Wahba v. JPMorgan Chase Bank, N.A.

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SUSANNE P. WAHBA v. JPMORGAN
CHASE BANK, N.A.
(AC 45020)
Elgo, Moll and Suarez, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment of strict foreclosure
in favor of the defendant bank, rendered on remand from this court.
On the plaintiff’s previous appeal, this court had affirmed a judgment
of strict foreclosure rendered in favor of the defendant and remanded
the case solely for the purpose of setting new law days. On remand,
the defendant filed a motion to reset the law days. The plaintiff objected,
contending that the original judgment of strict foreclosure was based
on a 2017 appraisal that did not consider a steep rise in Connecticut
property values that had occurred since the trial court had rendered
judgment. The plaintiff argued that the defendant should be required to
file a motion to open the judgment and submit an updated appraisal
and updated debt figures to allow the trial court to determine whether
strict foreclosure or foreclosure by sale was appropriate. The trial court
rejected the plaintiff’s argument, reasoning that it was bound by the
rescript of this court in in the previous appeal, Wahba v. JPMorgan
Chase Bank, N.A. (200 Conn. App. 852), to only set new law days. Held
that the plaintiff could not prevail on her claim that the trial court, in
rendering its subsequent judgment of strict foreclosure, erred in interpre-
ting this court’s remand order as prohibiting it from changing the nature
of the judgment to a foreclosure by sale: the plaintiff’s claim was fore-
closed by Connecticut National Bank v. Zuckerman (31 Conn. App.
440), in which this court reasoned that, on remand from an appellate
court, a trial court cannot deviate from the directions given by the
appellate court; moreover, even if it is assumed that the trial court had
the authority, following remand, to change the nature of the judgment
to a foreclosure by sale, the plaintiff failed to file a motion to open the
judgment for such purpose, nor did she preserve her claim by providing
the trial court with an evidentiary foundation to support her argument,
which amounted to little more than an unsupported statement of coun-
sel.
Argued September 21—officially released October 25, 2022

Procedural History

Action to recover damages for violations of the Con-
necticut Unfair Trade Practices Act, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the defendant filed a counter-
claim seeking to foreclose a mortgage on certain real
property owned by the plaintiff; thereafter, the plain-
tiff’s claim was tried to the jury before Povodator, J.;
verdict for the defendant; subsequently, the defendant’s
counterclaim was tried to the court, Povodator, J.; judg-
ment for the defendant on the complaint and on the
counterclaim, from which the plaintiff appealed to this
court, Lavine, Alvord and Harper, Js., which dismissed
the appeal in part and remanded the case for the pur-
pose of setting new law days; thereafter, the court,
Hon. Kenneth Povodator, judge trial referee, rendered
a judgment of strict foreclosure, from which the plaintiff
appealed to this court. Affirmed.
Thomas P. Willcutts, for the appellant (plaintiff).
Brian D. Rich, with whom, on the brief, was Anthony
E. Loney, for the appellee (defendant).
Opinion

PER CURIAM. This case returns to us following our
decision in Wahba v. JPMorgan Chase Bank, N.A., 200
Conn. App. 852, 241 A.3d 706 (2020), cert. denied, 336
Conn. 909, 244 A.3d 562 (2021), in which this court,
inter alia, affirmed a judgment of strict foreclosure ren-
dered in favor of the defendant, JPMorgan Chase Bank,
N.A., on its counterclaim seeking foreclosure, and
remanded the case ‘‘solely for the purpose of setting
new law days.’’ Id., 869. The plaintiff, Susanne P. Wahba,
now appeals from the trial court’s subsequent judgment
of strict foreclosure rendered, on remand, in favor of
the defendant.1 On appeal, the plaintiff claims that the
court, in rendering the subsequent judgment of strict
foreclosure, erred in interpreting this court’s remand
order as prohibiting it from changing the nature of the
judgment to a foreclosure by sale. We affirm the judg-
ment of the trial court.
The facts and procedural history leading up to Wahba
are recited therein and need not be repeated here. See
id., 855–57. On remand following Wahba, on August 13,
2021, the defendant filed a motion titled ‘‘motion to reset
law days following appeal,’’ seeking only the resetting
of the law days. On August 26, 2021, the plaintiff filed
an objection to the defendant’s motion, contending, as
is relevant to this appeal, that the original judgment of
strict foreclosure was based on a 2017 appraisal that
‘‘does not take into account the steep rise in Connecti-
cut property values that has occurred since the court
determined to enter a judgment of strict foreclosure,
rather than a foreclosure by sale. The steep rise in
property values has been most dramatic for high-end
shoreline properties, which describes the [plaintiff’s]
property at issue here.’’ The plaintiff further argued that
the defendant should be required to file a new motion
to open the judgment and provide an updated appraisal
and updated debt figures to allow the trial court to
determine anew whether strict foreclosure was still the
appropriate vehicle, instead of a foreclosure by sale.
On August 30, 2021, the court granted the defendant’s
motion to reset the law days, setting new law days to
commence on October 19, 2021. In so doing, the court
cited Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 689
A.2d 1097 (1997), and reasoned that it was bound by
the rescript in Wahba simply to set new law days.
On September 17, 2021, the plaintiff filed, without
any exhibits, a motion to reargue the August 30, 2021
order, requesting for the first time that the court take
judicial notice of a purported value assigned by the real
estate website Zillow to the plaintiff’s property, which
the plaintiff claimed was more than two million dollars
greater than the appraised value on which the trial
court relied in rendering the original judgment of strict
foreclosure. That same day, the court denied the plain-
tiff’s motion to reargue. This appeal followed.2
As stated previously in this opinion, the plaintiff
claims that the court, in rendering the subsequent judg-
ment of strict foreclosure, erred in interpreting this
court’s remand order as prohibiting it from changing
the judgment to a foreclosure by sale. We reject the
plaintiff’s claim for the following two independent rea-
sons.
First, the plaintiff’s claim is foreclosed by Connecti-
cut National Bank v. Zuckerman, 31 Conn. App. 440,
441, 624 A.2d 1163 (1993),3 which addressed the ques-
tion of whether, on remand from a decision by this
court affirming a judgment of strict foreclosure and
remanding the case for the purpose of setting new law
days, a trial court may entertain a motion to open the
judgment for the purpose of ordering a foreclosure by
sale instead of a strict foreclosure. In Zuckerman, this
court rejected the defendants’ claim that ‘‘the [trial]
court [on remand] had an option to deviate from our
direction and, instead, order foreclosure by sale.’’ Id.
This court reasoned that ‘‘[i]t is well settled that on a
remand from an appellate court, a trial court cannot
deviate from the directions given by the appellate
court.’’ Id.; see also id., 441–42 (collecting cases). This
court further stated that ‘‘the trial court . . . could not
have taken any action on remand other than to set new
law days . . . .’’ Id., 442.
Second, even assuming arguendo that the court had
such post-remand authority to change the nature of a
judgment of strict foreclosure to a foreclosure by sale,
we reject the plaintiff’s claim on appeal because the
plaintiff did not file a motion to open the judgment for
such purpose (creating a procedural posture akin to
Zuckerman), nor did she preserve her claim on appeal
by providing the trial court with an evidentiary founda-
tion to support her argument, which amounted to little
more than the ipse dixit of counsel, that a renewed
judgment of strict foreclosure would result in a windfall
of more than two million dollars to the defendant.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
1
The defendant’s counterclaim named several counterclaim defendants,
none of whom is participating in this appeal. See Wahba v. JPMorgan Chase
Bank, N.A., supra, 200 Conn. App. 855 n.2.
2
On November 8, 2021, the defendant filed a motion to terminate the
appellate stay. On December 8, 2021, the trial court granted that motion.
On January 25, 2022, this court granted the plaintiff’s timely motion for
review of termination of stay and granted the relief requested therein, thereby
vacating the order terminating the stay.
3
See U.S. Bank National Assn. v. Rago, 216 Conn. App. , n.9,
A.3d (2022) (recognizing that any revisiting of Zuckerman would require
en banc consideration).