CIT Bank, N.A. v. Francis
| Decision Date | 09 August 2022 |
| Docket Number | AC 43121 |
| Citation | 214 Conn.App. 332,280 A.3d 485 |
| Parties | CIT BANK, N.A. v. Johanna FRANCIS et al. |
| Court | Connecticut Court of Appeals |
214 Conn.App. 332
280 A.3d 485
CIT BANK, N.A.
v.
Johanna FRANCIS et al.
AC 43121
Appellate Court of Connecticut.
Argued January 5, 2021
Officially released August 9, 2022
Timothy D. Miltenberger, New Haven, for the appellant (named defendant).
Christopher J. Picard, Hartford, for the appellee (substitute plaintiff).
Bright, C. J., and Prescott and Elgo, Js.
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 protective 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 relevant 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 mortgage (mortgage) on the property. Thereafter, the mortgage was assigned from Financial Freedom Senior
Funding Corporation to Mortgage Electronic Registration Systems, Inc., The defendant also filed discoas 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. Francis (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 unenforceable because the decedents "had mental illness that prevented them from understanding the true nature of the loan documents alleged in the complaint"; (2) "neither [of the decedents] received any consideration" for the note and mortgage; (3) Francis "made a false representation of fact to induce [the decedents] to sign the note and mortgage," and "Francis knew that his representations ... 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 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 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 assignments, 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 failing to allege that the plaintiff or its predecessor in interest knew of or participated in Francis’ alleged misconduct. 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 foreclosure 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 followed.
On appeal, the defendant claims that the court improperly granted the plaintiff's motion for a protective order regarding the defendant's discovery requests. According to the defendant, the plaintiff did not establish 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 challenge 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 demonstrate 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 discretion 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...
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