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  STEPHEN C. BOMBERO, SR. v. TRUMBULL ON
              THE GREEN, LLC
                (AC 35690)
                 Lavine, Keller and Borden, Js.
       Argued April 15—officially released August 19, 2014

  (Appeal from Superior Court, judicial district of
              Fairfield, Hartmere, J.)
  Jeffrey A.      McChristian,          for       the   appellant
(defendant).
  Robert C. Pinciaro, with whom, on the brief, was
Serge G. Mihaly, for the appellee (plaintiff).
                         Opinion

  BORDEN, J. The dispositive issue in this appeal is
whether equity and common sense will permit a mort-
gage, which had been omitted from a prior foreclosure
action but which had no value at the time of that action,
to now be foreclosed. We hold that it may not and,
accordingly, reverse the judgment of the trial court.
  The plaintiff, Stephen C. Bombero, Sr., brought this
foreclosure action by complaint dated December 8,
2005, against the defendant, Trumbull on the Green,
LLC, the owner of the real property in question known
as 6515 Main Street, Trumbull.1 The trial court, Hart-
mere, J.,2 rejected the special defenses3 and the counter-
claim of the defendant,4 and rendered judgment of
foreclosure against the defendant. This appeal followed.
   Judge Hartmere made the following findings of fact.
The defendant is the owner of the real property in
question. On January 11, 1991, the property was owned
by I. Anthony Mase, who executed and delivered a note,
in the amount of $105,000, to the plaintiff, secured by
the mortgage in question on the property. The mortgage
was recorded in the Trumbull land records. The plaintiff
is the owner and holder of the note and mortgage, and
has not received any payment on the debt that the
note represented.
   By complaint dated July 26, 1996, the Greater New
York Savings Bank brought an action against Mase seek-
ing foreclosure of a first mortgage on the property dated
September 3, 1987, in the amount of $2,150,000 (prior
foreclosure action). Judgment of foreclosure was ren-
dered against Mase on December 2, 1996, and by com-
mittee deed recorded on April 22, 1997, 6515 Main Street
Associates, Inc., took title to the property. Although the
plaintiff’s mortgage had been duly recorded on the land
records, it was not listed as a subsequent lien in that
action, and the plaintiff was not named in that foreclo-
sure action. Judge Hartmere specifically found that ‘‘the
plaintiff was knowingly omitted from the prior foreclo-
sure action.’’ Thereafter, the defendant became the
owner of the property. See footnote 1 of this opinion.
The court also specifically found ‘‘that at the time that
the defendant took title to the property, the defendant’s
attorney had actual knowledge of the plaintiff’s
mortgage.’’
   Thereafter, in 2005, after making written demand on
the defendant for payment in full of the note, the plain-
tiff brought the present foreclosure action. The plain-
tiff’s updated affidavit of debt indicates the amount
of the debt to be $262,826.88, with per diem interest
of $23.01.
  The court specifically found that the mortgage in
question had no ‘‘value at the time of the execution of
the note and [mortgage] deed and at the time of the
foreclosure’’ by Greater New York Savings Bank. More
specifically, the court found: ‘‘At the time of the prior
foreclosure judgment, the property was encumbered by
Greater New York Savings Bank’s debt of $2,287,907.07
and a Connecticut National Bank judgment lien in the
amount of $298,439.99.5 The plaintiff believed that the
property at the time of that foreclosure was worth
$700,000. The appraised value of the property was
$1,075,000. . . . The committee sold the property for
$1,075,000 to the assignee of the Greater New York
Savings Bank. Thus, the evidence establishes that the
plaintiff’s note and mortgage were without value at the
time of the Greater New York Savings Bank foreclo-
sure.’’ (Footnote added.)
  The court rejected the defendant’s special defenses
of the statute of limitations and laches. Additionally,
the court viewed as ‘‘intertwined’’ the defendant’s third
special defense, namely, that the plaintiff’s mortgage
was without value and would have been foreclosed
out in the prior foreclosure action, and the defendant’s
counterclaim based on § 49-30.6 Viewing the third spe-
cial defense and counterclaim as such, the court
rejected them based principally on the case of Mortgage
Electronic Registration Systems, Inc. v. White, 278
Conn. 219, 896 A.2d 797 (2006). Accordingly, the court
rendered judgment for the plaintiff.
   The defendant raises a number of claims on appeal,
one of which we determine to be dispositive. That claim
is that, in essence, under the circumstances of the pre-
sent case, equity demanded that foreclosure of the
plaintiff’s mortgage be withheld.7 ‘‘Foreclosure is an
equitable action, permitting the trial court to examine
all matters to ensure that complete justice may be done.
Hartford Federal Savings & Loan Assn. v. Lenczyk,
153 Conn. 457, 463, 217 A.2d 694 (1966). Thus, [t]he
determination of what equity requires in a particular
case, the balancing of the equities, is a matter for the
discretion of the trial court. Kakalik v. Bernardo, 184
Conn. 386, 395, 439 A.2d 1016 (1981). It is also a basic
principle of law that common sense is not to be left at
the courtroom door; State v. Zayas, 195 Conn. 611, 620,
490 A.2d 68 (1985); State v. Perez, 10 Conn. App. 279,
291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d
524 (1987) . . . .’’ (Internal quotation marks omitted.)
Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App.
764, 773, 657 A.2d 668 (1995), appeal dismissed, 236
Conn. 744, 674 A.2d 1324 (1996). Finally, we examine
the trial court’s ruling permitting a foreclosure for an
abuse of discretion. MTGLQ Investors, L.P. v. Egzi-
abher, 134 Conn. App. 621, 623, 39 A.3d 796 (2012).
  In the present case, it is undisputed that the plaintiff’s
mortgage was wholly without value at the time of the
prior foreclosure action. Therefore, had the prior fore-
closing party followed the law and made the plaintiff
a defendant in that action, it is absolutely clear that the
plaintiff’s mortgage would have been foreclosed out
and the plaintiff would not have gained anything. To
permit the plaintiff now to foreclose on a mortgage
that, had the law been followed in the prior action,
would have been completely extinguished, would in
effect permit the plaintiff now to be in a better position
by virtue of having been deprived, so to speak, of his
right to be made a party to that action. Equity cannot
permit one to profit by virtue of the fact that his prior
rights were not respected when he would now be in a
worse position than if they had been respected.
   Furthermore, to permit the plaintiff to foreclose now
would afford him a windfall: because he was not made
a party in the prior action—which would have gained
him nothing and would have inevitably resulted in extin-
guishing his mortgage—he would now be able to regain
the value that he would have inevitably lost in the prior
action. Such a course of action simply does not comport
with notions of equity, and simply defies common sense.
Nor is this conclusion altered by the facts, found by the
trial court, that the plaintiff’s mortgage was knowingly
omitted from the prior action and that the defendant
took title to the property knowing of the plaintiff’s mort-
gage. Neither of those facts ultimately disadvantaged
the plaintiff in any way. Thus, weighing those facts
against the inequity in permitting a foreclosure now,
we conclude that, as a matter of law, equity demands
that the present foreclosure should have been withheld.
Put another way, to the extent that the trial court did
weigh the equities in this case, it abused its discretion
in permitting the plaintiff’s mortgage to be foreclosed.
   The plaintiff relies, as did the trial court, on the case
of Mortgage Electronic Registration Systems, Inc. v.
White, supra, 278 Conn. 219. That case is distinguish-
able. In that case, the our Supreme Court was faced
with the issue of whether ‘‘the trial court improperly
concluded that the plaintiff’s foreclosure rights were
not extinguished or invalidated by a previous foreclo-
sure action, by operation of General Statutes § 49-30 as
a matter of law or equity, even though the plaintiff
improperly had been omitted as a party to that action.’’
(Footnote omitted.) Id., 221. The court viewed ‘‘all of
the defendants’ claims essentially [as] premised on their
contention that the plaintiff’s encumbrance on the prop-
erty has been extinguished or affected by the operation
of § 49-30 . . . .’’ Id., 227. The court held that, under
§ 49-30, the plaintiff’s mortgage had not been extin-
guished and that the defendant’s counterclaim seeking
to quiet title pursuant to § 49-30 was unavailing. Id.,
227–37.
   Significantly, however, our Supreme Court essen-
tially foreshadowed the issue in the present case. The
court stated: ‘‘With respect to the defendants’ claim that
the trial court improperly rendered summary judgment
because the plaintiff will be unjustly enriched in this
foreclosure action as a result of having been omitted
from the [prior] foreclosure action, we note that the
defendants did not allege that the plaintiff’s interest
would have been essentially without value or foreclosed
had it been included in the [prior] foreclosure. Cf.
Federal Deposit Ins. Corp. v. Bombero, [supra, 37 Conn.
App. 770–73] (affirming judgment granting foreclosing
mortgagee discharge of mistakenly omitted junior
holder where, at all relevant times, defendant’s junior
lien, although valid as matter of law, was found to be
worthless as matter of fact) . . . .’’ (Emphasis added.)
Mortgage Electronic Registration Systems, Inc. v.
White, supra, 278 Conn. 236 n.9. Thus, unlike White, in
the present case, the defendant did claim, and the trial
court specifically found, that the plaintiff’s lien would
have been without value and thus would have been
foreclosed had it been included in the prior foreclosure
action. It is this salient fact that distinguishes the pre-
sent case from White. Furthermore, unlike White, our
conclusion does not turn on an interpretation of § 49-
30, but solely on notions of equity and common sense.
  The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
      In this opinion the other judges concurred.
  1
     The defendant became the owner of the property as follows. On January
11, 1991, when the mortgage in question was executed, the property was
owned by I. Anthony Mase. On March 19, 1997, 6515 Main Street Associates,
Inc., took title to the property by virtue of a foreclosure sale, as discussed
in this opinion. By deed recorded on January 14, 1998, 6515 Main Street
Associates, Inc., conveyed the property to Main Trumbull Realty, LLC, which
changed its name to Twin Equities, LLC, on December 19, 2002. By deed
recorded on January 10, 2003, Twin Equities, LLC, conveyed title to the
property to The Old Mill at 299 Riverside, LLC, which then changed its name
to Trumbull on the Green, LLC, on January 10, 2003.
   2
     The case was originally tried before Hon. Leonard M. Cocco, judge trial
referee, who subsequently recused himself. The case was reassigned to Hon.
William B. Rush, judge trial referee, for a decision based upon the transcript
and exhibits of the trial before Judge Cocco. When Judge Rush did not issue
a timely decision, a new trial was granted. The case was then reassigned
to Judge Hartmere, and the parties agreed that he would decide the case
upon the record of the proceedings before Judge Cocco. Judge Hartmere
decided the case on July 18, 2012.
   3
     The defendant’s special defenses were as follows: (1) the plaintiff’s action
was barred by the six year statute of limitations for an action on a note, as
provided by General Statutes § 52-576; (2) the plaintiff’s action was barred
by the doctrine of laches; and (3) the plaintiff’s action was without value
and would have been foreclosed during the prior foreclosure action if the
plaintiff had been named because there was insufficient equity in the prop-
erty given the value of liens senior to the plaintiff’s mortgage.
   4
     The defendant’s counterclaim was based on General Statutes § 49-30,
which, in general, deals with the proper procedure for foreclosing an encum-
brance that was omitted in the original foreclosure action.
   5
     It is undisputed that both of these liens were prior in right to the plain-
tiff’s mortgage.
   6
     General Statutes § 49-30 provides: ‘‘When a mortgage or lien on real
estate has been foreclosed and one or more parties owning any interest in
or holding an encumbrance on such real estate subsequent or subordinate
to such mortgage or lien has been omitted or has not been foreclosed of
such interest or encumbrance because of improper service of process or
for any other reason, all other parties foreclosed by the foreclosure judgment
shall be bound thereby as fully as if no such omission or defect had occurred
and shall not retain any equity or right to redeem such foreclosed real estate.
Such omission or failure to properly foreclose such party or parties may
be completely cured and cleared by deed or foreclosure or other proper
legal proceedings to which the only necessary parties shall be the party
acquiring such foreclosure title, or his successor in title, and the party or
parties thus not foreclosed, or their respective successors in title.’’
  7
    The other claims of the defendant are that the court improperly: (1)
found that the attorney for Greater New York Savings Bank in the prior
foreclosure action knew of the plaintiff’s mortgage before the entry of
judgment in that case; (2) rejected the defense of the statute of limitations;
(3) rejected the defense of laches; (4) found that the plaintiff was knowingly
omitted from the prior foreclosure action; (5) rejected the defendant’s unjust
enrichment special defense; (6) restored to full value a lien that it found to
be totally unsecured at the time of the initial foreclosure; (7) restored to
full value a lien that it found to be totally unsecured and without value at
the time of the initial foreclosure because of the foreclosing bank’s failure
to name the plaintiff in the initial foreclosure action; and (8) rejected the
defendant’s reliance on § 49-30. In light of our conclusion on what we regard
as the dispositive claim, we need not address any of these claims.
