JPMorgan Chase Bank, National Assn. v. Lakner ( 2023 )

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JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION v. GEORGE
S. LAKNER*
(SC 20715)
Robinson, C. J., and McDonald, D’Auria,
Ecker and Alexander, Js.
Syllabus
The initial plaintiff, J Co., sought to foreclose a mortgage on certain real
property owned by the defendant. J Co. alleged that the defendant was
in default because he had failed to pay certain monthly installments of
principal and interest. The defendant filed an answer and special defense
in which he denied that he was in default, arguing that he had submitted
all the required payments. After M Co. was substituted for J Co. as the
plaintiff, the defendant issued a notice requesting that M Co. produce
its complete mortgage file relating to the defendant’s mortgage, including
all mortgage payment records. In response, M Co. filed a motion for a
protective order, requesting that the trial court disallow discovery as
to all the documents sought by the defendant. The trial court granted
the motion on the grounds that the defendant’s request was overly broad
and would not lead to the admission of material evidence. Subsequently,
at trial, M Co. introduced into evidence an exhibit containing a summary
of the loan and payment history of the defendant’s account to prove
the debt. The defendant’s counsel objected, arguing that the defendant
was prejudiced because counsel did not have an opportunity to review
that exhibit, which was never produced in discovery, or to locate specific
documents to contradict the information in the exhibit. The trial court
admitted the exhibit, declining to revisit another judge’s decision to grant
the motion for the protective order. Throughout trial, the defendant’s
counsel questioned M Co.’s witness, R, a representative of M Co.’s loan
servicer, in order to gain an understanding of the basis for the alleged
default and to resolve certain discrepancies between the testimony of
R and that of the defendant. R testified that the defendant’s default had
started in 2002 and that the interest rate did not change through the
life of the loan. R’s testimony was in conflict with the fact that W
Co., a predecessor in interest of J Co., was required by the federal
Servicemembers Civil Relief Act (SCRA) (50 U.S.C. § 3937 (a)) to lower
the defendant’s interest rate after the defendant was called to active
duty military service in 2001, and with the defendant’s testimony that
W Co. had lowered his interest rate in 2002. The defendant’s counsel
also asked R why there were line items in M Co.’s exhibit reflecting
insurance premium disbursements in connection with the defendant’s
account when the defendant testified that he had paid for his homeown-
ers insurance independently of his mortgage. R replied that he had not
reviewed M Co.’s mortgage file to determine whether the defendant
had been improperly charged for insurance premiums. The trial court
rendered a judgment of foreclosure by sale in favor of M Co. The court
concluded that the defendant had failed to prove his special defense of
payment because the defendant’s evidence, consisting primarily of cop-
ies of checks, demonstrated some payments to the lender, but it did
not demonstrate a lack of default. The trial court also acknowledged
that the defendant argued that the SCRA may provide a defense to the
foreclosure action but concluded that, even if it were to consider this
defense, which the defendant raised for the first time during trial, the
defendant did not prove it. The defendant appealed to the Appellate
Court, which summarily affirmed the trial court’s judgment. On the
granting of certification, the defendant appealed to this court. Held:
1. The trial court abused its discretion in granting M Co.’s motion for a
protective order:
The trial court’s conclusion that the defendant’s request for documents
contained in M Co.’s mortgage file would not lead to the discovery of
admissible evidence was not supported by the facts and conflicted with
the general observation that a lender’s mortgage file contains critical
information regarding a mortgagor’s account.
In a contested foreclosure case, such as the present one, a defendant,
or his or her attorney, will need to review those aspects of the lender’s
file that may lead to the discovery of admissible evidence relating to
one or more disputed issues, especially when, as here, the defendant
raises the special defense of payment in the face of a claim of default.
In the present case, M Co. introduced documents from its mortgage file
into evidence, and R’s testimony at trial was based on his extensive
review of that file, yet the defendant and his counsel were denied access
to that same material, thereby denying them the opportunity to search
for potentially critical information that would have supported the defen-
dant’s claim that he was not in default.
Moreover, the trial court incorrectly concluded that the defendant’s
request seeking production of M Co.’s mortgage file was overly broad,
as the mortgage file contained records that comprised the source material
that gave rise to M Co.’s foreclosure action, and the defendant was not
required to rely solely on M Co.’s summary of his payment history but
was entitled to review the underlying records themselves to confirm that
the summary was accurate.
Furthermore, M Co. could not prevail on its claim that the defendant
should have made a more narrowly tailored discovery request, as M Co.
failed to comply with the mandate in the rules of practice that it engage
in a good faith effort to reach agreement with the defendant on any
discovery related objections and instead chose to seek a protective
order completely barring discovery of many documents that plainly were
subject to disclosure.
2. The defendant satisfied his burden of proving that he was harmed by the
trial court’s granting of M Co.’s motion for a protective order, as the
defendant demonstrated that, without the requested discovery, he was
unable to ascertain the precise basis for the alleged default until after
the trial commenced:
The trial court’s granting of M Co.’s motion for a protective order effec-
tively prevented the defendant from discovering evidence that may have
demonstrated that he had been overcharged by the lender, either through
improper charges for insurance premiums or on the basis of a failure
to reduce the interest rate pursuant to the SCRA, and the trial court’s
erroneous ruling precluded the defendant from learning of the basis of
the alleged default and from challenging the accuracy of R’s testimony
or the information contained in the documents from the mortgage file
that M Co. produced at trial.
Moreover, although the trial court faulted the defendant for failing to
raise his claim under the SCRA as a defense prior to trial, that act does
not constitute a distinct defense to a foreclosure action and was instead
relevant to support the defendant’s claim that M Co.’s debt calculations
were incorrect and that he was not in default.
Furthermore, the trial court, in faulting the defendant for not raising his
claim under the SCRA in a timely manner, overlooked the fact that the
delay was not the defendant’s fault but was a direct result of the issuance
of the protective order, which prevented the defendant from accessing
the very documents that would have informed him earlier that W Co.
may not have lowered his interest rate in accordance with the SCRA.
In addition, there was no merit to M Co.’s claims that the trial court’s
error was harmless insofar as it was the defendant’s burden to prove
his special defense of payment and that nothing in the protective order
prevented the defendant from proving his special defense with his own
evidence, such as by submitting copies of cancelled checks, as M Co.
could not avoid discovery on the ground that it does not bear the burden
of proof, the defendant was not limited in his proof to only evidence
already in his possession, the defendant likely could not produce copies
of cancelled checks for each month of the alleged default because J Co.
allegedly had periodically refused to accept the defendant’s checks, and
the mortgage file likely contained information beyond the defendant’s
payment history that was relevant to the defendant’s claim that he was
not in default, such as information related to the defendant’s interest
rate and insurance premiums.
Argued March 29—officially released August 8, 2023
Procedural History
Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where MTGLQ Investors, L.P., was substituted
as the plaintiff; thereafter, the court, Hon. Anthony
V. Avallone, judge trial referee, granted the substitute
plaintiff’s motion for a protective order; subsequently,
the case was tried to the court, Baio, J.; judgment of
foreclosure by sale, from which the defendant appealed
to the Appellate Court, Alvord, Clark and Harper, Js.,
which affirmed the trial court’s judgment and remanded
the case for the purpose of setting a new sale date, and
the defendant, on the granting of certification, appealed
to this court. Reversed; new trial.
Thomas P. Willcutts, for the appellant (defendant).
Jeffrey M. Knickerbocker, for the appellee (substitute
plaintiff).
Opinion
McDONALD, J. The sole issue in this foreclosure
appeal is whether the trial court properly granted a
motion for a protective order in favor of the plaintiff
mortgagee, thereby resulting in the denial of all docu-
ment discovery sought by the defendant mortgagor. The
defendant, George S. Lakner, appeals from the judg-
ment of the trial court in favor of the substitute plaintiff,
MTGLQ Investors, L.P. On appeal, the defendant con-
tends that the trial court improperly granted MTGLQ’s
motion for a protective order regarding the production
of MTGLQ’s mortgage file. We agree with the defendant.
In 1995, the defendant executed a promissory note
in favor of Shawmut Mortgage Company in the original,
principal amount of $100,000. The note was secured by
a mortgage deed on the defendant’s residential property
located in New Haven. The interest rate on the defen-
dant’s loan was fixed at 7.25 percent for the thirty year
term of the loan. Shawmut Mortgage Company subse-
quently merged into Fleet Mortgage Corp., which, in
turn, merged into Washington Mutual Bank, F.A.
In 2007, Washington Mutual initiated a foreclosure
action against the defendant, alleging that the note was
in default by virtue of nonpayment of the installments
of the principal and interest due on May 1, 2006, and
each month thereafter. While the foreclosure action
was pending, Washington Mutual’s assets were sold to
JPMorgan Chase Bank, National Association. In response
to the foreclosure action, the defendant submitted an
affidavit attesting that he made all the payments at issue,
and, as proof, he attached copies of twelve months of
checks, which were endorsed by Washington Mutual,
that covered the period at issue. Thereafter, JPMorgan
informed the defendant that it would not pursue Wash-
ington Mutual’s foreclosure action, and the action was
withdrawn in July, 2011.
In January, 2013, JPMorgan filed the present foreclo-
sure action, alleging that the defendant’s note was in
default ‘‘by virtue of nonpayment of the monthly install-
ments of principal and interest due on January 1, 2008,
and each and every month thereafter . . . .’’ The defen-
dant filed an answer and special defense in which he
denied the allegation that he was in default, arguing
that he ‘‘has submitted all payments due and owing on
the subject mortgage note.’’ In January, 2016, JPMorgan
filed a motion for summary judgment. The defendant
opposed the motion, in part, due to his denial that he
had ever been in default of his payment obligations. In
an affidavit in opposition to the motion for summary
judgment, the defendant attested that, after the first
foreclosure action was withdrawn, ‘‘[i]nitially, my pay-
ments were accepted by [JPMorgan] without incident,
but, after approximately . . . [one] year, [JPMorgan]
began to periodically refuse to accept my mortgage
payments . . . . Throughout, I have attempted to rec-
tify [JPMorgan’s] refusal to accept my mortgage pay-
ments . . . but, each time I am able to correct the
situation, [JPMorgan] ultimately reverts back to its
refusal to accept my tendered payments . . . without
providing me or [its employees at the branch bank]
with any explanatory statements.’’ The court denied
JPMorgan’s motion for summary judgment.
Because there was an extended period of inactivity
following the denial of JPMorgan’s motion for summary
judgment, the trial court dismissed the case in Decem-
ber, 2017. JPMorgan then successfully moved to open
the case, and the current plaintiff, MTGLQ, was substi-
tuted for JPMorgan.1
On February 15, 2019, the defendant issued a notice
of deposition on MTGLQ, with an accompanying docu-
ment production request that sought production of
MTGLQ’s ‘‘complete mortgage file . . . relating to the
[m]ortgage [n]ote and [d]eed that are the subject of this
action . . . .’’ The notice also listed, among other
things, the following specific documents to be pro-
duced: ‘‘All records of mortgage payments, including
payments for property taxes and/or property insurance,
related to the subject [m]ortgage [n]ote, from the incep-
tion of the [m]ortgage [n]ote to the present, including
records pertaining to returning payments to the [d]efen-
dant.’’ MTGLQ filed a motion for a protective order
requesting that the trial court disallow discovery as to
all of the documents sought by the defendant on the
ground that the requested documents were ‘‘not reason-
ably calculated to lead to the discovery of admissible
evidence.’’ MTGLQ also argued that the defendant was
‘‘on a fishing expedition, indulging a hope that, by ran-
sacking [MTGLQ’s] files, [he] will find something use-
ful.’’ Specifically, with respect to the request that
MTGLQ furnish all records of mortgage payments,
including property taxes and insurance payments,
related to MTGLQ’s claimed debt, MTGLQ argued, in
total, that the document request was ‘‘simply too vague
and broad to be answered. As such, the court should
grant this motion and overrule any objection.’’
The defendant objected to MTGLQ’s motion for a
protective order, arguing that two issues were in dispute
between the parties: (1) the allegation that the defendant
was in default of his mortgage payment obligations,
and (2) MTGLQ’s standing to prosecute the foreclosure
action. The defendant argued that the documents he
sought in his deposition notice pertaining to the history
of his mortgage account were relevant to the parties’
dispute over whether the account was in default. He
also argued that the documents pertaining to the history
of the transfers of the mortgage note were relevant to
the defendant’s challenge to MTGLQ’s standing.
With no ruling on MTGLQ’s motion for a protective
order, on June 4, 2019, the defendant filed a request
for adjudication of the deposition dispute. On June 28,
2019, the defendant issued a new deposition notice,
without an accompanying document production request,
because the trial court had not yet ruled on MTGLQ’s
motion for a protective order. MTGLQ then filed a
motion for a protective order as to the second deposi-
tion notice. In that motion, MTGLQ argued that the
defendant ‘‘has forfeited the right to dispute the debt.
The debt and default in this case [are] established
through the affidavit of debt.’’ MTGLQ argued that it
was entitled to prove the default by means of an affidavit
of debt only, pursuant to the provisions of Practice
Book § 23-18 (a), ‘‘where no defense as to the amount
of the mortgage debt is interposed . . . .’’
On July 10, 2019, the trial court, Hon. Anthony V.
Avallone, judge trial referee, granted MTGLQ’s first
motion for a protective order. In an articulation of its
reasons for granting this motion, filed after the defen-
dant appealed and the Appellate Court ordered such
an articulation, the trial court stated that, with respect
to the defendant’s denial that he was ever in default,
the defendant’s discovery requests ‘‘do not come within
the scope of [Practice Book] § 13-2. The defendant’s
specific request for all correspondence to and from
the defendant does not meet the standard, in that [the
correspondence is] already in the defendant’s posses-
sion.’’2 The trial court also stated, without elaboration,
that the defendant’s request is ‘‘overly broad and will
not lead to the admission of material evidence. It would
be unreasonable to require [MTGLQ] to go to the sub-
stantial expense of providing this overly broad discov-
ery. . . . The court granted the motion for a protective
order to prevent . . . the improper use of the discov-
ery.’’ Thereafter, the trial court, Cordani, J., denied
MTGLQ’s second motion for a protective order, and
the defendant subsequently deposed a representative
of MTGLQ’s loan servicer, Dave Rittenhouse, a ‘‘foreclo-
sure litigation specialist,’’ one week before trial. No
documents were produced at that deposition.
Relevant to this appeal, at trial, before the court, Baio,
J., MTGLQ offered an affidavit of debt into evidence
to prove its debt. The defendant’s counsel objected, and
the trial court sustained counsel’s objection, explaining:
‘‘[T]he request to offer the affidavit pursuant to Practice
Book § 23-18 is denied in light of the fact that it does
require that, in an action to foreclose a mortgage . . .
there must be no defense as to the amount of the mort-
gage debt that is interposed, and . . . [a] review of the
materials available to the court and the information
thus far . . . indicate[s] that there is a dispute.’’ But
see JPMorgan Chase Bank, National Assn. v. Malick,
347 Conn. 155, 163, A.3d (2023) (affidavit of
debt is used to establish amount of debt averred in
affidavit when amount of debt is not in dispute). There-
after, during the testimony of MTGLQ’s witness, Ritten-
house, MTGLQ introduced into evidence exhibit 12, a
twenty-eight page document consisting of the ‘‘Transac-
tion Detail,’’ ‘‘Payments Due Detail,’’ and ‘‘Loan History
Summary’’ of the defendant’s account in order to prove
its debt. The defendant’s counsel objected, arguing that
exhibit 12 was never produced in discovery. As a result,
the defendant’s counsel argued that the defendant was
prejudiced because, ‘‘I don’t have the opportunity to go
through this. I don’t have the opportunity to find specific
documents to contradict this, and I have to take the
position with [the] court, Your Honor, that we’re
severely prejudiced by this and it—and the idea that
you can conceal a payment history because you don’t
expect to have to use it . . . .’’ The trial court admitted
the exhibit, explaining that ‘‘[a]ny discovery issues that
you may have had, at this point, the court’s not going
to go back and look and see what another judge did or
why another judge did what [he or she] did.’’ The court
then took a brief recess to allow the defendant’s counsel
to review exhibit 12. The defendant’s counsel subse-
quently requested access to MTGLQ’s mortgage file dur-
ing trial because MTGLQ’s counsel had brought ‘‘two
large boxes’’ of documents to court for the trial. The
trial court declined to order that the defendant’s counsel
be given access to the documents.
Throughout trial, the defendant’s counsel questioned
Rittenhouse in an attempt to gain an understanding of
the basis for the alleged default. Specifically, during
his cross-examination, Rittenhouse explained that he
reviewed the defendant’s payment history going back to
2002 because that is when the defendant’s delinquency
‘‘started to occur.’’ He also testified that the delinquency
began to build over time: ‘‘I recall seeing that [the short-
fall in the payments submitted by the defendant began
well before 2008], and, eventually, the [defendant] fell
[one] month behind, and then, I think, it got to two
months, and then it kind of snowballed.’’ Rittenhouse
also testified that the defendant’s interest rate was 7.25
percent and that ‘‘[i]t [did] not appear that it change[d]
through the life of the loan.’’ The defendant, who is a
retired colonel in the United States Army, testified that
the interest rate on his loan had changed. Washington
Mutual was required by the federal Servicemembers
Civil Relief Act (SCRA), 50 U.S.C. § 3937 (a),3 to lower
the defendant’s interest rate to 6 percent after he was
called to active duty military service following the
attacks of September 11, 2001, and the defendant testi-
fied that Washington Mutual did, in fact, lower his inter-
est rate in 2002. This 1.25 percent reduction in the
interest rate on the loan had the effect of lowering the
defendant’s monthly mortgage payments, according to
the defendant. The defendant’s testimony in this regard
was confirmed by a December 17, 2002 letter to the
defendant from Washington Mutual.4 During the cross-
examination of Rittenhouse, the defendant’s counsel
asked, ‘‘when you testified that there are deficiencies
in the payment history of this mortgage loan going back
to the early 2000s, do you know whether . . . these,
what you identified as deficiencies, were, in fact, the
result of overcharging the interest under the [SCRA]?’’5
Rittenhouse did not provide a clear answer to the ques-
tion. The defendant’s counsel also sought clarification
regarding potentially improper insurance charges to the
defendant’s account. Specifically, the defendant testi-
fied that he had always maintained insurance on the
property through the United Services Automobile Asso-
ciation, which provides insurance coverage to members
of the military, veterans, and their families, and did
not insure the property as part of his mortgage. The
defendant’s counsel asked Rittenhouse why there were
line items in exhibit 12 reflecting ‘‘[i]nsurance [p]re-
mium [d]isbursement’’ on the defendant’s account. Rit-
tenhouse testified that he had not reviewed MTGLQ’s
mortgage file to determine whether the defendant had
been improperly charged for insurance premiums.
In January, 2020, the trial court issued a memoran-
dum of decision and rendered judgment of foreclosure
by sale in favor of MTGLQ. Specifically, the trial court
concluded that the defendant ‘‘provided no evidence
establishing a lack of standing; nor did he present any
evidence contradicting [MTGLQ’s] evidence. Rather,
[MTGLQ] established by a fair preponderance of the
evidence that it had the right to enforce the debt at
issue in the present matter.’’ The court also concluded
that the defendant failed to prove his special defense
of payment, explaining: ‘‘The defendant has presented
evidence of various payments having been made on the
mortgage debt. . . . This evidence, consisting primar-
ily of copies of checks, demonstrates some payments
to the lender, but it does not demonstrate, by a fair
preponderance of the evidence, a lack of default. . . .
The defendant’s offer also fails to provide any claim of
payments after 2009. As submitted by [MTGLQ], the
evidence . . . accounts for the defendant’s payment
record up to and including December, 2012, reflecting
that the servicer accepted some payments, which
advanced the due date of the mortgage to May, 2008.
. . . Consequently, the evidence presented establishes
by a fair preponderance of the evidence that the pay-
ments made by the defendant were insufficient to bring
the loan current, hence resulting in the [loan’s being]
in default.’’ (Citations omitted.)
The trial court acknowledged that, at trial, the defen-
dant argued that the SCRA may provide a defense to
the foreclosure action. The court explained, however,
that ‘‘[t]he defendant had not raised the SCRA at any
time before trial and claims that the issue arose for the
first time at trial. . . . Even if the court were to con-
sider the raised defense of the SCRA, the defendant
has not proven by a fair preponderance of the evidence
that the SCRA provides a defense in this matter.
Although the evidence submitted does establish that,
at some point, the defendant was provided with an
adjusted interest rate, the defendant’s evidence, con-
sisting entirely of his own testimony, demonstrates that
his recollection as to the dates of his military service
differ[s] from military documentation. . . . Addition-
ally, the defendant testified that he was fortunate not
to suffer any personal hardships that would make it
difficult for him to meet his mortgage obligations and,
moreover, that his pay was not materially affected.’’
(Citation omitted; footnote omitted.) The trial court
emphasized that, ‘‘if the defendant intended to rely on
the SCRA as a defense, then he should have raised it
before trial. To consider it now would not only endorse
the practice of unfair surprise but would also be prejudi-
cial to the opposing counsel.’’
The Appellate Court subsequently issued a memoran-
dum decision affirming the judgment of the trial court
and remanding the case for the purpose of setting a
new sale date.6 See MTGLQ Investors, L.P. v. Lakner,
210 Conn. App. 901, 266 A.3d 200 (2022). The defendant
filed a petition for certification to appeal, which we
granted, limited to the following issue: ‘‘Did the Appel-
late Court properly uphold the trial court’s decision to
grant a motion for a protective order in favor of
[MTGLQ], thereby resulting in the denial of document
discovery sought by the defendant related to [MTGLQ’s]
mortgage file that was the subject of this foreclosure
action?’’ MTGLQ Investors, L.P. v. Lakner, 343 Conn.
913, 274 A.3d 113 (2022).
On appeal, the defendant contends that the trial court
erred in granting MTGLQ’s motion for a protective
order. Specifically, the defendant contends that the trial
court abused its discretion by granting the motion for
a protective order, which resulted in a ‘‘ ‘complete
denial’ ’’ of document discovery, in violation of Practice
Book § 13-2. The defendant also argues that the protec-
tive order harmed him at trial because, without access
to MTGLQ’s mortgage file, he ‘‘was unable to timely
discover, develop and potentially present to the [trial]
court definitive evidence that [he] was the victim of
being overcharged on his mortgage account, which
would both undermine the judgment figure awarded to
[MTGLQ] by the court, as well as undermine [MTGLQ’s]
allegation that the defendant was ever in default of his
mortgage payment obligations . . . .’’ The defendant
argues that, because the protective order precluded his
requested discovery, he did not learn until Rittenhouse’s
trial testimony that he had been improperly charged
insurance premiums and assessed a higher interest rate
in violation of the SCRA.
In response, MTGLQ contends that the trial court did
not abuse its discretion in granting the motion for a
protective order because the defendant’s request for
production of documents was overly broad, in that it
did not specify the documents sought, it was not limited
in time, it was not limited to documents to be used at
trial, and it did not seek to clarify any entry in the
payment history that the defendant purportedly received
several years prior, during mediation.7 MTGLQ also
argues that, even if the trial court abused its discretion,
the error was harmless because ‘‘that order did not
impair or [a]ffect [the defendant’s] ability to provide
his own evidence in support [of] his payment defense.’’
Under the specific circumstances of this case, we agree
with the defendant and, accordingly, reverse the judg-
ment of the Appellate Court.
We begin with the standard of review and relevant
legal principles. It is well established that ‘‘[t]he rules
of discovery are designed to make a trial less a game
of blindman’s buff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable
extent.’’ (Internal quotation marks omitted.) Wexler v.
DeMaio, 280 Conn. 168, 186 n.13, 905 A.2d 1196 (2006).
The boundaries of discovery are broader than the bound-
aries of admissible evidence; see Sanderson v. Steve
Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d
389 (1985); and, as a result, ‘‘[d]iscovery shall be permit-
ted if the disclosure sought would be of assistance in
the prosecution or defense of the action and if it can
be provided by the disclosing party or person with sub-
stantially greater facility than it could otherwise be
obtained by the party seeking disclosure.’’ Practice
Book § 13-2.
‘‘[T]he [trial] court’s inherent authority to issue pro-
tective orders is embodied in Practice Book § 13-5
. . . .’’ Rosado v. Bridgeport Roman Catholic Diocesan
Corp., 276 Conn. 168, 221 n.59, 884 A.2d 981 (2005).
‘‘We have long recognized that the granting or denial
of a discovery request rests in the sound discretion of
the [trial] court, and is subject to reversal only if such
an order constitutes an abuse of that discretion. . . .
[I]t is only in rare instances that the trial court’s decision
will be disturbed. . . . Therefore, we must discern
whether the court could [have] reasonably conclude[d]
as it did.’’ (Internal quotation marks omitted.) Blumen-
thal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d
1088 (2003). ‘‘That discretion is limited, however, by
the provisions of the rules pertaining to discovery . . .
especially the mandatory provision that discovery shall
be permitted if the disclosure sought would be of assis-
tance in the prosecution or defense of the action. . . .
The court’s discretion applies to decisions concerning
whether the information is material, privileged, substan-
tially more available to the disclosing party, or within
the disclosing party’s knowledge, possession or power
. . . . A complete denial of discovery, however, is sel-
dom within the court’s discretion unless the court finds
that one or more of the limitations on discovery . . .
appl[y]. . . . When discovery is warranted under the
[previously discussed principles], such a denial is an
abuse of discretion.’’ (Citations omitted; emphasis omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48,
57–60, 459 A.2d 503 (1983).
Foreclosure cases are governed by the same rules of
discovery that apply in other civil cases. In this context,
we are mindful that ‘‘[a]n action for foreclosure is pecu-
liarly an equitable action’’; (internal quotation marks
omitted) U.S. Bank National Assn. v. Blowers, 332
Conn. 656, 670, 212 A.3d 226 (2019); and that ‘‘[a] party
that invokes a court’s equitable jurisdiction by filing an
action for foreclosure necessarily invites the court to
undertake . . . an inquiry [into his conduct]. . . .
Equity will not afford its aid to one who by his conduct
or neglect has put the other party in a situation in which
it would be inequitable to place him. . . . A trial court
conducting an equitable proceeding may therefore con-
sider all relevant circumstances to ensure that complete
justice is done.’’ (Citations omitted; internal quotation
marks omitted.) Id., 671.
As discussed, in his first deposition notice, the defen-
dant requested the production of MTGLQ’s ‘‘complete
mortgage file,’’ including but not limited to: ‘‘All records
of mortgage payments, including payments for property
taxes and/or property insurance, related to the subject
[m]ortgage [n]ote, from the inception of the [m]ortgage
[n]ote to the present, including records pertaining to
returning payments to the [d]efendant.’’ The basis of
MTGLQ’s motion for a protective order, and the trial
court’s ruling on that motion, was that the request for
MTGLQ’s mortgage file would not lead to the discovery
of admissible evidence and was overly broad.
Without citing to any evidence or factual predicate,
the trial court summarily and without explanation con-
cluded that the defendant’s request for documents con-
tained in MTGLQ’s mortgage file pertaining to the defen
dant’s loan would not lead to the discovery of admissible
evidence. That conclusion was unsupported by any ref-
erence to the facts of the present case and runs counter
to the general observation that a lender’s mortgage file
contains critical information regarding a mortgagor’s
account. See, e.g., 1 D. Caron & G. Milne, Connecticut
Foreclosures (12th Ed. 2022) § 1-1:1, p. 4 (‘‘A close
examination of the lender’s file is critical to a successful
prosecution of the [foreclosure] action. A hurried review
is apt to cause counsel to overlook some of the prob-
lems that abound in this area of the law, an oversight
that can only result in delay and possible embar-
rassment for the attorney to whom the file has been
entrusted.’’). This is true for the plaintiff and the defen-
dant alike. Although many foreclosure cases will pro-
ceed without the need for discovery, it should come as
no surprise, in a contested case, that a defendant or
his or her attorney will need to review those aspects
of the lender’s file that may lead to the discovery of
admissible evidence relating to one or more disputed
issues. This is particularly so when, as here, the defen-
dant raises a special defense of payment. See, e.g., New
England Savings Bank v. Bedford Realty Corp., 246
Conn. 594, 606 n.10, 717 A.2d 713 (1998) (‘‘[p]ayment
is an affirmative defense that must be proved by the
defendant’’).
The point is well illustrated by the facts of this case.
Some of the very documents that the defendant was
blocked from obtaining in discovery—those pertaining
to the defendant’s payment history—were ultimately
entered into evidence by MTGLQ at trial without the
defendant ever having seen them. For example, to prove
its debt, MTGLQ introduced into evidence exhibit 12,
a twenty-eight page document that combined ‘‘Transac-
tion Detail,’’ ‘‘Payments Due Detail,’’ and ‘‘Loan History
Summary’’ of the defendant’s account. MTGLQ also
introduced into evidence exhibit 14, a December, 2012
document from JPMorgan detailing ‘‘all transactions on
[the defendant’s] account for the period of February 7,
2006, through December 5, 2012.’’ These documents
were plainly within the scope of the defendant’s request.
Yet, the defendant was not allowed to see them before
trial. More broadly, MTGLQ’s witness, Rittenhouse, was
permitted to testify based on his review of MTGLQ’s
mortgage file, whereas the defendant and his counsel
were denied access to that same material. It can hardly
be argued that access to MTGLQ’s mortgage file would
not lead to the discovery of admissible evidence when
MTGLQ actually introduced documents from the mort-
gage file into evidence and its witness testified at trial
based on his extensive review of that file.
We also disagree with the trial court’s conclusion
that the defendant’s request was overly broad.8 As illus-
trated by the records submitted into evidence by
MTGLQ at trial, MTGLQ’s mortgage file contained,
among other things, the account’s payment history, cor-
respondence between the lender and borrower, and
other important account information. These records
make up the source material that gives rise to MTGLQ’s
foreclosure action. The defendant was not required to
rely solely on MTGLQ’s summary of his payment his-
tory; he was entitled to review the underlying records
themselves to confirm that the information contained
in the summary was accurate. See, e.g., Customers Bank
v. Tomonto Industries, LLC, 156 Conn. App. 441, 445–
46, 112 A.3d 853 (2015) (originals or copies of docu-
ments used to develop summary exhibits admitted
pursuant to § 10-5 of Connecticut Code of Evidence
must be made available to other parties upon request);
see also, e.g., Brookfield v. Candlewood Shores Estates,
Inc., 201 Conn. 1, 12–13, 513 A.2d 1218 (1986) (summar-
ies may be admitted provided that documents on which
they are based are available to opposing party). Under
these circumstances, we cannot agree with the trial
court that a request seeking production of a lender’s
mortgage file is overly broad.
The trial court’s order granting MTGLQ’s motion for a
protective order effectively denied the defendant meaning-
ful access to any document discovery. ‘‘A complete denial
of discovery . . . is seldom within the [trial] court’s
discretion . . . .’’ Standard Tallow Corp. v. Jowdy,
supra, 190 Conn. 60. Under these circumstances, we
conclude that the trial court abused its discretion in
granting MTGLQ’s motion for a protective order, deny-
ing the defendant access to MTGLQ’s mortgage file
related to the defendant’s loan.
MTGLQ nevertheless argues that the defendant should
have made a more narrowly tailored discovery request.
We are not persuaded. To the extent that MTGLQ
believed that the defendant’s request was overly broad,
our rules of practice mandate that it engage in a good
faith effort to reach agreement with the defendant on
any discovery related objections. See Practice Book
§ 13-10 (i). It does not appear from the record that
MTGLQ had engaged in this good faith effort or that
such an effort was fruitless as a result of the defendant’s
intransigence or unreasonableness; rather, MTGLQ
chose instead to seek a protective order completely
barring discovery of many documents that plainly were
subject to disclosure.9
Having concluded that the trial court abused its dis-
cretion in granting MTGLQ’s motion for a protective
order, we must address whether the defendant has
shown that he was harmed by that error. ‘‘The harmless
error standard in a civil case is whether the improper
ruling would likely affect the result.’’ (Internal quotation
marks omitted.) Kalams v. Giacchetto, 268 Conn. 244,
249, 842 A.2d 1100 (2004). In considering the question
of harm, we reiterate that the defendant’s issue on
appeal is not whether the trial court erred in rendering
judgment based on the record before it. Instead, the
defendant’s claim of error is that the protective order
substantially prevented him from having the opportu-
nity to pursue, develop and support the defenses he
raised. Indeed, the defendant argues that, without the
requested discovery, he was unable to ascertain the
precise basis for the alleged default until after trial had
commenced. Under the particular circumstances of this
case, we conclude that the defendant has satisfied his
burden of establishing that he was harmed by the grant-
ing of the motion for a protective order.
When the trial court granted MTGLQ’s motion for a
protective order, it effectively prevented the defendant from
discovering evidence that may have demonstrated that he
had been overcharged on his mortgage account—either
through improper charges for insurance premiums or
a failure to reduce the interest rate pursuant to the
SCRA—or from even knowing the basis of the alleged
default. The court’s order granting MTGLQ’s motion
precluded the defendant from obtaining any document
discovery related to his payment history, including any
returned payments, and information pertaining to other
charges to his account. Consequently, it was not until
trial that the defendant discovered that a possible basis
for his alleged default was the failure of Washington
Mutual to lower his interest rate pursuant to the SCRA
or one of the lender’s improperly charging his account
for insurance premiums. As a further result of the erro-
neous protective order, MTGLQ was allowed to selec-
tively choose, at its sole discretion, which documents
from its mortgage file it would produce at trial. Ritten-
house was also permitted to testify regarding his review
of the mortgage file, the defendant’s counsel was unable
to challenge the veracity of this testimony because he
did not have an opportunity to review this file, and
the trial court made clear it was not going to revisit
discovery rulings. Cf. Conn. Code Evid. § 6-9 (b) (‘‘If a
witness, before testifying, uses an object or writing to
refresh the witness’ memory for the purpose of testi-
fying, the object or writing need not be produced for
inspection unless the court, in its discretion, so orders.
Any party may introduce the object or writing in evi-
dence if it is otherwise admissible under the Code.’’).
Recently, in a related context, this court explained the
importance of discovery in a foreclosure action in which
aspects of a historical record of debt were compiled
by a third party, but, at trial, the plaintiff introduced
its own record of the debt that incorporated information
that the third party had provided to the plaintiff. See
Jenzack Partners, LLC v. Stoneridge Associates, LLC,
334 Conn. 374, 377–78, 389, 222 A.3d 950 (2020). Specifi-
cally, we held that such a document is admissible under
the business records exception to the hearsay rule; see
id., 388, 394; because, among other things, ‘‘[a] defen-
dant is free to undertake discovery concerning the accu-
racy of the information in a business record as well
as to introduce or cross-examine witnesses about its
accuracy.’’ Id., 393. In the present case, the defendant
had no meaningful access to those very documents that
would have allowed him to challenge the accuracy of
Rittenhouse’s testimony or the information contained
in exhibit 12, which MTGLQ used to prove the amount
of the debt.
In its memorandum of decision, the trial court never-
theless faulted the defendant for not raising the SCRA
as a defense prior to trial. To begin with, we note that
the SCRA does not, in and of itself, constitute a distinct
defense to the foreclosure action. Rather, the SCRA
was relevant to support the defendant’s argument that
MTGLQ’s debt calculations were incorrect and that he
was not in default. In faulting the defendant for raising
the SCRA issue too late, the trial court also overlooked
the fact that the delay was not the defendant’s fault
but, instead, was a direct result of the issuance of the
protective order, which blocked the defendant’s access
to the very documents that would have informed him
earlier that Washington Mutual may not have lowered
his interest rate in accordance with the SCRA as it
indicated it had in its December 17, 2002 letter. In its
memorandum of decision, the trial court also noted that
the ‘‘Practice Book mandates full and broad discovery
prior to trial. [T]he purpose of the rules of discovery
is to make a trial less a game of blindman’s buff and
more a fair contest with the basic issues and facts
disclosed to the fullest.’’ (Internal quotation marks omit-
ted.) Ironically, it was the defendant who was subjected
to a game of blindman’s buff throughout trial as he
attempted to ascertain the basis for his alleged default.10
Under the circumstances of this case, and given the
broad scope of our discovery rules, as well as the equita-
ble nature of a foreclosure proceeding; see, e.g., U.S.
Bank National Assn. v. Blowers, supra, 332 Conn. 670–71;
we conclude that the defendant has satisfied his burden
of establishing that he was harmed by the issuance of
the protective order.
MTGLQ argues that, even if the trial court abused its
discretion in granting the motion for a protective order,
that error was harmless because it was the defendant’s
burden to prove his special defense of payment, and
nothing in the protective order prevented the defendant
from proving his special defense with his own evidence.
MTGLQ provides no legal authority, and we are aware
of none, for the proposition that a party can avoid dis-
covery on the basis that it does not bear the burden of
proof or that the party who bears a burden can be
limited in his proof to only evidence already in his
possession. This argument turns upside down the fun-
damental idea underlying civil discovery. Additionally,
although MTGLQ argues that the defendant could rebut
the allegation that he was in default by submitting cop-
ies of cancelled checks, the defendant maintained
throughout the course of this action that, after the first
foreclosure action was withdrawn, JPMorgan initially
accepted his payments, but, after approximately one
year, it began to ‘‘periodically refuse to accept [his]
mortgage payments . . . .’’ As such, the defendant
likely could not produce cancelled checks for each
month of the alleged default. MTGLQ’s mortgage file
may well have contained information regarding these
rejected payments. Without the ability to review the
mortgage file, the defendant cannot be certain. Thus,
access to MTGLQ’s mortgage file was critical to the
defendant’s allegation that JPMorgan was improperly
rejecting his payments. Cf. 2 D. Caron & G. Milne, supra,
§ 32-2:1, p. 636 (‘‘[a] borrower who makes timely pay-
ments that are improperly rejected would appear to
have a bona fide defense to the foreclosure’’).
Additionally, MTGLQ’s mortgage file likely contains
further information beyond payment history. For exam-
ple, it may have contained information related to the
defendant’s interest rate and insurance premiums.
Indeed, at trial, when MTGLQ introduced exhibit 12,
the defendant’s counsel discovered that there appeared
to be improper insurance charges on the defendant’s
account. The defendant’s counsel asked Rittenhouse why
there were line items in exhibit 12 reflecting ‘‘[i]nsur-
ance [p]remium [d]isbursement’’ on the defendant’s
account. Rittenhouse was unable to answer the ques-
tion because he had not reviewed MTGLQ’s mortgage
file to determine whether the defendant had been
improperly charged for insurance premiums. These line
items are wholly inconsistent with the defendant’s testi-
mony that he had always maintained insurance on the
property through the United Services Automobile Asso-
ciation and did not insure the property as part of his
mortgage, and, so, the existence (or lack thereof) of
underlying documentation in the mortgage file would
be of critical importance to resolve the dispute. Had
the defendant had access to the documents used by
MTGLQ to develop exhibit 12, as required by § 10-5 of
the Connecticut Code of Evidence; see, e.g., Customers
Bank v. Tomonto Industries, LLC, supra, 156 Conn.
App. 445–46; he may have been able to present evidence
establishing improper charges for insurance premiums.
MTGLQ cannot avoid discovery simply by claiming it
was the defendant’s burden to prove payment.
CONCLUSION
The Appellate Court improperly upheld the trial
court’s decision to grant the motion for a protective
order in favor of MTGLQ, thereby resulting in the denial
of document discovery sought by the defendant related
to MTGLQ’s mortgage file. The defendant also satisfied
his burden of establishing that he was harmed by the
granting of that motion.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court with direction to deny the motion
for a protective order and for a new trial.
In this opinion the other justices concurred.
* The Superior Court clerk is directed to amend the official case caption
as set forth above.
1
It appears that, after MTGLQ was substituted for JPMorgan as the plain-
tiff, the case caption was erroneously changed to ‘‘MTGLQ Investors, L.P.
v. George S. Lakner.’’
2
The parties participated in foreclosure mediation in 2013 and 2014. See
General Statutes § 49-31m. The final report issued by the mediator provided,
among other things, that, ‘‘[a]t the initial mediation session on [April 18,
2013], [JPMorgan] provided a payment history from June, 1995, through the
mediation date.’’ The parties’ participation in mediation was not extensively
discussed at trial, and, accordingly, there is no record regarding the docu-
ment containing the defendant’s payment history that was purportedly pro-
vided to the defendant during mediation. The trial court’s statement, in its
articulation, that the ‘‘correspondence to and from the defendant . . . [is]
already in the defendant’s possession’’ appears to relate only to the corre-
spondence between the parties and not this payment history. Even if the
defendant had been provided such a payment history, under the circum-
stances of this case, the defendant was entitled to review the documentation
in MTGLQ’s mortgage file to discover any discrepancies or other problems
contained therein.
3
Prior to the enactment of the SCRA in 2003, the SCRA was called the
Soldiers’ and Sailors’ Civil Relief Act of 1940. See 50 U.S.C. app. § 501 et
seq. (2000 and Supp. II 2002). However, to be consistent with the parties’
briefs, the trial court’s decision, and trial testimony, we refer to the act by
its current name.
4
The December 17, 2002 Washington Mutual letter was not in evidence
at trial. At oral argument before this court, however, MTGLQ’s appellate
counsel stated that this court could consider the letter, nonetheless. Because
MTGLQ does not contend that consideration of the letter by this court would
be improper, we have no occasion to determine whether it would have
properly been admitted at trial, had MTGLQ’s trial counsel objected. Cf. In
re David P., 154 Conn. App. 508, 516, 105 A.3d 960 (2014) (‘‘[c]oncessions
made during oral argument may be properly considered by the appellate
courts in rendering their decision[s]’’), cert. denied, 315 Conn. 922, 107 A.3d
959 (2015); see also, e.g., Hirsch v. Braceland, 144 Conn. 464, 469, 133 A.2d
898 (1957) (considering fact that did not appear in record but was mentioned
in party’s brief and ‘‘admitted to be so by the [opposing party] during the
course of oral argument [before] this court’’).
5
The defendant had previously argued in opposition to MTGLQ’s second
motion for a protective order that a United States Senate investigation
had uncovered that Washington Mutual had engaged in fraud, including
overcharging borrowers.
6
Because the Appellate Court summarily affirmed the trial court’s judg-
ment, we do not have the benefit of the Appellate Court’s analysis as to
why it concluded that the defendant’s appeal was meritless.
7
In its brief, MTGLQ also contends that ‘‘[t]he trial court’s decision to
grant [the] motion for a protective order in favor of [MTGLQ] did not result
in the denial of document discovery sought by the defendant related to
[MTGLQ’s] mortgage file because the defendant never propounded a request
for documents [on MTGLQ] . . . but, instead, chose only to depose
[MTGLQ] after the court had scheduled trial.’’ To the extent MTGLQ argues
that the defendant was not permitted to request document discovery in a
deposition notice, it is mistaken. See, e.g., Practice Book § 13-27 (g) (‘‘[t]he
notice to a party deponent may be accompanied by a request made in
compliance with Sections 13-9 through 13-11 for the production of docu-
ments and tangible things at the taking of the deposition’’); Practice Book
§ 13-28 (c) (‘‘[a] subpoena issued for the taking of a deposition may command
the person to whom it is directed to produce and permit inspection and
copying of designated books, papers, documents or tangible things which
constitute or contain matters within the scope of the examination permitted
by Sections 13-2 through 13-5’’).
8
In its motion for a protective order, MTGLQ also argued that requests
1G, 1H, and 2 were too vague. Request 1G sought ‘‘[a] complete printout of
[MTGLQ’s] computer file records related to the subject [m]ortgage [n]ote
. . . .’’ Request 1H asked for ‘‘[a]ll records of mortgage payments, including
payments for property taxes and/or property insurance, related to the subject
[m]ortgage [n]ote, from the inception of the [m]ortgage [n]ote to the present,
including records pertaining to returning payments to the [d]efendant.’’
Request 2 sought ‘‘[a]ll records relied [on] in connection with [MTGLQ’s]
responses to the defendant’s [r]equests to [a]dmit . . . .’’ MTGLQ conceded
at oral argument that it did not explain to the trial court why or how these
requests were too vague to allow MTGLQ to comply.
9
MTGLQ also argues, for the first time on appeal, that, as a result of
waiting until a little more than one month before the scheduled trial date
to conduct discovery, the defendant waived his right to discovery. This
argument misconstrues the relevant discovery timeline. The defendant
issued a notice of deposition to MTGLQ on February 15, 2019, and trial
ultimately commenced, nearly seven months later, on September 13, 2019.
MTGLQ’s motion for a protective order was not based on the timing of the
request, and, consequently, the trial court’s decision to grant the motion for
a protective order was not based on the timing of the request. Because this
argument was not raised before the trial court, we decline to consider it
further. See, e.g., Jobe v. Commissioner of Correction, 334 Conn. 636, 643,
224 A.3d 147 (2020) (‘‘[i]t is well settled that [o]ur case law and rules of
practice generally limit [an appellate] court’s review to issues that are dis-
tinctly raised at trial, and [o]nly in [the] most exceptional circumstances
can and will [an appellate] court consider a claim, constitutional or other-
wise, that has not been raised and decided in the trial court’’ (internal
quotation marks omitted)).
10
We recognize that the trial judge, Baio, J., was not the same judge who
ruled on MTGLQ’s motion for a protective order. When the discovery issues
arose during trial, Judge Baio declined to revisit ‘‘what another judge did
or why another judge did what [he or she] did.’’ Nevertheless, the denial of the
defendant’s discovery request prevented the defendant from participating
in a trial that was ‘‘a fair contest with the basic issues and facts disclosed
to the fullest practicable extent.’’ (Internal quotation marks omitted.) Wexler
v. DeMaio, supra, 280 Conn. 186 n.13. Judge Baio’s decision not to revisit
the discovery rulings cemented the harm to the defendant at trial.