CIT Bank, N.A. v. Francis

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CIT BANK, N.A. v. JOHANNA FRANCIS ET AL.
(AC 43121)
Bright, C. J., and Prescott and Elgo, Js.
Syllabus
The defendant J, an heir of the decedent mortgagors, appealed to this court
following the trial court’s judgment of strict foreclosure in favor of the
plaintiff bank. J claimed that the trial court improperly granted the
plaintiff’s motion for a protective order that precluded her from obtaining
the discovery materials she needed to develop and pursue her special
defenses. J had filed special defenses that alleged, inter alia, that her
father, F, had threatened and fraudulently induced the decedents, who
were J’s grandparents, to enter into the mortgage transaction. J filed
discovery requests that sought information from the plaintiff about its
communications with F and its knowledge of his actions. In response,
the plaintiff sought a protective order, claiming that J’s requests
exceeded those normally made in mortgage foreclosure actions and that
state and federal law prohibited disclosure of the requested information.
In opposing the plaintiff’s motion, J produced a letter from the executor
of her grandmother’s estate consenting to the discovery requests. The
trial court granted the plaintiff’s motion for the protective order as to
documents other than the promissory note, the mortgage, assignments
of the mortgage and the decedents’ payment history. The court subse-
quently granted a motion the plaintiff filed to strike the special defenses
relating to F, reasoning that the special defenses failed to allege that
the plaintiff or its predecessor in interest knew of or participated in F’s
alleged misconduct and that F was acting on behalf of the plaintiff or
as its agent. The court also granted motions the plaintiff filed seeking
summary judgment as to liability only on the complaint and as to J’s
remaining special defenses. The court concluded, inter alia, that J could
not prevail on her special defenses that alleged that the decedents lacked
the mental capacity to enter into the loan and that there was an absence
of consideration for the loan. Held that the trial court’s granting of the
plaintiff’s motion for a protective order constituted an abuse of discre-
tion that, under the particular circumstances of this case, was harmful
to J, as it prevented her from discovering facts that would permit her
to pursue, develop and support her special defenses: contrary to the
plaintiff’s assertion, state and federal law did not prohibit compliance
with J’s discovery requests, as those laws permitted disclosure based
on consent, which J had obtained from the executor of her grandmother’s
estate, the plaintiff provided no authority for the court’s refusal to permit
any disclosure of documents beyond the note, the mortgage and assign-
ments thereof and the decedents’ payment history, and the plaintiff
asserted no claim that J’s discovery requests were not made in good faith
or were overbroad, unreasonable, oppressive or improper; moreover,
the plaintiff’s claim that J could have amended the stricken special
defenses or obtained discovery from other sources was unavailing
because J was not a party to the mortgage transaction, the special
defenses necessarily encompassed information relevant to the plaintiff’s
participation in or knowledge of F’s alleged conduct, and, once the court
precluded full discovery, J could no longer develop an evidentiary basis
from which to amend the stricken special defenses; furthermore,
because J was denied the discovery needed to develop and pursue her
special defenses, she was not, as the plaintiff claimed, required to file
an affidavit pursuant to the applicable rule of practice (§ 17-47) in
response to the plaintiff’s motion for summary judgment as to the spe-
cial defenses.
(One judge concurring separately)
Argued January 5, 2021—officially released August 9, 2022
Procedural History
Action to foreclose a mortgage on certain real prop-
erty, and for other relief, brought to the Superior Court
in the judicial district of Stamford-Norwalk, where the
court, Mintz, J., granted the plaintiff’s motion to cite
in James M. Francis as a defendant; thereafter, the
defendant James M. Francis et al. were defaulted for
failure to appear; subsequently, the court, Randolph,
J., granted the plaintiff’s motion for a protective order;
thereafter, the court, Genuario, J., granted the plain-
tiff’s motion to strike certain of the named defendant’s
special defenses; subsequently, the court, Lee, J.,
granted the plaintiff’s motion for summary judgment
as to liability only on the named defendant’s first and
second special defenses; thereafter, the court, Gen-
uario, J., granted the plaintiff’s motion for summary
judgment as to the complaint; subsequently, the court,
Lee, J., granted the plaintiff’s motion to substitute Cas-
cade Funding RM1 Alternative Holdings, LLC, as the
plaintiff; thereafter, the court, Genuario, J., granted the
plaintiff’s motion for a judgment of strict foreclosure
and rendered judgment thereon, from which the named
defendant appealed to this court. Reversed; further pro-
ceedings.
Timothy D. Miltenberger, for the appellant (named
defendant).
Christopher J. Picard, for the appellee (substitute
plaintiff).
Opinion
ELGO, J. In this mortgage foreclosure action, the
defendant Johanna Francis1 appeals from the judgment
of the trial court in favor of the plaintiff, CIT Bank,
N.A.2 On appeal, the defendant claims that the court
improperly granted the plaintiff’s motion for a protec-
tive order regarding certain discovery requests, thereby
preventing her from pursuing her special defenses. We
agree with the defendant and, accordingly, reverse the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff commenced this action
on June 13, 2016, seeking to foreclose a residential
mortgage on property located at 243 New Norwalk Road
in New Canaan. According to the complaint, on April
8, 2008, Norbert Francis and Evelyn Francis (decedents)
executed and delivered to Financial Freedom Senior
Funding Corporation, a subsidiary of IndyMac Bank,
F.S.B., a promissory note for a loan not to exceed a
maximum principal amount of $818,550. To secure the
note, the decedents executed a reverse annuity mort-
gage (mortgage) on the property. Thereafter, the mort-
gage was assigned from Financial Freedom Senior
Funding Corporation to Mortgage Electronic Registra-
tion Systems, Inc., as nominee for Financial Freedom
Acquisition, LLC. The mortgage then was assigned from
Mortgage Electronic Registration Systems, Inc., to the
plaintiff.
Norbert Francis died on January 30, 2009, and Evelyn
Francis died on February 1, 2016. The complaint alleged
that the note was in default and that the plaintiff, as
the holder of the note, had elected to accelerate the
balance due on the note, to declare the note to be due
in full and to foreclose the mortgage securing the note.
The complaint further alleged that the defendant, who
was the decedents’ granddaughter, and James M. Fran-
cis (Francis), the defendant’s father, might claim an
interest in the property by virtue of being the heirs at
law to the decedent Evelyn Francis.
On September 20, 2017, the defendant filed an answer
to the plaintiff’s complaint. On December 12, 2017, the
defendant filed a revised answer, in which she raised
four special defenses. In those special defenses, she
alleged that (1) the note and mortgage were unenforce-
able because the decedents ‘‘had mental illness that
prevented them from understanding the true nature of
the loan documents alleged in the complaint’’; (2) ‘‘nei-
ther [of the decedents] received any consideration’’ for
the note and mortgage; (3) Francis ‘‘made a false repre-
sentation of fact to induce [the decedents] to sign the
note and mortgage,’’ and ‘‘Francis knew that his repre-
sentations . . . were untrue and [that the decedents]
relied on the false representation to their detriment’’;
and (4) ‘‘Francis wrongfully acted and threatened [the
decedents] to sign the note and mortgage . . . leaving
them with no reasonable alternative, and to which acts
and, or, threats they acceded, resulting in a transaction
that was unfair to [the decedents].’’
The defendant also filed discovery requests, in which
she asked, inter alia, that the plaintiff identify all com-
munications between Francis and the plaintiff, and to
produce all written communications received by the
plaintiff or any of its predecessors from Francis or the
decedents or any attorney purporting to represent any
of them. In response, the plaintiff filed a motion for
a protective order pursuant to Practice Book § 13-5,
contending, inter alia, that disclosure of the requested
information was precluded by state and federal law.
On November 22, 2017, the defendant filed an objection
to the plaintiff’s motion for a protective order. At a
hearing on the plaintiff’s motion on January 29, 2018,3
the plaintiff indicated that it was willing to provide ‘‘the
note, the mortgage, the assignments, and the payment
history’’ to the defendant. The plaintiff nevertheless
informed the court that it objected to the defendant’s
requests for ‘‘any and all communications between [the]
decedents, who were the ones who took out the note
and the mortgage,’’ ‘‘any communications between [the
plaintiff] and [Francis],’’ and ‘‘any and all attorneys that
were involved in the making and execution of the note
and the mortgage.’’ The plaintiff also argued that the
defendant’s discovery requests went ‘‘above and beyond
asking for the normal documents that are required to
give to the court in conjunction with a foreclosure
action.’’ The plaintiff made no claim that the defendant’s
discovery requests were made in bad faith or that they
were overbroad, unreasonable, oppressive or improper.
In response, the court stated: ‘‘What the court is taking
into consideration is this: if the defenses that have been
talked about include [incapacity], the court’s not going
to jump into the deep end of the pool and provide
anything beyond the note, the mortgage, the assign-
ments, and the payment history.’’ The court thereafter
granted the plaintiff’s motion for a protective order as to
documents other than the note, mortgage, assignments
and payment history.
On January 26, 2018, three days before the trial court
granted the plaintiff’s motion for a protective order, the
plaintiff filed a motion to strike pursuant to Practice
Book § 10-39, claiming that the defendant’s third and
fourth special defenses were legally insufficient for fail-
ing to allege that the plaintiff or its predecessor in
interest knew of or participated in Francis’ alleged mis-
conduct. The defendant did not file a response to the
motion to strike. The court granted the plaintiff’s
motion to strike by order dated April 9, 2018. As to the
third special defense, the court held that the defendant
had failed to plead facts regarding the subject matter
of the alleged misrepresentation or demonstrating that
the plaintiff or Francis, acting on behalf of the plaintiff,
made the subject misrepresentation. As to the fourth
special defense, the court held that the defendant had
failed to allege that Francis was acting on behalf of or
as the agent of the plaintiff.4
On September 11, 2018, the plaintiff filed a motion
for summary judgment as to liability on the defendant’s
first and second special defenses. The defendant did
not file a response to that motion and, on December
6, 2018, the court rendered summary judgment in favor
of the plaintiff as to liability only. In so doing, the court
concluded that the plaintiff had established that it was
the holder of the note and mortgage, and that a default
had occurred. The court further concluded that the
defendant could not prevail on the first and second
special defenses, which alleged that the decedents
lacked the mental capacity to enter into the loan and
that there was an absence of consideration for the loan.5
The plaintiff then filed a second motion for summary
judgment as to liability on the sole count of the foreclo-
sure complaint. Once again, the defendant did not file
a response to the plaintiff’s motion, which the court
granted on January 28, 2019, stating: ‘‘The court has
reviewed the affidavits on file and finds no genuine
issue of material fact as to the essential allegations of
the complaint. [The] court also observes that there were
no counteraffidavits or no opposition filed.’’ Thereafter,
on June 11, 2019, the court rendered judgment of strict
foreclosure in favor of the plaintiff. This appeal fol-
lowed.
On appeal, the defendant claims that the court
improperly granted the plaintiff’s motion for a protec-
tive order regarding the defendant’s discovery requests.
According to the defendant, the plaintiff did not estab-
lish good cause for the granting of a protective order as
required pursuant to Practice Book § 13-5.6 She further
contends that, in the absence of the discovery sought,
she could not succeed on her third special defense,
which alleged that Francis fraudulently had induced
the decedents to enter into the mortgage transaction.7
In response, the plaintiff argues that the defendant
failed to preserve her claim because she did not chal-
lenge the propriety of the court’s decision to strike that
special defense or oppose the plaintiff’s motions for
summary judgment. The plaintiff further argues that,
even if the trial court abused its discretion in granting
the protective order, the defendant has failed to demon-
strate that she was harmed by this decision. We agree
with the defendant that the court improperly granted
the motion for a protective order. We also conclude,
under the circumstances of this case, that the defendant
was harmed by the error because it prevented her from
discovering facts that would permit her to pursue,
develop and support her special defenses.
We begin by setting forth the applicable standard of
review. ‘‘We have long recognized that the granting or
denial of a discovery request rests in the sound discre-
tion of the [trial] court, and is subject to reversal only
if such an order constitutes an abuse of that discretion.’’
(Internal quotation marks omitted.) Barry v. Quality
Steel Products, Inc., 280 Conn. 1, 16–17, 905 A.2d 55(2006). ‘‘[T]he [trial] court’s inherent authority to issue
protective orders is embodied in Practice Book § 13-5
. . . . The use of protective orders and the extent of
discovery is within the discretion of the trial judge. . . .
We have long recognized that the granting or denial of
a discovery request . . . is subject to reversal only if
such an order constitutes an abuse of that discretion.’’
(Citation omitted; internal quotation marks omitted.)
Coss v. Steward, 126 Conn. App. 30, 46, 10 A.3d 539(2011).
As stated previously in this opinion, in her special
defenses, the defendant alleged that Francis knowingly
made a false representation of fact to induce the dece-
dents to sign the note and mortgage, and that they
relied on the false representation to their detriment.
The defendant further alleged that Francis wrongfully
acted and threatened the decedents to sign the note
and mortgage. In support of the special defenses, the
defendant sought, inter alia, information relating to the
plaintiff’s knowledge of Francis’ actions. Specifically,
the defendant requested that the plaintiff identify all
communications between Francis and the plaintiff and
to produce all written communications received by the
plaintiff or any of its predecessors from Francis or the
decedents, or any attorney purporting to represent any
of them.
In its motion for a protective order, the plaintiff
argued that disclosure of this information was prohib-
ited by (1) General Statutes § 36a-42,8 (2) the Fair Debt
Collections Practices Act, 15 U.S.C. § 1692c (b),9 and
(3) the Gramm-Leach-Bliley Financial Modernization
Act, 15 U.S.C. § 6802.10 These provisions, however, all
contain an exception that permitted the bank to comply
with the defendant’s discovery requests based on con-
sent. Section 36a-42 provides in relevant part that ‘‘[a]
financial institution may not disclose to any person,
except to the customer or the customer’s duly author-
ized agent, any financial records relating to such cus-
tomer unless the customer has authorized disclosure
. . . .’’ (Emphasis added.) Title 15 of the United States
Code, § 1692c (b), provides in relevant part: ‘‘Except
as provided in section 1692b of this title, without the
prior consent of the consumer given directly to the debt
collector . . . a debt collector may not communicate,
in connection with the collection of any debt, with any
person other than the consumer, his attorney, a con-
sumer reporting agency if otherwise permitted by law,
the creditor, the attorney of the creditor, or the attorney
of the debt collector.’’ (Emphasis added.) Title 15 of
the United States Code, § 6802 (a), provides: ‘‘Except
as otherwise provided in this subchapter, a financial
institution may not, directly or through any affiliate,
disclose to a nonaffiliated third party any nonpublic
personal information, unless such financial institution
provides or has provided to the consumer a notice that
complies with section 6803 of this title.’’ Title 15 of
the United States Code, § 6802 (e) (2), permits such
disclosure, however, ‘‘with the consent or at the direc-
tion of the consumer . . . .’’
In her objection to the plaintiff’s motion for a protec-
tive order, the defendant argued that Attorney Jeremiah
S. Miller, the executor of Evelyn Francis’ estate, had
consented to her discovery requests. She also attached
a letter from Miller dated November 16, 2017, memorial-
izing that consent.11 At the hearing on the plaintiff’s
motion, counsel for the defendant argued that, because
the defendant, who is the sole beneficiary of the estate,12
and the executor, both had consented to the defendant’s
discovery request, the plaintiff’s motion for a protective
order was without merit. Moreover, the plaintiff has
provided no authority, nor have we found any, for the
court’s refusal to provide anything beyond ‘‘the note, the
mortgage, the assignments, and the payment history’’
in the context of an incapacity claim, especially here,
where the defendant was not present during any stage
of the transaction, including the closing. In light of the
foregoing, as well as the fact that there is no claim that
the defendant was pursuing discovery in bad faith, we
conclude that the court abused its discretion in granting
the plaintiff’s motion for a protective order.13
Our conclusion that the trial court abused its discre-
tion in granting the protective order, however, does not
end our analysis. According to the plaintiff, even if the
trial court erred in granting the motion for a protective
order, the defendant abandoned her claim by failing to
revise her special defenses or to appeal from the grant-
ing of the motion to strike. The plaintiff further argues
that the defendant cannot show that the granting of
the protective order precluded her from presenting a
genuine issue of material fact in response to the plain-
tiff’s two motions for summary judgment. Finally, the
plaintiff argues that, even if the trial court abused its
discretion in granting the protective order, the defen-
dant has failed to demonstrate that she was harmed by
this decision. We disagree.
Preliminary to our consideration of these issues, we
recognize that ‘‘[a]n action for foreclosure is peculiarly
an equitable action’’ 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 consider all rele-
vant circumstances to ensure that complete justice is
done.’’ (Citations omitted; internal quotation marks
omitted.) U.S. Bank National Assn. v. Blowers, 332
Conn. 656, 670–71, 212 A.3d 226 (2019). Relevant cir-
cumstances that may form a proper basis for defenses
in a foreclosure action include ‘‘conduct occurring after
the origination of the loan, after default, and even after
the initiation of the foreclosure action . . . .’’ (Empha-
sis added.) Id., 672. We also observe that the defendant
in the present case does not claim on appeal that the
trial court erred in granting the motion to strike or in
granting the motions for summary judgment. Instead,
the defendant contends that the trial court’s ruling on
the protective order precluded her from obtaining the
discovery materials that would permit her to determine
whether she had any viable special defenses.
In order to prevail on her third special defense, the
defendant was required to allege and prove ‘‘(1) that a
false representation of fact was made; (2) that the party
making the representation knew it to be false; (3) that
the representation was made to induce action by the
other party; and (4) that the other party did so act
to her detriment.’’ (Internal quotation marks omitted.)
Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.
App. 183, 188, 850 A.2d 260 (2004). The defendant also
had to establish that the plaintiff knowingly participated
in or knew of the fraud. See id., 190 (spouse’s fraud in
inducing spouse to execute mortgage does not invali-
date mortgage against mortgagee unless mortgagee par-
ticipated in or knew of fraud). Similarly, in order to
prevail on her fourth special defense, the defendant
was required to allege and prove: ‘‘[1] a wrongful act
or threat [2] that left the victim no reasonable alterna-
tive, and [3] to which the victim in fact acceded, and that
[4] the resulting transaction was unfair to the victim.’’
(Internal quotation marks omitted.) Id., 189. As with
fraud, in order for the defendant to prevail on this spe-
cial defense, she needed to establish that the plaintiff
participated in or knew of the alleged duress. See id.,
190.
When the court granted the plaintiff’s motion for a
protective order, it effectively prevented the defendant
from obtaining information regarding the plaintiff’s par-
ticipation in or knowledge of Francis’ alleged conduct.
The plaintiff argues that the defendant could have
obtained discovery from other sources, such as by
deposing the decedent’s doctors or Francis; this argu-
ment is not persuasive, however, because her special
defenses necessarily encompassed information rele-
vant to the plaintiff’s participation in or knowledge of
Francis’ alleged conduct. Moreover, we reiterate that
the plaintiff has sued a defendant with respect to a
transaction to which she was not a party. As such, the
defendant has a right to obtain discovery from the party
most likely to have it. See Practice Book § 13-2 (‘‘[d]is-
covery shall be permitted 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 substantially greater facility than it
could otherwise be obtained by the party seeking disclo-
sure’’ (emphasis added)). Under these circumstances,
once full discovery was precluded, the defendant had
no evidentiary basis on which to amend her special
defenses to allege that the plaintiff knew of or partici-
pated in Francis’ alleged misconduct.14 Put differently,
the striking of the defendant’s special defenses without
the evidentiary basis to amend is simply a foregone
conclusion and, thus, a red herring in our consideration
of her appellate claims. Because the defendant’s claim
is that the court abused its discretion in granting the
plaintiff the protective order and precluding discovery,
and not whether it erred in granting the motion to strike,
we are not persuaded that the defendant was required
to take an appeal on that determination.
The plaintiff further argues that, in order to preserve
this claim of error, the defendant should have filed an
objection to the plaintiff’s motions for summary judg-
ment with supporting affidavits. Specifically, the plain-
tiff argues that the defendant should have filed an affida-
vit, pursuant to Practice Book § 17-47,15 setting forth
the information that is solely under the control of the
plaintiff. We disagree.
‘‘A party opposing a summary judgment motion [pur-
suant to Practice Book § 17-47] on the ground that more
time is needed to conduct discovery bears the burden
of establishing a valid reason why the motion should
be denied or its resolution postponed, including some
indication as to what steps that party has taken to
secure facts necessary to defeat the motion. Further-
more, under § 17-47, the opposing party must show by
affidavit precisely what facts are within the exclusive
knowledge of the moving party and what steps he has
taken to attempt to acquire these facts.’’ (Internal quota-
tion marks omitted.) Bank of America, N.A. v. Briar-
wood Connecticut, LLC, 135 Conn. App. 670, 675, 43
A.3d 215 (2012). ‘‘[A] party contending that it needs to
conduct discovery to respond to a motion for summary
judgment must do more than merely claim the informa-
tion needed is within the possession of the opposing
party.’’ (Internal quotation marks omitted.) Id., 677.
In citing to the provisions of Practice Book § 17-47,
the plaintiff contends that the defendant was required to
pursue ‘‘other options available to her’’ such as deposing
the decedents’ physicians or Francis, and, notably,
emphasizes that the defendant failed to dispute the
affidavit of Christopher J. Albanese, the closing attorney
for both the bank and the decedents, which was filed
with the plaintiff’s first motion for summary judgment.
See footnote 5 of this opinion. By its terms, however,
the relief available in § 17-47 assumes that discovery
has not yet been attempted or is complete; it does not
contemplate the present situation in which the defen-
dant was precluded from full and complete discovery
in the first instance. For that reason, the present case
is unlike Briarwood Connecticut, LLC, in which the
defendant already had successfully conducted exten-
sive discovery and, as the court observed, the plaintiff
had not hindered the defendant in its discovery efforts.
See Bank of America, N.A. v. Briarwood Connecticut,
LLC, supra, 135 Conn. App. 677. In the present case,
by contrast, the record indicates that the precluded
discovery included communications between any attor-
ney purporting to represent the plaintiff or its predeces-
sors, the decedents and Francis. The protective order
thus deprived the defendant of the ability to explore
and potentially challenge the circumstances of the clos-
ing, as attested to by Albanese. Under the particular
circumstances of this case, the defendant was not
required to file an affidavit pursuant to § 17-47 in
response to the plaintiff’s motion for summary judg-
ment as to her special defenses because the record
already makes clear that the defendant sought, but was
denied, the discovery needed to develop and pursue
her special defenses.
Finally, we address whether the defendant has shown
that she was harmed by the granting of the protective
order. See Coss v. Steward, supra, 126 Conn. App. 47.
‘‘The harmless error standard in a civil case is whether
the improper ruling would likely affect the result.’’
(Internal quotation marks omitted.) Kalams v. Giac-
chetto, 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 court
erred in rendering judgment based on the record before
it. Instead, the defendant’s claim of error is that the
court’s protective order prevented her from having the
opportunity to pursue, develop and support the
defenses she raised. Under the particular circumstances
of this case, we conclude that the defendant has satis-
fied her burden of establishing that she was harmed by
the granting of the protective order.
We initially note that our rules broadly allow for the
discovery of information that is ‘‘reasonably calculated
to lead to the discovery of admissible evidence.’’ Prac-
tice Book § 13-2.16 ‘‘[T]he purpose of the rules of discov-
ery is to make a trial less a game of blindman’s bluff
and more a fair contest with the basic issues and facts
disclosed to the fullest practicable extent.’’ (Internal
quotation marks omitted.) Krahel v. Czoch, 186 Conn.
App. 22, 36, 198 A.3d 103, cert. denied, 330 Conn. 958,
198 A.3d 584 (2018); see also Standard Tallow Corp. v.
Jowdy, 190 Conn. 48, 58–59, 459 A.2d 503 (1983) (court’s
discretion in granting or denying discovery request lim-
ited by provisions of discovery rules, especially manda-
tory provision that discovery ‘‘shall be permitted if the
disclosure sought would be of assistance in the prosecu-
tion or defense of the action’’ (emphasis in original;
internal quotation marks omitted)). Furthermore, the
boundaries of discovery are clearly broader than the
boundaries of admissible evidence. See Sanderson v.
Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491
A.2d 389 (1985).
Our rules of practice further provide the procedures
governing the discovery process. As applied to the pres-
ent case, Practice Book § 13-6 (a) provides in relevant
part that ‘‘[w]ritten interrogatories may be served upon
any party without leave of the judicial authority at any
time after the return day. . . .’’ Similarly, Practice Book
§ 13-9 (d) provides in relevant part that ‘‘[r]equests for
production may be served upon any party without leave
of court at any time after the return day. . . .’’ By
allowing discovery immediately after the return date,
these rules implicitly acknowledge that a defendant
might not know what special defenses are available in
the absence of the discovery, and provide the defendant
an opportunity to obtain any and all information that
might be of assistance in the development and pursuit
of special defenses. Cf. U.S. Bank National Assn. v.
Blowers, supra, 332 Conn. 672 (relevant circumstances
that may form proper basis for defenses in foreclosure
action include ‘‘conduct occurring . . . even after the
initiation of the foreclosure action . . . .’’ (emphasis
added)). In accordance with these rules, on September
21, 2017, the defendant served interrogatories and
requests for production on the plaintiff, seeking infor-
mation relating to the plaintiff’s knowledge of Francis’
actions. Specifically, the defendant requested that the
plaintiff identify all communications between Francis
and the plaintiff and produce all written communica-
tions received by the plaintiff or any of its predecessors
from Francis or the decedents or any attorney pur-
porting to represent any of them.
It is important to note that the plaintiff does not argue
on appeal that the information sought by the defendant
in her discovery request was not ‘‘reasonably calculated
to lead to the discovery of admissible evidence.’’ Prac-
tice Book § 13-2. Furthermore, during oral argument
before this court, counsel for the plaintiff conceded
that the grounds stated in the motion for a protective
order related only to the confidentiality of the requested
information pursuant to federal and state law; the
motion did not assert that the requested information
was not likely to lead to the discovery of relevant and
admissible evidence. Indeed, there can be no dispute
that the discovery requests were reasonably seeking
evidence in support of recognized and valid equitable
defenses to the plaintiff’s mortgage foreclosure action.
Similarly, the plaintiff does not argue on appeal that
the special defenses alleged by the defendant were not
pleaded in good faith. In fact, a review of the record
amply supports the defendant’s good faith belief in her
special defenses. Specifically, after the granting of the
protective order, the defendant responded to the plain-
tiff’s first set of interrogatories and requests for produc-
tion. Her response explained how the decedents had
no need for the additional money generated by the
mortgage and set forth how the decedents managed
their finances over the course of their lives with the
intent of avoiding the type of mortgage transaction at
issue.17 The defendant’s response also stated that Fran-
cis had been charged with first and second degree lar-
ceny for stealing an amount in excess of $500,000 from
Evelyn Francis’ home equity account and that both the
defendant and an investigator had been unsuccessful
in their attempts to contact the plaintiff to obtain infor-
mation regarding the subject transaction.18 At the hear-
ing on the motion for the protective order, counsel
for the defendant advised the court that the state was
prosecuting Francis for larceny. The plaintiff does not
contend that any of these statements were not made
in good faith.
When the trial court in the present case granted the
plaintiff’s motion for a protective order, it effectively
prevented the defendant from pursuing, developing and
supporting her special defenses. To be clear, in order
for the defendant to pursue her special defenses of fraud
and duress, she needed to establish that the plaintiff
participated in or knew of the alleged fraud or duress.
See, e.g., Chase Manhattan Mortgage Corp. v. Machado,
supra, 83 Conn. App. 188–90. Although it is true that
the defendant did not allege facts in her special defenses
regarding the plaintiff’s involvement in Francis’ con-
duct, the record amply supports the defendant’s good
faith basis for requesting the discovery that would have
enabled her to amend her special defenses to include
those allegations. Moreover, we reiterate that the
court’s order granting the plaintiff’s motion specifically
precluded the defendant from obtaining the requested
discovery of all communications between Francis and
the plaintiff, and all written communications received
by the plaintiff or any of its predecessors from Francis
or the decedents or any attorney purporting to represent
any of them. Under the limited circumstances of this
case, and given the broad scope of our discovery rules,
as well as the equitable nature of a foreclosure proceed-
ing; see, e.g., U.S. Bank National Assn. v. Blowers,
supra, 332 Conn. 670–71; we conclude that the defen-
dant has satisfied her burden of establishing that she
was harmed by the granting of the protective order.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.19
In this opinion the other judges concurred.
1
The Department of Revenue Services and the Judicial Branch also were
named as defendants. The trial court thereafter granted the motion filed by
the plaintiff, CIT Bank, N.A., to cite in James M. Francis as a defendant. On
September 26, 2017, those three defendants were defaulted for failure to
appear. We refer in this opinion to Johanna Francis as the defendant.
2
We note that, after the court ruled on the motions at issue in this appeal,
CIT Bank, N.A., assigned the mortgage at issue to Cascade Funding RM1
Alternative Holdings, LLC. The court thereafter granted the plaintiff’s motion
to substitute Cascade Funding RM1 Alternative Holdings, LLC, as the plain-
tiff. For clarity, we refer in this opinion to CIT Bank, N.A., as the plaintiff.
3
On November 27, 2017, the court summarily granted the plaintiff’s motion
for a protective order. On December 13, 2017, the defendant filed a motion
to reargue. By order dated December 20, 2017, the court vacated its ruling
on the plaintiff’s motion for a protective order and conducted a hearing on
January 29, 2018.
4
In its order granting the motion to strike, the court stated: ‘‘In the third
special defense, the [defendant alleges] that a third party made misrepresen-
tations to the [decedents], but there is no allegation concerning the subject
of the misrepresentation. There is no allegation that the plaintiff made the
misrepresentation or that the third party who allegedly made the misrepre-
sentation was in any way acting on behalf of or as the agent of the plaintiff
or the plaintiff’s predecessors in interest. These are essential elements of
the special defense. Similarly, the fourth special defense alleges that the
[decedents] were acting under the undue influence of the third party. But,
again, the defense is lacking in any allegation that even infers that the
third party was acting on behalf of or as the agent of the plaintiff or [its]
predecessors, or even that they knew or had reason to know of the influence.
The court also observes that the [defendant has] not filed a memorandum
in opposition to the plaintiff’s motion to strike, though [she] sought and
received additional time to do so.’’
5
In its decision, the court stated that the defendant’s first special defense
‘‘rests solely on speculation. [The defendant] acknowledges [that] she has
no personal knowledge of the closing or, by extension, of [the decedents’]
condition at the closing. On the other hand, the plaintiff submits the affidavit
of Attorney Christopher J. Albanese, who handled the closing for the [dece-
dents] and the bank. His affidavit attests that, although elderly, the [dece-
dents] were lucid and pleased to be able to withdraw additional funds by
refinancing the loan on their home. As a result, the first special defense is
not supported by evidence and is insufficient to defeat the motion for
summary judgment.
‘‘[The] defendant’s second special defense fares no better. [The] defendant
claims that the loan is invalid because of lack of consideration and suggests
that the money was stolen by [Francis]. . . . The evidence set forth in
[Albanese’s] affidavit is that the loan was funded, a prior mortgage was paid
off, and the [decedents] received cash and retained a balance in the new
home equity account. In [her response to the plaintiff’s interrogatories], the
defendant says that [Francis] has been charged with first and second degree
larceny for stealing money from [the] home equity account [belonging to
his mother, the decedent Evelyn Francis]. [The defendant] states that he
used a power of attorney that had been executed by [the decedent Evelyn
Francis]. As a result, any money taken by [Francis] would have come from
[the decedent Evelyn Francis’] accounts after the loan had been funded by
the lender. Accordingly, there was no lack of consideration demonstrated
by the defendant. [The] defendant’s complaint is with her father, not the
bank.’’ (Citation omitted.)
6
Practice Book § 13-5 provides in relevant part: ‘‘Upon motion by a party
from whom discovery is sought, and for good cause shown, the judicial
authority may make any order which justice requires to protect a party
from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following . . . (2) that the discovery may be
had only on specified terms and conditions. . . .’’
7
At oral argument before this court, counsel for the defendant clarified
that the ‘‘key special defenses’’ were the third and fourth special defenses
alleging fraud and duress.
8
General Statutes § 36a-42 provides: ‘‘A financial institution may not dis-
close to any person, except to the customer or the customer’s duly authorized
agent, any financial records relating to such customer unless the customer
has authorized disclosure to such person or the financial records are dis-
closed in response to (1) a certificate signed by the Commissioner of Admin-
istrative Services or the Commissioner of Social Services pursuant to the
provisions of section 17b-137, (2) a lawful subpoena, summons, warrant or
court order as provided in section 36a-43, (3) interrogatories by a judgment
creditor or a demand by a levying officer as provided in sections 52-351b
and 52-356a, (4) a certificate issued by a medical provider or its attorney
under subsection (b) of section 17b-124, provided nothing in this subsection
shall require the provider or its attorney to furnish to the financial institution
any application for medical assistance filed pursuant to an agreement with
the IV-D agency under subsection (c) of section 17b-137, (5) a certificate
signed by the Commissioner of Veterans Affairs pursuant to section 27-117,
(6) the consent of an elderly person or the representative of such elderly
person provided to a person, department, agency or commission pursuant
to section 17b-454, provided the financial institution shall have no obligation
to determine the capacity of such elderly person or the representative of
such elderly person to provide such consent, (7) a request for information
served upon a financial institution in accordance with subsection (e) of
section 12-162, or (8) a request for information made by the Commissioner
of Revenue Services pursuant to section 12-39cc.’’
9
Section 1692c (b) of title 15 of the United States Code provides: ‘‘Except
as provided in section 1692b of this title, without the prior consent of the
consumer given directly to the debt collector, or the express permission of
a court of competent jurisdiction, or as reasonably necessary to effectuate
a postjudgment judicial remedy, a debt collector may not communicate, in
connection with the collection of any debt, with any person other than the
consumer, his attorney, a consumer reporting agency if otherwise permitted
by law, the creditor, the attorney of the creditor, or the attorney of the debt
collector.’’
10
Section 6802 (a) of title 15 of the United States Code provides: ‘‘Except
as otherwise provided in this subchapter, a financial institution may not,
directly or through any affiliate, disclose to a nonaffiliated third party any
nonpublic personal information, unless such financial institution provides
or has provided to the consumer a notice that complies with section 6803
of this title.’’
11
The letter, addressed to counsel for the plaintiff and counsel for the
defendant, stated: ‘‘This is to inform you that I, as the executor of the Estate
of Evelyn S. Francis, give permission to [the plaintiff] to comply with the
[d]efendant’s [f]irst [s]et of [i]nterrogatories and [r]equests for [p]roduction
dated September 21, 2017, filed by [the defendant].’’
12
Evelyn Francis intentionally made no provision for Francis in her last
will and testament.
13
Although the plaintiff argues on appeal that the consent of the estate
of Norbert Francis was also required in order to comply with the defendant’s
discovery request, the plaintiff did not make this argument before the trial
court. During the hearing, after counsel for the defendant pointed out that
Miller had consented to the discovery, the court asked counsel for the
plaintiff, ‘‘[w]hat’s wrong with that?’’ In response, counsel for the plaintiff
stated that the reason he filed the motion for a protective order was because
the defendant’s discovery request went beyond requesting the note, mort-
gage, assignments and payment history. Because the plaintiff did not argue
before the trial court that it needed the consent of the estate of Norbert
Francis in order to comply with the discovery request, we decline to address
this issue on appeal. See Guzman v. Yeroz, 167 Conn. App. 420, 426, 143
A.3d 661 (‘‘Our appellate courts, as a general practice, will not review claims
made for the first time on appeal. . . . [A]n appellate court is under no
obligation to consider a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the record, we [also] will
not address issues not decided by the trial court.’’ (Internal quotation marks
omitted.)), cert. denied, 323 Conn. 923, 150 A.3d 1152 (2016).
14
In Chase Manhattan Mortgage Corp. v. Machado, supra, 83 Conn. App.
188–90, this court held that the defendant in a foreclosure action could not
prevail on her special defenses of fraud and duress because there was no
allegation that the plaintiff or its predecessor had knowingly participated
in the alleged fraud or duress. The facts of this case are distinguishable
from those of Machado because in this case, unlike Machado, the defendant
sought, by way of discovery, information regarding the plaintiff’s participa-
tion in or knowledge of Francis’ alleged conduct. The court, however, granted
the plaintiff’s motion for a protective order, thus precluding the defendant
from obtaining this discovery.
15
Practice Book § 17-47 provides: ‘‘Should it appear from the affidavits
of a party opposing the motion that such party cannot, for reasons stated,
present facts essential to justify opposition, the judicial authority may deny
the motion for judgment or may order a continuance to permit affidavits
to be obtained or discovery to be had or may make such other order as
is just.’’
16
Practice Book § 13-2 provides in relevant part that ‘‘[d]iscovery shall
be permitted if the disclosure sought would be of assistance in the prosecu-
tion or defense of the action and if it can be provided by the disclosing
party or person with substantially greater facility than it could otherwise
be obtained by the party seeking disclosure. It shall not be ground for
objection that the information sought will be inadmissible at trial if the
information sought appears reasonably calculated to lead to the discovery
of admissible evidence. . . .’’
17
The defendant’s response stated in part: ‘‘[The decedents] were both
elderly retirees at the time the loan documents at issue were executed. They
were also wealthy individuals. I do real estate development and million
dollar loan transactions, and I was not told that they were applying for
anything. They had no need for additional money, either in a lump sum or
as a stream of payments to supplement their income. During their entire adult
lives, both [decedents] were frugal individuals that did not incur unnecessary
expenses or incur unnecessary debts. They lived in such a manner as to
protect them from needing any type of financial assistance whatsoever in
their elderly years and to insure that the family would not be burdened with
financial expenses upon their death[s]. As a result, over the course of their
lifetimes, both [decedents] accumulated significant assets for the purpose—
and with the intent—of avoiding the need to engage in the type of mortgage
transaction [at] issue in this civil action. With my going so far as to even
pay for funeral expenses upon my grandfather’s death and make prearrange-
ments for my grandmother’s plot.
‘‘In sum, [the decedents] would not have entered into the mortgage transac-
tion at issue had they understood their true nature. I became fully aware
of [the decedents’] mental incapacity when I learned that they had been
duped into signing the loan documents.’’
18
The defendant’s response stated in part: ‘‘The state of Connecticut’s
Department of Social Services concluded that [Francis] may have stolen an
amount in excess of $500,000 from [the decedent Evelyn Francis] and the
amount stolen ‘may have been from a home equity.’ The Department of
Social Services urged the chief state’s attorney ‘to commence a criminal
investigation into this especially egregious case.’ [Francis] has been charged
with larceny in the [first] and [second] degree. His criminal trial is currently
scheduled for November, 2019. I am aware that the Ct investigator tried to
contact [the plaintiff] on various occasions, and I personally tried to contact
them on various occasions prior to her death and upon her death and no
information [was] forthcoming nor was I added as per POA which was
provided to them on more than one occasion prior to her death and after
her death. I also did not receive information as was requested by the estate
executor to communicate with me right after her death.’’
19
We note that the plaintiff contends, in an alternative argument, that the
defendant does not have standing to raise any claims concerning this loan
as she was not a party to this transaction. In support of this alternative
argument, the plaintiff cites Wells Fargo Bank, N.A. v. Strong, 149 Conn.
App. 384, 401, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014),
and Deutsche Bank National Trust Co. v. Cornelius, 170 Conn. App. 104,
118, 154 A.3d 79, cert. denied, 325 Conn. 922, 159 A.3d 1171 (2017). These
cases are readily distinguishable from the present case. In Strong, this court
held, inter alia, that the defendant in a foreclosure action, who had raised
a defense based on the plaintiff’s alleged noncompliance with a pooling and
servicing agreement, had failed to meet her burden of establishing that
summary judgment as to liability should not have been rendered for the
plaintiff. We stated in Strong that ‘‘[i]t is well settled that one who [is]
neither a party to a contract nor a contemplated beneficiary thereof cannot
sue to enforce the promises of the contract.’’ (Internal quotation marks
omitted.) Wells Fargo Bank, N.A. v. Strong, supra, 401. In Cornelius, this
court held that the plaintiff’s purported failure to comply with the mortgage’s
notice provision did not implicate the jurisdiction of the trial court or deprive
this court of jurisdiction over the foreclosure action. See Deutsche Bank
National Trust Co. v. Cornelius, supra, 116. In so holding, we noted that
the defendant was not a party to the mortgage. See id., 116 n.10.
In the present case, the defendant was named as a party in this action
by virtue of her being an heir of the decedents. ‘‘[I]f a mortgagee brings a
foreclosure action against a decedent’s property during the settlement of
the decedent’s estate, the mortgagee must name the heirs or devisees as
defendants because they hold title to the equitable right of redemption
. . . .’’ Connelly v. Federal National Mortgage Assn., 251 F. Supp. 2d 1071,
1075 (D. Conn. 2003). As a defendant and proper party in this foreclosure
action, the defendant had the right to seek discovery relevant to her special
defenses of fraud and duress.