA repeatedly stated that
it no longer owned the ‘loan’ and mortgage, and refused
to reveal the identity of the new owner. He further
averred, in relevant part, that (1) HCSB failed to estab-
lish that notice of default was delivered to the defen-
dants as a condition of the mortgage due to Rhodes
averring that HCSB had sent notice by certified mail
without proof of receipt and (2) he could no longer find
any physical branches of HCSB in Connecticut which
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‘raise[d] questions as to [HCSB’s] existence and status
as a real party in interest in this matter.’3
‘‘On October 30, 2017, the court, Randolph, J., held
a hearing on the motion for summary judgment and
heard arguments from both parties. Three days later, the
court granted HCSB’s motion for summary judgment
as to liability. In its order, the court found that no
genuine issue of material fact existed as to the defen-
dants’ liability and that the defendants’ special defenses
and affidavit were insufficient to rebut HCSB’s prima
facie case.
‘‘On November 28, 2017, HCSB filed a motion to sub-
stitute M&T as the plaintiff, pursuant to Practice Book
§§ 9-16 and 9-23. In support of its motion, HCSB
attached a copy of a certificate of effectiveness that
evidenced that, as of November 1, 2015—approximately
twenty-one months before HCSB filed its motion for
summary judgment as to liability—HCSB had merged
into M&T. Over the defendants’ opposition, the court,
Lee, J., granted that motion on December 11, 2017. On
February 26, 2018, the court, Randolph, J., rendered
judgment of foreclosure by sale in favor of M&T, order-
ing that a sale of the property be held on June 23, 2018.
On March 6, 2018, notice of judgment of foreclosure
by sale was sent to the defendants.’’ (Footnote added;
footnotes omitted.) Hudson City Savings Bank v. Hell-
man, supra, 196 Conn. App. 838–42.
In Hellman, this court held that HCSB, as the former
plaintiff, had ‘‘failed to establish that no genuine issue
of material fact existed regarding whether it satisfied
a condition precedent to foreclosure.’’ Id., 849. Important
3
The mortgage required that ‘‘[a]ll notices given by [b]orrower or [l]ender
in connection with this [s]ecurity [i]nstrument must be in writing. Any notice
to [b]orrower in connection with this [s]ecurity [i]nstrument shall be deemed
to have been given to [b]orrower when mailed by first class mail or when
actually delivered to [b]orrower’s notice address if sent by other means.’’
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to our decision on this issue was the contested nature
of the notice to the defendants. The defendants averred
that, because the Rhodes affidavit states that the notice
was sent by certified mail, there was no evidence that
HCSB had complied with the requirement of the mort-
gage that notice be sent by first class mail. HCSB then
countered that the copy of the envelope shows it was
sent by first class mail. As a result of these competing
assertions, there was a genuine issue of material fact
that precluded the granting of summary judgment.4
Id., 858.
After our decision in Hellman, due to the onset of
the COVID-19 pandemic in March, 2020, there was no
activity on the docket until the plaintiff filed its second
motion for summary judgment in December, 2021. In
their objection to the plaintiff’s motion for summary
judgment, the defendants argued that a continuance
pending compliance with the discovery request would
be more appropriate, pointing out that they had requested
that the plaintiff provide details about how and when
the plaintiff came into possession of the note, the cir-
cumstances of the prior transfer of the note and mort-
gage by BANA to the plaintiff, and the consideration
allegedly paid by the plaintiff for the note and mortgage.
On July 19, 2022, the court, Spader, J., issued an order
in which it noted the outstanding discovery disputes
and issued an order on the plaintiff’s pending objection.
In a separate order dated July 19, 2022 (July discovery
order), the court further found that the defendants’
discovery requests were ‘‘overly broad, in general, seek-
ing, arguably, volumes of inadmissible and irrelevant
documents. There is no specificity to the requests and
4
In light of this conclusion, we declined to consider two claims by the
defendants related to the granting of summary judgment, namely, that (1)
there were genuine issues of material fact as to the validity of the assignment
of the note by BANA to HCSB, and (2) more discovery was needed from
HCSB as to how it came into possession of the note. Hudson City Savings
Bank v. Hellman, supra, 196 Conn. App. 849 n.9.
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they appear to just [be] an attempt to burden the target
entities and delay the proceeding.’’ The court ordered
that ‘‘the plaintiff shall disclose documents relating to
the purported demand notices/EMAP notices and any
communications relating to the alleged default that have
not already been included as attachments to pleadings
herein. To the extent that the actual note and mortgage
and assignments thereto were provided as attachments
to previous motions if there are any other assignments
or modifications that were not provided as exhibits,
they should be sent to the defendants’ counsel.’’ The
court also ordered the plaintiff to produce any docu-
ments reviewed and relied on to produce the affidavits,
as well as any and all demand notices that may not have
already been included in the pleadings. The defendants
unsuccessfully sought reconsideration of the discov-
ery order.
Attached to its second motion for summary judgment,
the plaintiff submitted an affidavit from Juan Rubio, an
agent of BANA (Rubio affidavit). The Rubio affidavit
averred, inter alia, that notice of default had been mailed
via first class mail on June 21, 2013, to the defendants.
On November 16, 2022, the court, Genuario, J., issued
an order denying the second motion for summary judg-
ment. The court concluded that there was a genuine
issue of material fact because of the discrepancy
between the Rubio affidavit and the Rhodes affidavit
as to the method by which the notice of default and
intent to accelerate was mailed—either certified mail,
as averred in the Rhodes affidavit, or first class, as
averred in the Rubio affidavit.
Trial was held on January 31 and February 14, 2023.
The plaintiff called two witnesses, Zachary Chromiak,
an employee of BANA, and Kristy Nanci, an employee
of Covius, a subcontractor of BANA responsible for
processing the mailing of the notice of default and accel-
eration to the defendants. Both defendants also testified
for the defense. The parties submitted posttrial briefing.
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On May 12, 2023, the defendants also filed a motion to
open the evidence.
On May 17, 2023, the court, Genuario, J., issued its
memorandum of decision. In its memorandum of deci-
sion, the court summarized the testimony of Chromiak,
noting that, as ‘‘part of his duties, [Chromiak] had exam-
ined the original note, and the records of [BANA],
including correspondence, affidavits of debt, payoff fig-
ures, systems notes, and other records including records
of payments and disbursements. His testimony was suf-
ficient to establish that the plaintiff was the owner of
the note and the defendants were in default of their
obligations under the note. Additionally, both the defen-
dants testified and stated in their testimony unequivo-
cally, that they signed the note and that they had not
kept up with their payments on the note.’’
As to the EMAP notice, the court found that both
Chromiak and Nanci established that ‘‘a notice which
included all the [required] criteria was sent.’’ The testi-
mony of Chromiak and Nanci further established that
‘‘a notice was prepared by importing the data in the
[BANA] files to a template which allowed the letter to
be printed by Covius and ultimately mailed. . . . The
testimony of [Nanci] establishes . . . that the letter
was printed by Covius [and] placed in an envelope with
prepaid postage. The amount of the prepaid postage
was consistent with what is required for first class mail
and placed in a secure bin. Representatives of the
United States Postal Services [USPS] arrive at the Cov-
ius premises and take the letters from the secure bin.
In this way, the letters are printed and placed into an
envelope by Covius using the business record informa-
tion contained in the [BANA] files. The court finds, by
a preponderance of the evidence, that, by placing the
letters in a secure bin at the Covius place of business,
which bin is accessed by [USPS] employees, Covius has
delivered the letter to the post office to be sent by first
class mail.’’ Therefore, the court concluded, the plaintiff
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had complied with the necessary conditions precedent
in the mortgage deed. The court rendered a judgment
of foreclosure by sale and entered an order setting a
sale date of November 18, 2023. The plaintiff then filed
an objection to the defendants’ motion to open, and the
court sustained the plaintiff’s objection to the motion
to open. The defendants then filed a motion to reargue,
which was denied.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendants first claim that the court’s discovery
rulings deprived them of a defense such that they were
denied a fair trial. The crux of the defendants’ claim is
that the court improperly sustained objections to cer-
tain discovery requests and denied their motion for a
continuance, and that, had they been permitted to
obtain the requested discovery, the defendants would
have been able to prove that BANA was not operating
with the authority or agreement of M&T when it issued
the notice of acceleration and default and EMAP notice
to them.5 In response, the plaintiff notes that the defen-
dants waited more than eight years to serve any admis-
sion requests and almost two years after this court
5
In their reply brief to this court, the defendants further argue that Hudson
City Savings Bank v. Hellman, supra, 196 Conn. App. 841 n.4, ‘‘clearly
rendered various of [the defendants’] discovery requests per se relevant to
this litigation.’’ This is a misinterpretation of Hellman. In our prior decision,
this court held that (1) the trial court did not abuse its discretion in allowing
the substitution of M&T as the plaintiff, (2) the defendants were not preju-
diced by that substitution, (3) the court’s granting of summary judgment as
to the issue of liability was improper because the plaintiff had, at that point,
failed to establish that no genuine issue of material fact existed regarding
whether it had satisfied all the conditions precedent to foreclosure, and (4)
HCSB established that it possessed the note at the time that it commenced
the foreclosure action against the defendants, thereby establishing that it
had standing to so commence the action. Hudson City Savings Bank v.
Hellman, supra, 838–42, 848–51. In addressing the defendants’ challenge to
HSBC’s standing, we noted that the Hellman affidavit, which averred, inter
alia, that BANA had made certain representations to the defendants that
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remanded the case subsequent to the first appellate
proceedings. The plaintiff further avers that the court
properly determined that the defendants’ requests were
‘‘exceedingly expansive’’ and overbroad in its July dis-
covery order. Pointing to the court’s reasoning when it
considered the renewed motion for a continuance on
the morning of trial, the plaintiff argues that the court
correctly reasoned that the defendants had not followed
the proper methods of resolving discovery disputes, as
dictated by our rules of practice, and that the court
properly sustained the plaintiff’s objection to the
motion for a continuance. We agree with the plaintiff.
The following additional facts and procedural history
are relevant for our resolution of this claim. The defen-
dants propounded seventy requests for production to
the plaintiff in January, 2022.6 The plaintiff objected to
allegedly ‘‘raised doubts’’ as to its ability to assign the note and mortgage
to the plaintiff (allegations raised again here and discussed in more detail
in part III A of this opinion), in no way undercut HCSB’s showing that it
had standing. Id., 855. We noted that, ‘‘whether BANA had the power to
assign the note and mortgage—therefore implicating whether HCSB was
the proper holder of the note—goes to the merits of the foreclosure action.’’
Id. As we noted, HCSB was under no further obligation to prove that it had
possessed the note at the time that the foreclosure action was commenced
because, at the October 30, 2017 hearing on the motion for summary judg-
ment, ‘‘(1) it had produced the note endorsed in blank and (2) the defendants
failed to offer evidence to rebut the presumption that HCSB possessed the
note at the time it commenced the foreclosure action.’’ Id., 856. We further
stated that a copy of the assignment of the note was affixed to the Rhodes
affidavit, clearly establishing that HCSB came into possession of the note
by way of an assignment from BANA on January 7, 2013—well prior to the
commencement of the action against the defendants. Id., 857. Moreover,
the trial court’s ruling on the defendants’ requests for production ordered
the plaintiff to provide ‘‘any other assignments or modifications’’ that were
in its possession and ‘‘that were not already provided.’’ Notwithstanding the
discovery they were entitled to receive, it remains the case today, as it
was in 2020, that the defendants have offered no evidence to rebut the
presumption—also supported by the evidence—that the plaintiff had stand-
ing to pursue the action.
6
We note that these requests for production included, for example, ‘‘[a]ll
communications between you and the defendants’’ and ‘‘[a]ll communica-
tions between you and any other person concerning the defendants.’’
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the defendants’ first set of requests for production in
April, 2022, arguing that it was ‘‘clear, on its face, that
this discovery was propounded only as an annoyance
or undue burden on the plaintiff, or simply to frustrate
justice.’’7 Also in April, 2022, the court granted a motion
for a continuance of oral argument on the motion for
summary judgment, noting that the motion could be
reclaimed ‘‘after the parties meet to address discovery
objections.’’8
In its July order with respect to the plaintiff’s objec-
tion to the defendants’ first set of requests for produc-
tion, the court agreed with the plaintiff that the defen-
dants’ document requests were ‘‘overly broad, in
general, seeking, arguably, volumes of inadmissible and
irrelevant documents.’’ The court further noted that
the lack of specificity in the requests seemed to be an
attempt to burden the plaintiff and delay the proceed-
ings. Nonetheless, the court ordered the plaintiff to
disclose ‘‘documents relating to the purported demand
notices/EMAP notices and any communications relating
to the alleged default that have not already been
included as attachments to pleadings herein’’ as well as
‘‘any other assignments or modifications’’ to the actual
note and mortgage that were not already provided. The
court also ordered the plaintiff to turn over any docu-
ments relied on by the affiants in the creation of the
7
We note that BANA, acting in its capacity as a codefendant in the action,
filed its own objection to the defendants’ request for production, citing
reasons similar to those of the plaintiff.
8
Practice Book § 13-10 (i) provides: ‘‘No objection to any request for
production shall be placed on the short calendar list until an affidavit by
counsel or self-represented parties is filed certifying that they have made
good faith attempts to resolve the objection and that counsel and/or self-
represented parties have been unable to reach an agreement. The affidavit
shall set forth: (1) the date of the objection; (2) the name of the party who
filed the objection and to whom the objection was addressed; (3) the date,
time and place of any conference held to resolve the differences; and (4)
the names of all conference participants. If no conference has been held,
the affidavit shall also set forth the reasons for the failure to hold such a
conference.’’
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submitted affidavits, if any, ‘‘beyond what has already
been provided.’’ Lastly, the court ordered the plaintiff
to turn over ‘‘any and all demand notices that may not
have already been included in the pleadings.’’ It set a
deadline of August 31, 2022, for compliance with its
order.
The defendants filed a motion for reargument of the
July discovery order. The plaintiff filed a notice of com-
pliance with the court before the deadline, indicating
that it had provided another forty-two pages of docu-
ments. On November 30, 2022, the defendants served
interrogatories and requests for production to the plain-
tiff and BANA, largely centered on the question of who
possessed and/or transferred the note and the mortgage
at different points during the preceding litigation, as
well as the plaintiff’s relationship with BANA. On
December 9 and 12, 2022, the defendants also served
two separate sets of requests for admission each on
the plaintiff and BANA, largely centered on the same
issues as the November 30, 2022 interrogatories. On
January 5, 2023, the plaintiff and BANA objected to
both sets of requests for admission, asserting, inter alia,
that the requests were beyond the scope of this court’s
remand in Hellman.
On January 20, 2023, the defendants filed a motion
for a continuance of the trial—which was scheduled to
commence on January 31, 2023—asserting that they
needed time to ‘‘review in advance of trial . . . the
plaintiff and [BANA’s] recent [objections to the requests
for admission],’’ that ‘‘[r]esponses from [the plaintiff
and BANA] to [the interrogatories and requests for pro-
duction] are also due prior to the current trial date,’’
and that ‘‘[i]t is clear that these [interrogatories and
requests for production] will also be entirely objected
to, and [the defendants] will be required to seek review
of same as well in order to be prepared for trial.’’ On
January 24, 2023, the court denied that motion without
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prejudice but ordered that ‘‘[t]he defendants may renew
the motion on January 31, 2023, prior to the commence-
ment of trial. In the event that it is denied, all parties
should be prepared to proceed on January 31, 2023.’’

On January 23, 2023, the defendants also filed a
motion, supported by an affidavit averred by Charles, to
‘‘determine the sufficiency of objections by the plaintiff
and [BANA] to requests for admission.’’ The court
denied that motion, ‘‘to the extent that the request is
one for adjudication of the request prior to the com-
mencement of trial.’’ On January 30, 2023, the plaintiff
and BANA objected to the interrogatories and requests
for production on the basis that the requests had been
served ‘‘on the eve of trial’’ and were ‘‘being used merely
for delay purposes rather than for a legitimate need for
any information to assist in the prosecution or defense
of this action.’’

On January 31, 2023, the trial commenced as sched-
uled. At the outset of the trial, the defendants renewed
their motion for a continuance and motion to determine
the sufficiency of the plaintiff’s objections to their requests
for admission. The defendants argued that there had
been no ‘‘substantive response’’ to their interrogatories.
The plaintiff responded that the defendants were ‘‘con-
sistently’’ filing ‘‘discovery as a tactic to delay things.’’
In ruling on this renewed motion, the court noted that
the defendants had more than two years after this
court’s decision in April, 2020, in which to conduct
discovery, in accordance with the rules of practice.
The court noted that the defendants ‘‘have not taken
advantage of these processes [as set forth in the rules
of practice] or to the extent you have there have been
no court orders sanctioning the plaintiffs. So, I think
the time for trying this case is here and I’m going to
deny your motion for continuance, and I am going to
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deny your request for adjudication of the discovery
issues as untimely at this point.’’9
In their principal brief to this court, the defendants
now argue that—due to procedural ‘‘maneuvers’’ on the
part of the plaintiff—they were ‘‘required to address
the patent deficiencies’’ in the plaintiff’s objection to
their discovery request within the ambit of the plaintiff’s
second motion for summary judgment, rather than
through the ‘‘normal discovery practice.’’10 The plaintiff
9
We note that Charles averred, in an affidavit submitted to the court on
July 2, 2022, that, ‘‘due to the plaintiff’s own conduct,’’ no meeting between
the defendants and the plaintiff had occurred for the purpose of discussing
the discovery objections. The defendants argued that the plaintiff’s failure
to meet and discuss the discovery objections was a ‘‘brazen violation’’ of
the court’s order marking off the second motion for summary judgment.
After the court’s July discovery order, the defendants submitted a motion
for reargument, repeating the claim that the failure of the parties to meet
pursuant to Practice Book § 13-10 was due to the plaintiff’s conduct. The
court denied that motion. Our review of the record confirms that the defen-
dants never filed a motion to compel, nor moved for sanctions related to
discovery issues.
10
The defendants also aver that Charles’ health impacted his ability to
function at full capacity as the defendants’ counsel, due to an alleged COVID-
19 infection. More specifically, the defendants argue that, after the July
discovery order, they intended to ‘‘promptly propound additional, more
focused discovery requests’’ and would have done so, but for the ‘‘greatly
reduced capacity’’ of Charles, caused by the COVID-19 infection. In his trial
testimony, Charles testified that he was ‘‘ill’’ with COVID-19, and ‘‘at best, was
able to work only at a greatly reduced capacity’’ throughout the remainder
of 2022. According to the defendants, ‘‘[b]ut for his condition, the defendants’
additional discovery requests could readily have been propounded, and
objections to them resolved, well in advance of trial. . . . [but] the defen-
dants were not able to propound their two sets of [requests for admissions
and interrogatories] to [BANA] and [the plaintiff] until December of 2022.’’
Given that these factual assertions were before the trial court, as a compo-
nent of the defendants’ motion for a continuance, we consider them as part
and parcel of the defendants’ claim that the court improperly denied their
motion for a continuance.
In addition, the defendants argue in passing that, at the time of trial, the
court failed to rule on their motion to determine the sufficiency of the
plaintiff’s objections to the requests for admission. As the defendants
acknowledge elsewhere in their principal brief, however, the court in fact
denied that motion on the record on January 31, 2023. To the extent that
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counters that the trial court properly adjudicated the
‘‘wildly excessive’’ discovery requests and that the
defendants have not demonstrated any impropriety in
the court’s ruling sustaining the plaintiff’s objections
to those discovery requests.
We next set forth our standard of review. ‘‘[W]e review
a denial of a motion for a continuance to obtain discov-
ery under an abuse of discretion standard. . . . The
ultimate issue in our review, therefore, is whether the
court reasonably could have ruled on the . . . motion
for a continuance as it did.’’ (Citations omitted.) West
Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15,
26, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d
700 (2004). Upon our review of the record, we cannot
conclude that the court abused its discretion.
The present action began in December, 2013. This
court released its decision in Hellman on April 14, 2020.
It was not until January, 2022, that the defendants pro-
pounded their requests for production. The plaintiff
moved to extend the deadline for compliance to mid-
April, 2022, which was granted by the court.11 The plain-
tiff filed its responses and objections to the defendants’
requests for production on April 12, 2022. The court
issued its order regarding the plaintiff’s objections on
July 19, 2022. The plaintiff gave notice of compliance
with that order on August 29, 2022. The defendants
waited until November 30, 2022, to begin propounding
additional discovery requests. The defendants then
moved for a continuance on the grounds of incomplete
discovery on January 20, 2023—just eleven days before
the scheduled start of trial. Three days later, the defen-
dants filed a motion to determine the sufficiency of the
the defendants claim that the court erred in failing to rule on that motion,
we reject that claim.
11
We note that the court also then twice granted the defendants’ request
for a continuance of the oral argument on the reclaimed second motion for
summary judgment.
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objections to the discovery requests. In the interim, the
defendants never alerted the court to the purported
deficiencies in the plaintiff’s production. Nor did the
defendants ever request additional time to propound
discovery requests on the basis of Charles’ illness. See
footnote 10 of this opinion. We further note that the
defendants did not move for the court to intervene on
their discovery requests nor did they seek sanctions
against the plaintiff. Given the history of the litigation,
the failure of the defendants to seek timely remedies
available under our rules of practice and the untimely
request for relief on the eve of trial, we cannot conclude
that the court abused its discretion in its discovery
rulings or in denying the defendants’ motion for continu-
ance. See State v. Bradley, 39 Conn. App. 82, 88, 663
A.2d 1100 (1995) (‘‘[m]otions for continuance on the
eve of trial are disfavored’’), cert. denied, 236 Conn.
901, 670 A.2d 322 (1996). The defendants’ claim there-
fore fails.
II
The defendants next claim that the court incorrectly
determined that the plaintiff had sustained its burden of
proof because the evidence was insufficient to establish
both that the plaintiff (1) authorized BANA to act on its
behalf, and (2) complied with the requisite conditions
precedent to foreclosure. We consider each of these
claims in turn.
A
The defendants argue that the plaintiff failed to ade-
quately demonstrate that BANA had acted with the req-
uisite authority in issuing notice of acceleration and
default to them. The defendants further contend that
Chromiak’s testimony as to the existence of a servicing
agreement between BANA and M&T is insufficient to
establish the existence of such a relationship. According
to the defendants, this court’s ruling in Aurora Loan
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Services, LLC v. Condron, 181 Conn. App. 248, 186 A.3d
708 (2018) (Aurora), set forth a ‘‘stringent standard’’
for demonstrating authorization to act on behalf of a
lender,’’ one that the plaintiff ‘‘utterly failed’’ to satisfy
in the present case. The plaintiff counters that the defen-
dants misread Aurora, a case in which a loan servicer
was the foreclosing plaintiff, rather than the owner of
the note, and a power of attorney and servicing agree-
ment were necessary to establish authority to foreclose.
Here, because it was foreclosing ‘‘in its own name,’’ the
plaintiff contends that it had standing to do so and was
under no obligation to produce documentation of a
servicing agreement authorizing BANA to issue the
notice of acceleration.12
We first set forth the following relevant legal princi-
ples and standard of review. ‘‘Historical facts constitute
a recital of external events and the credibility of their
narrators. So-called mixed questions of fact and law,
which require the application of a legal standard to
the historical-fact determinations, are not facts in this
sense. . . . [Such questions require] plenary review by
this court unfettered by the clearly erroneous standard.
. . . When legal conclusions of the trial court are chal-
lenged on appeal, we must decide whether [those] . . .
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Lindholm v. Brant, 283 Conn.
65, 76–77, 925 A.2d 1048 (2007). In order to establish a
12
The defendants also argue in their principal brief that Chromiak’s testi-
mony was insufficient to establish the existence of any servicing agreement
or power of attorney under the best evidence rule. See Conn. Code Evid.
§ 10-1. The plaintiff counters that, under this court’s decision in Citibank,
N.A. v. Stein, 186 Conn. App. 224, 199 A.3d 57 (2018), cert. denied, 331
Conn. 903, 202 A.3d 373 (2019), Chromiak’s testimony was sufficient to
establish that BANA was operating with authority when it issued the notice
of acceleration. Because we agree with the plaintiff that it was not required
to produce evidence of the servicing agreement or power of attorney to
prevail on the merits of this claim, we do not reach this issue.
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prima facie case in a mortgage foreclosure action, a
plaintiff must establish, inter alia, that it is the owner
of the note and mortgage, and that it has complied with
any conditions precedent to the foreclosure. See Hud-
son City Savings Bank v. Hellman, supra, 196 Conn.
App. 850. Here, we must determine whether the court
properly concluded that the plaintiff was not required to
produce evidence of the servicing agreement between
itself and BANA, as a matter of law.
A brief recitation of the relevant portion of this court’s
opinion in Aurora is necessary in order to evaluate
the defendants’ claim. In Aurora, after the trial court
rendered a judgment of strict foreclosure, the mortgag-
ors appealed, claiming, inter alia, that the foreclosing
party—a loan servicer—lacked the authority to fore-
close on the mortgage. Aurora Loan Services, LLC v.
Condron, supra, 181 Conn. App. 251. In sum, the mort-
gagors claimed that the loan servicer had failed to dem-
onstrate that it was acting with the note holder’s author-
ity to foreclose on the property. Id., 254. The loan
servicer maintained that it previously had been the
holder of the note and that it had provided sufficient
evidence of its authority to foreclose. Id. As this court
explained: ‘‘The rules for standing in foreclosure actions
when the issue of standing is raised may be succinctly
summarized as follows. When a holder seeks to enforce
a note through foreclosure, the holder must produce
the note. The note must be sufficiently endorsed so as
to demonstrate that the foreclosing party is a holder,
either by a specific endorsement to that party or by
means of a blank endorsement to bearer. If the foreclos-
ing party shows that it is a valid holder of the note and
can produce the note, it is presumed that the foreclosing
party is the rightful owner of the debt. That presumption
may be rebutted by the defending party, but the burden
is on the defending party to provide sufficient proof
that the holder of the note is not the owner of the debt,
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for example, by showing that ownership of the debt
had passed to another party. It is not sufficient to pro-
vide that proof, however, merely by pointing to some
documentary lacuna in the chain of title that might give
rise to the possibility that some other party owns the
debt. In order to rebut the presumption, the defendant
must prove that someone else is the owner of the note
and debt. Absent that proof, the plaintiff may rest its
standing to foreclose on its status as the holder of the
note.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 254–55. The issue in Aurora was that the
loan servicer contended that it had entered into a trust
agreement by which a third party owned the debt and
the loan servicer was authorized to service the mortgage
and initiate foreclosure proceedings. Id., 252–56. This
court reviewed the evidence and concluded that there
had been sufficient demonstration that the loan servicer
had acted under an existing trust agreement as well as
a limited power of attorney, which made clear that the
note holder had ‘‘unequivocally manifested its intention
to authorize the [loan servicer] to exercise its rights to
enforce the debt.’’ Id., 258.

Here, however, the plaintiff is correct that, as the
holder of the note, it was under no obligation to produce
evidence of the servicing agreement or power of attor-
ney that authorized BANA to issue the requisite notices
to the defendants. Put differently, because the plaintiff
in the present case possessed the note, which was
endorsed in blank, there was a rebuttable presumption
that it was the owner of the debt—and the defendants
produced no evidence that the plaintiff was not the
owner of the debt. Chromiak testified that he had reviewed
BANA’s business records associated with the servicing
of the mortgage, that BANA had originated the loan,
that M&T owns the debt, and that there had been no
other loan servicers. The note, endorsed in blank, was
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provided to the court by M&T. The defendants did not
object to this testimony or the relevant exhibits.
As the court noted in its memorandum of decision,
‘‘[t]he plaintiff did not have to establish the authoriza-
tion of the loan servicer to bring the action because
the loan servicer did not bring the action, the plaintiff
initiated this lawsuit. [BANA’s] employee testified and
through him the plaintiff introduced business records
of [BANA] which established the plaintiff’s right to fore-
close the mortgage. . . . Nothing in the business
record rule requires that the person testifying, to estab-
lish the admissibility of its own business records, be
an agent of a party. The employee of [BANA] testified
based on his own knowledge that certain records were
kept in the regular course of business of [BANA] and
that it was the regular course of business of [BANA]
to keep such records.’’ To be clear, Charles admitted
during his testimony that he had no documents or affida-
vits to suggest that anyone else was the proper party
to bring this action. In conclusion, the plaintiff is correct
that, given the facts that were established in this case,
there was no need to confirm in any further detail the
existence of a servicing agreement between BANA and
M&T. The defendants’ claim, therefore, fails.
B
The defendants also argue that the court’s ‘‘conclu-
sion that the plaintiff established [that] a notice of
default had been sent to defendants by first class mail
was erroneous.’’ The defendants contend that the
court’s conclusion that the notice of default was mailed
via first class mail was erroneous because it ‘‘relied
heavily’’ on the testimony of Nanci, who was ‘‘not yet
employed at Covius in 2013’’ when the notices were
mailed. The defendants contend that, if we determine
that Nanci’s testimony was properly admitted; see part
III B of this opinion; we must nonetheless conclude
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that the records and testimony put forth by Nanci ‘‘in
no way establish the plaintiff’s case.’’ In support of this
argument, the defendants point to alleged discrepancies
with the markings on the envelopes of the exhibits
offered at trial, as well as the alleged lack of personal
knowledge on the part of Nanci as to the business
practices at Covius at the time of the mailing. Although
the defendants acknowledge that the task of weighing
properly admitted evidence is ‘‘within the province of
the trier of fact’’ they nonetheless maintain that the
evidence was insufficient to support the conclusion
that proper notice was provided by the plaintiff, as a
condition precedent to foreclosure.
The plaintiff concedes that the notice of acceleration
contains a ‘‘scrivener’s error’’ with respect to the date of
the note. The plaintiff argues that the notice nonetheless
correctly identifies the borrowers, the residential prop-
erty address, the original amount of the note, and the
relevant missing principal and interest payment infor-
mation. Accordingly, the plaintiff contends that the
court had ample evidentiary support for the conclusion
that the requisite notices were issued via first class mail.
We next set forth the relevant legal principles neces-
sary to resolve the defendants’ claim. ‘‘To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. . . . As the finder of fact, the court is
responsible for weighing the evidence. It is the [fact
finder’s] right to accept some, none or all of the evidence
presented. . . . Moreover, [e]vidence is not insuffi-
cient . . . because it is conflicting or inconsistent. [The
court] is free to juxtapose conflicting versions of events
and determine which is more credible. . . . It is the
[finder of fact’s] exclusive province to weigh the con-
flicting evidence and to determine the credibility of
witnesses.’’ (Internal quotation marks omitted.) Caliber
Home Loans, Inc. v. Zeller, 205 Conn. App. 642, 654–55,
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259 A.3d 1, cert. denied, 338 Conn. 914, 259 A.3d 1179
(2021). ‘‘Because it is the sole province of the trier of
fact to assess the credibility of the witnesses, it is not
our role to second-guess such credibility determina-
tions.’’ State v. Franklin, 115 Conn. App. 290, 292, 972
A.2d 741, cert. denied, 293 Conn. 929, 980 A.2d 915
(2009).
The court found that ‘‘[t]he defendants also argue
that the plaintiff did not comply with the condition
precedent required in the mortgage, and that [it] failed
to establish that the plaintiff had . . . complied with
the condition precedent in its mortgage that it notify
the defendants that they were in default, a date not less
than thirty days from the date that the notice is given
by which the default must be cured, the action required
to cure the default and the fact that the failure to cure
the default would result in acceleration of the sum
secured and foreclosure or sale of the property. Both
[Chromiak] and another witness [Nanci], who was an
employee of an entity named Covius, testified. Both
established that a notice which included all the above
criteria was sent.’’
At trial, the plaintiff admitted into evidence copies
of the notice of acceleration and default, dated June
21, 2013, as well as the EMAP notice, dated June 2,
2013. Nanci testified that the required notice was mailed
first class through Covius, picked up from a Covius
facility by USPS, and not returned to Covius. Both
Chromiak and Nanci testified as to the relevant business
records that also support the court’s conclusion that
the notice was issued via first class mail to the defen-
dants—as did the Rubio affidavit. In light of the ample
evidence before it, the court’s finding that such a mail-
ing was in fact issued is not clearly erroneous.
III
The defendants next claim that the court made
improper evidentiary rulings. More specifically, the
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defendants argue that the court (1) improperly excluded
portions of Charles’ testimony as to phone conversa-
tions he purportedly had with BANA representatives
and (2) improperly admitted Nanci’s testimony with
respect to certain business records. We consider each
of these arguments in turn.
A
The defendants argue that, during alleged conversa-
tions between Charles and BANA representatives, the
BANA representatives made certain representations to
the defendants regarding the lack of opportunity to
modify the mortgage and that the debt could not be
satisfied for ‘‘anything less than full price.’’ According
to the defendants, the excluded testimony should have
been admitted because it falls within an exception to
the prohibition against hearsay as statements of a party
opponent.13
The plaintiff counters that the statements Charles
offered were lacking the proper foundation and were
also inadmissible hearsay, and, therefore, they were
properly excluded. The plaintiff argues in the alterna-
tive that, even if the testimony was erroneously
excluded, such error was harmless. We conclude that
the court did not abuse its discretion in excluding the
testimony.
The following additional facts and procedural history
are relevant to the defendants’ claim. On February 14,
2023, Charles took the stand. Almost immediately, he
began to testify as to being ‘‘contacted repeatedly’’ by
13
We note that the defendants also brief the argument that the court
erroneously precluded the testimony because it was not being offered as
hearsay. In essence, the defendants argue that the testimony was being
offered, instead, to demonstrate inequitable conduct on the part of the
mortgage servicer, BANA, because the statements were fraudulent misrepre-
sentations. We decline to review this claim, for the reasons set forth in
footnote 16 of this opinion.
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BANA ‘‘representatives.’’ The plaintiff objected to
Charles’ testimony regarding the content of these con-
versations on the basis of hearsay and as ‘‘calling in
settlement negotiations.’’ The defendants responded
that the testimony was admissible because BANA is a
party to the action and an agent to the plaintiff. The
court reasoned that, ‘‘I can’t let you testify in general
about what generally people from [BANA] have said.
You would have to start out by identifying the person.’’
The court further noted that a more complete founda-
tion would be necessary to determine what authority
these representatives had at the time of these alleged
conversations, adding that, ‘‘if you can lay better
groundwork, I will hear what you and counsel have to
say at any given point in time about particular testi-
mony.’’ The defendants then argued that BANA is ‘‘clearly
the agent’’ of the plaintiff and it ‘‘functioned at all times
as the agent of the plaintiff in this action.’’ The court
acknowledged this point, stating that ‘‘what I can’t let
you do is say I was on the phone with somebody who
I thought was from [BANA] and they said X. If you want
to provide me with a little more detail about how the
conversation came about, who you spoke to, then
maybe you can get over the hearsay objection. But if
it’s as general as what it appears to be, I don’t think
you can get over the hearsay objections at this point.
You haven’t told me who said what.’’ The defendants
replied, ‘‘People who contacted [Charles] with knowl-
edge of the loan, with knowledge of the situation regard-
ing the loan, in an effort to secure payment of the loan,
who represented themselves to be authorized to speak
on behalf of [BANA] and given the intimate knowledge
they had of the situation of the loan, of the status of
the loan right down to how many payments had been—
were in arrears at that time, the amount of the loan,
the monthly payments, they had all the information
. . . . No one else would have contacted me attempting
to get me to make payments to [BANA].’’
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Charles then testified that he had requested a modifi-
cation of the loan terms. When he attempted to describe
the response from the purported BANA representatives,
the plaintiff’s counsel again objected on hearsay grounds
and the court sustained the objection, noting that, ‘‘[i]n
order for a statement from a third party to be admitted,
you have not only to prove the third party was an agent
of the defendant but you have to prove the scope of
the agency. You can’t prove that from the mouth of the
agent. By your own words, these are people who were
trying to collect the loan. They may or may not have
had authority to negotiate the loan. So, I don’t see why
on the record before me how I can allow their state-
ments . . . to be admitted . . . .’’ The defendants
could not provide any further foundation in support of
admitting these statements by the alleged representa-
tives of BANA.
At the conclusion of trial, the defendants noted that
they did not have any additional evidence to put for-
ward, ‘‘subject to any disposition of any of the open
issues like the hearsay objection.’’ The court set a post-
trial briefing schedule, and the defendants then inquired
as to ‘‘any special handling with respect to the hearsay
issue regarding the [BANA] representatives.’’ The court
replied, ‘‘If you want to file a motion to open evidence
for the purpose of putting somebody on, you can file
that. If you want to argue that certain evidence the
court has admitted it shouldn’t consider because it’s in
violation of the hearsay rule, you can . . . argue that
in your brief.’’14 On May 12, 2023, the defendants filed
a motion to open the evidence.
14
The defendants did not address the court’s hearsay ruling as to the
purported conversations between Charles and representatives of BANA in
their posttrial briefing. In the motion to open the evidence, however, the
defendants, for the first time, argued that the purported statements of BANA
representatives were not being offered as exceptions to the prohibition
against hearsay but, instead, that the court should have admitted them as
fraudulent misrepresentations. According to the defendants, the court
should have admitted the excluded testimony because, as nonhearsay, the
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On June 13, 2023, the court held a hearing on the
motion to open. At this hearing, the defendants argued
both that the excluded testimony was admissible as an
exception to the prohibition against hearsay and also
that it was being offered to demonstrate that BANA
had engaged in fraudulent misrepresentations—not for
the truth of the matter asserted in the statements. In
support of their contention that the excluded testimony
should have been admitted, the defendants argued that
§ 8-3 (1) of the Connecticut Code of Evidence should
apply, rendering the excluded testimony admissible.15
The court reiterated that it had sustained the objection
to the purported statements by BANA representatives
because the defendants could not identify the declarant,
the declarant’s position at BANA, or the scope of the
declarant’s authority. The court also noted that, if the
statements were being offered as fraudulent misrepre-
sentations rather than for the truth of the matter
asserted therein, then the defendants would still need
to demonstrate them as such by providing evidence of
their falsity. Upon the conclusion of arguments, the
court denied the motion.16
statements were not being offered for their truth but because the statements
were ‘‘untrue, and thus gives rise to [the defendants’] assertions of estoppel,
unclean hands, violation of the implied covenant of good faith and fair
dealing . . . and inequitable conduct.’’ (Emphasis in original.) We discuss
the claim that the court improperly granted the plaintiff equitable relief in
part V of this opinion.
15
More specifically, the defendants argued that § 8-3 (1) (G) of the Con-
necticut Code of Evidence applies to the excluded testimony. Section 8-3
(1) (G) renders admissible ‘‘a statement made by a predecessor in title of
the party, provided the declarant and the party are sufficiently in privity
that the statement of the declarant would affect the party’s interest in the
property in question.’’ Nothing in this rule obviates the propriety of the
court’s determination that the defendants did not lay a proper foundation
for the statements when they failed to identify the declarant and whether
the individual had the authority to make the alleged statement.
16
We further note that the defendants, in the statement of issues in their
principal brief before this court, identify, as their seventh issue, ‘‘[w]hether
[the defendants’] motion to reopen evidence to permit certain testimony of
[Charles] that had been excluded at trial was properly denied.’’ Our review
of the record reveals that the defendants’ motion to open the evidence, filed
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We next set forth our standard of review. ‘‘It is well
settled that [w]e review the trial court’s decision to admit
[or exclude] evidence, if premised on a correct view of
the law . . . for an abuse of discretion. . . . Under the
abuse of discretion standard, [w]e [must] make every
reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse of
discretion.’’ (Internal quotation marks omitted.) Corbo
v. Savluk, 209 Conn. App. 351, 361, 267 A.3d 919 (2021).
‘‘On appeal, a court’s evidentiary rulings will be over-
turned only where there was an abuse of discretion and
a showing by the defendant of substantial prejudice or
injustice. . . . In reviewing claims that the court
abused its discretion, every reasonable presumption
should be made in favor of upholding the court’s ruling.’’
(Internal quotation marks omitted.) Parker v. Slosberg,
73 Conn. App. 254, 258–59, 808 A.2d 351 (2002).
An out-of-court statement used to prove the truth of
the matter asserted is hearsay and is generally inadmis-
sible unless an exception applies. See State v. Stepney,
191 Conn. 233, 249–50, 464 A.2d 758 (1983), cert. denied,
465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).
subsequent to the trial and posttrial briefing, put forward—for the first
time—the argument that the purported statements by alleged BANA repre-
sentatives were being offered not for the truth of their assertions, but instead
as fraudulent misrepresentations. Beyond the statement of issues, the defen-
dants do not advance an argument that the court improperly denied their
motion to open in their briefing to this court. Rather, the defendants argue
only that the court erred in precluding Charles’ testimony during the eviden-
tiary portion of trial, even though they did not argue at the time they proffered
that testimony that it was admissible as nonhearsay because it was not
being offered for the truth. Because the defendants do not brief the issue
of whether the motion to open was properly denied, we deem that claim
to be inadequately briefed. See Burton v. Dept. of Environmental Protection,
337 Conn. 781, 803, 256 A.3d 655 (2021) (‘‘Analysis, rather than mere abstract
assertion, is required in order to avoid abandoning an issue by failure to
brief the issue properly. . . . [When] a claim is asserted in the statement
of issues but thereafter receives only cursory attention in the brief without
substantive discussion or citation of authorities, it is deemed to be aban-
doned.’’ (Internal quotation marks omitted.))
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One such exception is for admissions made by a party
opponent, which are generally admissible against that
party. See State v. Markeveys, 56 Conn. App. 716, 719,
745 A.2d 212, cert. denied, 252 Conn. 952, 749 A.2d 1203
(2000). See also Conn. Code Evid. § 8-3 (1).
In order to survive any hearsay objection, a party
offering testimony as to the substance of a statement
by a party’s agent or employee must satisfy another
test: ‘‘A broad statement of that rule is that the statement
of an agent is admissible as an admission against his
[or her] principal if the statement concerned a matter
within the scope of the declarant’s employment and
was made before that relationship was terminated.’’
(Internal quotation marks omitted.) Hartford National
Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 585,
506 A.2d 1069, cert. denied, 200 Conn. 805, 510 A.2d
192 (1986); see also Conn. Code Evid. § 8-3 (1) (D)
(rendering admissible ‘‘a statement by the party’s agent,
servant or employee, concerning a matter within the
scope of the agency or employment, and made during
the existence of the relationship’’).
Party opponent admissions, however, do not fall
within this exception to the prohibition against hearsay
statements when the declarant is unidentifiable. ‘‘To
fall within that exception, one must be able to identify
the declarant clearly as a party to the litigation.’’ DeMar-
key v. Fratturo, 80 Conn. App. 650, 655, 836 A.2d 1257
(2003). Moreover, ‘‘[b]efore evidence can be admitted
to show what an agent said, it must be established that
the agent was authorized by the principal to make an
admission. . . . The agency relationship must be
proved by a fair preponderance of the evidence.’’ (Inter-
nal quotation marks omitted.) Burns v. RBS Securities,
Inc., 151 Conn. App. 451, 462, 96 A.3d 566, cert. denied,
314 Conn. 920, 100 A.3d 851 (2014); see also Robles v.
Lavin, 176 Conn. 281, 284, 407 A.2d 959 (1978)
(‘‘[b]efore evidence can be admitted to show what an
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agent said, it must be established that the agent was
authorized by the principal to make an admission’’).
Here, the defendants failed to establish the scope of
the authority or the identity of the purported agents of
BANA, sufficient to justify admitting Charles’ proffered
hearsay testimony. Given that Charles could not identify
who these ‘‘representatives’’ were, or the scope of their
authority, the court was well within its discretion in
determining that the statements offered by Charles were
inadmissible hearsay.17 The defendants’ claim therefore
fails.
Assuming, without deciding, that the agency relation-
ship between these unidentified individuals and the
plaintiff was established, we nonetheless conclude that
the defendants still cannot demonstrate that the court
abused its discretion in excluding the proffered testi-
mony because the defendants have not demonstrated
that the testimony was material or relevant. As the court
noted, when considering the defendants’ motion to
open evidence to permit this same previously excluded
testimony, the alleged statements made to Charles were
irrelevant and immaterial to the present case because
the holder of the note is ‘‘entitled to collect the note
according to its terms regardless of the business terms
17
We note that, as discussed in part II A of this opinion, the defendants
dispute that BANA was operating as an agent of HCSB when it issued the
notice of acceleration and EMAP notice. It is difficult to reconcile that
argument with the contention that the purported statements made to Charles,
allegedly occurring around the same time, by employees of BANA, were
admissible as statements of an agent of a party opponent. The plaintiff has
contended that BANA was its servicing agent, consistently, throughout the
proceedings before the trial court. See Hudson City Savings Bank v. Hell-
man, supra, 196 Conn. App. 854 (HCSB submitted affidavit in connection
with first summary judgment motion averring that BANA is its servicing
agent). Even if we look past this, and surmise that the defendants had
conceded that BANA was operating as an agent of HCSB when the purported
statements were made to Charles, the court acted within its discretion in
excluding the testimony for lack of a proper foundation, for the reasons set
forth in this section of our opinion.
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pursuant to which it acquired the note.’’ Put simply,
the court found that the proffered evidence was not
relevant or material because the holder of the note
is entitled to collect the note according to its terms
regardless of how it came into possession of the note.

In order for statements of a party opponent to be
admissible, there is a ‘‘threshold requirement that such
statements must be relevant and material to issues in
the case.’’ (Internal quotation marks omitted.) State v.
Reese, 77 Conn. App. 152, 162, 822 A.2d 348, cert. denied,
265 Conn. 910, 831 A.2d 252 (2003). In the present case,
the court determined that the alleged statements of the
unidentified declarant were not relevant or material to
the issues presented in the case. The court therefore
did not abuse its discretion in excluding the testimony.18

B

The defendants next argue that the court improperly
overruled their objection to that portion of Nanci’s testi-
mony that addressed certain business practices at Cov-
ius in 2013. More specifically, the defendants objected
at trial to portions of Nanci’s testimony, arguing that
Nanci should not have been allowed to testify as to
business records created in 2013 because she was not
employed by Covius until 2015. When Nanci was asked
how she could be certain that the practices in 2013
were the same as those she was familiar with through
her own experience, she testified, ‘‘I can say that
because my manager was here at that time . . . he has
trained me on these processes and has confirmed that
information.’’ The defendants objected to this testimony
18
Similarly, even if we were to review the defendants’ argument that
Charles’ testimony was improperly excluded because it was not being offered
for the truth of the matter asserted, we would conclude that the court
properly precluded that testimony because it was not relevant or material
to the issues presented in this case.
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on hearsay grounds and the court overruled the objec-
tion. In their principal brief, the defendants now con-
tend that this ruling was erroneous, but they fail to cite
to any legal authority that would support this conclu-
sion. More specifically, although the defendants acknowl-
edge that personal knowledge is not a foundational
requirement for the introduction of a business record,
they nonetheless argue—again, without citation to any
legal authority—that the court’s ruling was erroneous
because, in order to admit the testimony, Nanci ‘‘must
be equipped to state the entity’s procedures giving rise
to the records accord with the procedures with which
she is familiar.’’ Because this issue is inadequately
briefed, we decline to address it. See Braham v. New-
bould, 160 Conn. App. 294, 312 n.15, 124 A.3d 977 (2015)
(it is not our court’s role to ‘‘undertake the legal
research and analyze the facts in support of a claim or
argument when it has not been briefed adequately’’
(internal quotation marks omitted)).
IV
The defendants next claim that Nanci’s testimony
was improperly admitted due to judicial bias. Specifi-
cally, the defendants claim that the court ‘‘suggested’’
to the plaintiff that it had ‘‘potential weaknesses or gaps
in its case’’ and issued a ‘‘sua sponte invitation and
grant of leave’’ to the plaintiff to ‘‘identify and put on
an additional, theretofore unidentified witness to rem-
edy any such gaps or weaknesses.’’ The plaintiff count-
ers that the court’s comments were given in the context
of ‘‘housekeeping matters’’ and these comments did not
demonstrate a lack of impartiality. The plaintiff further
argues that the defendants did not raise any objection
to the court’s comments, did not bring to the court’s
attention any concerns about impartiality, and did not
seek the recusal of the judge. We conclude that the
court’s comments do not rise to the level of plain error
warranting reversal.
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The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to the
start of trial, on January 27, 2023, the parties filed a
joint trial management report.19 That report contained
the names of four witnesses—Chromiak, Susan Vincent
(an appraiser), Charles and Holly. The only other wit-
ness identified was a defense expert witness described
as ‘‘[a] real property appraiser.’’20
At the close of the first day of trial, but before the
plaintiff rested its case-in-chief, the court engaged in a
scheduling conference with both parties. In so doing,
the court stated:
‘‘I do have the foreclosure calendar at 2 p.m., so I
don’t think we should do it tomorrow. I could make
myself available Thursday or I could make myself avail-
able Friday. I prefer to do it Thursday.
‘‘Think about that for a moment while I raise another
issue. . . . I have not come to a conclusion on this
issue; I want to emphasize that. It would appear to me
that one of the issues in this case, and has been in
this case all along including in the Appellate Court, is
whether or not the plaintiff has sustained its burden of
proof that it has complied with all conditions precedent,
including the issuance of the demand letters and
[EMAP] letter. I anticipate that there’s going to be some
briefing as to whether or not the records introduced by
the witness who was employed by [BANA] are business
records of [BANA] or not, or are they business records
. . . of Covius, and it may not be that—it may well be
that the evidence that is introduced already is sufficient
to establish them as business records, or it may well
19
The plaintiff previously had filed its own trial management report, which
contained the same witness list as the joint report subsequently submitted
to the court.
20
On January 31, 2023, the parties filed a stipulation with the court as to
the fair market value of the property. As a result of this stipulation, an
appraiser did not testify at trial—for either of the parties.
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be that the evidence that’s introduced already is not
sufficient to establish them as business records of
[BANA] because some of them were compiled by Cov-
ius.
‘‘The plaintiff may want to consider whether or not
it wants to bring in a witness from Covius. If the plaintiff
wants to do that, I’ll give the plaintiff until next week
to do that.’’
The defendants did not object to these comments by
the court. After the first day of trial, the defendants
filed a motion for a continuance, citing a viral infection
and the recommendation of their doctor. The court,
granting this request, continued the trial until February
14, 2023. On February 6, 2023, between the first and
second day of trial, the plaintiff also filed a caseflow
request, asking the court for permission for ‘‘its wit-
ness’’ to appear virtually, which the court granted. On
February 10, 2023, the defendants filed their own
caseflow request asking the court for permission to
recall, if necessary, the plaintiff’s witness, Chromiak.
In support of this request, the defendants stated that
they ‘‘may need to call [Chromiak] for brief testimony’’
and had so notified opposing counsel, so as to have
him be available ‘‘virtually as required’’ subject to the
court’s ruling. This request remained outstanding when
the trial recommenced.
At the start of the second day of trial, Charles, on
the defendants’ behalf, objected to Nanci’s testimony,
arguing that, ‘‘recognizing what went on at the last hear-
ing . . . I do need to make an objection for the record
that this witness . . . was not even identified by name
until just now, or her affiliation was not listed among
the witnesses for plaintiff in the joint pretrial memo
and I have no notice whatsoever as to what this witness
will testify as to. For these reasons, Your Honor, I must
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object to plaintiffs putting this witness on as part of
its case.’’21
In responding to this objection, the court noted that,
at the close of evidence on the prior day of trial, it had
‘‘inquired’’ as to whether it may be necessary for the
plaintiff to have a representative of Covius testify ‘‘to
establish the business records’’ but that this was not a
requirement—the court had merely ‘‘opined out loud
or speculated out loud as to whether that was neces-
sary. [The plaintiff’s counsel] apparently responded by
calling this witness. I don’t think given the court’s com-
ments it should be a surprise to the defendants but [the
court] will give the defendants ample opportunity to
cross-examine and will give the defendant[s] a lot of
latitude in that cross-examination, to the extent reason-
able.’’ The court then overruled the defendants’ objec-
tion and allowed Nanci to testify.22
We next set forth our standard of review. Here, the
defendants concede that they did not object to Nanci’s
testimony on the ground of judicial bias. Because that
specific claim was not preserved, the defendants seek
plain error review. ‘‘[The plain error] doctrine, codified
at Practice Book § 60-5, is an extraordinary remedy
used by appellate courts to rectify errors committed at
trial that, although unpreserved, are of such monumen-
tal proportion that they threaten to erode our system
21
Notably, the defendants did not request a continuance of the proceedings
for additional time to prepare for the testimony of the witness in order to
cure any prejudice arising from the lack of notice. See Yeske v. Avon Old
Farms School, Inc., 1 Conn. App. 195, 205–206, 470 A.2d 705 (1984) (court
may entertain motion for continuance for late disclosure of witness).
22
On appeal, the defendants also claim that the court’s overruling of their
objection to Nanci’s testimony ‘‘independently renders her appearance an
error warranting reversal’’ but without any further explanation or analysis.
We deem any claim that the court improperly allowed Nanci to testify
because she was not a disclosed witness to be abandoned. See Deutsche
Bank National Trust Co. v. Shivers, 136 Conn. App. 291, 292 n.2, 44 A.3d
879 (claim not briefed on appeal was deemed abandoned, and court may
decline to review it), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).
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of justice and work a serious and manifest injustice on
the aggrieved party. [T]he plain error doctrine. . . is
not . . . a rule of reviewability. It is a rule of reversibil-
ity. That is, it is a doctrine that this court invokes in
order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s
judgment, for reasons of policy. . . . In addition, the
plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings. . . .
Plain error is a doctrine that should be invoked spar-
ingly. . . . Implicit in this very demanding standard is
the notion . . . that invocation of the plain error doc-
trine is reserved for occasions requiring the reversal of
the judgment under review. . . . An appellate court
addressing a claim of plain error first must determine
if the error is indeed plain in the sense that it is patent
[or] readily discernable on the face of a factually ade-
quate record, [and] also . . . obvious in the sense of
not debatable. . . . This determination clearly requires
a review of the plain error claim presented in light of
the record.
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice.’’ (Internal quotation marks
omitted.) Schimenti v. Schimenti, 181 Conn. App. 385,
392–93, 186 A.3d 739 (2018). ‘‘Put another way, plain
error review is reserved for only the most egregious
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errors.’’ State v. McClain, 324 Conn. 802, 814, 155 A.3d
209 (2017).
In cases in which a claim of judicial impropriety
‘‘strikes at the very core of judicial integrity and tends
to undermine public confidence in the established judi-
ciary’’; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496,
501, 101 A.2d 500 (1953); an appellate court properly
may reverse the judgment of a trial court on the basis
of unpreserved claims of judicial bias under the plain
error doctrine. See, e.g., State v. D’Antonio, 274 Conn.
658, 674, 877 A.2d 696 (2005). Remarking on such situa-
tions, our Supreme Court has noted that such a review
is proper when ‘‘[i]t is quite evident from our review
of the trial transcript that a serious departure from
these high standards [of impartiality] occurred in the
court below.’’ Cameron v. Cameron, 187 Conn. 163,
169, 444 A.2d 915 (1982).
We acknowledge that the court’s sua sponte com-
ments as to the sufficiency of the plaintiff’s evidence
were unnecessary. They did not, however, rise to the
level of judicial bias. The court situated its comments
within the context of a scheduling concern, in an
attempt to discern how much time would be required
to try the rest of the case. The court qualified its remarks
by saying, ‘‘I have not come to a conclusion on this
issue’’ and ‘‘it may well be.’’ The court also gave the
defendants adequate time to prepare for the witness in
light of the defendants’ objection that they lacked
notice. Moreover, our review of the record of the trial
court proceedings is devoid of any other similar com-
ment, and the defendants have failed to demonstrate
any other conduct that would suggest that the proceed-
ing was tainted by bias. Accordingly, we conclude that
the court’s comments did not rise to the level of being
so egregious as to demand a reversal of the court’s
judgment.
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V

Lastly, the defendants claim that the plaintiff’s inequi-
table conduct and the doctrine of unclean hands should
have precluded the court from granting the equitable
relief sought by the plaintiff.23 In essence, the defen-
dants argue that ‘‘incontestable evidence’’ establishes
that the plaintiff engaged in ‘‘inequitable’’ and
‘‘repeated’’ conduct and has ‘‘evinced unclean hands
repeatedly in this litigation’’ that resulted in an assault
‘‘on the integrity of the court.’’24 In support of that con-
tention, the defendants direct our attention to the plain-
tiff’s filing of (1) the motion for default and judgment
made during the statutorily mandated mediation period,
as well as the multiple motions made for default for
‘‘nonexistent’’ defaults, and (2) the Rhodes affidavit,
which ‘‘unambiguously represented to the court that
the notice of default . . . had been given to the defen-
dants by ‘certified mail’ . . . .’’25 The plaintiff counters
that the court properly exercised its discretion in
23
The defendants pleaded unclean hands as a special defense.
24
These arguments were presented—in slightly different form—to the
trial court in the defendants’ request to file a surreply to the plaintiff’s second
motion for summary judgment. There, the defendants cited, in passing, to
Practice Book § 17-48. That provision provides the court with instructions
on how to address affidavits that are given in bad faith or solely for the
purpose of delay, including the awarding of attorney’s fees to the party
that has been impacted by such behavior. It further authorizes contempt
proceedings as well as judicial discipline for attorneys who engage in such
conduct. We can see no evidence in the record before us that the defendants
ever requested that the court provide any of those remedies.
25
In Connecticut, upon initiation of foreclosure proceedings, the parties
have the option of participating in court sponsored foreclosure mediation.
See Ocwen Loan Servicing, LLC v. Mordecai, 209 Conn. App. 483, 486–87
n.5, 268 A.3d 704 (2021) (‘‘[d]uring the pendency of mediation, [a] litigation
hold is placed on the case, during which time a mortgagee is prohibited
from making any motion, request or demand of a mortgagor, except as it
may relate to the mediation program; General Statutes § 49-31l (c) (6); and
no judgment of strict foreclosure or foreclosure by sale may be rendered
against the mortgagor during the mediation period’’ (internal quotation
marks omitted)).
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rejecting the unclean hands defense. The plaintiff
argues that neither the ‘‘simple misfiling of a default
motion’’ during the mediation period—which was
promptly withdrawn—nor the various motions for
default that were filed over the lengthy course of this
litigation rise to the level required to substantiate an
unclean hands defense. The plaintiff also argues that it
made no representation that the notice of acceleration,
as averred in the Rhodes affidavit to have been ‘‘given’’
via certified mail, had been received by the defendants
and that, moreover, the evidence at trial demonstrated
that the notice of acceleration was mailed via both first
class mail and certified mail. In essence, the plaintiff
argues that the court properly determined that the
defendants had not proven their special defense that
the plaintiff conducted itself with unclean hands. We
agree with the plaintiff.
Our standard of review for this claim is well estab-
lished. ‘‘[A]pplication of the doctrine of unclean hands
rests within the sound discretion of the trial court. . . .
The exercise of [such] equitable authority . . . is sub-
ject only to limited review on appeal. . . . The only
issue on appeal is whether the trial court has acted
unreasonably and in clear abuse of its discretion. . . .
In determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of [the trial court’s] action.’’ (Internal quo-
tation marks omitted.) Ulster Savings Bank v. 28
Brynwood Lane, Ltd., 134 Conn. App. 699, 711, 41 A.3d
1077 (2012).
‘‘[A]n action to foreclose a mortgage is an equitable
proceeding. . . . 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 doctrine is applied not for the protection
of the parties but for the protection of the court. . . .
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It is applied not by way of punishment but on considera-
tions that make for the advancement of right and justice.
. . . The doctrine of unclean hands expresses the prin-
ciple 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 condemned and pronounced wrongful by hon-
est and fair-minded people, the doctrine of unclean
hands does not apply.’’ (Citations omitted; internal quo-
tation marks omitted.) Thompson v. Orcutt, 257 Conn.
301, 310, 777 A.2d 670 (2001). ‘‘The party seeking to
invoke the clean hands doctrine to bar equitable relief
must show that his opponent engaged in wilful miscon-
duct with regard to the matter in litigation. . . . The
trial court enjoys broad discretion in determining
whether the promotion of public policy and the preser-
vation of the courts’ integrity dictate that the clean
hands doctrine be invoked.’’ (Internal quotation marks
omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn.
App. 321, 335, 801 A.2d 902, cert. denied, 261 Conn. 933,
806 A.2d 1070 (2002).

The court did not abuse its discretion in rejecting the
defendants’ special defense that the plaintiff acted with
unclean hands. The court considered the defendants’
arguments and noted that, although they pleaded thir-
teen special defenses, including unclean hands, they
offered ‘‘little evidence’’ to establish any of them.
Although the court found that that the Rhodes affidavit
had ‘‘failed to establish’’ that notice had been made via
first class mail, or that notice mailed by certified mail
‘‘was actually delivered,’’ it did not conclude that the
affidavit was executed in bad faith or that it contained
any fraudulent misrepresentations, especially in light
of evidence that the notice of acceleration ultimately
was delivered by both first class mail and certified mail.
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The motion for default that was filed during the statuto-
rily mandated mediation period—in 2014—was
promptly withdrawn after the defendants’ objection.
The long, contentious route that this case has taken
has resulted in delay of the plaintiff’s relief—while it
is undisputed that the defendants have remained in the
property in continued default of their obligations on
the note and mortgage—for more than one decade.
After considering the defendants’ arguments, the court
determined that ‘‘nothing in the case at bar persuades
this court that equity requires anything other than a
judgment in the plaintiff’s favor.’’ We cannot disagree
with that determination. The court’s denial of the equita-
ble relief requested by the defendants was not an abuse
of its discretion.
The judgment is affirmed and the case is remanded
for the purpose of making a new finding as to the
amount of the debt, for the setting of new law days,
and for other proceedings according to law.
In this opinion the other judges concurred.