Opposition Brief — Gordon Alexander Clark, Petitioner v. Santander Bank, N.A.

No. 24-459

IN THE

Supreme Court of the United States

GORDON ALEXANDER CLARK,

Petitioner,

v.

SANTANDER BANK, N.A.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CONNECTICUT

BRIEF IN OPPOSITION

ROBERT J. WICHOWSKI

Counsel of Record

VICTORIA L. FORCELLA

BROCK & SCOTT, PLLC

270 Farmington Avenue, Suite 151

Farmington, CT 06032

(860) 474-8983

robert.wichowski@brockandscott.com

Counsel for Respondent

334542

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

Whether the Petitioner correctly asserts that his

procedural due process rights have been violated such

that review by this Court is proper.

Whether the Petitioner has set forth a valid basis on

which review by this Court is proper.

ii

CORPORATE DISCLOSURE

Pursuant to Rule 29.6 of the Rules of the Supreme Court

of the United States, undersigned counsel for Santander

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Santander Bank, N.A., in the civil action has the following

parent corporation(s) and publicly held corporation(s) that

own 10% or more of its stock: Santander Bank, N.A., a

national bank, is a wholly owned subsidiary of Santander

Holdings USA, Inc., a Virginia Corporation. Effective

January 30, 2009, Banco Santander S.A. acquired all of

the outstanding common stock of Sovereign Bancorp, Inc.

n/k/a Santander Holdings USA, Inc. (corporate name

change effective February 3, 2010).

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bank, is 824 North Market Street, Wilmington, Delaware.

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USA, Inc., a Virginia Corporation, is 75 State Street,

Boston, Suffolk County, Massachusetts.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .1

REASONS TO DENY PETITION . . . . . . . . . . . . . . . . .3

I.

This Petition is Not the Appropriate Vehicle

for Determining Due Process Rights . . . . . . . . . .3

II. Defendant Has Not Submitted Any Reason

W hy Further Review of the Case is

Necessary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

iv

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Armstrong v. Manzo,

380 U.S. 545, 85 S. Ct. 1187 (1965). . . . . . . . . . . . . . . .5

Boddie v. Connecticut,

401 U.S. 371, 91 S. Ct. 780 (1971) . . . . . . . . . . . . . . . . .5

Grannis v. Ordean,

234 U.S. 385, 34 S. Ct. 779 (1914) . . . . . . . . . . . . . . . . .4

McClellan v. Chipman,

164 U.S. 347, 17 S. Ct. 85 (1896) . . . . . . . . . . . . . . . . .19

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306, 70 S. Ct. 652 (1950). . . . . . . . . . . . . . . . .4

Nat’l Bank v. Commonwealth,

76 U.S. (9 Wall.) 353 (1869) . . . . . . . . . . . . . . . . . . . . .18

Obduskey v. Mccarthy & Holthus LLP,

139 U.S. 1029, 139 S. Ct. 1029 (2019) . . . . . . . . . . . . .19

Robinson v. Hanrahan,

409 U.S. 38, 93 S. Ct. 30 (1972). . . . . . . . . . . . . . . . . . .4

Watters v. Wachovia Bank, N.A.,

550 U.S. 1, 127 S. Ct. 1559 (2007). . . . . . . . . . . . . . . .19

v

Cited Authorities

Page

United States Court of Appeals Cases

Bellmore v. Mobile Oil Corp.,

783 F.2d 300 (2nd Cir.1986). . . . . . . . . . . . . . . . . . . . . .4

Epps v. JP Morgan Chase Bank, N.A.,

675 F.3d 315 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . .8, 19

Nat’l City Bank v. Cont’l Nat’l Bank & Tr. Co.,

83 F.2d 134 (10th Cir. 1936). . . . . . . . . . . . . . . . . . . . .19

State Cases

Amercoat v. Transamerica Ins. Co.,

165 Conn. at 732, 345 A.2d 30. . . . . . . . . . . . . . . . . . .12

Anastasia v. Mitsock,

Superior Court, judicial district of New Haven,

Docket No. CV-05-4012156-S

(December 1, 2006, Lager, J.). . . . . . . . . . . . . . . . .6, 15

Avon Mfg. Co. v. Andrews,

30 Conn. 476 [1862] . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Barcello v. WCL Management, LLC,

Superior Court, judicial district of

Stamford-Norwalk, Docket No. CV-06-5000632-S

(February 26, 2007, Taggart, J.) . . . . . . . . . . . . . . . . .7

Bristol v. Pritchard,

81 Conn. 451, 71 A. 558 (1908). . . . . . . . . . . . . . . . . . .15

vi

Cited Authorities

Page

Cadle Co. v. Gabel,

69 Conn.App. 279, 794 A.2d 1029 (2002) . . . . . . . . . . 17

Diaz v. Brooks,

Superior Court, judicial district of

New Haven, Docket No. CV186079127S

(August 13, 2018, Wilson, J.). . . . . . . . . . . .6, 11, 12, 15

Falk v. Schuster,

171 Conn. 5, 368 A.2d 40 (1976) . . . . . . . . . . . . . . . . . .7

Fletcher v. Mead School for Human

Development, Inc.,

Superior Court, judicial district of

Stamford-Norwalk, Complex Litigation

Docket, Docket No. X05-CV-96-0152138-S

(January 8, 2001, Tierney, J.)

(28 Conn. L. Rptr. 667) . . . . . . . . . . . . . . . . . . . . . .8, 10

Helfant v. Yale New Haven Hospital,

Superior Court, judicial district of New Haven,

Docket No. CV-08-5018960S

(December 30, 2013, Nazarro, J.). . . . . . . . . . . . . . . . .8

Home Oil Co., Inc. v. Tood,

195 Conn. 333, 487 A.2d 1095 (1985) . . . . . . . . . . . . .12

Ivers v. Mahon,

No. HHDCV206104062, 2021 WL 3409330

(Wilson, J., Conn. Super. Ct. July 1, 2021) . . . . . . . .16

vii

Cited Authorities

Page

Long v. Hartford Neighborhood Centers, Inc.,

Superior Court, judicial district of Hartford,

Docket No. X04CV980122679S

(May 22, 2002, McLachlan, J.) . . . . . . . . . . . . . . . . . .11

0DQIUHGY6KHIÀHOG/DERUDWRULHV

Superior Court, judicial district of New London,

Docket No. 569270

(November 10, 2005, Devine, J.). . . . . . . . . . . . . . . . . .9

Masto v. Board of Education,

200 Conn. 482, 511 A.2d 344 (1986) . . . . . . . . . . . . . .11

McKay v. Fair Haven and Westville R.R. Co.,

75 Conn. 608, 54 A. 923 (1903) . . . . . . . . . . . . . . . . . .15

Naccarelli v. Muniz,

 6XSHULRU&RXUWMXGLFLDOGLVWULFWRI)DLUÀHOG

Docket No. CV-07-5006162-S

(December 17, 2007, Frankel, J.)

(44 Conn. L. Rptr. 646) . . . . . . . . . . . . . . . . . . . . . . . . .7

Nelligan v. Norwich Roman Catholic Diocese,

Superior Court, judicial district of Tolland,

Complex Litigation Docket,

Docket No. X07-CV-02-0084287-S

(October 20, 2005, Sferrazza, J.)

(40 Conn. L. Rptr. 294) . . . . . . . . . . . . . . . . . . . . . 10, 11

Noren v. Wood,

72 Conn. 96, 43 A. 649 (1879) . . . . . . . . . . . . . . . .12, 14

viii

Cited Authorities

Page

Normand Josef Enters. v. Conn. Nat’l Bank,

230 Conn. 486, 646 A.2d 1289 (1994) . . . . . . . . . . . . .18

Saracino v.

Hartford Financial Services Group, Inc.,

Superior Court, judicial district of Hartford,

Docket No. CV-05-4010041-S (April 4, 2006, Tanzer, J.)

(41 Conn. L. Rptr. 152). . . . . . . . . . . . . . . . . . . . . . . .7, 8

Skelly v. Mohawk Mountain Ski Area,

 6XSHULRU&RXUWMXGLFLDOGLVWULFWRI)DLUÀHOG

Docket No. CV-01-0380056-S

(June 18, 2002, Gallagher, J.) . . . . . . . . . . . . . . . . .9, 10

Webster Bank v. Zak,

71 Conn.App. 550, 802 A.2d 916, cert. denied,

261 Conn. 938 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . .3, 18

28 U.S. Code § 1257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Ct. Gen. Stat § 49-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Ct. Gen. Stat § 49-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

ix

Cited Authorities

Page

Connecticut Constitution, Art. I § 21 . . . . . . . . . . . . . . .14

Connecticut General Statutes § 51-239(b) . . . . . . . . .6, 14

Connecticut General Statutes § 52-215. . . . . . .6, 7, 13, 15

Connecticut General Statutes §52-325(a) . . . . . . . . . . . .16

1

INTRODUCTION

Santander Bank, N.A. (hereinafter, the “Plaintiff”)

judicially foreclosed on a borrower of a mortgage loan

due to said borrower’s failure to pay contractually

required installment payments due under the note. The

State Trial Court, the court with original jurisdiction,

entered a Judgment of Foreclosure by Sale in favor of

the foreclosing Plaintiff on May 19, 2023 (hereinafter, the

“Judgment”). The Defendant, Gordon Clark, (hereinafter,

the “Defendant”) took an appeal. The appeal was

dismissed by the Connecticut Appellate Court as frivolous.

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Supreme Court of Connecticut. Said petition was denied.

The Defendant now seeks review of the denial of

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Connecticut. The Connecticut Supreme Court’s denial

of the Petition is not within this Court’s certiorari

jurisdiction under 28 U.S. Code § 1257. The question

presented by the Defendant is strictly one of state court

law, it does not present a United States Constitutional

question, nor does it seek to remedy a split of authorities

or a pressing public interest issue and therefore should

not be reviewed by the highest Court in the land.

STATEMENT OF THE CASE

The Plaintiff commenced the instant action by

way of writ, summons and two count complaint dated

November 19, 2019, seeking reformation of a mortgage

encumbering real property located at 70 Elm Street,

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(hereinafter, the “Borrower”) on or about March 21,

2

2008 (hereinafter, the “Mortgage”) and to foreclose said

Mortgage (hereinafter, the “Action”). The Action was

brought as a result of the Borrower’s default of the terms

of the note secured by the Mortgage by virtue of failing to

remit the contractually required installment payments to

the Plaintiff. The Borrower appeared in the action on or

about December 19, 2019. The Defendant was named in

the Action as a result of a lien that he held on the property

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amount of $300,000.00. The Defendant also appeared in

the action on or about December 19, 2019.

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containing thirty (30) affirmative defenses (referred

to in Connecticut civil practice as “special defenses”)

and a two (2) count counterclaim on April 29, 2022. The

Plaintiff moved for summary judgment which the State

Trial Court declined to enter. The Plaintiff replied to the

special defenses and answered the counterclaim on May

18, 2022 and thereafter claimed the matter to the trial list

on April 10, 2023. On April 26, 2023, over one (1) year from

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jury on April 28, 2023. The Plaintiff’s motion to strike was

granted by the State Trial Court on May 2, 2023.

After a full trial to the court, the State Trial Court

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the Defendant had failed to meet his burden of proof as

to all of the thirty (30) special defenses raised. The State

Trial Court further entered judgment in the Plaintiff’s

favor on both counts of the Defendant’s counterclaim.

An appeal followed. Connecticut’s intermediary court

of appellate jurisdiction, the Connecticut Appellate Court,

3

dismissed the appeal as frivolous by way of order dated

June 13, 2023. The Defendant moved for reconsideration

of the Connecticut Appellate Court’s dismissal order en

banc on July 31, 2023. The Connecticut Appellate Court

denied the Defendant’s motion for reconsideration by way

of order September 13, 2023.

Following the denial of the motion for reconsideration

en banc,WKH'HIHQGDQWÀOHGD3HWLWLRQIRU&HUWLÀFDWLRQWR

the Connecticut Supreme Court. The Connecticut Supreme

Court denied the Defendant’s petition on February 20,

2024. After the Connecticut Supreme Court’s denial

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Trial Court thereafter, on May 9, 2024, reset the date

of the foreclosure sale following the termination of the

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U.S. Supreme Court per Connecticut Practice Book §71-7

on September 11, 2024. The State Trial Court denied the

motion on September 12, 2024. The foreclosure sale went

forward on September 14, 2024 as scheduled; however, to

date, the State Trial Court has not approved the results

of the foreclosure sale.

REASONS TO DENY PETITION

I.

This Petition is Not the Appropriate Vehicle for

Determining Due Process Rights

T he Fi f th A mendment to the Un it ed St at es

Constitution (incorporated and applied to the states

through the Fourteenth Amendment) provides a right

of due process, which includes the right of notice and the

opportunity to be heard. “The fundamental requisite

4

of due process of law is the opportunity to be heard.”

Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783

  6SHFLÀFDOO\ WKH 'HIHQGDQW·V FODLPV HVVHQWLDOO\

DOOHJHDGHÀFLHQF\LQSURFHGXUDOGXHSURFHVVZKLFKVWHP

from the alleged violation of his right to a jury trial. “An

elementary and fundamental requirement of due process

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reasonably calculated, under all the circumstances, to and

afford them an opportunity to present their objections

. . . But if with due regard for the practicalities and

peculiarities of the case these conditions are reasonably

PHW WKH FRQVWLWXWLRQDO UHTXLUHPHQWV DUH VDWLVÀHGµ

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S.

306, 314, 70 S. Ct. 652, 657 (1950). See also Robinson v.

Hanrahan, 409 U.S. 38, 39-40, 93 S. Ct. 30, 31 (1972). “The

right to trial by jury is a fundamental constitutional right.

This right, however, can be waived. The test to determine

whether a party has waived his right to trial by jury is

less stringent than the ‘intentional relinquishment or

abandonment of a known right or privilege” test applicable

to other constitutional rights.’ (internal citations omitted)

Bellmore v. Mobile Oil Corp., 783 F.2d 300, 306 (2nd Cir.)

(1986).

The Defendant argues that he was fundamentally

denied his procedural due process rights by what he claims

was the improper striking of the claim for jury trial by

the State Trial Court and that he was fundamentally

denied his procedural due process rights due to what he

alleges was the failure of the State Trial Court to properly

consider his claims. “Due process does not, of course,

require that the defendant in every civil case actually have

a hearing on the merits . . . What the Constitution does

require is ‘an opportunity . . . granted at a meaningful

5

time and in a meaningful manner,’” Armstrong v. Manzo,

380 U.S. 545, 552 (1965) (emphasis added), “for [a] hearing

appropriate to the nature of the case, Mullane v. Central

Hanover Tr. Co., supra, at 313.” Boddie v. Connecticut, 401

U.S. 371, 378, 91 S. Ct. 780, 786 (1971). The Defendant had

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in the matter and received multiple hearings, including

a hearing on the claims raised in his answer, special

defenses and counterclaim at the state court level. He

was also provided, and availed himself of, the opportunity

to appeal to the Appellate Court of Connecticut, as well

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the Supreme Court of Connecticut. The Connecticut

Appellate Court dismissed the appeal as frivolous and

the Connecticut Supreme Court denied the Defendant’s

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Appellate Court. Not only has the Defendant completely

exhausted all possible appeals for these proceedings, his

constitutionally given due process rights have been fully

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Fur ther more, the allegations underly ing the

Defendant’s claimed denial of due process and which he

now seeks this Honorable Court relitigate are entirely

controlled by Connecticut laws. Indeed, Connecticut

FRXUWVKDYHVHWIRUWKWKDWDIDLOXUHWRWLPHO\ÀOHDFODLP

for jury in a contract case will result in a waiver of the

right to a jury trial.

The defendant’s motion to strike challenges the

timeliness of the plaintiff’s claim for a jury trial.

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answer and special defenses to the plaintiff’s

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6

her reply to the defendants’ answer and special

defenses. The defendant thereafter, on March

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and claimed the matter for a court trial. On

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a jury trial. The defendant claims that the

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days from the return date and 14 days after the

issues of fact had been joined” which is beyond

the time permitted by General Statutes § 52215. Def. Mem of Law, p. 2. This court adopts

its reasoning in Diaz v. Brooks, Superior Court,

judicial district of New Haven, Docket No.

CV186079127S (August 13, 2018, Wilson, J.)

and grants the motion to strike.

In Diaz, this court stated: “Section 51-239b

provides that ‘[i]n civil actions a jury shall be

deemed waived unless requested by either

party in accordance with the provisions of

section 52-215.’ Section 52-215 gives parties

two opportunities to request a jury trial: (1)

‘upon the written request of either party made

to the clerk within thirty days after the return

day,’ and (2) ‘within ten days after [an] issue of

fact is joined.’ It has . . . been the clear law in

Connecticut since 1899 that a failure to claim

a civil action to the jury within thirty days

of the return date or within ten days after

an issue of fact has been joined amounts to a

voluntary and intentional relinquishment of the

right to the jury trial provided by Art. I, § 21

of the Connecticut Constitution.’ Anastasia

v. Mitsock, Superior Court, judicial district

7

of New Haven, Docket No. CV-05-4012156-S

(December 1, 2006, Lager, J.) (42 Conn. L.

Rptr. 453, 454). Nonetheless, § 52-215 provides

that a ‘case may at any time be entered in the

docket as a jury case by the clerk, upon written

consent of all parties or by order of court.’

Our Supreme Court has concluded that this

provision grants trial courts the discretion to

deny a motion to strike a case from the jury

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the required time period. Falk v. Schuster,

171 Conn. 5, 7-8, 368 A.2d 40 (1976). Superior

Court judges, however, ‘have exercised such

discretion very sparingly.’ Barcello v. WCL

Management, LLC, Superior Court, judicial

district of Stamford-Norwalk, Docket No. CV06-5000632-S (February 26, 2007, Taggart,

J.). ‘Trial courts . . . routinely grant motions

to remove cases from the jury docket when

[the jury] claim is tardy. Compliance with the

clear and simple rules of § 52-215 compel such

a result.’ (Internal quotation marks omitted.)

Saracino v. Hartford Financial Services

Group, Inc., Superior Court, judicial district of

Hartford, Docket No. CV-05-4010041-S (April

4, 2006, Tanzer, J.) (41 Conn. L. Rptr. 152, 153);

see also Naccarelli v. Muniz, Superior Court,

MXGLFLDOGLVWULFWRI)DLUÀHOG'RFNHW1R&9

5006162-S (December 17, 2007, Frankel, J.) (44

Conn. L. Rptr. 646, 647) (noting that ‘in most

cases . . DODWHÀOLQJRIDMXU\FODLPKDVQRWEHHQ

allowed’ [internal quotation marks omitted]).

“‘There is no appellate or statutory authority

providing guidance or setting forth standards

8

for trial courts to utilize in deciding whether

to exercise discretion under § 52-215. Fletcher

v. Mead School for Human Development, Inc.,

Superior Court, judicial district of StamfordNorwalk, Complex Litigation Docket, Docket

No. X05-CV-96-0152138-S (January 8, 2001,

Tierney, J.) (28 Conn. L. Rptr. 667, 670)

(‘[Section] 52-215 contains no standards for

the court to apply in making the determination

whether any matter should be placed on the jury

docket. There is no appellate court decision that

sets forth standards.’). Superior Court decisions

addressing whether a trial court should

exercise such discretion generally consider (1)

the length of the time elapsed between the close

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whether any extenuating circumstances existed

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(3) whether either party would be prejudiced by

the exercise of discretion. See, e.g., Saracino

v. Hartford Financial Services Group, Inc.,

Superior Court, judicial district of Hartford,

Docket No. CV-05-4010041-S (April 4, 2006,

Tanzer, J.) (41 Conn. L. Rptr. 152, 153); Fletcher

v. Mead School for Human Development, Inc.,

supra, 670-71.’ Helfant v. Yale New Haven

Hospital, Superior Court, judicial district

of New Haven, Docket No. CV-08-5018960S

(December 30, 2013, Nazarro, J.).

“With respect to the second consideration, ‘trial

courts are more likely to exercise discretion

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the jury docket when compelling extenuating

9

circumstances existed justifying the delayed

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Laboratories, Superior Court, judicial district

of New London, Docket No. 569270 (November

10, 2005, Devine, J.), the court exercised its

discretion based on the unique circumstances

of the case. In that case, a self-represented

plaintiff indicated her intent to proceed to a

jury trial at a status conference and the court

LQVWUXFWHGKHUWRÀOHDFODLPIRUDMXU\WULDOId.

‘The plaintiff . . ZHQWWRWKHFOHUNWRÀOHWKHMXU\

claim on [the same day as the status conference],

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told that [a] credit card would be accepted by

the clerk. All of the parties were aware of the

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date].’ Id. Based on these circumstances, the

court denied the defendants’ motion to strike

the plaintiff’s jury claim. Id.

“Similarly, in Skelly v. Mohawk Mountain

Ski Area, Superior Court, judicial district of

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18, 2002, Gallagher, J.), the court decided that

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ÀOHG FODLP IRU D MXU\ WULDO 7KH GHIHQGDQW LQ

SkellyKDGSUHYLRXVO\UHFHLYHGDFHUWLÀFDWHRI

closed pleadings from the plaintiff, in which it

appeared that the plaintiff had already claimed

the case for a jury trial. Id. Later, however,

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closed pleadings, in which the plaintiff claimed

the case for a court trial. Id. After receiving

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10

defendant filed its jury claim within a few

days. Id. The defendant’s claim for a jury trial

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prescribed in § 52-215. Id. The court found that

¶LWDSSHDUVWKDWWKHGHIHQGDQWZDVMXVWLÀHGLQ

FRQFOXGLQJ WKDW LW GLG QRW QHHG WR ÀOH D MXU\

claim because the plaintiff had already done so’

and, therefore, permitted the case to proceed to

a jury trial. Id. “In Nelligan v. Norwich Roman

Catholic Diocese, Superior Court, judicial

district of Tolland, Complex Litigation Docket,

Docket No. X07-CV-02-0084287-S (October

20, 2005, Sferrazza, J.) (40 Conn. L. Rptr. 294,

294-95), the plaintiff failed to recognize that

the pleadings had closed due to an ‘unusual

procedural event.’ ‘Typically, issues are joined

by a responsive pleading.’ Id., 295. In Nelligan,

however, ‘the pleadings were closed instead

by the court’s granting of a motion to strike

the defendants’ special defense.’ Id. While the

court noted that ‘the plaintiff ought to have

perceived that the pleadings were closed by the

FRXUW·VDFWLRQ·DQGÀOHGDMXU\FODLPZLWKLQWHQ

days of the decision on the motion to strike, the

court allowed the case to proceed to a jury trial

‘[u]nder these unusual circumstances.’” Id.

“The third and final consideration involves

whether either party would be prejudiced

by the court’s exercise of discretion to allow

a jury trial despite a late filed claim. For

example, in Fletcher v. Mead School for Human

Development, Inc., supra, 28 Conn. L. Rptr. at

671, the court allowed a case to remain docketed

11

for a jury trial where the claim for a jury trial

ZDV ÀOHG IRXUWHHQ GD\V ODWH    ,Q GRLQJ VR

WKH FRXUW QRWHG WKDW LW ¶FDQQRW ÀQG WKDW WKH

defendant is prejudiced by the exercise of this

discretion.’ Id. Similarly, in the aforementioned

Nelligan v. Norwich Roman Catholic Diocese,

supra, 40 Conn. L. Rptr. at 295, the court

found support for its decision to allow a jury

WULDOGHVSLWHDWDUG\ÀOLQJLQWKHIDFWWKDW¶WKH

defendants [could not] point to any prejudice to

them except that they would prefer the economy

of a shorter trial.’ The prejudice consideration,

however, is often not determinative, especially

ZKHQ WKH ÀOLQJ LV YHU\ ODWH )RU H[DPSOH LQ

Long v. Hartford Neighborhood Centers, Inc.,

supra, 32 Conn. L. Rptr. at 128, the court noted

that ‘[t]he defendants . . . [could not] articulate

any particular prejudice other than the fact that

they would prefer to have the case tried by the

court ...’ Nonetheless, the court concluded that

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months late, was substantially tardy and

granted the motion to strike the case from

the jury list. Id., 129.” Diaz v. Brooks, supra,

Superior Court, Docket No. CV186079127S.

In the present case, the plaintiff’s claim for a

MXU\WULDOZDVÀOHGWKLUWHHQGD\VODWH$VWKH

court previously discussed, “[i]t is well settled

WKDW D FODLP IRU D MXU\ WULDO PXVW EH ÀOHG QR

later than ten days after the pleadings have

been closed.” Masto v. Board of Education, 200

Conn. 482, 488, 511 A.2d 344 (1986).

12

“‘To ascertain whether the plaintiff’s claim for a

jury trial [is] timely, [the court] must determine

when the ten-day period began to run, that is,

[w]hen . . . an issue of fact [was] joined.’ General

Statutes § 52-215. We have said in this context

that [t]he word “when” has been construed to

mean “whenever.” Noren v. Wood, [supra, 98,

43 A. 649].’ Amercoat v. Transamerica Ins. Co.,

supra, 165 Conn. at 732, 345 A.2d 30. We also

have recognized that the issue of fact ‘must be

formed by the pleadings in writing. See Avon

Mfg. Co. v. Andrews, 30 Conn. 476, 488 [1862].’

Amercoat Corporation v. Transamerica Ins.

Co., supra. Accordingly, [the court] examine[s]

both the pleadings of the parties and the time

IUDPHZLWKLQZKLFKWKH\KDGEHHQÀOHGHome

Oil Co., Inc. v. Tood, 195 Conn. 333, 339-40, 487

A.2d 1095 (1985). Moreover, ‘[w]here responsive

pleading is required . . . the issue is joined when

WKHUHVSRQVLYHSOHDGLQJLVÀOHG·Id., 343.” Diaz

v. Brooks, supra, Superior Court, Docket No.

CV186079127S.

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special defenses to the plaintiff’s complaint on

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March 9, 2021 at which point all issues were

MRLQHG 7KH SODLQWLII GLG QRW ÀOH D FODLP IRU

jury until April 1, 2021, thirteen days beyond

WKH WLPH UHTXLUHG IRU ÀOLQJ WKH MXU\ FODLP

The last pleading between the plaintiff and

the defendants was the plaintiff’s reply to the

defendant’s answer and special defenses to the

SODLQWLII·V FRPSODLQW ÀOHG RQ 0DUFK  

13

Thus, as against the defendant the plaintiff

could not properly claim a jury trial after

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$SULO7KLVMXU\FODLPZDVÀOHGWKLUWHHQ

days late. The plaintiff’s delay of thirteen days

clearly fails to comport with the ten-day time

frame set forth in § 52-215. In determining

whether to exercise discretion and allow this

case to proceed to a jury trial or whether

to grant the defendant’s motion to strike

the jury claim, the court utilizes the three

considerations outlined above. The plaintiff

ÀOHGDQREMHFWLRQWRWKHGHIHQGDQW·VPRWLRQWR

strike in which she incorrectly states that the

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LVWKHGDWHWKHGHIHQGDQWVÀOHGWKHLUFHUWLÀFDWH

of closed pleadings. Likewise, the defendants

incorrectly state that the issues were joined on

0DUFKWKHGDWHZKHQWKH\ÀOHGWKHLU

FHUWLÀFDWHRIFORVHGSOHDGLQJVDQGFODLPHGWKH

matter for a court trial. The law is clear, as

previously noted, “[w]here responsive pleading

is required ... the issue is joined when the

UHVSRQVLYHSOHDGLQJLVÀOHGµId. Thus, contrary

to the plaintiff’s and defendant’s claim for when

the ten day is triggered, the issues were joined

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QRWRQWKHGDWHZKHQWKHGHIHQGDQWVÀOHG

WKHLUFHUWLÀFDWHRIFORVHGSOHDGLQJV

Moreover, notwithstanding the plaintiff ’s

delay is only thirteen days, the plaintiff has

not provided the court with any reason for her

GHOD\LQÀOLQJKHUFODLPIRUDMXU\WULDO6HFRQG

14

the plaintiff has not presented any extenuating

circumstances that would justify the delayed

filing. Third, the court considers whether

either party would be prejudiced by the court’s

exercise of discretion. The court acknowledges

that the defendants have not demonstrated any

prejudice in having a jury trial despite the tardy

jury claim. However, because the plaintiff has

failed to provide the court with any explanation

for the delay, the first two considerations

strongly indicate that discretion should not

EHH[HUFLVHGDQGWKHUHIRUHWKHFRXUWÀQGVRQ

balance, the considerations weigh in favor of

granting the motion to strike the jury claim.

“In Anastasia v. Mitsock, supra, 42 Conn. L.

Rptr. 45 supra, 42 Conn. L. Rptr. 454, Judge

Lager granted the defendant’s motion to strike

WKHSODLQWLII·VMXU\FODLPZKLFKZDVÀOHGRQO\

seven days late. Judge Lager aptly points out:

‘It has . . . been the clear law in Connecticut

since 1899 that a failure to claim a civil action

to the jury within thirty days of the return date

or within ten days after an issue of fact has been

joined amounts to a voluntary and intentional

relinquishment of the right to the jury trial

provided by Art. I, § 21 of the Connecticut

Constitution.’ Noren v. Wood, 72 Conn. 96, 98,

43 A. 649 (1879). Moreover, the legislature has

adopted the court’s view by explicitly stating

that a party’s failure to make a timely jury

docket claim pursuant to statute amounts to

a waiver of the jury trial. General Statutes

§ 51-239b.

15

“The constitutionality of the legislature’s ability

to limit the time in which a case may be claimed

to the jury docket has not been in doubt since

1903. McKay v. Fair Haven and Westville R.R.

Co., 75 Conn. 608, 611, 54 A. 923 (1903). In that

case, the court found that the statute neither

deprived ‘parties of their right to a jury trial’

nor imposed ‘any arbitrary or unreasonable

requirements upon one who desires such a

trial.’ All that is required of a party seeking

a jury trial is that the proscriptions of the

statute be followed. Indeed, the court noted

that the statutory language is ‘singularly clear

and certain . . . Words could scarcely be chosen

which would express with greater precision

the requirements to be observed by a litigant

to claim his place as a matter of right upon the

jury docket.’ Id., at 610-11.

“Connecticut law is clear not only that a party

has ‘no absolute right to a jury trial,’ but also

that the party who does not wish a jury trial and

properly claims a case as a non jury matter has a

right to the court trial, in the absence of a court

order to the contrary,’ Bristol v. Pritchard, 81

Conn. 451, 453, 71 A. 558 (1908). Anastasia

v. Mitsock, supra, 42 Conn. L. Rptr. 454-55;

Anastasia v. Mitsock, supra, 42 Conn. L. Rptr.

454-55. Fair enforcement of the provisions of

General Statutes § 52-215 is required for the

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omitted; internal quotation marks omitted.)

Diaz v. Brooks, supra, Superior Court, Docket

No. CV1860791275. Accordingly, for the reasons

16

stated above, the motion to strike this case from

the jury docket is granted.

Ivers v. Mahon, No. HHDCV206104062, 2021 WL

3409330, at *1-4 (Wilson, J., Conn. Super. Ct. July 1, 2021).

While the Defendant argues that the State Trial

Court, Connecticut Appellate Court and Connecticut

Supreme Court were incorrect in their decisions, he

has provided nothing to justify the contention, bereft of

factual and legal support, that his right to a jury trial was

YLRODWHGGHVSLWHKLVIDLOXUHWRWLPHO\ÀOHDFODLPIRUMXU\

and/or anything to place even a glancing suggestion on

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 GD\VDIWHUWKH3ODLQWLIIÀOHGLWVFHUWLÀFDWHRIFORVHG

SOHDGLQJVZDVWLPHO\ÀOHG

Further, the claims raised by the Defendant regarding

the jurisdiction of the State Trial Court not only were

wholly an issue of state law but also did not operate to

violate the Defendant’s right to due process. Pursuant to

Practice Book §10-32 “[a]ny claim of lack of jurisdiction

RYHUWKHSHUVRQRULQVXIÀFLHQF\RISURFHVVRULQVXIÀFLHQF\

of service of process is waived if not raised by a motion

WRGLVPLVVÀOHGLQWKHVHTXHQFHSURYLGHGLQ6HFWLRQV

and 10-7 and within the time provided by Section 10-30.”

Practice Book §10-30(b) requires any such motion to be

ÀOHGZLWKLQWKLUW\  GD\VRIWKHÀOLQJRIDQDSSHDUDQFH

Such jurisdiction, as it relates to the death of a party

following the commencement of a foreclosure action and

recordation of a lis pendens, is controlled by Conn. Gen.

Stat. § 52-325(a) which states, in relevant part

In any action in a court of this state . . . . the

plaintiff or his attorney, at the time the action is

17

commenced or afterwards . . . . may cause to be

UHFRUGHGLQWKHRIÀFHRIWKHWRZQFOHUNRIHDFK

town in which the property is situated a notice of

lis pendens, containing the names of the parties,

the nature and object of the action, the court to

which it is returnable and the term, session or

return day thereof, the date of the process and

the description of the property. . . . Such notice

shall, from the time of the recording only, be

notice to any person thereafter acquiring any

interest in such property of the pendency of

the action; and each person whose conveyance

or encumbrance is subsequently executed or

subsequently recorded or whose interest is

thereafter obtained . . . . shall be deemed to

be a subsequent purchaser or encumbrancer,

and shall be bound by all proceedings taken

after the recording of such notice, to the

same extent as if he were made a party to

the action. [Emphasis added.]

“A notice of lis pendens is appropriate in any case where

the outcome of the case will in some way, either directly

or indirectly, affect the title to or an interest in real

property. . . . As [General Statutes] § 52–325(a) provides,

the purpose of [notice of lis pendens] is to bind any

subsequent purchaser or encumbrancer as if he were made

a party to the action described in the lis pendens.” Webster

Bank v. Zak, 71 Conn.App. 550, 561, 802 A.2d 916, cert.

denied, 261 Conn. 938 (2002), citing Cadle Co. v. Gabel,

69 Conn.App. 279, 286, 794 A.2d 1029 (2002).

Thus, the claims raised by the Defendant fail to

present a violation of due process rights, or any right

18

protected under the Constitution of the United States or

a violation of any Federal statute.

II. Defendant Has Not Submitted Any Reason Why

Further Review of the Case is Necessary.

The Defendant has not provided any reasoning,

substantial or not, as to why further review of his case is

necessary. He has not put forth any claims that mitigate,

excuse, explain or reason his failure to submit evidence

or a substantive, legitimate legal theory to the State

Trial Court. The Defendant fails to overcome the need

for this Court to have been presented a Constitutional

Federal question for review and frames a purely state

court issue as a challenge invoking the 14th Amendment.

Connecticut courts have previously ruled in favor of

the Plaintiff on the Defendant’s claims. Indeed, in his

Petition of Certiorari, the Defendant has raised nearly

LGHQWLFDOFODLPVDVKHGLGLQKLV3HWLWLRQIRU&HUWLÀFDWLRQ

to the Connecticut Supreme Court and in his brief to the

Connecticut Appellate Court. While the wording of the

claims are not identical, the substance of the claims is the

same as those presented, considered and decided in favor

of the Plaintiff by both the Connecticut Supreme Court

and Connecticut Appellate Court.

Although banks are regulated under federal law, they

have always been subject to the laws of the state in which

they do business and the only time state law is preempted,

LVLIWKHRSHUDWLRQRIWKHVWDWHODZH[SUHVVO\FRQÁLFWVZLWK

the laws of the United States. Normand Josef Enters.

v. Conn. Nat’l Bank, 230 Conn. 486, 517, 646 A.2d 1289,

1304-1305 (1994), see also Nat’l Bank v. Commonwealth,

76 U.S. (9 Wall.) 353, 362 (1869) (They [the banks] are

19

subject to the laws of the State, and are governed in their

daily course of business far more by the laws of the State

than of the nation. All their contracts are governed and

construed by State laws. Their acquisition and transfer

of property, their right to collect their debts, and their

liability to be sued for debts, are all based on State law.)

See also McClellan v. Chipman, 164 U.S. 347, 356-357, 17

S. Ct. 85, 87 (1896), Watters v. Wachovia Bank, N.A., 550

U.S. 1, 11, 127 S. Ct. 1559, 1567 (2007), Epps v. JP Morgan

Chase Bank, N.A., 675 F.3d 315, 324 (4th Cir. 2012), Nat’l

City Bank v. Cont’l Nat’l Bank & Tr. Co., 83 F.2d 134, 138

(10th Cir. 1936).

Connecticut General Statutes § 49-1 and § 49-15

govern foreclosure proceedings and remedies under

Connecticut jurisdiction. Section 49-1, in relevant part,

bars further action on the debt and § 49-15 proscribes

the proper opening of judgments of strict foreclosure. No

federal law established proscribes an equitable process

or remedy, as established within the Connecticut General

Statutes, thus foreclosure proceedings remain a question

for the state courts, not courts within federal jurisdiction.

In fact, this Court has recently recognized foreclosures

as being the sole province of state law. See Obduskey v.

McCarthy & Holthus LLP, 139 U.S. 1029, 1033-1035 (2019).

7KHUH DUH QR FRQÁLFWLQJ &RQQHFWLFXW VWDWH ODZV

that would furnish an appropriate appeal nor has the

Defendant presented any Connecticut state laws that

would supplement his argument. The claims raised

by the Defendant were all adjudicated in favor of the

Plaintiff and the Defendant cannot and has not presented

any Connecticut statutory or caselaw which would

contraindicate the correctness of the decisions of both

20

the Connecticut Appellate Court and the Connecticut

Supreme Court. Indeed, Connecticut law is clear on the

issue—the Defendant failed to set forth the elements

necessary in order to succeed on the special defenses and/

or counterclaims raised and thus judgment of foreclosure

and judgment on the counterclaims properly entered in

favor of the Plaintiff.

The Defendant simply resubmits the same claims he

made in his Connecticut Appellate Court brief as well

DVKLV3HWLWLRQIRU&HUWLÀFDWLRQWRWKH6XSUHPH&RXUWRI

Connecticut. He points to nothing in the record which can

be construed as evidence; nor even any facts which would

tend to support his claims. Therefore, these arguments

do not amount to proving facts with evidence which would

limit or change the Defendant’s rights and should not

provide a basis for certiorari.

21

CONCLUSION

Granting of certiorari is not appropriate in this matter

as the Defendant’s Petition is not the proper vehicle to

seek determination of a Due Process right and that the

Defendant has presented no federal question, no new or

novel legal theory or additional evidence to this Court,

and that the questions contained in Defendant’s Petition

involve only issues of state law. Thus, for the reasons

stated in this Statement in Opposition, the Plaintiff prays

that this Honorable Court deny the Defendant’s petition

for writ of certiorari.

Respectfully submitted,

ROBERT J. WICHOWSKI

Counsel of Record

VICTORIA L. FORCELLA

BROCK & SCOTT, PLLC

270 Farmington Avenue, Suite 151

Farmington, CT 06032

(860) 474-8983

robert.wichowski@brockandscott.com

Counsel for Respondent

Dated: November 22, 2024