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         WELLS FARGO BANK, N.A. v. JAMES R.
                FITZPATRICK ET AL.
                    (AC 41113)
                         Keller, Elgo and Bright, Js.

                                   Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property
    owned by the defendants J and M. In May, 2009, the plaintiff sent the
    defendants a letter notifying them that their loan was in default and
    advising them of the amount required to cure the default and its intent
    to accelerate the balance due if the default was not cured. When the
    default was not cured, the plaintiff commenced a foreclosure action, in
    which the law firm B Co. filed an appearance on behalf of the defendants.
    After that action was dismissed for dormancy in May, 2014, H Co., the
    law firm acting as counsel for the plaintiff, sent a letter to B Co. in June,
    2014, instead of the property address, notifying them that the defendants’
    loan was in default. The defendants failed to cure the default and the
    plaintiff commenced a second foreclosure action in September, 2014. B
    Co. again entered an appearance on behalf of the defendants. Following
    a trial, the court denied a motion to dismiss filed by the defendants, in
    which they alleged that the plaintiff had failed to establish a notice of
    default against the defendants, which is a condition precedent to the
    foreclosure. The trial court considered the 2009 letter and the 2014 letter
    jointly as substantively affording the defendants the requisite notice. The
    trial court then concluded that the plaintiff was entitled to a judgment
    of foreclosure by sale, and that although the defendants had proven
    their special defense of unclean hands, they failed to prove their special
    defenses of laches and failure to mitigate damages. On the defendants’
    appeal to this court, held:
1. The defendants’ claim that the plaintiff had failed to provide them with
    proper notice as required by the mortgage deed was unavailing; the
    trial court properly determined that the 2009 and 2014 letters together
    substantially complied with the notice requirements of the mortgage
    deed, as counsel for the defendants conceded at trial that the contents
    of the 2014 letter satisfied the notice requirements of the mortgage, the
    defendants did not dispute that they received the 2014 letter, they
    claimed no prejudice from the manner in which they received it, and
    they had received the 2009 letter prior to the first foreclosure action in
    which they had actively participated, and, therefore, it was indisputable
    that they had actual notice of their default and the possibility that they
    faced a foreclosure action when the second action was commenced.
2. The trial court’s finding that the defendants did not prove their special
    defense of laches was not clearly erroneous; the defendant did not
    submit any evidence from which the court could have found that they
    were prejudiced by any alleged delay of the plaintiff in pursuing the
    foreclosure action, and the trial court reduced the interest that accrued
    while the first foreclosure action was pending, which equitably
    addressed any delay in the first foreclosure action.
       Argued December 12, 2018—officially released May 21, 2019

                             Procedural History

   Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Hon. Richard P.
Gilardi, judge trial referee, granted the plaintiff’s
motion to cite in Carbone Financing Services, LLC, as
a party defendant; thereafter, the named defendant et
al. were defaulted for failure to plead; subsequently, the
court, Hon. Alfred J. Jennings, Jr., judge trial referee,
granted the motion filed by the named defendant et al.
to open the default; thereafter, the court, Hon. Alfred J.
Jennings, Jr., judge trial referee, granted the plaintiff’s
motion to dismiss the counterclaim filed by the named
defendant et al.; subsequently, the court, Hon. Alfred
J. Jennings, Jr., judge trial referee, denied the motion
to dismiss filed by the named defendant et al. and
granted in part the plaintiff’s motion for a judgment of
strict foreclosure and rendered a judgment of foreclo-
sure by sale, from which the named defendant et al.
appealed to this court. Affirmed.
  Bryan L. LeClerc, for the appellants (defendants).
  David M. Bizar, with whom was J. Patrick Kennedy,
for the appellee (plaintiff).
                           Opinion

  ELGO, J. The defendants, James R. Fitzpatrick and
Marsha A. Fitzpatrick,1 appeal from the judgment of
foreclosure by sale rendered by the trial court in favor
of the plaintiff, Wells Fargo Bank, N.A. On appeal, the
defendants claim that the court improperly (1) denied
their motion to dismiss and rendered judgment of fore-
closure by sale because the plaintiff did not comply with
the terms of the note and mortgage, namely, compliance
with the notice requirements, and (2) concluded that
the defendants had not proved their special defense of
laches. We affirm the judgment of the trial court.
   The following facts and procedural history are rele-
vant to the present appeal. On January 31, 2003, the
defendants executed and delivered a promissory note
payable to World Savings Bank, FSB, in the original
principal amount of $315,000. The loan was secured by
a mortgage deed on the property. The mortgage deed
was executed and delivered on January 31, 2003. Effec-
tive December 31, 2007, World Savings Bank, FSB, was
renamed Wachovia Mortgage, FSB (Wachovia).
   The defendants have been in default on the note and
mortgage deed since March 1, 2009. On May 13, 2009,
Wachovia sent a letter to the defendants at the property
address by first class mail and certified mail, notifying
them that the loan was in default and advising them of
the amount required to cure the default and its intent
to accelerate if the default was not cured (2009 letter).
When the defendants failed to cure the default,
Wachovia elected to accelerate the balance due on the
note, declare the note due in full, and foreclose the
mortgage deed securing the note. Wachovia com-
menced a foreclosure action against the defendants on
July 27, 2009 (first foreclosure action). Berchem Moses,
P.C. (Berchem Moses),2 filed an appearance on behalf of
the defendants on August 4, 2009. Effective November
1, 2009, Wachovia converted to a national bank with
the name Wells Fargo Bank Southwest, National Associ-
ation, and merged with and into the plaintiff.3 The first
foreclosure action was in foreclosure mediation for
approximately two years; the mediation period was ter-
minated by the court on September 29, 2011. The first
foreclosure action subsequently was dismissed for dor-
mancy on May 8, 2014.
  On June 19, 2014, the law firm formerly known as
Hunt Leibert Jacobson, P.C., acting in its capacity as
counsel to the plaintiff, sent a letter by certified mail,
return receipt requested, to Berchem Moses notifying
them, inter alia, that the note was in default (2014 letter).
The 2014 letter listed the plaintiff as the creditor, the
loan number, and the property address and stated, in
relevant part: ‘‘Dear BERCHEM MOSES & DEVLIN PC:
We are writing to you as counsel for BERCHEM
MOSES & DEVLIN PC, MARSHA A FITZPATRICK*.
Please be advised that this office represents WELLS
FARGO BANK, N.A., who is the holder of a certain Note
(the ‘Note’) and Open-End Mortgage (the ‘Mortgage’)
made by you originally in favor of WORLD SAVINGS
BANK, FSB dated January 31, 2003 in the original princi-
pal amount of $315,000.00. This is to advise you that the
above-referenced Note and Mortgage is in DEFAULT
because installments of principal and interest have not
been paid when due. The amount of payments and other
charges due is $218,906.08 as of July 19, 2014 (Please
see attached itemization). If the full amount needed to
bring the loan current has not been paid on/or before
said date, WELLS FARGO BANK, N.A. will declare all
sums secured by the mortgage immediately due and
payable (technically called acceleration) without fur-
ther demand.’’ A memo sent with the 2014 letter to
Berchem Moses provided in relevant part: ‘‘Pursuant to
the language in the mortgage deed you signed, the
Lender is required to advise you that you have the right
to reinstate after acceleration and the right to assert in
court the non-existence of a default or any other defense
of Borrower to acceleration and foreclosure and sale.
If the default is not cured on or before the date specified
in the notice, Lender at its option may require immedi-
ate payment in full of sums secured by the Mortgage
without further demand and may invoke any of the
remedies permitted by Applicable Law.’’
  The defendants failed to cure the default and the
plaintiff elected to accelerate the balance due on the
note, to declare the note due in full, and to institute
foreclosure of the mortgage deed securing the note.
The plaintiff then commenced the present foreclosure
action against the defendants on September 26, 2014.
On October 21, 2014, Berchem Moses entered an
appearance on behalf of the defendants. On September
16, 2016, the plaintiff’s motion to default the defendants
for failure to plead was granted. On that same date, the
defendants filed a motion to open the default and filed
their answer with three special defenses and a counter-
claim.4 The defendants’ motion to open the default was
granted on September 28, 2016.
   The action was tried to the court on July 18, 2017.
At the close of the plaintiff’s case, the defendants moved
to dismiss the case ‘‘based upon the plaintiff’s failure
to establish a prima facie case, specifically their failure
to establish a notice of default against the defendants,
which is a condition precedent to the foreclosure.’’ After
a recess, the court denied the defendants’ motion to
dismiss. The court, relying on Mortgage Electronic Reg-
istration Systems, Inc. v. Goduto, 110 Conn. App. 367,
955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420
(2008), considered the 2009 letter and the 2014 letter
jointly as substantively affording the defendants the
requisite notice in paragraph twenty-two of the mort-
gage deed. The court further noted the absence of any
prejudice to the defendants, and that the 2014 letter was
sent to the defendants’ counsel within approximately
thirty days of the dismissal of the first foreclosure case.
In its memorandum of decision, the court concluded
that the plaintiff was entitled to a judgment of foreclo-
sure by sale against the defendants. The court also
concluded that the defendants had proven their first
special defense of unclean hands,5 but failed to prove
their second and third special defenses of laches and
failure to mitigate damages. This appeal followed. Addi-
tional facts will be set forth as necessary.
                             I
   The defendants first claim that the plaintiff failed to
provide them with proper notice as required by para-
graphs fifteen and twenty-two of the mortgage deed.
Specifically, the defendants argue that the contents of
the 2014 letter should not be considered by the court
because it was sent to Berchem Moses instead of the
property address and further contend that the 2009
letter considered alone does not constitute sufficient
notice.6 In the alternative, the defendants argue that the
2009 letter and 2014 letter together do not constitute
sufficient notice.
   In response, the plaintiff contends that, ‘‘by admitting
the adequacy of [the] notice in their answer to the
complaint and by failing to file a special defense,’’ the
defendants have waived their right to challenge the
sufficiency of the notice. The plaintiff argues that the
defendants admitted that the notice was adequate in
their answer when they did not specifically deny para-
graph six of the complaint, which states: ‘‘The plaintiff
has provided written notice in accordance with the note
and mortgage to the defendant(s) of the default under
the note and mortgage, but said defendant(s) have failed
and neglected to cure the default. The plaintiff has
elected to accelerate the balance due on said note, to
declare said note to be due in full and to foreclose the
mortgage securing said note.’’ In response, the defen-
dants answered: ‘‘The allegations of paragraph 6 are
admitted to the extent that the plaintiff declared the
note in default and elected to accelerate the balance
due, declared the note to [be] due in full and com-
menced a foreclosure of the mortgage. The defendants
deny that monies are owed to the plaintiff.’’ The plaintiff
asks us to read this as a judicially binding admission
by the defendants that the plaintiff had provided them
with compliant notice under the note and mortgage
deed. Although we decline to read the defendants’
answer so broadly, we note that the defendants in their
answer did not deny that they had received the 2014
letter sent to Berchem Moses. Indeed, the defendants
have never advanced that argument and, instead, con-
tend that the 2014 letter was improper notice because
it was not sent to the property address.7
  We begin by noting that ‘‘[i]t is well established that
[n]otices of default and acceleration are controlled by
the mortgage documents. Construction of a mortgage
deed is governed by the same rules of interpretation
that apply to written instruments or contracts generally,
and to deeds particularly. The primary rule of construc-
tion is to ascertain the intention of the parties. This is
done not only from the face of the instrument, but also
from the situation of the parties and the nature and
object of their transactions. . . . A promissory note
and a mortgage deed are deemed parts of one transac-
tion and must be construed together as such. . . .
   ‘‘In construing a deed, a court must consider the
language and terms of the instrument as a whole. . . .
Moreover, the words [in the deed] are to be given their
ordinary popular meaning, unless their context, or the
circumstances, show that a special meaning was
intended. . . .
   ‘‘A promissory note is nothing more than a written
contract for the payment of money, and, as such, con-
tract law applies. . . . In construing a contract, the
controlling factor is normally the intent expressed in
the contract, not the intent which the parties may have
had or which the court believes they ought to have had.
. . . Where . . . there is clear and definitive contract
language, the scope and meaning of that language is
not a question of fact but a question of law. . . . In
such a situation our scope of review is plenary, and is
not limited by the clearly erroneous standard. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
   ‘‘Notice provisions in mortgage documents usually
require default notices to contain specific information,
which serves a very clear and specific purpose; it
informs mortgagors of their rights so that they may act
to protect them. Therefore, when the terms of the note
and mortgage require notice of default, proper notice
is a condition precedent to an action for foreclosure.
. . . Consequently, we must determine whether such
a condition precedent was satisfied in the present case.’’
(Citations omitted; internal quotation marks omitted.)
Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App.
793, 798–800, 896 A.2d 814, cert. denied, 278 Conn. 919,
901 A.2d 43 (2006).
   Paragraphs twenty-two and fifteen of the mortgage
deed contain the relevant notice provisions in the pre-
sent case. Paragraph twenty-two states in relevant part:
‘‘Lender shall give notice to Borrower prior to accelera-
tion following Borrower’s breach of any covenant or
agreement in this Security Instrument . . . . The
notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not less than
30 days from the date the notice is given to Borrower,
by which the default must be cured; and (d) that failure
to cure the default on or before the date specified in the
notice may result in acceleration of the sums secured
by this Security Instrument and foreclosure or sale of
the Property. The notice shall further inform Borrower
of the right to reinstate after acceleration and the right
to assert in court the non-existence of a default or any
other defense of Borrower to acceleration and foreclo-
sure or sale.’’ Paragraph fifteen of the mortgage deed
provides in relevant part: ‘‘Any notice to Borrower in
connection with this Security Instrument shall be
deemed to have been given to Borrower when mailed by
first class mail or when actually delivered to Borrower’s
notice address if sent by other means. . . . The notice
address shall be the Property Address unless Borrower
has designated a substitute notice address by notice
to Lender.’’
   Although they challenged the manner in which the
2014 letter was sent, the defendants conceded before
the trial court that the contents of the 2014 letter provide
‘‘everything specifically required by the mortgage.’’8
Accordingly, we will not entertain on appeal their claim
that the 2014 letter was substantively inadequate. See
White v. Mazda Motor of America, Inc., 313 Conn. 610,
619, 99 A.3d 1079 (2014) (‘‘Our appellate courts, as a
general practice, will not review claims made for the
first time on appeal. We repeatedly have held that [a]
party cannot present a case to the trial court on one
theory and then seek appellate relief on a different one
. . . .’’ [Internal quotation marks omitted.]).
   The defendants principally rely on this court’s deci-
sion in Aurora Loan Services, LLC v. Condron, 181
Conn. App. 248, 186 A.3d 708 (2018), to support their
position that, because the 2014 letter was not sent to
them at the property address as required by paragraph
fifteen of the mortgage, ‘‘there is no evidence of actual
delivery as required to set forth a prima facie case.’’ In
Aurora, the defendants claimed that they did not
receive the single notice of default letter sent by the
plaintiff via certified mail, return receipt requested, and
the plaintiff did not offer evidence to confirm actual
delivery of the letter.9 Id., 252–53. As this court noted:
‘‘The plain intent of the notification requirements . . .
of the mortgage deed is to provide notice of a default
to a [mortgagor] prior to the commencement of a fore-
closure proceeding.’’ Id., 272. Because the defendants
claimed that they did not receive the noncompliant
notice of default letter and there was no evidence that
they did so, this court determined that the plaintiff
in that case failed to satisfy the contractual condition
precedent to foreclosure. Id., 276. The present case is
materially different. Unlike the defendants in Aurora,
the defendants in the present case do not argue that
they did not receive notice of the default and the possi-
bility that they faced a foreclosure action. In the present
case, the defendants had actual notice of the default
and the possibility that they faced a foreclosure because
they had been through the first foreclosure action and
admittedly received the 2009 letter before the first fore-
closure action was commenced against them.
   This court has applied the doctrine of substantial
compliance to contract notice provisions. See Mortgage
Electronic Registration Systems, Inc. v. Goduto, supra,
110 Conn. App. 373 (mortgage notice provision required
plaintiff to afford defendants thirty days notice to cure
default); Twenty-Four Merrill Street Condominium
Assn., Inc. v. Murray, 96 Conn. App. 616, 624–25, 902
A.2d 24 (2006) (condominium association bylaws
required written notice within thirty days of decision);
Fidelity Bank v. Krenisky, 72 Conn. App. 700, 714–15,
807 A.2d 968 (mortgage notice provision required plain-
tiff to inform defendants that they may assert in court
nonexistence of default or other defense), cert. denied,
262 Conn. 915, 811 A.2d 1291 (2002). In Mortgage Elec-
tronic Registration Systems, Inc. v. Goduto, supra, 376,
this court affirmed the trial court’s judgment ‘‘on the
alternate ground that by sending a second notice letter,
the plaintiff substantially complied with the notice
requirements in the defendant’s mortgage.’’ It con-
cluded that ‘‘the two notices [of default], read jointly,
substantially afforded the debtor the requisite notice.’’
Id., 368. This court explained that ‘‘[i]n deciding whether
proper notice was given, we . . . look primarily to the
actual notice received rather than asking whether there
has been a punctilious adherence to formality . . . .
Although generally contracts should be enforced as
written, we will not require mechanistic compliance
with the letter of notice provisions if the particular
circumstances of a case show that the actual notice
received resulted in no prejudice and fairly apprised
the noticed party of its contractual rights.’’ (Citation
omitted; internal quotation marks omitted.) Id., 375.
   In the present case, counsel for the defendants con-
ceded at trial that the 2014 letter satisfied the notice
requirements in paragraph twenty-two of the mortgage.
The defendants do not dispute that they received the
2014 letter and they claim no prejudice from the manner
in which they received it. In addition, they had received
the 2009 letter prior to the first foreclosure action and
had actively participated in it. Consequently, it is indis-
putable that they had actual notice of their default and
the possibility that they faced a foreclosure action when
the second action was commenced. Accordingly, we
conclude that the trial court properly determined that,
pursuant to this court’s decision in Goduto, the two
letters together substantially complied with the mort-
gage deed’s notice requirements.
                            II
   The defendants also claim that the court improperly
failed to find that they had proven their special defense
of laches. In response, the plaintiff argues that the
defendants failed to meet their burden of proving
laches. We agree with the plaintiff.
  ‘‘The standard of review that governs appellate claims
with respect to the law of laches is well established. A
conclusion that a plaintiff has been guilty of laches is
one of fact for the trier and not one that can be made
by this court, unless the subordinate facts found make
such a conclusion inevitable as a matter of law. . . .
We must defer to the court’s findings of fact unless they
are clearly erroneous. . . .
  ‘‘The defense of laches, if proven, bars a plaintiff from
seeking equitable relief . . . . First, there must have
been a delay that was inexcusable, and, second, that
delay must have prejudiced the defendant. . . . The
burden is on the party alleging laches to establish that
defense. . . . The mere lapse of time does not consti-
tute laches . . . unless it results in prejudice to the
[opposing party] . . . as where, for example, the
[opposing party] is led to change his position with
respect to the matter in question.’’ (Emphasis added;
internal quotation marks omitted.) R. F. Daddario &
Sons, Inc. v. Shelansky, 123 Conn. App. 725, 737, 3 A.3d
957 (2010).
   The defendants argue that they are entitled to a find-
ing of laches because ‘‘the plaintiff has allowed a period
of over nine years to pass in this foreclosure action.
During that time it has failed to pursue this matter with
due diligence, and has failed to comply with the specific
terms of the note and mortgage regarding the alleged
default.’’ The defendants, however, have failed to assert,
before the trial court or on appeal, how they have been
prejudiced. Indeed, no evidence was submitted on
which the court could have found that the defendants
suffered any prejudice and, in fact, the court reduced
the interest that accrued while the first foreclosure
action was pending, which equitably addressed any
delay in the first foreclosure action. See footnote 5
of this opinion. The only evidence presented by the
defendants in this action consisted of their request that
the court take judicial notice of the first foreclosure
action. Accordingly, because the defendants did not
submit any evidence from which the court could have
found that they were prejudiced, we conclude that the
court’s finding that the defendants did not prove their
special defense of laches was not clearly erroneous.
See Wolyniec v. Wolyniec, 188 Conn. App. 53, 68, 203
A.3d 1269 (2019) (‘‘[a]lthough the court made no
express findings of fact with respect to laches . . .
[a]fter examining the record in the present case, we
conclude that no evidence was admitted from which
the court could have found that the plaintiff was preju-
diced by the defendant’s delay in filing her motion for
contempt’’ [internal quotation marks omitted]); Car-
pender v. Sigel, 142 Conn. App. 379, 387, 67 A.3d 1011
(2013) (‘‘In the present case, no evidence was admitted
on which the court could have found that the plaintiff
was prejudiced . . . . Accordingly, the court improp-
erly concluded that the defendants’ claim . . . was
barred by laches.’’).
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
      For convenience, we refer to James R. Fitzpatrick and Marsha A. Fitzpa-
trick as the defendants in this opinion. We note that the operative complaint
also named the United States of America Internal Revenue Service; Manny
Rodrigues; Homeward Residential, Inc., formerly known as American Home
Mortgage Servicing, Inc., formerly known as Option One Mortgage Corpora-
tion; Ford Motor Credit Company, LLC, formerly known as Ford Motor
Credit Company; Capital One Bank; and Carbone Financing Services, LLC,
as defendants in this action.
    2
      At the time that the first foreclosure action was commenced, Berchem
Moses, P.C., was known as Berchem Moses & Devlin, P.C.
    3
      The plaintiff filed a motion to substitute a party plaintiff on December
15, 2009, which was granted by the court on January 4, 2010.
    4
      The defendants alleged the special defenses of (1) unclean hands, (2)
laches, and (3) failure to mitigate damages. In their counterclaim, the defen-
dants sought a discharge of the mortgage pursuant to General Statutes § 49-
13. In a memorandum of decision dated June 20, 2017, that counterclaim
was dismissed by the court. The defendants have not challenged on appeal
the dismissal of their counterclaim.
    5
      Specifically, the court determined that the defendants were entitled to
an interest credit for proving their first special defense of unclean hands
in the amount of $46,004. The court determined that there were 868 days
of unexplained delay by the plaintiff in pursuing the first foreclosure action
and that the per diem interest on the unpaid principal balance amounted
to $53 per day. The court multiplied the per diem interest by the 868 days
of the unexplained delay to calculate the defendants’ interest credit. The
propriety of that determination is not at issue in this appeal.
    6
      In particular, the defendants argue that the 2009 letter was inadequate
because it did not comply with subsection (c) of the notice provision, which
states that the notice shall specify ‘‘a date, not less than 30 days from the
date the notice is given to Borrower, by which the default must be cured
. . . .’’ The defendants also argue that the 2009 letter was inadequate because
it did not comply with subsection (d), which states that the notice shall
provide ‘‘that failure to cure the default on or before the date specified in
the notice may result in acceleration of the sums secured by this Security
Instrument and foreclosure or sale of the Property.’’ In light of the fact that
the defendants concede that the 2014 letter was substantively adequate; see
footnote 7 of this opinion; and our conclusion that the 2009 letter and
2014 letter together substantially complied with the mortgage deed’s notice
provisions, we need not address the defendant’s arguments as to the deficien-
cies of the 2009 letter.
    7
      The plaintiff also argues that the defendants waived their right to chal-
lenge the notice provided by the two letters because they failed to file a
special defense. The plaintiff asserts that our decision in Mortgage Electronic
Registration Systems, Inc. v. Goduto, supra, 110 Conn. App. 367, ‘‘shows
[that the] [d]efendants were required to plead lack of notice or its inadequacy
as a special defense . . . .’’ In that case, this court noted in a footnote
that the defendant asserted a failure to comply with the mortgage’s notice
requirement as a special defense before the trial court. Id., 369 n.2. The
plaintiff misconstrues the observation made by this court in Goduto. Nothing
about that decision implies that the defendant in that case was required to
file a special defense in order to challenge the adequacy of the notice
provided by the plaintiff. Further, because the plaintiff’s obligation to provide
notice is a condition precedent to the foreclosure action and a part of a
prima facie case; see Deutsche Bank National Trust Co. v. Bliss, 159 Conn.
App. 483, 495, 124 A.3d 890 (‘‘[a] plaintiff establishes its prima facie case
in a mortgage foreclosure action by demonstrating by a preponderance of
the evidence that it is the owner of the note, that the defendant mortgagor
has defaulted on the note, and that conditions precedent to foreclosure
have been satisfied’’), cert. denied, 320 Conn. 903, 127 A.3d 186 (2015), cert.
denied,         U.S.     , 136 S. Ct. 2466, 195 L. Ed. 2d 801 (2016); we decline
to hold that a defendant must plead lack of notice or insufficient notice as
a special defense in order to challenge that condition precedent.
    8
      In their appellate brief, the defendants challenge only one aspect of the
contents of the 2014 letter, and the plaintiff argues that the defendants have
waived their ability to raise that challenge. We agree. At oral argument before
the trial court, counsel for the defendants acknowledged the deficiencies
of the contents of the 2009 letter but specifically stated that the 2014 letter’s
contents followed the provisions of the mortgage’s notice requirements:
‘‘And if you look at [the 2009 letter], this is not a default letter. One can
call it a default letter, as the witness did. However, the last paragraph on
the first page said it is our intent to declare your loan past due and payable
immediately if the above-mentioned breach is not remedied. And it gives
some options: let’s have a face-to-face meeting; you can contact Connecticut
Housing Finance Authority. It talks about what their future intent is. It is
nowhere close to being the actual default letter as required by the mortgage
itself and as was sent in [the 2014 letter], which is clearly a default letter
which follows the provisions of the mortgage itself with the notifications
required, the amounts, the periods, everything specifically required by the
mortgage. That is a condition precedent; they have not met it.’’ (Emphasis
added.) Furthermore, after counsel for the plaintiff argued that the 2014 letter
should be considered by the court, that the two letters together constituted
substantial compliance, and that, ‘‘on its face, the [2014] letter is clearly
compliant,’’ the court began to go through the contents of the 2014 letter
to see if it complied with the mortgage’s notice requirements, and counsel for
the defendants responded not by discussing any deficiency in the contents
of the 2014 letter, but by again arguing that the letter was not addressed to
the borrower as required by the note.
   9
     Paragraph fifteen of the mortgage in Aurora Loan Services, LLC v.
Condron, supra, 181 Conn. App. 263–64, like paragraph fifteen of the mort-
gage in the present case, specified that a presumption of receipt would exist
when notice is sent to the borrowers by first class mail.
