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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 homeowners 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 copies 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 defendant’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 effectively 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 document discovery sought by the defendant mortgagor. The

defendant, George S. Lakner, appeals from the judgment of the trial court in favor of the substitute plaintiff,

MTGLQ Investors, L.P. On appeal, the defendant contends 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 defendant’s loan was fixed at 7.25 percent for the thirty year

term of the loan. Shawmut Mortgage Company subsequently 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 Washington Mutual’s foreclosure action, and the action was

withdrawn in July, 2011.

In January, 2013, JPMorgan filed the present foreclosure action, alleging that the defendant’s note was in

default ‘‘by virtue of nonpayment of the monthly installments of principal and interest due on January 1, 2008,

and each and every month thereafter . . . .’’ The defendant 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 payments 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 rectify [JPMorgan’s] refusal to accept my mortgage payments . . . 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 December, 2017. JPMorgan then successfully moved to open

the case, and the current plaintiff, MTGLQ, was substituted for JPMorgan.1

On February 15, 2019, the defendant issued a notice

of deposition on MTGLQ, with an accompanying document 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 produced: ‘‘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.’’ 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 reasonably 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 ransacking [MTGLQ’s] files, [he] will find something useful.’’ 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 deposition 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 defendant 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 possession.’’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 substantial expense of providing this overly broad discovery. . . . The court granted the motion for a protective

order to prevent . . . the improper use of the discovery.’’ 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 ‘‘foreclosure 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 mortgage 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). Thereafter, during the testimony of MTGLQ’s witness, Rittenhouse, MTGLQ introduced into evidence exhibit 12, a
twenty-eight page document consisting of the ‘‘Transaction 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 subsequently requested access to MTGLQ’s mortgage file during 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 shortfall 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 testified that Washington Mutual did, in fact, lower his interest 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 crossexamination 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 question. The defendant’s counsel also sought clarification

regarding potentially improper insurance charges to the

defendant’s account. Specifically, the defendant testified that he had always maintained insurance on the

property through the United Services Automobile Association, 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]remium [d]isbursement’’ on the defendant’s account. Rittenhouse 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 memorandum 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 primarily 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 payments 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 defendant 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 consider 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, consisting entirely of his own testimony, demonstrates that

his recollection as to the dates of his military service

differ[s] from military documentation. . . . Additionally, 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 prejudicial to the opposing counsel.’’

The Appellate Court subsequently issued a memorandum 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 Appellate 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 protective 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 judgment 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 boundaries 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 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 disclosure.’’ Practice

Book § 13-2.

‘‘[T]he [trial] court’s inherent authority to issue protective 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.) Blumenthal 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 assistance in the prosecution or defense of the action. . . .

The court’s discretion applies to decisions concerning

whether the information is material, privileged, substantially more available to the disclosing party, or within

the disclosing party’s knowledge, possession or power

. . . . A complete denial of discovery, however, is seldom 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 omitted; 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 peculiarly 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 consider 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 defendant 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 concluded that the defendant’s request for documents contained 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 reference 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 problems that abound in this area of the law, an oversight

that can only result in delay and possible embarrassment for the attorney to whom the file has been

entrusted.’’). This is true for the plaintiff and the defendant alike. Although many foreclosure cases will proceed 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 ‘‘Transaction 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 mortgage 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 illustrated by the records submitted into evidence by

MTGLQ at trial, MTGLQ’s mortgage file contained,

among other things, the account’s payment history, correspondence 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 history; 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 documents 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) (summaries 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 meaningful 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, denying 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 discretion 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 opportunity 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 granting 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 erroneous protective order, MTGLQ was allowed to selectively choose, at its sole discretion, which documents

from its mortgage file it would produce at trial. Rittenhouse 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 testifying, 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 evidence 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). Specifically, 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] defendant is free to undertake discovery concerning the accuracy 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 nevertheless 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 omitted.) 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 equitable 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 discovery 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 fundamental idea underlying civil discovery. Additionally,

although MTGLQ argues that the defendant could rebut

the allegation that he was in default by submitting copies 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 payments 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 example, 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]nsurance [p]remium [d]isbursement’’ on the defendant’s

account. Rittenhouse was unable to answer the question 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 testimony that he had always maintained insurance on the

property through the United Services Automobile Association 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 plaintiff, 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 document containing the defendant’s payment history that was purportedly provided 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 correspondence between the parties and not this payment history. Even if the

defendant had been provided such a payment history, under the circumstances 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 judgment, 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 documents 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 distinctly raised at trial, and [o]nly in [the] most exceptional circumstances

can and will [an appellate] court consider a claim, constitutional or otherwise, 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.