Citibank, N.A. v. Burke

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Citibank, N.A. v. Burke CITIBANK, N.A., TRUSTEE v. HILDA MARIE BURKE ET AL. (AC 48516) Suarez, Seeley and Westbrook, Js. Syllabus The defendants, S and H, appealed, and the substitute plaintiff cross appealed, from the trial court’s judgment finding, inter alia, that, although the substi- tute plaintiff had established a prima facie case of foreclosure with respect to a mortgage on certain of H’s real property that secured a note executed by S, the defendants had proven, by a preponderance of the evidence, their first special defense and count one of their counterclaim, alleging improper default on the loan and wrongful foreclosure. The defendants claimed, inter alia, that the court erred in ordering them to pay the substitute plaintiff a certain sum to bring the loan current. The substitute plaintiff claimed, inter alia, that the court erred in finding that S timely reinstated the loan. Held: The trial court’s findings that a mortgage statement issued by the substitute plaintiff’s loan servicer to the defendants constituted an offer to bring the loan current and thereby reinstate the loan and that S’s payment in accordance with that statement served as the consideration to reinstate the loan were clearly erroneous, as it was not reasonable for S to conclude that sending a payment in accordance with the mortgage statement would bring the loan current, given that S had been informed multiple times that the amount listed in the mortgage statement was not sufficient to reinstate the loan, the alleged agreement to reinstate the loan lacked consideration, as there was no evidence before the court of a promise by the defendants to do something that they were not already required to do, and S had failed to meet the condi- tions under the mortgage for reinstatement of the loan after acceleration. This court lacked authority to order the trial court to render a judgment of foreclosure and, accordingly, remanded the case for further proceedings to determine the form of foreclosure judgment, if any, to be rendered and the amount of the debt, as, although this court determined that the substitute plaintiff had established a prima facie case of foreclosure, the determination of what equity required was a matter for the trial court. Argued May 18—officially released October 27, 2026 Procedural History Action to foreclose a mortgage on certain real property of the named defendant, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where U.S. Bank Trust, National Association, Not in its Individual Capacity but solely as Owner Trustee for VRMTG Asset Trust, was substituted as the plaintiff;  Citibank, N.A. v. Burke thereafter, the named defendant et al. filed a counter- claim; subsequently, the case was tried to the court, Cirello, J.; judgment in part for the plaintiff and in part for the named defendant et al. on the counterclaim, from which the named defendant et al. appealed and the sub- stitute plaintiff cross appealed to this court. Reversed; further proceedings. Bruce L. Elstein, with whom, on the brief, was John J. Ribas, for the appellants-cross appellees (named defen- dant et al.). Crystal L. Cooke, with whom, on the brief, was Tara L. Trifon, for the appellee-cross appellant (substitute plaintiff). Opinion SEELEY, J. The defendants Hilda Marie Burke (Hilda) and Stephen P. Burke (Stephen) appeal,1 and the substi- tute plaintiff, U.S. Bank Trust, National Association, Not in its Individual Capacity but solely as Owner Trustee for VRMTG Asset Trust (U.S. Bank), cross appeals, from the judgment of the trial court rendered in this action to foreclose a mortgage on certain real property owned by Hilda, which secured a promissory note that had been executed by Stephen, who defaulted on the note. On appeal, the defendants claim that the court erred in (1) ordering them to pay U.S. Bank $355,913.20, despite having found in their favor with respect to their first spe- cial defense and count one of their counterclaim, which alleged that U.S. Bank was not entitled to foreclosure due to improper default on the note, (2) not tolling any inter- est claimed by U.S. Bank, and (3) not ordering U.S. Bank to correct negative credit reports pertaining to Stephen, given the court’s finding that the defaulted loan had been successfully reinstated. On cross appeal, U.S. Bank 1 Other defendants in this action include the Department of Revenue Services for the state of Connecticut and Bank of America, N.A. Those defendants are not involved in this appeal. Accordingly, we refer to Hilda and Stephen individually by name when necessary and collectively as the defendants.  Citibank, N.A. v. Burke claims that the court erred in finding that (1) a monthly mortgage statement dated May 11, 2019, that was sent to Stephen (May mortgage statement) constituted an offer to reinstate the loan after the promissory note was accelerated due to Stephen’s default, (2) Stephen entered into a contract with U.S. Bank and/or its loan servicer to reinstate the loan by sending a payment of $39,861.97, which was received on June 13, 2019, (3) Stephen timely reinstated the loan, (4) U.S. Bank wrongfully rejected the $39,861.97 payment, (5) U.S. Bank was prohibited from foreclosing on the basis of equitable considerations, and (6) the defendants proved, by a preponderance of the evidence, their first special defense and count one of their counterclaim, alleging improper default on the loan and wrongful foreclosure. With respect to the cross appeal, we agree with U.S. Bank that the court improp- erly concluded that the loan was reinstated in June 2019. In light of that determination, which is dispositive of most of the other claims raised in the cross appeal and all of the claims raised in the defendants’ direct appeal, we reverse the judgment of the court. The following facts, to which the parties stipulated, and procedural history are relevant to this appeal. “Hilda is the owner of the property located at 80 Compo Road N. [in] Westport [(property)] . . . . On or about July 11, 2005, Stephen executed a promissory note . . . in the principal amount of $975,000, payable to Washington Mutual Bank, F.A. (WaMu). . . . [Hilda]2 executed a mortgage, 2 Although the parties’ stipulation of facts initially states that the “defendants together executed [the] mortgage,” the parties’ stipulation subsequently provides: “The parties agree that the mortgage should be reformed to confirm that Hilda granted the mortgage in the property to secure the note executed by Stephen. . . . Definition B of the mortgage shall be reformed to state: ‘[Hilda] is the mortgagor under this security instrument and intends to secure the debt of [Stephen] as evidenced by the note defined below in definition D.’ . . . Definition D of the mortgage shall be reformed to state: ‘(D) Note means the promissory note signed by [Stephen] and dated July 11, 2005. The note states that [Stephen] owed the lender nine hundred seventy-five thousand & 00/100 dollars (U.S. $975,000) plus interest. [Stephen] has promised to pay this debt in regular periodic payments and to pay the debt in full not later than August 1, 2035.’ ”  Citibank, N.A. v. Burke granting WaMu an interest in the property to secure Stephen’s note. . . . Hilda intended to secure Stephen’s note with an interest in the property, as evidenced by the mortgage. . . . The mortgage is recorded at volume 2588, page 67, of the Westport land records. . . . The mortgage was thereafter assigned to JPMorgan Chase Bank, National Association, by virtue of an assignment of mortgage dated March 18, 2013, and recorded April 30, 2013, in volume 3423 at page 3 of the Westport land records. . . . The mortgage was thereafter assigned to U.S. Bank Trust, N.A., as trustee for LSF9 Master Participa- tion Trust by virtue of an assignment of mortgage dated August 11, 2015, and recorded November 10, 2015, in volume 3658 at page 35 of the Westport land records. . . . The mortgage was thereafter assigned to Citibank, N.A., as trustee for CMLTI Asset Trust [(Citibank)],3 by virtue of an assignment of mortgage dated July 27, 2018, and recorded September 4, 2018, in volume 3880 at page 305 of the Westport land records. . . . The mortgage was assigned to U.S. Bank as trustee by virtue of an assign- ment of mortgage dated May 28, 2021, and recorded in volume 4144 at pages 300–301 of the Westport land records. . . . The note and mortgage were affected by a loan modification agreement dated March 28, 2011. . . . The note and mortgage were further affected by a sec- ond loan modification agreement dated August 9, 2013 . . . [and] by a third loan modification agreement dated September 5, 2017. . . . “The note, mortgage, and all loan modification agree- ments required mortgage payments to be made by the first day of every month. . . . The defendants were in default of the terms of the note and mortgage prior to May 11, 2019. . . . The last regular monthly installment payment that was accepted by [U.S. Bank] was made on 3 This action initially was commenced by Citibank. U.S. Bank, as the assignee of the mortgage and note, was substituted as the plaintiff on August 16, 2021.  Citibank, N.A. v. Burke or about October 2018, and the defendants are due for the November 1, 2018 payment. . . . “[The loan servicer for U.S. Bank], Fay Servicing (Fay), sent a default notice to [each of] the defendants on or about January 15, 2019, advising [that] the loan was in default for failing to make the required payments due under the note and mortgage. . . . On or about April 29, 2019, Stephen spoke to a Fay representative and explained the reasons for the delinquency. Stephen asked the Fay representative for a reinstatement. . . . “The defendants were provided [with the May mort- gage statement], advising [that] the past due amount was $39,861.97. . . . The [May mortgage] statement also advised that $39,861.97 was the amount required to bring the loan current. . . . The May [mortgage] statement noted that the payment due date was June 1, 2019, and that, ‘[i]f payment is received after [June 16, 2019], [a] $145.43 late fee will be charged.’ . . . On or about May 30, 2019, a Fay representative advised Stephen that the total amount due on the May . . . mortgage statement was not the reinstatement amount. The representative admitted that the previously requested reinstatement amount had not yet been produced. . . . On or about June 13, 2019, Fay received a check from Stephen in the amount of $[39,861.97]. . . . On June 25, 2019, Stephen called Fay regarding the payment and was advised [that] the payment was not sufficient to reinstate the account. . . . Stephen was advised [that] he would have to wait until he received the returned check and then request an updated reinstatement amount. . . . There have been no payments applied to Stephen’s account since November 1, 2018. . . . “[U.S. Bank] has advanced payments to the city of Westport on behalf of, or to the benefit of, the defendants relating to the real estate taxes owed on the property. . . . [U.S. Bank] has advanced payments relating to the pre- miums owed for hazard insurance, including any policies obtained by the defendants or obtained by [U.S. Bank] and/or its agents. . . . [U.S. Bank] sent the defendants  Citibank, N.A. v. Burke a notice regarding the Emergency Mortgage Assistance Program pursuant to [General Statutes] § 8-265ee on January 15, 2019 (notice). . . . The notice was sent to the property by first class mail and by certified mail, return receipt request[ed]. . . . [U.S. Bank] is the holder in due course with the right to foreclose.” (Citations omitted; footnote added.) Citibank commenced this action in October 2019, seek- ing a foreclosure of the mortgage. Subsequently, U.S. Bank, which was substituted as the plaintiff in August 2021, filed an amended complaint that contained five counts. Count one sought foreclosure of the mortgage; count two sought reformation of the mortgage, which incorrectly referenced a promissory note executed by Hilda, rather than the one executed by Stephen; count three sought equitable subrogation; count four sought ratification of the mortgage to secure the note; and count five alleged unjust enrichment. The defendants filed an answer; three special defenses alleging improper default of the loan, unclean hands, and equitable estoppel; and a three count counterclaim alleging wrongful foreclo- sure, breach of the implied covenant of good faith and fair dealing, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The case was tried to the court over two days on June 5 and July 31, 2024. In its memorandum of decision filed on August 22, 2024 (August 2024 decision), the court noted that, “[a]t the conclusion of the presentation of evidence, the parties asked the court to enter a narrow decision regarding the liability of the parties based upon the complaint, special defenses and counterclaim but not to address the issue of damages.” In the August 2024 decision, the court found that U.S. Bank had “proved each and every element of its prima facie case by a preponderance of the evidence for count one of its amended complaint” but that that finding was “thwarted because the defendants . . . proved each and every element of [their] first special defense and [the] first count of their counterclaim by a preponderance  Citibank, N.A. v. Burke of the evidence in that, on or about June 7, 2019, the defendants tendered a check to [Fay] in good funds for the full cure amount of $39,861.97, and, at that time, the loan was brought current and reinstated. As such, [U.S. Bank] is liable for damages incurred by the defen- dants after June 7, 2019, resulting from its refusal to reinstate the mortgage on that date.” In support of the August 2024 decision, the court made the following findings: “The court finds that the defen- dants received [the May mortgage] statement from Fay . . . that constituted an offer to bring the loan current considering all principal, interest, escrow, overdue pay- ments, and total fees and costs if paid prior to June 16, 2019. In a box titled ‘Delinquency Notice’ there was the following statement, ‘You are late on your monthly pay- ments. Failure to bring your account current may result in additional fees or expenses, and in certain instances, you may risk foreclosure—the loss of your home. The amount needed to cure the delinquency is $39,861.97. If you are unable to pay this amount, please call your account manager to explore your options.’ . . . The box went on to state: ‘Total $39,861.97—You must pay this amount to bring your loan current.’ . . . “On June 7, 2019, Stephen sent a cashier’s check in the amount of $39,861.97 to Fay. The check was received before June 16, 2019. At this point, the defendants had fulfilled their obligations to bring the note current. Fay made a clear offer, that offer was accepted, and the payment of $39,861.97 was the consideration. Despite completing the contract with Fay to bring the loan cur- rent, Fay refused to accept the payment and returned the check to the defendants. [U.S. Bank] made several unsuccessful arguments to justify these actions. “First, [U.S. Bank] claim[ed] that the payment due date was June 1, 2019, and that the payment was actu- ally made on June 7, 2019. The court’s interpretation of the May [mortgage] statement is that the payment was due on June 1, 2019, but that there was a fifteen day grace period without penalty. This is supported by the  Citibank, N.A. v. Burke language in the amount due box, which states, ‘[i]f pay- ment is received after [June 16, 2019], [a] $145.43 late fee will be charged.’ . . . If the payment was not accept- able on June 7, 2019, there would be no such statement of additional charges after June 16, 2019. “[U.S. Bank’s] next argument is that Stephen had a phone conversation with a representative from Fay on May 30, 2024, in which he was advised that the $39,861.97 was not a reinstatement amount. The rep- resentative stated [that] he would send a reinstatement figure in the mail. Also, the representative told Stephen that the [May mortgage] statement amount was not the reinstatement figure. This conversation is confusing and contradictory to the language in the May [mort- gage] statement. The nuance of the distinction between a ‘reinstatement figure’ and an amount to bring the loan ‘current’ is confusing to the general public, homeowners, consumers and even some members of the bar. Addition- ally, no reinstatement figure was ever received by the defendants. As such, it was reasonable for Stephen to conclude that sending a payment in accordance with the [May mortgage] statement would, if nothing else, bring the loan current.”4 (Citations omitted; emphasis omitted.) After the court issued the August 2024 decision, U.S. Bank and the defendants filed motions for reargument 4 The court also noted in the August 2024 decision that “[t]he parties [had] stipulated that judgment [should be rendered] in favor of [U.S. Bank] on count two of the . . . amended complaint. Per the instructions of the parties, the court [did] not make findings as to counts three, four and five of [U.S. Bank’s] amended complaint. The defendants failed to prove by a preponderance of evidence counts two and three of [their] counterclaim.” On the first day of trial, U.S. Bank’s attorney represented to the court that, because the parties had reached an agreement with respect to count two, which sought reformation, counts three, four and five could “be denied as moot.” After the defendants’ counsel acknowl- edged his agreement with U.S. Bank’s counsel, the court stated that it anticipated the “withdrawal of counts three, four and five” by “[t]he close of business on Friday,” and U.S. Bank’s counsel stated that she would do so. Even though the record does not indicate a withdrawal of counts three, four and five, U.S. Bank unconditionally abandoned them when its counsel agreed on the record to withdraw those counts. See Zamstein  Citibank, N.A. v. Burke and reconsideration, both of which were granted by the court, which issued an order requesting the parties to submit proposed orders regarding the issue of the toll- ing of interest no later than December 13, 2024.5 On January 15, 2025, U.S. Bank filed an affidavit of Janet Gioello, an employee of Fay, which outlined the prop- erty tax and insurance payments made by Fay since the November 2018 default date, as well as the interest and principal payments due U.S. Bank following the alleged reinstatement of the loan in June 2019, all of which totaled $394,317.53. On January 21, 2025, Stephen filed an affidavit in which he attested that, after U.S. Bank, v. Marvasti, 240 Conn. 549, 556, 692 A.2d 781 (1997). Consequently, counts two, three, four and five of the amended complaint are not at issue in this appeal, nor are counts two and three of the counterclaim. In its August 2024 decision, the court did not reference the defen- dants’ second special defense, which alleged unclean hands, or their third special defense, which alleged equitable estoppel. Although the defendants filed a motion for reargument and reconsideration of the court’s August 2024 decision, in their motion they made no mention of the court’s failure to address their second and third special defenses, and, consequently, the court did not address those special defenses in its February 10, 2025 decision regarding damages following reargu- ment. Similarly, on appeal, the defendants have not raised any claims concerning those special defenses. Accordingly, the special defenses of unclean hands and equitable estoppel also are not before us in this appeal. See, e.g., Unifoods, S.A. de C.V. v. Magallanes, 230 Conn. App. 1, 20 n.22, 329 A.3d 256 (2024) (issues were not before this court for consideration on appeal when trial court did not address them in its decision granting motion for summary judgment and, on appeal, plain- tiff did not raise any claims of error predicated on those issues); see also Mathews v. Mathews, 232 Conn. App. 571, 583 n.6, 336 A.3d 517 (2025) (declining to review ancillary contention of unclean hands when court did not address or make any factual findings concerning issue of unclean hands in its decision, and plaintiff did not seek articulation of decision that failed to address issue of unclean hands, which rendered record inadequate for review); footnote 9 of this opinion. 5 The order stated: “In the prayers for relief on their counterclaim, the defendants claim a tolling of interest. The court did not comment on this issue in its [August 2024] decision but did grant the defendants the opportunity to prove damages at a subsequent hearing. In its [August 2024] decision, the court concluded that the defendants had reinstated the loan prior to June 16, 2019. It could be inferred that any interest after this date is tolled by virtue of this reinstatement. However, it is also possible that this is something the court expects the defendants to present as part of their damages at a subsequent hearing.”  Citibank, N.A. v. Burke through Fay, wrongfully rejected his reinstatement of the loan, U.S. Bank engaged in bad faith actions and made negative reports against his credit and credit score, which caused him to incur increases in his real estate and automobile insurance premiums totaling $40,000. He also requested the court to award him damages in the amount of $50,000 and attorney’s fees, to toll all inter- est on the loan, to issue an order that all principal due on the loan be added to the back of the loan, and to order U.S. Bank to take steps to restore his credit score. The defendants also submitted an affidavit of attorney’s fees. The parties appeared before the court for argument on the issue of damages on February 7, 2025. In a memo- randum of decision filed on February 10, 2025 (February 2025 decision), the court made the following factual findings and conclusions of law: “The defendants did not object to the calculations of [U.S. Bank’s] affidavit but did not concede that all claims were justified or appro- priate. [U.S. Bank] accepted the defendants’ affidavit of attorney’s fees and did not challenge any specific entry or the reasonableness of the fees charged. “The primary issue before the court was the defen- dants’ additional claims that [Stephen’s] credit score suffered due to [U.S. Bank’s] actions and, as a result, [Stephen] must pay higher insurance premiums for his home and automobiles. [Stephen] also made claims that he has suffered damages, as his business must operate on a cash basis because of his low credit score. [U.S. Bank] contested these claims by the defendants. “After reviewing all the relevant evidence, affida- vits, exhibits and arguments, the court finds that the defendants failed to prove by a preponderance of the evidence that [U.S. Bank’s] actions caused [Stephen’s] credit score to decrease, [caused an] increase [in] their insurance rates, or [affected] their business operations. The defendants did not offer any documentation or state- ments to illustrate the effect on [Stephen’s] credit score or the increased costs of insurance. There was no expert testimony to establish causation between the alleged drop  Citibank, N.A. v. Burke in credit score and increase in insurance rates with [U.S. Bank’s] actions. Finally, there were no financial reports or business records entered into evidence to support the defendants’ claims. “As such, the court makes the following findings. In order to bring the loan current, the defendants must pay $86,120.73 for unpaid principal payments; $39,861.97 in returned funds; $129,542.82 in interest payments, which excludes interest amounts that accrued since June of 2019; $138,792.01 in escrowed advance payments; less $47,920.95 for the defendants’ attorney’s fees; for a total net payment of $346,396.58 as of January 1, 2025. Considering [that] the hearing took place on February 7, 2025, the court will add two months of per diem payments and order the defendants to pay [U.S. Bank] the sum of $355,913.20 on or before March 15, 2025, to bring the loan current.” (Footnote omitted.) This appeal and cross appeal followed. Additional facts and procedural history will be set forth as necessary. On appeal, the defendants raise three claims related to the court’s February 2025 decision. In its cross appeal, U.S. Bank raises six claims concerning the court’s August 2024 decision and, primarily, its conclusion that the loan had been reinstated. Because our determination as to whether the court properly concluded that the loan was reinstated is dispositive of the claims raised in the appeal and most of the claims raised in the cross appeal, we begin by addressing that claim and the cross appeal first. See, e.g., Margarita O. v. Fernando I., 231 Conn. App. 190, 192, 199, 333 A.3d 530, cert. denied, 352 Conn. 904, 335 A.3d 845 (2025); Semac Electric Co. v. Skanska USA Building, Inc., 195 Conn. App. 695, 705, 226 A.3d 1095, cert. denied, 335 Conn. 944, 238 A.3d 17 (2020), and cert. denied, 335 Conn. 945, 238 A.3d 19 (2020). On cross appeal, U.S. Bank claims that the court “committed reversible error when it held that [Stephen] reinstated the loan as of June 2019.” In support of this claim, U.S. Bank contends, inter alia, that (1) the court  Citibank, N.A. v. Burke “mistakenly held that the [May mortgage] statement was an offer to reinstate the mortgage” because “there [was] no evidence that the parties intended for the [May mortgage] statement to form a new contract related to the reinstatement of the loan” and no consideration to support a new agreement, and (2) the note and mortgage, rather than the May mortgage statement, set forth the terms under which the loan can be reinstated after accel- eration, and the defendants did not satisfy those terms.6 We agree with both aspects of U.S. Bank’s claim. The following additional facts are relevant to our reso- lution of this claim. Fay sent each of the defendants a default notice dated January 15, 2019, via certified mail, informing them that the note and mortgage were in default as a result of the failure to make payments due, that they had a right to cure the default by making a payment of $15,556.60 by March 21, 2019, and that a failure to cure the default on or before that date could result in an acceleration of the amounts due under the note. The notices also provided that “any additional monthly payments, late charges and other charges that may be due under the [n]ote, [s]ecurity [i]nstrument and applicable law after the date of this notice must also be paid to bring your account current. You may contact our Loss Mitigation Department . . . to obtain updated pay- ment information. This letter is in no way intended as a payoff statement for your mortgage, it merely states an amount necessary to cure the current default.” The parties do not dispute that the defendants did not cure the default by the March 21, 2019 deadline. Thereafter, Citibank, the holder of the note and mort- gage at the time, elected to accelerate the loan and to declare the entire unpaid balance of the loan immediately 6 In opposing U.S. Bank’s claims on cross appeal, the defendants assert only that the court’s finding that the May mortgage statement was an offer to reinstate the mortgage that was timely accepted by Stephen is not clearly erroneous and that the trial court did not abuse its discretion in denying U.S. Bank a judgment of foreclosure, given its conclusion that Stephen reinstated the loan, which they argued prevented further enforcement of the loan documents via a foreclosure.  Citibank, N.A. v. Burke due and payable and to foreclose the mortgage securing the note. On April 29, 2019, Stephen called Fay and spoke with a representative regarding his loan. During that conversation, a transcript of which was admitted into evidence at trial, Stephen explained the reasons for his delinquency in making the loan payments and asked about setting up a payment plan so that he could get back on track with his loan payments. The representative informed Stephen that his account was in foreclosure and that, as a result, a payment plan was not an option. She also indicated a past due amount at that time, which did not include fees and costs, and explained that, in order to reinstate the loan, he would have to pay all of the foreclosure fees and costs associated with the account. The representative also asked Stephen if he wanted her to order the reinstatement amount for him, to which he replied, “yes.” On May 11, 2019, Stephen received the May mort- gage statement from Fay advising him of the past due amount of his loan. The May mortgage statement, which was admitted into evidence at trial, sets forth general account information, including the outstanding principal amount and the then current interest rate, the regular monthly payment amount that was due under the loan, and the amounts of overdue payments and fees charged, all of which totaled $39,861.97. It also states: “You must pay this amount to bring your loan current.” The statement indicates a payment due date of June 1, 2019, and further provides that, if payment is received after June 16, 2019, a late fee would be imposed. The May mortgage statement also includes a delinquency notice, which provides: “You are late on your monthly payments. Failure to bring the account current may result in addi- tional fees or expenses, and in certain instances, you may risk foreclosure—the loss of your home. The amount needed to cure the delinquency is $39,861.97. If you are unable to pay this amount, please call your account manager to explore your options. As of May 11, 2019, you are 191 days delinquent on your mortgage loan.”  Citibank, N.A. v. Burke The document then sets forth the past due amounts from December 1, 2018, through May 1, 2019, which totaled $39,861.97. It then further provides: “You must pay this amount to bring your loan current. We may report information about your account to credit bureaus. . . . The total amount due includes fees and other charges in the amount of $1,890.55. If a foreclosure sale date has been scheduled, you must reinstate your loan or make other payment arrangement prior to the foreclo- sure sale date to avoid foreclosure. Please call us . . . to obtain the amount necessary to reinstate your loan.” On May 30, 2019, Stephen again spoke with a represen- tative of Fay, and a transcript of that conversation was admitted into evidence at trial. During that conversation, Stephen stated that he wanted to make a payment on his loan, and the representative responded: “Okay, it looks like you are actually in active foreclosure, so we would have to actually order the reinstatement amount from the foreclosure attorney.” Stephen replied: “Okay, so I can’t use the bill that you sent me that is good up until June 1? You gave me a bill with the additional amounts and everything.” (Emphasis added.) The representative responded, “[n]o.” Stephen explained that he had called several weeks prior asking for a reinstatement amount and that all he “got was this bill.” The representative acknowledged Stephen’s request for a reinstatement amount and stated that it was not there but that he would “escalate it to the manager . . . .” The following colloquy transpired: “[Stephen]: Okay, just to let you know, I have the current bill that was sent to me for the June 1 payment with all of the past due payments, as well as the fees, which include legal fees all on it, and the total number is $39,861.97. . . . “[Fay Representative]: That is just a standard billing statement. That doesn’t include any legal fees. . . . I’m not seeing [the fees] itemized at the back of the statement. . . .  Citibank, N.A. v. Burke “[Stephen]: . . . [L]ook at . . . [m]y regular mortgage statement for May 1. . . . “[Fay Representative]: . . . [T]hat . . . doesn’t include the attorney’s fees and costs. It’s a regular billing state- ment. It’s not for borrowers in foreclosure. I mean, it’s giving you a past due breakdown of the contractual amount past due, but when you [are] in foreclosure you have to reinstate with the attorney’s fees and costs that we don’t have yet. And I agree, you did call and ask for it and for whatever reason, [it] is not here. I am going to escalate it with my manager. “[Stephen]: Alright. How soon can you get back to me? “[Fay Representative]: I am going to lean over to him right now. “[Stephen]: Can I stay on hold? “[Fay Representative]: No, because it is going to take more than five minutes. . . . [I am] going to try to get it . . . as soon as possible, and I should give you [a] call back. “[Stephen]: Well, I may not be able to do it. I was shoot- ing for the number that I thought was the right number that I was given. “[Fay Representative]: I understand. “[Stephen]: That’s what I am prepared to do today, the $39,861. “[Fay Representative]: Yeah, I understand, the only thing I can do is order and try to get it. “[Stephen]: Can you explain this to your manager? That I had called them, I had asked for it, and all I got was this regular statement that I looked on the back of last month’s billing statement, it showed the attorney’s advances, foreclosure expenses, late fees and property preservation charges, and I am prepared to pay that total amount that’s on this month’s bill. That’s what I have available, that amount. . . . I mean, I would like to do this today if we can. “[Fay Representative]: No, if we can . . . I am [going to be] quite honest with you. It’s not going to be that amount.  Citibank, N.A. v. Burke It doesn’t include any of the foreclosure fees and costs. I am just going to be straight forward with you. “[Stephen]: It does. Look at what it says on last month’s bill. “[Fay Representative]: It’s been sixty days of attorney foreclosure processes. Those numbers are way off. Even the late charges right now are at $2025.98, so, I am just going to order [it] for you and do it from there. I am just trying to give you an expectation. It’s not going to be the thirty-nine grand.” (Emphasis added.) Subsequently, Fay sent Stephen a letter dated June 3, 2019, with a reinstatement amount of $41,149.40, indicating that that amount would need to be paid by June 14, 2019. The letter further provided: “PLEASE BE ADVISED THAT [FAY] RESERVES THE RIGHT TO RETURN YOUR PAYMENT AND PROCEED WITH THE FORECLOSURE IF THE FUNDS SUBMITTED ARE INSUFFICIENT TO BRING THE LOAN CUR- RENT.” Call logs from Fay were admitted into evidence at trial and demonstrate that Fay called Stephen on June 6, 2019, after the reinstatement figure was mailed, but the call was unanswered, and a Fay representative left a voicemail message. Stephen never returned the call, and he claims he never received the letter indicating the reinstatement amount. Despite having been informed that the $39,861.97 figure on the May monthly state- ment did not represent the amount needed to reinstate the loan, Stephen mailed a check dated June 7, 2019, in that amount, and the check was received on June 12, 2019, by Fay, which returned the check because the pay- ment was not sufficient to reinstate the loan. At trial, Gioello, an employee of Fay, testified that, once a loan is in foreclosure, any payment by a borrower “has to be a full reinstatement amount to be able to rein- state the loan,” otherwise Fay has to mail the payment back to the borrower. When asked by the court why Fay sends a statement setting forth a payment amount due along with any late fees if Fay is going to reject any  Citibank, N.A. v. Burke payment made in accordance with the figures represented in that statement, Gioello explained that “[t]he monthly billing statements are required to go out every month on every loan whether it’s in foreclosure or not.” She testi- fied further regarding the differences between curing a delinquency and a reinstatement of a loan and explained that, when a loan is in foreclosure, a borrower “need[s] to request a reinstatement quote to pay the amount due and owing,” which includes “other fees and interest that incur on the loan.” She also made clear that the language of the monthly statement that “ ‘[y]ou must pay this amount to bring your loan current’ ” is not a reinstatement, that federal regulations require Fay to send out monthly statements to borrowers, and that a monthly mortgage statement does not change any of the contractual terms of the note and mortgage. In the August 2024 decision, the court made a finding that the May mortgage statement “constituted an offer to bring the loan current . . . .” The court further found that “Stephen sent a cashier’s check in the amount of $39,861.97 to Fay” that was received before June 16, 2019, and concluded: “At this point, the defendants had fulfilled their obligations to bring the note current. Fay made a clear offer, that offer was accepted, and the payment of $39,861.97 was the consideration.” The court also found that, when the defendants tendered a check in that amount, “the loan was brought current and reinstated.” (Emphasis added.) Although the court acknowledged that the Fay representative told Stephen that the amount set forth in the May mortgage statement was not the reinstatement figure, it concluded that that “conversation [was] confusing and contradictory to the language in the May [mortgage] statement. The nuance of the distinction between a ‘reinstatement figure’ and an amount to bring the loan ‘current’ is confusing to the general public, homeowners, consumers and even some members of the bar. Additionally, no reinstatement figure was ever received by the defendants. As such, it was reasonable for Stephen to conclude that sending a  Citibank, N.A. v. Burke payment in accordance with the