Deutsche Bank National Trust Co. v. Bretoux

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Deutsche Bank National Trust Co. v. Bretoux

DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. LINDSEY S. BRETOUX ET AL.
(AC 46506)
Bright, C. J., and Suarez and Harper, Js.

Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant. The defendant asserted the special defenses
of, inter alia, unclean hands and estoppel. He alleged that, commencing
one month after he stopped making required payments on the note and
continuing for a period of more than three and one-half years, the
defendant submitted to C Co., the plaintiff’s loan servicer, twenty-five
applications to modify the terms of the underlying note and mortgage.
Despite C Co.’s continuing encouragement to submit these applications,
they all were denied for various reasons, including technical defects.
The defendant alleged that the repeated denials caused him to incur
additional debt due to the accrual of interest, fees, and other costs
associated with his default. The trial court granted the plaintiff’s motion
for summary judgment as to the liability of the defendant, determining,
inter alia, that, although the defendant’s estoppel defense was legally
sufficient, it did not dispel the defendant’s liability for defaulting on the
mortgage but, rather, only indicated that the amount of the interest,
fees, and other costs had increased due to the plaintiff’s alleged conduct.
With respect to the defendant’s unclean hands defense, the trial court
found that the defendant failed to provide evidence beyond his own
affidavit that proved that the plaintiff had engaged in wilful misconduct.
Thereafter, the plaintiff filed a motion for a judgment of strict foreclosure
and submitted an affidavit of debt that included the interest and fees
that had accumulated on the note while the defendant was attempting
to secure a loan modification. In response, the defendant filed a motion
for a judgment of foreclosure by sale, which included an objection to
the amount of the debt described in the affidavit, on the basis that the
plaintiff wrongfully had increased the amount of the debt through its
own misconduct. The trial court overruled the defendant’s objection
and rendered a judgment of foreclosure by sale. On the defendant’s
appeal to this court, held:
1. The trial court properly rejected the defendant’s unclean hands defense
in rendering summary judgment as to liability for the plaintiff because
the defendant did not meet his burden of providing an evidentiary basis
to establish the existence of a genuine issue of material fact: the only
evidence the defendant submitted in support of his opposition to the
plaintiff’s motion for summary judgment was his affidavit, which
asserted only bare allegations relevant to his unclean hands defense
and did not provide a basis from which to infer that C Co., as the
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Deutsche Bank National Trust Co. v. Bretoux
plaintiff’s agent, had engaged in wilful misconduct with the purpose of
prejudicing the defendant’s rights; moreover, there were no documents
in the record demonstrating the plaintiff’s allegedly improper handling
of the defendant’s loan modification applications, as the defendant did
not submit the applications or any evidence of any communications
between the defendant and C Co. regarding the applications, evidence
of the specific nature of the technical difficulties identified in the applica-
tions, evidence as to the effect of the technical deficiencies on C Co.’s
review of the applications, or evidence indicating whether the applica-
tions were subjected to any corrective actions following their denial;
accordingly, the defendant’s defense was based on mere speculation,
in which this court would not engage.
2. The trial court improperly relied solely on the plaintiff’s affidavit of
debt to determine the amount of the debt, and, accordingly, this court
reversed the judgment of foreclosure by sale and remanded the case
for an evidentiary hearing on the amount of the debt: by objecting to
the amount of the debt and specifically objecting as to why the amount
of the debt was incorrect on the basis of his estoppel based special
defense, the defendant sufficiently interposed a defense as to the amount
of the debt, which prevented the plaintiff from relying on the affidavit
of debt to prove the amount of the debt pursuant to the applicable rule
of practice (§ 23-18 (a)); moreover, contrary to the plaintiff’s claims,
the defendant was not required to present evidence to preserve his
objection to the plaintiff’s affidavit of debt or to request an evidentiary
hearing for the plaintiff to present its evidence in support of its motion
for judgment because the defendant’s objection to the amount of the
debt precluded the application of Practice Book § 23-18 (a), and it was
the plaintiff’s burden to prove the amount of the debt.
Argued January 31—officially released May 14, 2024

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the defendant Newtown Savings Bank
et al. was defaulted for failure to appear; thereafter,
the defendant Fiore Bria was defaulted for failure to
plead; subsequently, the court, Cirello, J., granted the
plaintiff’s motion for summary judgment as to liability;
thereafter, the court, Cirello, J., rendered judgment of
foreclosure by sale, from which the named defendant
appealed to this court. Reversed in part; further pro-
ceedings.
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Deutsche Bank National Trust Co. v. Bretoux

Melissa Kay, certified legal intern, with whom were
Jeffrey Gentes, and, on the brief, Tyler Walls, certified
legal intern, for the appellant (named defendant).
Jeffrey M. Knickerbocker, for the appellee (plaintiff).
Opinion

BRIGHT, C. J. In this foreclosure action, the defen-
dant Lindsey S. Bretoux1 appeals from the trial court’s
judgment of foreclosure by sale in favor of the plaintiff,
Deutsche Bank National Trust Company, as indenture
trustee for New Century Home Equity Loan Trust 2005-
2. On appeal, the defendant claims that the court
improperly (1) rendered summary judgment as to liabil-
ity in favor of the plaintiff because the defendant failed
to establish a genuine issue of material fact as to his
special defense of unclean hands and (2) failed to con-
sider the defendant’s estoppel defense when determin-
ing the amount of debt. We are not persuaded by the
defendant’s first claim, but we agree with his second
claim. Accordingly, we reverse in part the judgment of
the trial court.
The following facts, viewed in the light most favor-
able to the defendant, and procedural history are rele-
vant to our analysis. On February 28, 2005, the defen-
dant and Rosemary Ann Oquendo (Oquendo), formerly
known as Rosemary Bretoux, his then wife, executed
a mortgage in favor of New Century Mortgage Corpora-
tion (New Century) on property located at 40 Martha
Place in Bridgeport, as security for a promissory note
in the amount of $283,050. The defendant and Oquendo
later divorced, and, pursuant to an October 6, 2016
1
The complaint also named the following parties as additional defendants:
the city of Bridgeport, Newtown Savings Bank, and Fiore Bria. The city of
Bridgeport and Newtown Savings Bank were defaulted for failure to appear,
and Fiore Bria was defaulted for failure to plead. Because those additional
defendants have not participated in this appeal, we refer to Lindsey S.
Bretoux as the defendant in this opinion.
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dissolution of marriage decree, Oquendo was required
to maintain the mortgage on the home and either sell
the home or refinance the mortgage by November 1,
2026, to remove the defendant from the note and mort-
gage and to divide the existing equity in the home evenly
with the defendant. In October, 2017, after the defen-
dant learned that Oquendo had failed to make the
required monthly payments under the note, he made
three payments to bring the note current and continued
to make the monthly payments for several months
thereafter. After April, 2018, however, the defendant
made no further payments. Thus, the defendant has
been in default on the note and mortgage since May,
2018.

Beginning in June, 2018, the defendant began filing
a series of applications to modify the terms of the note
and mortgage. He filed those applications with Carring-
ton Mortgage Services, LLC (Carrington), which ser-
viced the loan for both New Century and the plaintiff,
to which New Century assigned the note and mortgage
in April, 2019. Oquendo conveyed her interest in the
premises to the defendant by virtue of a quit claim deed
that was recorded in the Bridgeport land records on
December 14, 2018.2 By the time that the plaintiff com-
menced the underlying foreclosure action against the
defendant in October, 2019, the defendant already had
filed seven unsuccessful applications for a loan modifi-
cation with Carrington. In his November 14, 2019
answer, the defendant, who was self-represented at the
time, admitted the essential allegations of the com-
plaint, including that the note and mortgage had been
in default since May 1, 2018, and that the plaintiff was
the party entitled to collect the unpaid debt and enforce
2
Oquendo was not named as a party in the underlying foreclosure action
and consequently has not participated in the underlying action or in this
appeal.
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Deutsche Bank National Trust Co. v. Bretoux

the mortgage. In the section of the answer entitled ‘‘Spe-
cial Defenses,’’ the defendant wrote: ‘‘I am working with
the bank for a loan modification.’’ In April, 2021, the
defendant, through counsel, filed an amended answer
and special defenses in which he averred that he lacked
knowledge or information to form a belief as to the
truth of the same allegations he previously had admitted
and alleged, as special defenses, that (1) he was working
with the plaintiff for a loan modification and (2) the
note was modified by a 2010 loan modification.
On September 28, 2021, the plaintiff filed a motion
for summary judgment as to liability, accompanied by
a supporting memorandum of law.3 On April 6, 2022,
the defendant filed a memorandum in opposition to the
plaintiff’s motion for summary judgment. On that same
day, the defendant also filed a second amended answer
and special defenses, in which he asserted the special
defenses of, inter alia, estoppel and unclean hands.4
Specifically, the defendant alleged that, between June,
2018, and March, 2022, he applied to the plaintiff’s loan
servicer, Carrington, for a loan modification twenty-
five times and that each application was denied for
various reasons, including technical defects. The defen-
dant further alleged that, following each denial, Carring-
ton encouraged him to reapply and represented that
the loan would be modified. The defendant alleged that
the repeated denials of his loan modification applica-
tions over the course of nearly four years caused him
to incur additional debt due to the accrual of interest,
fees, and other costs associated with his default.
Consistent with these new special defenses, the
defendant argued in his opposition to the plaintiff’s
3
The plaintiff previously had moved for summary judgment in October,
2020, but the plaintiff withdrew that motion when it filed its September 28,
2021 motion.
4
Due to the plaintiff’s failure to object to the defendant’s request within
fifteen days, the amended answer and special defenses were deemed to
have been filed by consent. See Practice Book § 10-60 (a) (3).
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Deutsche Bank National Trust Co. v. Bretoux

motion for summary judgment that the plaintiff should
be estopped from foreclosing on the property because
Carrington repeatedly encouraged the defendant to file
loan modification applications and then consistently
denied those applications, often ‘‘for technical reasons
such as paperwork not being in order.’’ The defendant
argued that the plaintiff’s actions in connection with
the modification process had ‘‘materially added to [the
defendant’s] debt, including, but not limited to, added
. . . interest, attorney’s fees, costs, etc., and substan-
tially prevented [the defendant] from curing the
default.’’
On June 23, 2022, the plaintiff filed a supplemental
memorandum in support of its motion for summary
judgment alleging, among other things, that the defen-
dant’s estoppel and unclean hands defenses failed to
raise a genuine issue of material fact and were legally
insufficient. On August 8, 2022, the defendant filed a
supplemental objection to the plaintiff’s motion for
summary judgment, reiterating his argument that,
because the plaintiff’s misconduct during the modifica-
tion process had caused him to incur costs that impeded
his ability to cure any default under the note and mort-
gage, the plaintiff should be precluded from foreclosing
on the property.
On October 21, 2022, after a hearing, the trial court
issued a memorandum of decision granting the plain-
tiff’s motion for summary judgment. After determining
that there was no genuine issue of material fact as to
the plaintiff’s prima facie case that the defendant had
defaulted under the note and mortgage and that the
plaintiff was entitled to enforce those obligations, the
court concluded, inter alia, that, although the defen-
dant’s estoppel defense was legally sufficient, it did
‘‘not dispel of the defendant’s liability for defaulting on
the mortgage but, rather, only indicates that the amount
of interest, fees, and other costs ha[d] increased due
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Deutsche Bank National Trust Co. v. Bretoux

to the plaintiff’s alleged conduct.’’ As to the defendant’s
unclean hands defense, the court concluded that the
defendant ‘‘failed to prove that the plaintiff ha[d]
engaged in wilful misconduct. Specifically, the defen-
dant ha[d] failed to provide evidence beyond his own
affidavit, which evinces the plaintiff’s continuous and
meritless rejection of his mortgage modification appli-
cation.’’5 Accordingly, the court rendered summary
judgment as to liability for the plaintiff.
Thereafter, on February 22, 2023, the plaintiff filed a
motion for a judgment of strict foreclosure. On April
19, 2023, the plaintiff submitted an affidavit of debt that
identified the interest and fees that had accumulated
since May 1, 2018, including during the more than three
and one-half years when the defendant was attempting
to secure a loan modification from the plaintiff.6 On
April 21, 2023, the defendant filed a motion for a judg-
ment of foreclosure by sale, which also included his
objection to the plaintiff’s motion for judgment of strict
foreclosure. The defendant objected to the amount of
debt described in the plaintiff’s affidavit on the basis
that the plaintiff wrongfully increased the amount of
the debt through its own misconduct. The defendant
specifically challenged only a portion of that debt
amount, namely, $30,968.59, which included $30,663.59
in interest and $305 for a property inspection fee. On
April 24, 2023, the court overruled the defendant’s
objection. The court’s order stated that ‘‘the argument
that the defendant was damaged as a result of the
twenty-five applications for loan modification is not
persuasive and has been addressed by the court in its
5
The court also concluded that the defendant’s other special defenses
were legally insufficient, which conclusion the defendant has not challenged
on appeal.
6
The plaintiff’s affidavit of debt reflected that the plaintiff had charged
$30,663.59 in interest at a rate of 4.875 percent from April 1, 2018, to April
2, 2023.
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memorandum granting the plaintiff’s motion for sum-
mary judgment. Regarding the request that the judg-
ment be for foreclosure by sale, the court will use the
defendant’s appraisal so the judgment will be [foreclo-
sure by] sale.’’ On the same date, the court rendered a
judgment of foreclosure by sale and ordered the sale
to take place on August 5, 2023. On the basis of the
affidavit of debt and the appraisal filed by the plaintiff
on April 19, 2023, the court found the amount of the
debt was $401,570.56 as of April 2, 2023, and that the
fair market value of the property was $475,000. This
appeal followed.
We first set forth the applicable standard of review
and relevant legal principles. ‘‘Although the party seek-
ing summary judgment has the burden of showing the
nonexistence of any material fact . . . a party oppos-
ing summary judgment must substantiate its adverse
claim by showing that there is a genuine issue of mate-
rial fact together with the evidence disclosing the exis-
tence of such an issue. . . . A material fact is one that
makes a difference in the outcome of a case. . . .
‘‘Summary judgment shall be granted if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . The trial court must view the evidence in the light
most favorable to the nonmoving party. . . .
‘‘[T]o establish a prima facie case in a mortgage fore-
closure action, the plaintiff must prove by a preponder-
ance of the evidence that it is the owner of the note
and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure . . . have been satisfied. . . . Thus, a
court may properly grant summary judgment as to liabil-
ity in a foreclosure action if the complaint and support-
ing affidavits establish an undisputed prima facie case
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Deutsche Bank National Trust Co. v. Bretoux

and the defendant fails to assert any legally sufficient
special defense. . . .
‘‘[T]he party raising a special defense has the burden
of proving the facts alleged therein. . . . If the plaintiff
in a foreclosure action has shown that it is entitled to
foreclose, then the burden is on the defendant to pro-
duce evidence supporting its special defenses in order
to create a genuine issue of material fact . . . . Legally
sufficient special defenses alone do not meet the defen-
dant’s burden. The purpose of a special defense is to
plead facts that are consistent with the allegations of
the complaint but demonstrate, nonetheless, that the
plaintiff has no cause of action. . . . Further . . .
[t]he applicable rule regarding the material facts to be
considered on a motion for summary judgment is that
the facts at issue are those alleged in the pleadings.
. . . [B]ecause any valid special defense raised by the
defendant ultimately would prevent the court from ren-
dering judgment for the plaintiff, a motion for summary
judgment should be denied when any [special] defense
presents significant fact issues that should be tried.’’
(Internal quotation marks omitted.) Bank of New York
Mellon v. Mangiafico, 198 Conn. App. 722, 726–27, 234
A.3d 1115 (2020).
‘‘On appeal, [w]e must decide whether the trial court
erred in determining that there was no genuine issue
as to any material fact and that the moving party is
entitled to judgment as a matter of law. . . . Because
the trial court rendered judgment for the [plaintiff] as
a matter of law, our review is plenary and we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) U.S. Bank, N.A. v. Foote, 151 Conn. App. 620,
630–31, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101
A.3d 952 (2014).
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Deutsche Bank National Trust Co. v. Bretoux

I
The defendant first claims that the court improperly
rendered summary judgment against him as to liability
on the foreclosure complaint because genuine issues
of material fact exist with respect to his special defense
of unclean hands.7 More specifically, the defendant
claims that the court erred in its analysis of the evidence
needed to support a defense in the face of a motion
for summary judgment. The defendant argues that,
although the court correctly concluded that he suffi-
ciently alleged the defense of unclean hands, it errone-
ously concluded that ‘‘he did not adequately support
his claim because he ‘failed to provide evidence beyond
his own affidavit . . . .’ ’’ The defendant further argues
that his affidavit listing twenty-five dates on which his
applications for a loan modification were denied is suffi-
cient evidence on its own to show the ‘‘ ‘continuous
and meritless’ ’’ rejections of his loan modification
applications, thereby creating a genuine issue of mate-
rial fact as to whether the plaintiff engaged in intention-
ally wrongful conduct during the loan modification pro-
cess that substantially prevented the defendant from
curing the default. We are not persuaded.
Because an action to foreclose a mortgage is an equi-
table proceeding, the doctrine of unclean hands is a
viable special defense. ‘‘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 estab-
lish that he comes into court with clean hands. . . .
The clean hands doctrine is applied not for the protec-
tion of the parties but for the protection of the court.
7
The defendant does not challenge the court’s conclusion that the plaintiff
met its burden of establishing its prima facie case in this foreclosure action.
The court determined there was no genuine issue of material fact that the
defendant has been in default of the mortgage note since May 1, 2018, that
the plaintiff has been entitled to collect the debt associated with the mortgage
note since July 18, 2019, and that the plaintiff has exercised its right to call
due the balance of the note.
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Deutsche Bank National Trust Co. v. Bretoux

. . . It is applied not by way of punishment but on
considerations that make for the advancement of right
and justice. . . . The doctrine of unclean hands
expresses the principle that where a plaintiff seeks equi-
table 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 wrong-
ful by honest and fair-minded people, the doctrine of
unclean hands does not apply. . . . The party seeking
to invoke the clean hands doctrine to bar equitable
relief must show that his opponent engaged in wilful
misconduct 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. . . . Wilful misconduct has
been defined as intentional conduct designed to injure
for which there is no just cause or excuse. . . . [Its]
characteristic element is the design to injure either actu-
ally entertained or to be implied from the conduct and
circumstances. . . . Not only the action producing the
injury but the resulting injury also must be intentional.’’
(Citations omitted; internal quotation marks omitted.)
U.S. Bank National Assn. v. Eichten, 184 Conn. App.
727, 747, 196 A.3d 328 (2018).
In Eichten, this court addressed the scope of the
doctrine of unclean hands and its application in the
foreclosure context. See id., 746–50. In that case, the
defendant raised several special defenses to the plain-
tiff’s foreclosure complaint, including that ‘‘the plaintiff
[was] guilty of unclean hands because, although she
qualifie[d] for a [federal Home Affordable Modification
Program (HAMP)] loan modification upon completion
of her trial period payments, the plaintiff did not offer
her a loan modification, but instead, placed her in a
forbearance program without her consent . . . .’’ Id.,
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734. In opposition to the plaintiff’s motion for summary
judgment as to liability, the defendant submitted a
detailed affidavit in which she outlined the plaintiff’s
course of conduct in considering her loan modification
application and asserted that, despite qualifying for the
loan modification under all applicable HAMP guidelines
and successfully completing a trial period plan (TPP),
the plaintiff deprived her of the modification. Id., 739–
40. Along with that affidavit, the defendant submitted
additional documentation supporting her defense,
including a supplemental directive issued by the United
States Department of the Treasury that provided guid-
ance to loan servicers making HAMP eligibility determi-
nations. Id., 748. That directive outlined a two step
process for HAMP modifications and indicated that,
with successful completion of a TPP, borrowers would
be offered a permanent loan modification. Id., 748–49.
She also submitted the plaintiff’s internal records docu-
menting that she had met HAMP criteria for a modifica-
tion, yet the plaintiff failed to offer her a permanent
modification and ultimately deemed her ineligible for
a modification, despite its prior acknowledgement of
her eligibility and approval. Id., 740–41. The trial court
rendered summary judgment for the plaintiff, conclud-
ing ‘‘that none of the defendant’s special defenses raised
a genuine issue of material fact that might defeat the
plaintiff’s cause of action.’’ Id., 743.
On appeal, this court concluded that there was a
genuine issue of material fact as to the defendant’s
unclean hands defense and, therefore, reversed the
judgment of the trial court. Id., 746. We reasoned that
‘‘[t]he plaintiff’s failure to establish that it adhered to
the Treasury Department’s directives, which appear to
encourage that final determinations on whether to offer
the borrower a loan modification be made before the
end of the TPP, and the plaintiff’s failure to provide an
explanation as to its apparent internal approval of the
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Deutsche Bank National Trust Co. v. Bretoux

loan modification in March, 2011, which was not com-
municated to the defendant, create a genuine issue of
material fact as to whether the defendant [could] prevail
on her special defense of unclean hands. When viewing
the evidence in the light most favorable to the defen-
dant, the unexplained length of time it took the plaintiff
to deny the defendant an offer of a permanent modifica-
tion, almost twenty months . . . raises the question of
whether the plaintiff treated the defendant in a fair,
equitable and honest manner knowing that prolonged
delay would place the defendant in an untenable finan-
cial situation, such that she could not possibly extricate
herself to prevent foreclosure.’’ Id., 749–50.
Although the defendant relies on Eichten and argues
that the same analysis applies in the present case, such
reliance is misplaced because the record here is mark-
edly different. The defendant in Eichten provided suffi-
cient evidence illustrating the plaintiff’s review process
and all determinations regarding her eligibility for a
permanent loan modification, which evidence substan-
tiated the assertions in her affidavit that she qualified for
the permanent loan modification and that the plaintiff
wrongfully had failed to offer her a permanent loan
modification under the HAMP guidelines. Id., 739–41,
748–49. In the present case, however, the only evidence
that the defendant submitted in support of his opposi-
tion to the plaintiff’s motion for summary judgment was
his affidavit. Relevant to his unclean hands defense,
the defendant averred that, between June 4, 2018, and
March 24, 2022, he submitted twenty-five applications
to modify the mortgage, Carrington encouraged him to
file those applications, Carrington told him that he
would get his mortgage modified, his applications were
often denied for technical reasons such as paperwork
not being in order, and, after each denial, Carrington
would encourage him to resubmit his application. Those
bare allegations in his affidavit do not provide a basis
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to infer that Carrington, as the plaintiff’s agent, engaged
in wilful misconduct with the purpose of prejudicing
the defendant’s rights. Although the defendant stated in
his affidavit that the plaintiff has ‘‘engaged in wrongful
conduct with respect to my mortgage modification
applications and as a result [has] materially added to
my debt including but not limited to added to interest,
attorney’s fees, costs, etc., and substantially prevented
me from curing the default,’’ he provided no evidence to
substantiate that conclusory allegation. The defendant’s
unsupported allegations are insufficient to raise a genu-
ine issue of material fact. See Hoskins v. Titan Value
Equities Group, Inc., 252 Conn. 789, 793–94, 749 A.2d
1144 (2000) (‘‘[a] conclusory assertion . . . does not
constitute evidence sufficient to establish the existence
of a disputed material fact for purposes of a motion for
summary judgment’’).
Notably, there are no documents in the record dem-
onstrating the plaintiff’s allegedly improper handling
of the defendant’s loan modification applications. In
particular, there is no evidence of any communications
between the defendant and Carrington regarding his
applications, no evidence as to the specific nature of
the technical deficiencies identified in the defendant’s
applications, no evidence as to the effect of the techni-
cal deficiencies on Carrington’s review of the loan modi-
fication applications, and no evidence indicating
whether the loan modification applications were sub-
jected to any corrective actions following their initial
denial, such as rectification of technical deficiencies or
reconsideration based on corrected information. In fact,
the defendant attached none of the loan modification
applications to his affidavit. Thus, unlike the defendant
in Eichten, who submitted an abundance of documen-
tary evidence that substantiated the assertions in her
affidavit; see U.S. Bank National Assn. v. Eichten,
supra, 184 Conn. App. 739–41; the defendant here failed
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Deutsche Bank National Trust Co. v. Bretoux

to submit any supporting evidence to permit a reason-
able inference of wrongdoing to establish a genuine
issue of material fact regarding his unclean hands
defense.

The present case is more analogous to Homebridge
Financial Services, Inc. v. Jakubiec, 223 Conn. App.
517, 309 A.3d 1223 (2024). In Jakubiec, the plaintiff
sought to foreclose a mortgage on real property owned
by Thomas M. Jakubiec (decedent), who died two days
after he had been served with process commencing the
action. Id., 521–22. The trial court granted the plaintiff’s
motion to cite in as a defendant, among others, Robyn
Jakubiec (Robyn), the decedent’s widow. Id., 522. The
plaintiff moved for summary judgment as to liability,
contending that ‘‘[s]aid note and mortgage are now in
default by virtue of nonpayment of the monthly install-
ments of principal and interest due on July 1, 2013, and
each and every month thereafter, and the plaintiff has
exercised its option to declare the entire balance of
said note due and payable.’’ (Internal quotation marks
omitted.) Id., 523. Robyn objected to the plaintiff’s
motion for summary judgment and filed an answer and
special defenses, including, inter alia, unclean hands.
Id. She alleged that ‘‘[t]he plaintiff misrepresented to
the court that it was unable to verify, contact or locate
anyone residing in the property subject to this action
when in fact [Robyn] had actively contact[ed] the plain-
tiff and its agents to alert them to the circumstances
of [the decedent’s] passing and her occupancy of the
property’’ and that ‘‘[t]he purpose of the plaintiff’s mis-
representations were to blindside and ambush [her]
with a judgment of foreclosure prior to her even having
notice of any pleading or filing made with the court.’’
(Internal quotation marks omitted.) Id., 537–38 n.18.
Robyn further asserted that ‘‘the record is replete with
numerous actions taken by the plaintiff requiring that
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it be denied foreclosure. Among these included submit-
ting a false affidavit as to the lack of knowledge as
to the defendant’s residence and whereabout[s]. These
acts have included a refusal of trial payments, confusion
of amounts due, repeated notices directed to the [dece-
dent], checks written out to the [decedent], and material
failure to comply with [the Emergency Mortgage Assis-
tance Program, General Statutes §§ 8-265cc through 8-
265kk].’’ (Internal quotation marks omitted.) Id., 528.
The trial court rendered summary judgment as to liabil-
ity for the plaintiff, concluding that Robyn failed to
present evidence to support her special defense of
unclean hands. Id., 523–24.
On appeal, this court affirmed the judgment of the
trial court, reasoning that, ‘‘[a]lthough [Robyn] con-
tends that [the mortgagee] ‘lied’ about its lack of knowl-
edge of her whereabouts when the foreclosure action
was commenced, she has not presented any evidence
demonstrating that this was anything more than a mis-
take. Furthermore, [Robyn] failed to present evidence
of the plaintiff’s wilful misconduct that rose to the level
of unclean hands with respect to, inter alia, the return
of [her] partial payments during the modification trial
period in 2019, issuing checks and correspondence to
the decedent after his death, and the purportedly
improper refusal to process modification paperwork.’’
Id., 540. Accordingly, this court held that the trial court
properly rendered summary judgment as to the defen-
dant’s unclean hands defense. Id., 542.
In the present case, as in Jakubiec, the defendant,
on the basis of actions taken by the plaintiff with which
he disagreed, argues that a fact finder could reasonably
infer that the plaintiff engaged in those actions for the
improper purpose of hindering his ability to rectify the
default under the note and mortgage, and, as a result,
substantially increased his debt. See U.S. Bank
National Assn. v. Blowers, 332 Conn. 656, 675, 212
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Deutsche Bank National Trust Co. v. Bretoux

A.3d 226 (2019) (explaining that ‘‘[a]llegations that the
mortgagee has engaged in conduct that wrongly and
substantially increased the mortgagor’s overall indebt-
edness, caused the mortgagor to incur costs that
impeded the mortgagor from curing the default, or
reneged upon modifications are the types of misconduct
that are directly and inseparably connected . . . to
enforcement of the note and mortgage’’ (citation omit-
ted; internal quotation marks omitted)). The problem
for the defendant is that he has submitted no evidence
whatsoever that the rejection of his loan modification
applications was improper. The only evidence he has
submitted is a chronology of rejected applications and
encouragement from Carrington that he reapply to cor-
rect any errors. Without some evidence that Carrington
engaged in such conduct as a subterfuge to harm the
defendant, the defendant’s unclean hands defense is
based on mere speculation, in which we will not engage.
See Perez v. Metropolitan District Commission, 186
Conn. App. 466, 476, 200 A.3d 202 (2018) (‘‘Although
the court must view the inferences to be drawn from
the facts in the light most favorable to the party oppos-
ing the motion . . . a party may not rely on mere specu-
lation or conjecture as to the true nature of the facts
to overcome a motion for summary judgment. . . . A
party opposing a motion for summary judgment must
substantiate its adverse claim by showing that there is
a genuine issue of material fact together with the evi-
dence disclosing the existence of such an issue.’’ (Inter-
nal quotation marks omitted.)).

Simply put, because the defendant did not meet his
burden of providing an evidentiary basis to establish
the existence of a genuine issue of material fact, the
court properly rejected the defendant’s unclean hands
defense in rendering summary judgment as to liability
for the plaintiff.
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II
The defendant next claims that the court improperly
failed to consider his estoppel defense when determin-
ing the amount of the debt. Specifically, he claims that
the court improperly accepted the plaintiff’s affidavit
of debt without an evidentiary hearing as to the amount
of mortgage debt, despite his specific objection to the
amount of the debt based on his sufficiently interposed
estoppel defense. The plaintiff contends that the defen-
dant’s failures to present any evidence in support of
his objection and to request an evidentiary hearing are
fatal to his claim that the court erroneously accepted the
plaintiff’s affidavit of debt. We agree with the defendant.
We first set forth the applicable standard of review
and relevant legal principles regarding the admissibility
of affidavits of debt pursuant to Practice Book § 23-18
(a). ‘‘[T]he proper characterization of the trial court’s
ruling is clarified by examining the nature of an affidavit
of debt and the function of . . . § 23-18 (a) in foreclo-
sures. Without question, an affidavit of debt is hearsay
evidence because it is an out-of-court statement, by an
absent witness, that is offered to prove the truth of the
amount of the debt averred in the affidavit. . . . [T]he
purpose of § 23-18 (a) is to serve as an exception to
the general prohibition of hearsay evidence when
appropriate circumstances arise, namely, that the
amount of the debt is not in dispute. . . . Therefore,
the [defendant’s] claim that the [trial court] erred in
determining that § 23-18 (a) [applies] is most properly
characterized as challenging the trial court’s determina-
tion that an exception to the general prohibition of
hearsay applies to the affidavit of debt.
‘‘A trial court’s decision to admit evidence, if prem-
ised on a correct view of the law . . . calls for the
abuse of discretion standard of review. . . . In other
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words, only after a trial court has made the legal deter-
mination that a particular statement . . . is subject to
a hearsay exception, is it [then] vested with the discre-
tion to admit or to bar the evidence based upon rele-
vancy, prejudice, or other legally appropriate grounds
related to the rule of evidence under which admission
is being sought. . . . Therefore, a trial court’s legal
determination of whether Practice Book § 23-18 (a)
applies is a question of law over which our review is
plenary. . . .
‘‘Practice Book § 23-18 (a) provides that, in any fore-
closure action, where no defense as to the amount of
the mortgage debt is interposed, such debt may be
proved by presenting to the judicial authority the origi-
nal note and mortgage, together with the affidavit of the
plaintiff or other person familiar with the indebtedness,
stating what amount, including interest to the date of
the hearing, is due, and that there is no setoff or counter-
claim thereto.
‘‘Thus, to preclude the admission of an affidavit of
debt pursuant to Practice Book § 23-18 (a) to establish
the amount of mortgage debt, a defense to the mortgage
debt must concern the amount of the debt. . . . [A]
defense challenging the amount of the debt must be
actively made to prevent the application of § 23-18 (a).
. . . A defense is insufficient if it focuses on matters
that are ancillary to the amount of the debt, such as
whether the loan is in default, which is a matter of
liability, or [matters] that attack the credibility of the
affiant or defects in the execution of the affidavit itself.
. . . Additionally, a defense to the amount of the debt
must be based on some articulated legal reason or fact.
. . . A defendant not only must object to the amount
of the debt but must specifically object as to why the
amount of the debt is incorrect: for example, whether
late charges should have been waived or money had
been advanced for taxes.’’ (Citations omitted; emphasis
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in original; internal quotation marks omitted.) JPMor-
gan Chase Bank, National Assn. v. Malick, 347 Conn.
155, 163–65, 296 A.3d 157 (2023).
In the present case, the defendant filed an objection
to the amount of the debt and challenged the $30,968.59
claimed by the plaintiff for interest and fees accrued
between April 1, 2018, and April 2, 2023. In his objection,
the defendant argued that his special defenses
‘‘show[ed] that the plaintiff by and through [Carrington]
instructed the defendant to file twenty-five mortgage
modification applications . . . then wrongfully denied
his twenty-five applications. Throughout this period,
while the defendant relied on the plaintiff’s assurances,
the plaintiff wrongfully increased the debt amount
through interest, attorney’s fees, and other costs. . . .
It would be inequitable for the plaintiff to recover a
debt total that was increased due to its own misconduct.
Therefore, the defendant respectfully requests that the
interest and property inspection fees, an amount of
$30,968.59, be excluded from this court’s finding of debt,
and that this court refuse to award attorney’s fees that
accrued because of the plaintiff’s wrongful conduct.’’
(Citations omitted.) Thus, the defendant ‘‘not only . . .
object[ed] to the amount of the debt but [also] . . .
specifically object[ed] as to why the amount of the debt
is incorrect’’ on the basis of his estoppel based defenses.
JPMorgan Chase Bank, National Assn. v. Malick,
supra, 347 Conn. 165. Consequently, the defendant ‘‘suf-
ficiently interposed a defense as to the amount of the
debt,’’ which prevented the plaintiff from relying on
the affidavit of debt to prove the amount of the debt
pursuant to Practice Book § 23-18 (a). Id., 176.
Although the plaintiff contends that the defendant
failed to provide evidence in support of his objection,
our Supreme Court recently rejected that same con-
tention in JPMorgan Chase Bank, National Assn. v.
Malick, supra, 347 Conn. 177, noting that, ‘‘[a]lthough
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the defendant did not provide official records from the
town tax collector to support his calculation of the
amount of property tax he owed, we have never
required, and the language of Practice Book § 23-18 (a)
does not require, a defendant to provide any evidence.’’
The court explained ‘‘that, in a foreclosure action, it is
the plaintiff’s burden to establish the amount of the
debt. . . . [Section] 23-18 (a) provides plaintiffs with
an efficient method of meeting their burden to establish
the amount of the debt if no defense is interposed.
Although it is the defendant’s burden to sufficiently
interpose a defense to the claimed amount of the debt,
once a defense is interposed, the burden remains on
the plaintiff to prove the amount of the debt. At no
point does the burden shift to the defendant to prove
that the plaintiff’s affidavit is incorrect. In other words,
once the defendant has sufficiently interposed a defense
as to the amount of the debt, the plaintiff is required
to satisfy its burden under the Connecticut Code of
Evidence, without the benefit of § 23-18 (a). The pur-
pose of this procedure is to allow a defendant to cross-
examine the witnesses presented on the issue of the
amount of the debt, as well as to allow a defendant
an opportunity to present his or her own evidence.’’
(Citation omitted.) Id., 176.
The defendant followed this precise procedure in the
present case and, contrary to the plaintiff’s argument,
was not required to present evidence to preserve his
objection to the plaintiff’s affidavit of debt. For the
same reason, we are not persuaded by the plaintiff’s
alternative argument that the defendant had to request
an evidentiary hearing in order to preserve his objection
to the court’s reliance on the affidavit of debt. In other
words, because the defendant’s objection to the amount
of the debt precludes the application of Practice Book
§ 23-18 (a) and because it was the plaintiff’s burden to
prove the amount of the debt, the defendant was not
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required to request an evidentiary hearing for the plain-
tiff to present its evidence in support of its motion for
judgment. See id., 178 (‘‘At all times, it was the plaintiff’s
burden to prove the amount of the debt. The defendant
sufficiently objected to the amount of [the debt], and
it was not his burden to provide further evidence to
prove his objection.’’ (Internal quotation marks omit-
ted.)).
Accordingly, the defendant in the present case suffi-
ciently objected to the amount of interest and fees, and
he was not required to provide evidence to support his
objection for the purpose of interposing a defense to
the amount of the debt in accordance with Practice
Book § 23-18 (a). Consequently, we conclude that the
court improperly relied solely on the plaintiff’s affidavit
of debt to determine the amount of the debt.8
The judgment is reversed with respect to the order
of foreclosure by sale and the case is remanded for
an evidentiary hearing on the amount of the debt; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.

8
We note that, in its memorandum of decision on the motion for summary
judgment, the court deemed the defendant’s estoppel defense ‘‘legally suffi-
cient’’ but stated that the estoppel defense ‘‘does not dispel of the defendant’s
liability for defaulting on the mortgage but, rather, only indicates that the
amount of interest, fees, and other costs has increased due to the plaintiff’s
alleged conduct.’’ Thus, although the court recognized the legal viability of
the defendant’s estoppel defense with respect to the debt when it rendered
summary judgment as to liability for the plaintiff, it later failed to consider the
specific objection based on that defense when it overruled the defendant’s
objection to the amount of the debt as set forth in the plaintiff’s affidavit
of debt and, instead, relied on the affidavit when it determined the amount
of the debt. Given that the court recognized the legitimate dispute as to the
amount of the debt at the summary judgment stage, it should have required
the plaintiff to present evidence at a hearing to establish the amount of the
debt when the defendant raised that issue again in response to the plaintiff’s
affidavit of debt.