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Bank of New York Mellon v. Tope
THE BANK OF NEW YORK MELLON v.
ACHYUT M. TOPE ET AL.
(AC 48862)
Moll, Westbrook and Harper, Js.
Syllabus
The named defendant, T, appealed from the trial court’s judgment of foreclosure by sale rendered in favor of the plaintiff bank. T claimed, inter alia, that the court had improperly failed to impose sanctions on the plaintiff for its alleged noncompliance with his discovery requests. Held:
T could not prevail on his claim that the trial court erred in failing to rule on his motion for discovery sanctions, as the court implicitly ruled on that motion by granting certain relief at an evidentiary hearing, namely, allowing posthearing depositions of witnesses and for the parties to address the discovery dispute in their posthearing briefs, and by rejecting T’s remaining discovery related arguments and denying any additional relief in its memorandum of decision on T’s motion to open and vacate the judgment of foreclosure by sale.
The trial court did not abuse its discretion by declining to impose discovery sanctions on the plaintiff, as, although the plaintiff did not fully comply with T’s discovery requests, the plaintiff’s noncompliance did not violate any court order, T failed to demonstrate that such noncompliance was of the sort that would merit the severe sanction of dismissal, T did not file a motion to compel or otherwise request the court’s intervention prior to filing his motion for sanctions, and T was not prejudiced by the plaintiff’s noncompliance under the circumstances.
Argued September 3—officially released October 20, 2026
Procedural History
Action to foreclose a mortgage on certain of the defendants’ real property, and for other relief, brought to the Superior Court in the judicial district of New Haven,
where the defendants were defaulted for failure to
appear; thereafter, the named defendant was defaulted
for failure to plead; subsequently, the case was tried to the court, Hon. Thomas J. Corradino, judge trial referee, who, exercising the powers of the Superior Court,
rendered judgment of foreclosure by sale; thereafter, the court, Hon. Thomas J. Corradino, judge trial referee,
denied the named defendant’s motion to open and vacate
the judgment, and the named defendant appealed to this
court, Elgo and Cradle, Js., with Devlin, J., dissenting,
Bank of New York Mellon v. Tope
which affirmed the trial court’s judgment; subsequently,
on the granting of certification, the named defendant
appealed to the Supreme Court, which reversed and
remanded the case to this court with instructions to
remand to the trial court for further proceedings consistent with its opinion; on remand, the court, Abrams,
J., denied the named defendant’s motion to open and
vacate the judgment; thereafter, the court, Stone, J.,
rendered judgment of foreclosure by sale, and the named
defendant appealed to this court. Affirmed.
Michael J. Habib, for the appellant (named defendant).
Jeffrey M. Knickerbocker, for the appellee (plaintiff).
Opinion
MOLL, J. This foreclosure matter returns to us on
appeal from the Superior Court following remand from
our Supreme Court. See Bank of New York Mellon v.
Tope, 345 Conn. 662, 665, 286 A.3d 891 (2022). The
defendant Achyut M. Tope1 now appeals from the trial
court’s judgment of foreclosure by sale rendered in favor of the plaintiff, The Bank of New York Mellon, formerly
known as The Bank of New York, as Successor to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset
Mortgage Investments II, Inc., Bear Stearns Alt-A Trust,
Mortgage Pass-Through Certificates, Series 2004-3. The
defendant claims that the trial court erred in not imposing sanctions for the plaintiff’s alleged noncompliance
with the defendant’s discovery requests before and after
the evidentiary hearing ordered by our Supreme Court
in Bank of New York Mellon v. Tope, supra, 683. We
disagree and affirm the judgment of the trial court.
This case has an extensive, twelve year procedural history. In Bank of New York Mellon v. Tope, supra, 345
Conn. 662, the defendant’s prior appeal from this court’s decision in Bank of New York Mellon v. Tope, 202 Conn.
1
The underlying foreclosure action also named Geeta A. Joshi-Tope as a defendant, but she did not appear in the trial court and is not participating in this appeal. In the interest of simplicity, we refer to Achyut M. Tope as the defendant.
Bank of New York Mellon v. Tope
App. 540, 246 A.3d 4 (2021), our Supreme Court recited
the following facts and procedural history relevant to
the present appeal: “On October 31, 2003, the defendant
executed a promissory note in the amount of $134,000,
payable to HSBC Mortgage Corporation (USA) (HSBC).
To secure that note, the defendant mortgaged property
located at 387 Sherman Avenue in New Haven (property)
to HSBC. The note was later endorsed to JPMorgan Chase
Bank, as Trustee. On January 15, 2014, HSBC assigned
the mortgage to the plaintiff.
“On July 17, 2014, the plaintiff filed the present action seeking to foreclose on the mortgage. The defendant filed his appearance [as a self-represented party] on October
9, 2014, and, on October 28, 2014, he was defaulted for
failing to plead. On November 10, 2014, the court, Hon.
Thomas J. Corradino, judge trial referee, [rendered] a
judgment of foreclosure by sale, with a sale date set for February 7, 2015.” (Internal quotation marks omitted.)
Bank of New York Mellon v. Tope, supra, 345 Conn.
665–66.
In 2015 and 2016, the defendant filed a series of motions to open the foreclosure judgment, which caused the sale
date to be extended into 2017. Id., 666. “On January 3,
2017, the defendant filed a motion to open and stay the
judgment on the ground that he had obtained a financial
audit that provides strong supporting documentation that
the plaintiff does not have standing to pursue a foreclosure action with respect to the property in this action. . . . On January 4, 2017, the defendant filed a motion for
summary judgment alleging, inter alia, that the plaintiff lacked standing to bring this action because the plaintiff failed to show the proper chain of ownership, assignment and control of the note and mortgage and property with affidavits from persons with knowledge . . . .
At the February 6, 2017 hearing on the defendant’s
motion to open, the defendant represented to [the court,
Avallone, J.] that the arguments in his motion to open
and motion for summary judgment were generally the
same. Accordingly, the court allowed the defendant, at
Bank of New York Mellon v. Tope
his request, to argue his motion for summary judgment
at that hearing. Following extensive argument by the
defendant, the court denied both of his motions. The
court expressly rejected the defendant’s challenge to the plaintiff’s standing, stating: I’ve given you sufficient
opportunity to make your arguments. I don’t believe that
they hold water.” (Internal quotation marks omitted.)
Id., 666–67. The defendant then filed several additional
motions to dismiss that substantially relied on the same
grounds as the January 3 and 4, 2017 motions; two were
denied, and two were never adjudicated. Id., 667–70.
“On September 28, 2017, the defendant filed a motion
to open and to vacate the judgment of foreclosure by sale,2 [in which] he again argued that the plaintiff lacked standing to commence this action and [that], consequently,
the court lacked subject matter jurisdiction over it,
and asked that the action be dismissed in its entirety
with prejudice. On October 16, 2017, [Judge Corradino]
held a hearing on the defendant’s motion, at which the
defendant again presented his argument to the court.
On October 17, 2017, [Judge Corradino] issued an order
denying the defendant’s motion to open and vacate the
foreclosure judgment. . . .
“The defendant appealed to the Appellate Court3 from
the trial court’s October 17, 2017 denial of his motion to open and vacate the foreclosure judgment. . . . On appeal to that court, the defendant claimed that the trial court incorrectly had denied his motion because the plaintiff
lacked standing to pursue foreclosure on the note, and,
thus, the trial court lacked subject matter jurisdiction
over this action. . . .
“The Appellate Court majority concluded that the
defendant’s motion to open constituted an impermissible
2
All further references to the defendant’s motion to open in this opinion are to the September 28, 2017 motion to open and vacate the judgment of foreclosure by sale.
3
The previously self-represented defendant retained counsel prior to oral argument in his previous appeal to this court and has since been represented by counsel.
Bank of New York Mellon v. Tope
collateral attack on the foreclosure judgment and, therefore, declined to consider the defendant’s challenge to
the court’s subject matter jurisdiction on the merits. . . . Therefore, the Appellate Court affirmed the judgment
of foreclosure and remanded the case for the setting of
a new sale date.” (Citations omitted; footnote omitted;
footnotes added; internal quotation marks omitted.)
Id., 670–71.
The defendant petitioned for certification to appeal to
our Supreme Court, which granted the petition, limited
to the following issues: (1) “Did the Appellate Court correctly conclude that the . . . defendant’s challenge to the plaintiff’s standing to prosecute this action, and, thus, the trial court’s subject matter jurisdiction to adjudicate the matter, represented an improper collateral attack
on one or more of the earlier judgments rendered by
the trial court in favor of the plaintiff?” And (2) “[i]f the answer to the first certified question is ‘no,’ should the judgment of the Appellate Court be affirmed on the
alternative ground that the trial court properly had
denied the . . . defendant’s motion to open, in which the . . . defendant claimed that the trial court lacked subject matter jurisdiction?”4 Bank of New York Mellon v. Tope,
339 Conn. 901, 260 A.3d 483 (2021).
On appeal, our Supreme Court reversed this court’s
decision. Bank of New York Mellon v. Tope, supra, 345
Conn. 665. Our Supreme Court held that the defendant’s
motion to open was not an impermissible collateral attack on the foreclosure judgment. Id., 676. Our Supreme
Court then addressed the defendant’s claim that the
plaintiff did not have standing to bring the foreclosure
action, holding that this “question . . . turns on questions of fact, namely, whether the plaintiff has been
vested with the right to enforce the note”; id., 682–83;
and that “the trial court . . . should have conducted an
4
Our Supreme Court initially granted certification only on the first certified question. Bank of New York Mellon v. Tope, 336 Conn. 950, 251 A.3d 618 (2021). Thereafter, the court “superseded [its] previous order and certified two issues for appeal . . . .” Bank of New York Mellon v. Tope, supra, 345 Conn. 665 n.3.
Bank of New York Mellon v. Tope
evidentiary hearing to determine whether the plaintiff
had standing to bring the foreclosure action in the present case.” Id., 683. Accordingly, our Supreme Court
reversed this court’s judgment and remanded the case
with instruction to remand to the trial court for further proceedings consistent with its opinion. Id.
Following the remand, the trial court scheduled an evidentiary hearing on standing, and the parties conducted
prehearing discovery. In February 2023, the defendant
propounded a notice of deposition on the plaintiff with
a deposition date of April 25, 2023. Specifically, the
defendant requested that the plaintiff “designate and . . . produce one or more officers, directors, managing agents, or other persons to testify as to the following subjects: (1) The records maintained by or on behalf of [the plaintiff] in connection with the subject action [and] (2) [t]he plaintiff’s claimed interest in the note, including the
supporting documentation . . . showing the history of
the note.” (Internal quotation marks omitted.) The notice of deposition also requested that the deponent bring to
the deposition the “complete mortgage file . . . including but not limited to . . . [a]ll documents relating to [the plaintiff’s] claimed interest in the note . . . including, but not limited to, all documents evidencing any and all
transfers and/or assignments of the mortgage note and/
or the mortgage deed that are . . . the subject of this action and any and all trust documents related to ownership of
the mortgage note and deed that are the subject of this
action . . . [a]ll documents evidencing any transfer of
the original mortgage note [and] . . . [a]ll documents the plaintiff intends to rely upon to support the allegations of the complaint.” (Citation omitted; internal quotation
marks omitted.) On December 22, 2023, the defendant
“renoticed” the deposition, which took place on December 27, 2023. Following the deposition, the plaintiff’s
counsel provided the defendant’s counsel with some
additional documents via email on January 19, 2024.
On March 6, 2024, the day before the evidentiary hearing, the plaintiff filed ten exhibits with the court. These
Bank of New York Mellon v. Tope
exhibits included (1) the note; (2) the mortgage; (3) a 2014 assignment of the mortgage from HSBC to the plaintiff;
(4) a deal sheet generated by Computershare Trust Company, N.A. (Computershare), the master servicer and
custodian of the defendant’s loan, which associated the
defendant’s mortgage with the trust that owns the note
and mortgage (trust); (5) a screenshot of an entry in the loan servicing system of Dovenmuehle Mortgage, Inc.
(Dovenmuehle), the subservicer of the defendant’s loan;
(6) an assignment and assumption agreement between,
among others, JPMorgan Chase Bank, N.A. and The
Bank of New York; (7) a redacted version of annex A to
the assignment and assumption agreement; (8) a limited
power of attorney granted by Wells Fargo Bank, N.A.
and Wells Fargo Delaware Trust Company, N.A. to Computershare; (9) a pooling and servicing agreement by and
between Wells Fargo Bank, N.A. and EMC Mortgage
Corporation; and (10) a request for power of attorney
from Computershare, as agent for Wells Fargo Bank,
N.A., to the plaintiff.
Early in the morning of March 7, 2024, the defendant
filed a motion for discovery sanctions pursuant to Practice Book § 13-14. In the motion for sanctions, the defendant asserted that the plaintiff had not disclosed four of its exhibits prior to March 6, 2024, namely, exhibit 6,
the trust assignment and assumption agreement; exhibit
8, the power of attorney; exhibit 9, the pooling and servicing agreement; and exhibit 10, the letter request for
power of attorney. The defendant contended that waiting until the eve of the evidentiary hearing to disclose
these complex documents was a sanctionable abuse of the
discovery process and asked the court either to dismiss
this action, to reject the documents, or to continue the
hearing to give the defendant time to investigate the disclosures. On the same day, the plaintiff filed an objection to the motion for sanctions in which it pointed out that
it had sent the pooling and servicing agreement and the
purchase and assumption agreement to the defendant
via email on January 19, 2024.
Bank of New York Mellon v. Tope
On March 7, 2024, the court, Abrams, J., conducted
the evidentiary hearing, during which the defendant
presented no witnesses or documentary evidence. In addition to the ten exhibits mentioned previously, the plaintiff presented the testimony of two witnesses: Ashley
Schultz, a supervisor at Dovenmuehle, the subservicer
of the defendant’s loan; and Charles Brehm, an employee
of Computershare, the master servicer and custodian of
the loan. The defendant’s counsel cross-examined the witnesses but objected that the hearing had become a “trial
by ambush” because he did not have the opportunity to
review all the exhibits filed the night before. Following a recess, the parties and the court agreed to allow the
defendant to take the depositions of Schultz and Brehm
after the hearing, at the plaintiff’s expense. The court
set May 3, 2024, as the due date for posthearing briefs
to allow the parties time to complete the depositions and to incorporate the deposition testimony into their briefs. However, the depositions never occurred.
The defendant filed his posthearing brief on June 21,
2024. In his brief, the defendant again requested discovery sanctions, both for the late disclosure of the exhibits before the hearing and the plaintiff’s refusal to allow
the depositions of its witnesses after the hearing. The
defendant requested that the court dismiss this action
as a sanction.
On August 23, 2024, the court denied the defendant’s
motion to open. In its memorandum of decision, the court
credited the testimony of the plaintiff’s witnesses, as well as the note (exhibit 1) and the assignment and assumption agreement with the associated annex (exhibits 6
and 7), and found that the plaintiff was the successor
trustee to JPMorgan Chase Bank, N.A. As such, the
court held that the note was properly transferred to the
plaintiff and that the plaintiff had standing to foreclose on the property, whereupon the court denied the defendant’s motion to open. The court addressed the discovery
issues only in a footnote, which stated in relevant part: “The defendant’s [brief] consists primarily of a list of
Bank of New York Mellon v. Tope
grievances about discovery issues and the assertions of
opposing counsel before other tribunals. . . . [The court] finds the defendant’s arguments . . . given the state of
the evidence presented, to be ‘full of sound and fury,
[s]ignifying nothing.’ W. Shakespeare, The Tragedy of
Macbeth, act V, sc. V.”
After additional motions practice not relevant here,
the court, Stone, J., rendered a judgment of foreclosure
by sale on June 2, 2025. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The defendant asks us to reverse the judgment of foreclosure by sale rendered by the court, Stone, J., and the denial of his motion to open by the court, Abrams, J.,
and to remand the case to the court, either to conduct a
new evidentiary hearing on the issue of standing or to
dismiss the case entirely. Although the defendant asks
us to reverse the denial of his motion to open, his appeal does not directly challenge the denial but, rather, challenges the court’s handling of a discovery dispute that
he claims implicated the evidence upon which the court
based its decision on the motion to open.
For the sake of clarity, we pause here to explain the
substantive issue that remained at the time of the discovery dispute. The defendant has challenged the plaintiff’s standing to bring this foreclosure action to enforce the
note. As our Supreme Court recounted in Bank of New
York Mellon v. Tope, supra, 345 Conn. 662: “[S]tanding to enforce [a] promissory note is [established] by
the provisions of the Uniform Commercial Code . . . .
[See] General Statutes § 42a-1-101 et seq. . . . Equity
One, Inc. v. Shivers, 310 Conn. 119, 126, 74 A.3d 1225
(2013). Under the Uniform Commercial Code, a [p]erson
entitled to enforce an instrument means (i) the holder
of the instrument, (ii) a nonholder in possession of the
instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled
to enforce the instrument pursuant to section 42a-3-309
or 42a-3-418 (d). General Statutes § 42a-3-301.
Bank of New York Mellon v. Tope
“The Uniform Commercial Code defines holder as (A)
[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; (B) [t]he person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or (C) [t]he person in control of a negotiable electronic document of title. General Statutes [Rev. to
2023] § 42a-1-201 (b) (21).
“General Statutes § 42a-3-205 further provides in relevant part: (a) If an endorsement is made by the holder of an instrument, whether payable to an identified person
or payable to bearer, and the endorsement identifies a
person to whom it makes the instrument payable, it is a
special endorsement. When specially endorsed, an instrument becomes payable to the identified person and may
be negotiated only by the endorsement of that person. . . .
“(b) If an endorsement is made by the holder of an
instrument and is not a special endorsement, it is a blank endorsement. When endorsed in blank, an instrument
becomes payable to bearer and may be negotiated by
transfer of possession alone until specially endorsed. . . .
“As we explained previously, under § 42a-3-301, [a]
person may be a person entitled to enforce the instrument even though the person is not the owner of the
instrument . . . . General Statutes § 42a-3-301. In J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn. 307,
71 A.3d 492 (2013), we explained that [t]he [Uniform
Commercial Code’s] official comment underscores that
a person entitled to enforce an instrument . . . is not
limited to holders. . . . A nonholder in possession of an instrument includes a person that acquired rights of a
holder . . . under [General Statutes § 42a-3-203 (a)]. . . . Under § 42a-3-203 (b), [t]ransfer of an instrument . . .
vests in the transferee any right of the transferor to
enforce the instrument . . . . An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery
the right to enforce the instrument. General Statutes
Bank of New York Mellon v. Tope
§ 42a-3-203 (a). Thus, there are two requirements to
transfer an instrument under § 42a-3-203 (a): (1) the
transferor must intend to vest in the transferee the right to enforce the instrument; and (2) the transferor must
deliver the instrument to the transferee so that the transferee has either actual or constructive possession. . . . J.E. Robert Co. v. Signature Properties, LLC, supra,
319–20. Accordingly, to establish standing to foreclose
on the defendant’s property, the plaintiff needed to
prove that it was the holder of the note or one who was
otherwise entitled to enforce the note.” (Internal quotation marks omitted.) Bank of New York Mellon v. Tope,
supra, 345 Conn. 678–80.
In the present case, the note was executed by the
defendant and endorsed to “JPMorgan Chase Bank, as
Trustee.” The plaintiff contends that, as the successor
trustee to JPMorgan Chase Bank, N.A., the plaintiff is
the “holder” of the note and has standing to foreclose.5
At the evidentiary hearing, the plaintiff presented ten
exhibits and the testimony of two witnesses to support
its contention that it is, indeed, the successor trustee
because it acquired the trust that owns the defendant’s
note and mortgage from JPMorgan Chase Bank, N.A.
The defendant did not offer any of his own witnesses
or exhibits; rather, his apparent strategy was to highlight purported inconsistencies and gaps in the evidence
provided by the plaintiff to rebut the plaintiff’s claim
of standing to foreclose. The defendant’s contention
on appeal is that the plaintiff’s noncompliance with
his discovery requests rendered him unable to explore
adequately these purported gaps and inconsistencies and
that the court should have imposed discovery sanctions
on the plaintiff but failed to do so.
5
The plaintiff relies on General Statutes § 42a-3-110 (c), which provides in relevant part: “For the purpose of determining the holder of an instrument, the following rules apply . . . (2) If an instrument is payable to . . . [a] trust, an estate, or a person described as trustee or representative of a trust or estate, the instrument is payable to the trustee, the representative, or a successor of either . . . .” (Emphasis added.)
Bank of New York Mellon v. Tope
The defendant raises two claims on appeal: (1) the
court erred in failing to rule on his motion for discovery sanctions; and (2) the court erred in failing to enforce
the discovery rules set forth in our rules of practice. We address each in turn.
I
The defendant first claims that the trial court erred
in failing to rule on his motion for discovery sanctions. Because we conclude that the court implicitly ruled on
the motion for sanctions when it denied the defendant’s
motion to open, the defendant’s claim fails.
The following additional facts and procedural history are relevant to this claim. At the March 7, 2024
evidentiary hearing, after the plaintiff’s witnesses testified, counsel for the parties discussed with the court the defendant’s pending motion for discovery sanctions. The
court instructed both parties to fold their arguments on
discovery sanctions into their posthearing briefs, and
they agreed to do so. The defendant’s counsel contended
that he had been subjected to a “trial by ambush” because the plaintiff’s witnesses had not been involved in the
prior deposition and they had testified to documents
that were not provided until the eve of the hearing. As an alternative to the relief requested in his written motion for sanctions, the defendant’s counsel asked the court
to allow posthearing depositions of the witnesses, at the plaintiff’s expense, before resting on the hearing. After some discussion, the plaintiff agreed to the depositions, at its expense, and the court gave the parties two months to submit their posthearing briefs to allow time for the
depositions to be completed. The court then marked off
the motion for sanctions and did not address it again
before ruling on the motion to open. As instructed by the court, the defendant addressed the discovery dispute in
his posthearing brief.
Because the defendant’s claim is premised on the
court’s purported failure to rule on his motion for sanctions, we must first determine whether that premise is
Bank of New York Mellon v. Tope
true. The following legal principles guide our analysis.
“The [defendant’s] claim requires us to construe the judgment rendered by the court in the present case, as articulated in its memorandum of decision. The construction
of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. . . . As a general rule, the court should construe [a] judgment as it would construe any
document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as
well as to that which is expressed. . . . If [f]aced with . . . an ambiguity, we construe the court’s decision to support, rather than to undermine, its judgment. . . . The
judgment should admit of a consistent construction as a
whole. . . . To determine the meaning of a judgment, we
must ascertain the intent of the court from the language
used and, if necessary, the surrounding circumstances.”
(Internal quotation marks omitted.) Pryor v. Brignole,
231 Conn. App. 659, 695, 333 A.3d 1112 (2025).
The appellate courts of this state have recognized that a court may rule on a motion implicitly, which a reviewing
court can ascertain based on the record. See, e.g., Martinez v. New Haven, 328 Conn. 1, 13, 176 A.3d 531 (2018)
(“[w]e conclude that the trial court implicitly granted
the defendants’ request for permission to amend their
answer to plead governmental immunity as a defense”);
Pryor v. Brignole, supra, 231 Conn. App. 700 (“[o]ur
review of the court’s memorandum of decision, considered in light of the existing record, convinces us that
the court implicitly granted the defendants’ motions to
extend the time to file their special motions to dismiss”). A trial court’s ruling may be the “functional equivalent
of a denial of [a motion]” if its effect is “to foreclose the possibility of relief from the court on those issues” raised in the motion. Ahneman v. Ahneman, 243 Conn. 471,
480, 706 A.2d 960 (1998).
Here, to determine whether the court implicitly ruled
on the defendant’s motion for sanctions, we examine the
court’s memorandum of decision in light of the entire
Bank of New York Mellon v. Tope
record. We first note that, at the evidentiary hearing,
the defendant’s counsel expressly framed his request for
posthearing depositions as an “alternative” to the relief he had requested in his motion for sanctions. In essence, the defendant’s counsel orally modified his motion for
sanctions at the evidentiary hearing, and the court then
granted the relief he requested in the modified motion.
Moreover, during the evidentiary hearing, the court
instructed both parties to fold their arguments related
to the motion for sanctions into their posthearing briefs, implying that the court would include any ruling on
discovery sanctions as part of its ruling on the motion
to open. Consistent with that understanding, the court,
in its memorandum of decision on the motion to open,
clearly, albeit concisely by way of the footnote recited
previously in this opinion,6 addressed the defendant’s
discovery related grievances, including those advanced
in the motion for sanctions, as well as his posthearing
briefing, by stating that they were “ ‘full of sound and
fury’ ” but “ ‘[s]ignif[ied] nothing.’ ” Finally, the practical effect of denying the motion to open was to foreclose any possibility that the defendant would be awarded the relief he sought in the motion for discovery sanctions, which
amounts to a denial of the motion for sanctions as well.
The defendant’s reliance on State v. Martin, 201 Conn.
74, 513 A.2d 116 (1986), and Meadowbrook Center, Inc.
v. Buchman, 169 Conn. App. 527, 151 A.3d 404 (2016),
aff’d, 328 Conn. 586, 181 A.3d 550 (2018), is misplaced.
Each case involved a trial court that failed to exercise
its discretion because it erroneously believed it did not have discretion under applicable law. See State v. Martin, supra, 88–89 (“the trial judge thought he had no
discretion; that is, it appears the trial judge believed
that [General Statutes] § 52-145 prohibited the crossexamination as a matter of law”); Meadowbrook Center,
Inc. v. Buchman, supra, 540 (“[T]he court denied the
defendant’s motion . . . because it felt constrained by the thirty day time limitation in Practice Book § 11-21 for
6
We note that the defendant did not seek an articulation from the trial court. See Practice Book § 66-5.
Bank of New York Mellon v. Tope
the filing of such a motion. As a consequence, the court
did not exercise its discretion . . . .”). Here, the record demonstrates that the court considered the motion for
sanctions and twice exercised its discretion: first, at the evidentiary hearing, by granting the posthearing depositions requested by the defendant; and second, in its
memorandum of decision, by rejecting the defendant’s
remaining discovery related arguments as without merit.
In sum, we conclude that the court implicitly ruled on
the defendant’s motion for sanctions, first by granting
relief at the evidentiary hearing and then, to the extent anything remained of the motion thereafter, by denying
any additional relief in its memorandum of decision on
the motion to open. Thus, the defendant’s first claim
fails.7
II
The defendant next claims that the trial court erred
in purportedly failing to enforce the discovery rules
set forth in our rules of practice. The defendant contends that the plaintiff abused the discovery process by
withholding “material items that had been requested in
discovery but not produced, until the eve of the March
7, 2024 remand hearing . . . effectively preventing the
defendant from properly reviewing and analyzing the
same.” Specifically, the defendant claims that the plaintiff violated the discovery rules by its late disclosure
of exhibits 5 and 7,8 which were not shared with the
7
Because we conclude that the court implicitly denied the motion for sanctions, we need not reach the defendant’s claim that the court’s failure to rule on the motion was unreasonable and arbitrary. The defendant’s remaining arguments in support of his first claim challenge the court’s decision not to award sanctions, and we address them in part II of this opinion.
8
We note that, in his motion for sanctions, the defendant objected to the late disclosure of exhibits 6, 8, 9, and 10, not exhibits 5 and 7. However, the defendant’s counsel orally objected to the late disclosure of exhibits 5 and 7 at the evidentiary hearing. The defendant again objected to the late disclosure of exhibits 5 and 7 in his posthearing brief. As such, this claim was distinctly raised in the trial court and is preserved for appellate review.
Bank of New York Mellon v. Tope
defendant until they were filed with the court the day
before the evidentiary hearing. The defendant also contends that the plaintiff “obstructed the defendant’s
efforts to take the depositions of the plaintiff’s witnesses, despite the plaintiff’s agreement at the hearing . . . .” Because of these discovery violations, the defendant
claims the court should have imposed sanctions on the
plaintiff and that it abused its discretion by failing to do so. We are not persuaded.
The following additional facts and procedural history
are relevant to this claim. On June 27, 2023, the plaintiff filed three exhibits with the court: the note, the mortgage, and the 2014 assignment of the mortgage from the
original lender, HSBC, to the plaintiff. On November
14, 2023, the plaintiff refiled the three original exhibits and filed two additional exhibits for the first time: a deal sheet that associated the defendant’s mortgage with
the trust, and a mortgage loan schedule that contained
the defendant’s loan and was otherwise fully redacted.
On December 27, 2023, the defendant took the deposition of Brian Shields, a default litigation specialist with Dovenmuehle, the subservicer of the defendant’s loan.
The five exhibits filed in November 2023 were reviewed
and discussed at the deposition. Shields’ deposition testimony also mentioned multiple documents related to the
defendant’s mortgage that had not yet been provided
as exhibits, including trust documents, a pooling and
servicing agreement, and powers of attorney.
On January 19, 2024, the defendant’s counsel emailed
the plaintiff’s counsel requesting additional documents.
The plaintiff’s counsel replied the same day and produced four additional documents: a purchase agreement
between JPMorgan Chase Bank, N.A. and The Bank of
New York, a merger agreement between The Bank of
New York and Mellon Financial, a press release regarding the transfer of trust assets between JPMorgan Chase
Bank, N.A. and The Bank of New York, and the pooling
and servicing agreement for the defendant’s loan. In
the same email communication, the plaintiff’s counsel
Bank of New York Mellon v. Tope
asked the defendant’s counsel what other documents
the defendant needed. The defendant’s counsel never
responded to this email. The record does not indicate that the plaintiff produced any documents to the defendant
other than those identified previously in this opinion.
Four days after the evidentiary hearing, on March 11,
2024, the defendant filed for bankruptcy.9 The bankruptcy petition was dismissed on April 9, 2024. On May
3, 2024, the defendant filed a motion for an extension
of time to file his posthearing brief, explaining that the depositions of the hearing witnesses had not yet been conducted as a result of the bankruptcy stay, followed by the unavailability of the plaintiff’s counsel during much of
April. The court granted the extension absent objection.10 That same day, the defendant noticed11 the depositions
of the plaintiff’s witnesses, Brehm and Schultz, for May
14, 2024. On May 13, 2024, the defendant’s counsel
contacted the plaintiff’s counsel to ask if the witnesses were available to be deposed the next day; the plaintiff’s counsel responded that the witnesses were not available.
On June 3, 2024, the defendant’s counsel again reached
out to the plaintiff’s counsel regarding the depositions. The plaintiff’s counsel responded that “[t]he time to
depose them has come and gone.” Thereafter, the defendant did not file a motion to compel or otherwise seek the court’s intervention in connection with the depositions.
A
As a threshold matter, we first address the plaintiff’s
argument that it fully complied with the defendant’s
9
The defendant filed the bankruptcy petition as a self-represented party. The defendant’s counsel in the present action learned of the bankruptcy petition when the plaintiff filed the notice of the pending petition with the trial court.
10
After the court granted the extension of time, the plaintiff filed an objection and a motion to reargue/reconsider the extension. The court denied the plaintiff’s motion.
11
The defendant represents that he “renoticed” the depositions on May 3, 2024. There is, however, no prior notice of deposition for either Brehm or Schultz in the record.
Bank of New York Mellon v. Tope
February 2023 discovery request and that, therefore,
no sanctions were warranted. In support of this argument, the plaintiff asserts that the defendant’s “complete discovery request” consisted of the plaintiff’s “ ‘complete mortgage file’ ” and that “a ‘complete mortgage
file consists of the note, the mortgage, and the assignments of mortgage.’ ” Because the defendant has those
three documents, the plaintiff claims, the defendant has
received “exactly what he requested . . . .” In contrast, the defendant argues that his discovery request was broader
than the plaintiff’s definition of the “mortgage file” and broad enough to include the exhibits now challenged on
appeal. We agree with the defendant on this point.
Although, as the plaintiff observes, the defendant did
request the “complete mortgage file,” the record makes
clear that the defendant defined “mortgage file” much
more broadly than the three documents later enumerated by the plaintiff. The defendant’s discovery request
expressly includes, inter alia, “[a]ll documents relating to [the plaintiff’s] claimed interest in the note,” “all documents evidencing any and all transfers and/or assignments of the mortgage note and/or the mortgage deed,”
“any and all trust documents related to ownership of
the mortgage note and deed,” and “[a]ll documents the
plaintiff intends to rely upon to support the allegations of the complaint.” (Internal quotation marks omitted.)
This request was broad enough to include exhibit 5, the
screenshot from the loan servicing system; and exhibit
7, the attachment to the purchase agreement that shows
the trust at issue here, both of which were produced for
the first time more than one year after the discovery
request.12 Both exhibits are pertinent to the plaintiff’s “ ‘claimed interest in the note’ ” because they expressly identify the plaintiff as trustee of the trust, which owns the defendant’s note and mortgage. Both exhibits were
12
We note that the timestamp on exhibit 5 indicates that it was created on February 1, 2024, such that the plaintiff had no duty to produce it prior to that date. The plaintiff had, however, a continuing duty to disclose documents responsive to the defendant’s discovery request. See Practice Book § 13-15.
Bank of New York Mellon v. Tope
also relied upon by the plaintiff to prove an allegation
in its complaint—namely, the allegation that the plaintiff is the successor trustee to JPMorgan Chase Bank,
N.A.—at the evidentiary hearing. As such, we disagree
with the plaintiff’s premise that it fully complied with
the defendant’s discovery requests.13
B
We now reach the crux of the defendant’s claim that
the court abused its discretion by choosing not to impose sanctions on the plaintiff for the late disclosure of exhibits 5 and 7 and its subsequent refusal to allow depositions of its witnesses. We hold that the court did not abuse its discretion.
We begin by setting forth the standard of review. “The
decision to enter sanctions . . . and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court. . . . In reviewing a claim that this discretion has been abused the unquestioned rule is that
great weight is due to the action of the trial court and
every reasonable presumption should be given in favor
of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 671, 72 A.3d 1019 (2013);
see also Coady v. Martin, 65 Conn. App. 758, 769, 784
A.2d 897 (2001) (“The plaintiffs acknowledge that they
13
The plaintiff also argues that it was improper for the defendant to inquire into the underlying transaction between The Bank of New York and JPMorgan Chase Bank, N.A. In support of this argument, the plaintiff relies on Bank of New York v. Bell, 142 Conn. App. 125, 133–34, 63 A.3d 1026, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013), and cert. denied, 310 Conn. 901, 75 A.3d 31 (2013). In Bell, this court held that it was an abuse of discretion for the trial court to order “the plaintiff to turn over documents that belonged to . . . a separate nonparty entity” and “to order the plaintiff as trustee . . . to turn over documents from other trusts.” Id., 134. We also held, however, that the court did have authority “to order the plaintiff to respond to discovery requests relating to [the trust that owned the defendant’s mortgage].” Id. Thus, Bell does not conflict with our conclusion that the discovery request properly included exhibits 5 and 7, which directly related to the trust that owns the defendant’s mortgage.
Bank of New York Mellon v. Tope
have an uphill battle to reverse the denial of their motion for sanctions. Their motion for sanctions can be overturned on appeal only if we are persuaded that the court
abused its discretion.”), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002). “[H]owever . . . [d]iscretion imports
something more than leeway in decision-making. . . . It
means a legal discretion, to be exercised in conformity
with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) D’Ascanio v. Toyota
Industries Corp., supra, 671.
“A trial court’s power to sanction a litigant or counsel
stems from two different sources of authority, its inherent powers and the rules of practice. . . . [The court’s] inherent authority permits sanctions for dilatory, bad
faith and harassing litigation conduct . . . . Additionally, under Practice Book § 13-14, a court may sanction
a party for noncompliance with the court’s discovery
orders.” (Citations omitted; internal quotation marks
omitted.) Lafferty v. Jones, 336 Conn. 332, 373, 246
A.3d 429 (2020), cert. denied, ___ U.S. ___, 141 S. Ct.
2467, 209 L. Ed. 2d 529 (2021). Practice Book § 13-14
provides in relevant part: “(a) If any party has . . . failed to respond to requests for production or . . . has failed to appear and testify at a deposition duly noticed pursuant
to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant
to Sections 13-6 through 13-11, the judicial authority
may, on motion, make such order proportional to the
noncompliance as the ends of justice require. . . .”
In assessing the proportionality of discovery sanctions, we consider three factors: “(1) the cause of the
[sanctioned party’s] failure to [comply with the discovery order], that is, whether it is due to inability rather than the [wilfulness], bad faith or fault of the [sanctioned party] . . . (2) the degree of prejudice suffered by the opposing party, which in turn may depend on the
importance of the information requested to that party’s
case . . . and (3) which of the available sanctions would,
Bank of New York Mellon v. Tope
under the particular circumstances, be an appropriate
response to the disobedient party’s conduct.” (Internal
quotation marks omitted.) Gutierrez v. Mosor, 206 Conn.
App. 818, 827, 261 A.3d 850, cert. denied, 340 Conn.
913, 265 A.3d 926 (2021). “[W]e bear in mind that [t]he
primary purpose of a sanction for violation of a discovery order is to ensure that the defendant’s rights are
protected, not to exact punishment on the [other party]
for its allegedly improper conduct.” (Internal quotation
marks omitted.) Yeager v. Alvarez, 302 Conn. 772, 790,
31 A.3d 794 (2011).
The bar to dismiss an action as a discovery sanction
is particularly high. “The appellate courts of this state consistently have upheld nonsuits, defaults or other
sanctions imposed for discovery violations where the
noncomplying party has exhibited a pattern of violations
or discovery abuse demonstrating a disregard for the
court’s authority.” Gutierrez v. Mosor, supra, 206 Conn.
App. 829; see id., 829–30 (collecting cases). However,
“[w]here the ultimate sanction of dismissal is involved,
[o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard
to necessary rules of procedure. . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted
disregard for the court’s authority . . . the court should be reluctant to employ the sanction of dismissal except
as a last resort. . . . [T]he sanction of dismissal should be imposed only . . . where it would be the only reasonable
remedy available to vindicate the legitimate interests
of the other party and the court.” (Internal quotation
marks omitted.) Usowski v. Jacobson, 267 Conn. 73,
91–92, 836 A.2d 1167 (2003).
Here, the defendant contends that the plaintiff’s
actions in the discovery process were undertaken wilfully and in bad faith. The defendant provides, however, little support from the record for this contention. For instance, the defendant asserts that the plaintiff
Bank of New York Mellon v. Tope
deliberately concealed relevant documents until the eve of the evidentiary hearing, but there is nothing in the record cited to show that the lateness of the production was
deliberate. We further note that the defendant did not
file any motions before the motion for sanctions to seek
the trial court’s intervention in resolving the discovery dispute; consequently, none of the plaintiff’s discovery
noncompliance was in violation of a court order. In short, the defendant has not carried his burden of showing
that the plaintiff’s discovery noncompliance in this case was the sort of “pattern of violations or discovery abuse demonstrating a disregard for the court’s authority”
that would merit, let alone compel, the severe sanction
of dismissal requested by the defendant. Gutierrez v.
Mosor, supra, 206 Conn. App. 829.
We also note the defendant’s part in the discovery
dispute. In particular, the defendant’s counsel never
responded to the January 19, 2024 email from the plaintiff’s counsel expressly asking what other documents
the defendant needed. Although we recognize that the
defendant may not have known exactly what documents
to ask for if those documents were in the plaintiff’s possession, he still had an obligation to meet and confer with the plaintiff to resolve the discovery issue. Furthermore, as mentioned previously, the defendant did not
file a motion to compel or otherwise request the court’s
intervention prior to filing his motion for sanctions on
March 7, 2024.
The defendant relies heavily on Sturdivant v. YaleNew Haven Hospital, 2 Conn. App. 103, 476 A.2d 1074
(1984). In Sturdivant, a medical malpractice matter, this court upheld the trial court’s preclusion of the plaintiff’s medical expert’s testimony on the issue of causation. See id., 107–108. The trial court in Sturdivant had found
that the plaintiff had engaged in a “tactical subterfuge” by “informal[ly]” consulting an expert years before trial but “formally retain[ing]” that expert only after jury
selection had started. (Emphasis omitted.) Id., 106.
Furthermore, the plaintiff in Sturdivant claimed in her
Bank of New York Mellon v. Tope
initial interrogatory responses that she had not retained an expert to testify and then, in supplemental interrogatory responses, disclosed that the expert would testify
on the issues of standard of care and the breach thereof
but made no mention of causation. Id., 105. Although
the defendant claims that the plaintiff’s conduct in the
present case is “eerily similar” to the conduct of the
plaintiff in Sturdivant, we find the present case readily distinguishable. There is no indication in the record before us of deliberate misrepresentation comparable to
the misleading interrogatory answers in Sturdivant. See
Sturdivant v. Yale-New Haven Hospital, supra, 105. We
also note that, in Sturdivant, the plaintiff was required to present expert testimony to prove her case;14 under
those circumstances, it was clear that the decision to wait to disclose a testifying expert until after the start of jury selection was intentional. There exists no comparable
circumstance here.
The defendant’s reliance on Pavlinko v. Yale-New
Haven Hospital, 192 Conn. 138, 470 A.2d 246 (1984),
is similarly misplaced. Pavlinko involved a plaintiff who “steadfastly refused” to answer questions at a deposition and maintained his refusal even in the face of a pending
motion to dismiss for noncompliance. Id., 142–43. Here,
the plaintiff produced all the documents on which it
intended to rely at the hearing, albeit late, produced a
witness for a deposition prior to the hearing, and objected to the posthearing depositions only on the ground that
they were noticed too late.
We also are not persuaded by the defendant’s contention that he was prejudiced by the late disclosure
14
At the time Sturdivant was decided, it was (and remains) well settled that a medical malpractice plaintiff was usually required to present expert testimony to prove the standard of care and breach thereof. See, e.g., Katsetos v. Nolan, 170 Conn. 637, 644–45, 368 A.2d 172 (1976) (“[T]he need for . . . expert testimony in a medical malpractice case has recently been restated by this court . . . . Usually, proof of the breach of [a physician’s] duty must rest upon the testimony of an expert witness qualified to state what the particular standard of care requires and to express an opinion that the treatment accorded the patient failed to meet this standard.” (Citations omitted; internal quotation marks omitted.)).
Bank of New York Mellon v. Tope
of exhibits 5 and 7 because he had no opportunity to
investigate and rebut the plaintiff’s claims. We first note that both exhibits are quite short: exhibit 5 is a one page document with less than 200 words of text, and exhibit
7 has only one unredacted line of text. Even with the
late disclosure, the defendant’s counsel had sufficient
time to review these documents prior to the evidentiary
hearing15 at which he cross-examined the plaintiff’s witnesses. We also note that the court relied on only exhibit 7, not exhibit 5, in its memorandum of decision. In the
absence of prejudice, we cannot conclude that the court
abused its discretion in declining to impose sanctions.
See Coady v. Martin, supra, 65 Conn. App. 770.
The defendant’s reliance on JPMorgan Chase Bank,
National Assn. v. Lakner, 347 Conn. 476, 298 A.3d 249
(2023), is misplaced. In Lakner, the trial court’s “protective order effectively denied the defendant meaningful
access to any document discovery.” (Emphasis added.)
Id., 495. In the present case, the defendant had access
to most of the documents the plaintiff intended to use,
including much more voluminous documents such as
exhibit 9, no later than January 19, 2024, six weeks
before the evidentiary hearing, and challenges only two
short exhibits that were disclosed for the first time on
March 6, 2024.
To the extent the defendant claims sanctions should
have been imposed for the plaintiff’s alleged obstruction of the posthearing depositions, we are similarly
unpersuaded. The defendant never sought the court’s
assistance in compelling the witnesses’ attendance at
the depositions. Instead, the defendant raised the issue
for the first time in his posthearing brief16 and requested
15
Notably, the defendant’s counsel had time to draft a detailed, nine page motion for sanctions between the filing of the plaintiff’s exhibits and the start of the evidentiary hearing.
16
Although it is true, as the defendant points out, that the court instructed the parties to incorporate their discovery related claims into their posthearing briefs, that instruction was given at the evidentiary hearing and, thus, did not preclude the filing of a separate motion to resolve any posthearing discovery disputes.
Bank of New York Mellon v. Tope
the ultimate sanction of dismissal. It was not an abuse
of discretion for the court to decline to impose any discovery sanction on the plaintiff and to proceed to decide the issue of standing on the merits.
Finally, we agree with the court that, given the state
of the evidence, the defendant’s discovery related arguments were functionally irrelevant by the time of the
decision on the motion to open. The note, the mortgage,
and the 2014 assignment of the mortgage, none of which
is challenged on this appeal, established that the plaintiff was the holder of the mortgage. The court heard
the testimony of the plaintiff’s witnesses, reviewed the
exhibits, and determined that the plaintiff’s standing
was clearly established. Except insofar as the court’s
findings are based on exhibit 7, they are not challenged
on appeal, and, as discussed previously in this opinion,
the late disclosure of exhibit 7 was not prejudicial to the defendant under the circumstances. Given the strength
of the plaintiff’s case on the merits, the only conceivable purpose of imposing the discovery sanctions that the
defendant has requested would be “ ‘to exact punishment’ ” on the plaintiff, rather than to vindicate the
legitimate rights of the defendant. Yeager v. Alvarez,
supra, 302 Conn. 790. Such sanctions are disfavored
in any case and certainly are not justified by the plaintiff’s conduct in the present case. It was not an abuse of discretion for the court to determine that no discovery
sanctions were warranted under the circumstances.
The judgment is affirmed and the case is remanded for
further proceedings according to law.17
In this opinion the other judges concurred.
17
See Wahba v. JPMorgan Chase Bank, N.A., 349 Conn. 483, 316 A.3d 338 (2024).