Connecticut Foreclosure Defense Answer, Counterclaims, and Loss Mitigation Package (Strict Foreclosure)

Connecticut Foreclosure Defense Answer, Counterclaims, and Loss Mitigation Package

Part 1 — Pre-Defense Intake Checklist

A. Loan and Property

☐ Defendant mortgagor name(s): [______________________________]
☐ Property address (street, town, county): [______________________________]
☐ Owner-occupied 1- to 4-family residence (triggers EMAP and mediation): ☐ Yes ☐ No
☐ Volume/Page of recorded mortgage in town land records: [______________________________]
☐ Original loan amount: $[____________] Origination date: [__/__/____]
☐ Current FMV (BPO or appraisal): $[____________]
☐ Total alleged debt per Complaint: $[____________]
☐ Equity cushion (FMV − debt): $[____________] ☐ Positive ☐ Negative
☐ Holder per Complaint: [______________________________]
☐ Servicer: [______________________________]
☐ MERS on original mortgage: ☐ Yes ☐ No

B. Litigation Posture

☐ Date Complaint and Lis Pendens served: [__/__/____]
☐ Appearance due (2 days before return date, P.B. § 3-2): [__/__/____]
☐ Answer/Special Defenses due (P.B. § 10-8 — generally 15 days after pleading is closed, or as ordered): [__/__/____]
☐ Foreclosure type sought: ☐ Strict (§ 49-15) ☐ By Sale (§ 49-24)
☐ Law day set: [__/__/____]
☐ Sale date and committee appointed (if § 49-24): [__/__/____]

C. EMAP and Foreclosure Mediation

☐ EMAP Notice (Notice of Right to Apply for Emergency Mortgage Assistance) received with Complaint, per § 49-31j(c): ☐ Yes ☐ No
☐ EMAP application filed with CHFA within 60 days of Notice: ☐ Yes ☐ No
☐ Request for Foreclosure Mediation Period filed by Defendant (Form JD-CV-93) within 15 days after return date: ☐ Yes ☐ No
☐ Foreclosure Mediation Certificate (Form JD-CV-90) attached by Plaintiff: ☐ Yes ☐ No
☐ Mediation period set / extensions granted: [__/__/____]
☐ HUD-certified housing counselor engaged: ☐ Yes ☐ No Counselor: [______________________________]

D. Federal Loss-Mitigation Overlay

☐ 36-day phone outreach (Reg X § 1024.39(a)): ☐ Yes ☐ No
☐ 45-day written notice (Reg X § 1024.39(b)): ☐ Yes ☐ No
☐ Complete loss-mitigation application submitted: ☐ Yes ☐ No Date: [__/__/____]
☐ Submitted more than 37 days before any sale: ☐ Yes ☐ No
☐ Dual-tracking violation suspected: ☐ Yes ☐ No

E. Standing and Holder Issues

☐ Original Note attached to Complaint: ☐ Yes ☐ No
☐ Indorsements / allonges complete: ☐ Yes ☐ No
☐ Recorded assignments chain unbroken: ☐ Yes ☐ No
☐ Plaintiff "holder" / "person entitled to enforce" per UCC art. 3 (C.G.S. § 42a-3-301): ☐ Yes ☐ No

Part 2 — Strict Foreclosure Procedure Memo (Unique to CT, VT, ME)

Key practitioner point. A judgment of strict foreclosure should NOT enter if the equity exceeds the debt — the court will order a foreclosure by sale to capture surplus for the mortgagor and junior lienholders. Argue equity, fair market value, and request foreclosure by sale where appropriate.

Part 3 — Answer, Special Defenses, and Counterclaims

Court Caption

DEFENDANT'S ANSWER, SPECIAL DEFENSES, AND COUNTERCLAIMS

Defendant [NAME], by counsel, answers the Complaint as follows:

I. Responses

1. As to Paragraph 1, Defendant ☐ admits ☐ denies ☐ leaves Plaintiff to its proof.
2. As to Paragraph 4 (allegations of standing), Defendant DENIES that Plaintiff is the holder of the Note and demands strict proof of physical possession at the time the Complaint was filed.
3. As to Paragraph 5 (default), Defendant DENIES.
4. As to Paragraph 6 (compliance with EMAP § 49-31j), Defendant DENIES.
5. [Continue paragraph-by-paragraph.] [______________________________]

II. Special Defenses (Conn. P.B. § 10-50)

FIRST SPECIAL DEFENSE — Lack of Standing. Plaintiff was not the holder of the Note or the assignee of the Mortgage at the time the Complaint was filed.

SECOND SPECIAL DEFENSE — Failure to Comply with EMAP (§ 49-31j). Plaintiff failed to deliver the proper EMAP Notice in the form prescribed by § 49-31k, depriving Defendant of the 60-day cure right and CHFA assistance.

THIRD SPECIAL DEFENSE — Failure to Satisfy Conditions Precedent. Plaintiff failed to send the contractual breach letter required by the Mortgage and failed to comply with 12 C.F.R. §§ 1024.39 and 1024.41.

FOURTH SPECIAL DEFENSE — Equitable Defenses (Unclean Hands, Estoppel, Laches). Foreclosure is equitable. Plaintiff's misconduct — including dual-tracking, robosigning, and misrepresentation of loss-mitigation eligibility — bars the relief requested. See Thompson v. Orcutt, 257 Conn. 301 (2001).

FIFTH SPECIAL DEFENSE — Payment / Improper Application of Payments. Tendered payments misapplied or held in suspense.

SIXTH SPECIAL DEFENSE — Statute of Limitations. Any installment claim accruing more than six (6) years before filing is barred by C.G.S. § 52-576.

SEVENTH SPECIAL DEFENSE — Violation of Reg X / Dual Tracking. 12 C.F.R. § 1024.41(f)–(g).

EIGHTH SPECIAL DEFENSE — Excessive Equity / Request for Foreclosure by Sale (§ 49-24). The fair market value materially exceeds the debt; strict foreclosure would unjustly enrich Plaintiff. Defendant requests a foreclosure by sale under § 49-24.

NINTH SPECIAL DEFENSE — Robosigning / CUTPA Violations as Equitable Bar.

TENTH SPECIAL DEFENSE — Reservation.

Part 4 — Counterclaims

COUNT I — Violation of RESPA / Regulation X (12 U.S.C. § 2605; 12 C.F.R. §§ 1024.36, 1024.39, 1024.41)

(Pleading parallel to KY/OR/OK; statutory damages up to $2,000 per violation; pattern-or-practice up to $1,000,000.)

COUNT II — Violation of FDCPA (15 U.S.C. § 1692 et seq.)

COUNT III — Violation of FCRA (15 U.S.C. § 1681s-2)

COUNT IV — Violation of Connecticut Unfair Trade Practices Act (CUTPA, C.G.S. § 42-110a et seq.)

Plaintiff/Servicer engaged in unfair or deceptive trade practices in the conduct of trade or commerce. Defendant seeks actual and punitive damages, attorney's fees, and injunctive relief under § 42-110g.

COUNT V — Breach of Contract and Implied Covenant of Good Faith and Fair Dealing

COUNT VI — Negligence / Negligent Loss-Mitigation Servicing

Prayer for Relief

A. Dismiss the Complaint with prejudice;
B. In the alternative, order foreclosure by sale under § 49-24 (preserving any equity for Defendant);
C. Actual, statutory, and punitive damages;
D. Attorney's fees and costs;
E. Permanent injunctive relief;
F. Such other relief as is just and equitable.

[Signature block — Conn. Juris No., Address, Email, Phone]

Part 5 — Motion to Dismiss for Lack of Subject Matter Jurisdiction / Standing

DEFENDANT'S MOTION TO DISMISS

Pursuant to Conn. P.B. § 10-30, Defendant moves to dismiss on the grounds that:

1. Plaintiff lacked standing at the time the Complaint was filed because it was neither the holder of the Note nor the assignee of record;
2. Standing is jurisdictional. RMS Residential Properties v. Miller, 303 Conn. 224 (2011); Equity One v. Shivers, 310 Conn. 119 (2013).

[Signature block]

Part 6 — Request for Foreclosure Mediation Program (Form JD-CV-93)

If the Plaintiff did not file the certification and the property is owner-occupied 1- to 4-family:

To: Clerk, Judicial District of [__________]
Re: Docket No. [__________]

Defendant hereby REQUESTS participation in the Ezequiel Santiago Foreclosure Mediation Program pursuant to C.G.S. § 49-31l. The subject property is the Defendant's primary residence and is a 1- to 4-family dwelling.

☐ Form JD-CV-93 attached
☐ Form JD-CV-108 (Mediation Information) attached
☐ Financial documents to be supplied to mediator: Form 710, pay stubs, bank statements, tax returns, hardship letter

Signature: [______________________________] Date: [__/__/____]

Part 7 — Application for Emergency Mortgage Assistance (EMAP) — § 49-31d

Submit to Connecticut Housing Finance Authority (CHFA), 999 West St., Rocky Hill, CT 06067, within 60 days after receipt of the § 49-31j notice.

Borrower: [______________________________]
Property: [______________________________]
Loan No.: [__________]
Servicer: [______________________________]
Date of EMAP Notice: [__/__/____]
Application postmark deadline: [__/__/____]

☐ Two pay stubs
☐ Two bank statements
☐ Two tax returns
☐ Hardship affidavit
☐ Reasonable prospect of resuming payments demonstrated
☐ Counseling certification from HUD-approved counselor

Borrower signature: [______________________________] Date: [__/__/____]

Part 8 — Loss Mitigation Application Package

A. Cover Letter to Servicer

Date: [__/__/____]

[Servicer]

Re: Complete Loss-Mitigation Application — Loan No. [__________]; Property: [______________________________]

Programs requested:
☐ Loan modification (in-house, Flex, FHA-HAMP, VA-VASP, USDA)
☐ Forbearance / Repayment plan
☐ Partial claim
☐ Short sale / Deed-in-lieu

B. Document Checklist

☐ Form 710 (signed)
☐ Hardship affidavit
☐ 2 pay stubs (each borrower)
☐ 2 bank statements (all accounts)
☐ 2 tax returns + IRS Form 4506-C
☐ P&L (self-employed)
☐ Benefits letters
☐ Utility bill (occupancy proof)
☐ HOI declarations
☐ Most recent mortgage statement
☐ HUD-certified counselor name: [______________________________]
☐ MyHomeCT (CHFA-administered Homeowner Assistance Fund) application: ☐ Submitted

C. Hardship Affidavit

Hardship began on [__/__/____]: ☐ Income loss ☐ Medical ☐ Divorce ☐ Death of co-borrower ☐ Disaster ☐ Other: [______________________________]

Monthly net income: $[____________] Monthly expenses: $[____________] Affordable payment: $[____________]
Intent to retain property: ☐ Yes ☐ No

Signature: [______________________________] Date: [__/__/____]

Part 9 — Discovery Demand (First Set)

REQUESTS FOR PRODUCTION

1. The original Note with all indorsements and allonges.
2. Every recorded assignment of the Mortgage with town land records data.
3. Complete payment history, escrow analysis, and corporate-advance ledger.
4. All communications between Plaintiff, prior servicers, and any investor regarding Defendant's loan.
5. Loss-mitigation file, including decision codes, waterfalls, denial letters, and appeal records.
6. PSA / Trust Indenture and proof of timely deposit of the Note into the securitization trust.
7. Robosigning audits and remediation files involving the affiants used in this action.
8. Proof of compliance with § 49-31j (EMAP Notice) and § 49-31l (Mediation Certificate).

INTERROGATORIES

1. Identify the physical custodian of the original Note and the date acquired.
2. State each loss-mitigation program for which Defendant was evaluated and the result.
3. State all charges to the loan since default for inspections, BPOs, attorney fees, and force-placed insurance.

REQUESTS FOR ADMISSION

1. Admit the loan is a "federally related mortgage loan."
2. Admit the subject property is owner-occupied 1- to 4-unit and subject to the mediation program.
3. Admit Plaintiff did not have possession of the original Note when the Complaint was filed.

Part 10 — Opposition to Motion for Strict Foreclosure / Request for Foreclosure by Sale

DEFENDANT'S OBJECTION TO MOTION FOR JUDGMENT OF STRICT FORECLOSURE AND REQUEST FOR FORECLOSURE BY SALE

1. The fair market value of the subject property is $[____________].
2. The total debt with statutory costs and reasonable attorney fees is $[____________].
3. The equity cushion of $[____________] makes strict foreclosure inequitable; foreclosure by sale under § 49-24 is required to preserve the surplus for Defendant and any junior encumbrancers.
4. The court should order a sale, appoint a committee, and set a sale date no fewer than 60 days out.

WHEREFORE, Defendant requests that the Court:
A. Deny strict foreclosure;
B. Order foreclosure by sale under C.G.S. § 49-24;
C. Set law days only as a fallback.

[Signature block]

Part 11 — Motion to Open Judgment of Strict Foreclosure (Pre-Vesting; C.G.S. § 49-15)

DEFENDANT'S MOTION TO OPEN JUDGMENT OF STRICT FORECLOSURE

1. Judgment of strict foreclosure entered on [__/__/____] with law day(s) [__/__/____].
2. Title has not yet become absolute.
3. Cause: [Loss-mitigation approval; Reg X violation; new BPO showing positive equity; servicing transfer; bankruptcy filing intent.] [______________________________]
4. Defendant requests the law days be extended by [____] days and the judgment modified accordingly.

[Signature block]

Part 12 — Bankruptcy Referral Memo

Consider Chapter 13 to cure arrears over 3–5 years and stop the foreclosure. Filing imposes the automatic stay under 11 U.S.C. § 362. In Connecticut, a strict-foreclosure law day occurring AFTER the petition is filed is stayed; title does NOT vest while the stay is in effect.

Confirm:
☐ No prior dismissal in the last 12 months (§ 362(c)(3))
☐ Two or more prior dismissals (§ 362(c)(4))
☐ Disposable income for plan funding
☐ Below Chapter 13 debt limits

Referral attorney: [______________________________] Contact: [______________________________] Date: [__/__/____]

Sources and References

• C.G.S. Chapter 846 (Mortgages): https://www.cga.ct.gov/current/pub/chap_846.htm
• C.G.S. § 49-15 (strict foreclosure / opening judgment): https://law.justia.com/codes/connecticut/title-49/chapter-846/section-49-15/
• U.S. Bank Nat'l Ass'n v. Rothermel, 339 Conn. 366 (2021)
• Lendinghome Marketplace, LLC v. Traditions Oil Group, LLC, 209 Conn. App. 862 (2022)
• RMS Residential Properties v. Miller, 303 Conn. 224 (2011); Equity One v. Shivers, 310 Conn. 119 (2013); Thompson v. Orcutt, 257 Conn. 301 (2001)
• Connecticut Judicial Branch — Foreclosure forms (JD-CV-93, JD-CV-108): https://jud.ct.gov/foreclosure/
• CHFA — EMAP and MyHomeCT: https://www.chfa.org/
• 12 C.F.R. Part 1024 (RESPA / Regulation X)

End of Connecticut Foreclosure Defense Answer, Counterclaims, and Loss Mitigation Package.