Chase Home Finance, LLC v. Scroggin

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Chase Home Finance, LLC v. Scroggin

CHASE HOME FINANCE, LLC v.
DANIEL J. SCROGGIN
(AC 45996)
Bright, C. J., and Cradle and Suarez, Js.

Syllabus

The plaintiff, C Co., sought to foreclose a mortgage on certain real property
owned by the defendant, S. Thereafter, A Co. was substituted for C Co.,
and the trial court granted A Co.’s motion for a judgment of strict
foreclosure and rendered judgment thereon, from which S appealed to
this court, which reversed in part the trial court’s judgment and
remanded the case to that court for further proceedings. Following the
remand, A Co. filed a motion for summary judgment as to liability only,
and, in support of its motion, submitted, inter alia, the affidavit of H, a
litigation specialist employed by A Co.’s loan servicer. In her affidavit,
H summarized the history of the assignment of the mortgage and further
averred that C Co. had been the holder of the note at the time the
present action was commenced and that A Co. was the current holder
of the note and the mortgagee of record. After the deadline for filing a
response to A Co.’s motion for summary judgment expired, S filed a
document captioned ‘‘Practice Book § 17-47 Motion for Extension of
Time to Respond to the Plaintiff’s Motion for Summary Judgment, or
Alternatively, Objection to Summary Judgment,’’ which the court denied
as untimely. S then noticed the deposition of a designee of A Co., seeking
various documents, and A Co. filed a motion for a protective order on
the grounds that S’s requests were untimely and sought information to
which he was not entitled, and the trial court summarily granted the
motion for a protective order. When the parties appeared before the
court, the court granted A Co.’s motion for summary judgment without
a hearing, in the absence of opposition, after S’s attorney acknowledged
that he had not filed a response to the motion. Subsequently, A Co. filed
a motion for a judgment of strict foreclosure, which the trial court
granted and rendered judgment thereon, from which S appealed to this
court, which reversed in part the trial court’s judgment and remanded
the case to that court for further proceedings. During the proceedings
on remand, A Co. reclaimed for adjudication its summary judgment
motion, and S issued notices of two depositions, seeking information
nearly identical to the information he had previously sought, which was
the subject of the protective order. A Co. then moved for a protective
order barring S from deposing its corporate designee and keeper of
records. S filed a memorandum of law in opposition to A Co.’s motion
for summary judgment, arguing, inter alia, that, because A Co. refused
to produce H for a deposition, the court should deny the motion pursuant
to the rule of practice (§ 17-47) that permits the court to deny summary
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Chase Home Finance, LLC v. Scroggin
judgment when appropriate documents are unavailable. S also filed an
affidavit pursuant to Practice Book § 17-47 explaining why he should
be granted a continuance to conduct discovery. After a hearing, the
court granted A Co.’s motion for summary judgment as to liability and
rendered a judgment of strict foreclosure, from which S appealed to
this court. Held:
1. S could not prevail on his claim that the trial court erred in granting
summary judgment as to liability because it improperly relied on H’s
affidavit in determining that C Co. was the holder of the note at the
time the action had been commenced: H averred that she had personal
knowledge of the records pertaining to the note and mortgage in this
case based upon her review of those records, which were received and
maintained in the regular and ordinary practice of A Co.’s loan servicer,
such that they constituted competent evidence of C Co.’s status as holder
of the note when the action had been commenced; moreover, this court
rejected S’s claim that the trial court should not have relied on H’s
affidavit because she failed to attach to it the documents on which her
averments were based, noting that our Supreme Court rejected virtually
the same argument in RMS Residential Properties, LLC v. Miller (303
Conn. 224), and reasoning that to be competent to testify, H needed
only to have personal knowledge of the business records.
2. S could not prevail on his claim that the trial court erred in granting
summary judgment as to liability because it failed to give him, as the
nonmoving party, the benefit of all favorable inferences to be drawn
from the evidence by neglecting to draw an adverse inference from A
Co.’s refusal to produce witnesses and documents requested by S: S
failed to set forth any facts, other than A Co.’s filing of a motion for a
protective order, which is permitted by our rules of practice, in support
of his contention that A Co. had engaged in extraordinary measures to
prevent S from deposing H or any other corporate designees of A Co.;
moreover, S’s claim that he was entitled to an adverse inference for A
Co.’s failure to allow him to depose H on the basis of the missing witness
rule adopted in Secondino v. New Haven Gas Co. (147 Conn. 672) was
legally flawed in that the missing witness rule was significantly limited
in civil cases by statute (§ 52-216c) after Secondino had been issued,
and S failed, in his brief to this court, to acknowledge the abrogation
of Secondino; furthermore, setting aside the fact that S’s reliance on
Secondino was misplaced, S was unable to demonstrate that he would
have been entitled to the benefit of the adverse inference permitted by
§ 52-216c.
3. S could not prevail on his claim that the trial court abused its discretion
when it implicitly granted A Co.’s motion for a protective order, resulting
in a complete denial of discovery and a denial of his ability to rebut A
Co.’s claims: S’s claim was belied by the fact that he neither filed a
request pursuant to Practice Book § 17-47 with the court nor requested
that the court rule on A Co.’s motion for a protective order; moreover,
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Chase Home Finance, LLC v. Scroggin
the trial court granted A Co.’s motion for a protective order as to S’s
request to depose a designee of the plaintiff after the first remand from
this court and prior to S’s second appeal, and S could have challenged
the propriety of the protective order in his second appeal, but chose
not to do so; furthermore, further discovery was beyond the rescript
order of this court in the second appeal, as this court addressed the
discovery issue because it was likely to arise on remand and determined
that the trial court did not abuse its discretion in ruling that S’s request
for an extension of time to conduct discovery to respond to A Co.’s
motion for summary judgment was untimely.

Argued January 3—officially released April 9, 2024

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district
of Middlesex, where the defendant was defaulted for
failure to plead; thereafter, Bank of America, N.A., was
cited in as a defendant and the plaintiff filed an amended
complaint; subsequently, AJX Mortgage Trust I was sub-
stituted as the party plaintiff; thereafter, the court, Auri-
gemma, J., granted the substitute plaintiff’s motion for
judgment as to counts two through six of the amended
complaint; subsequently, the court granted the substi-
tute plaintiff’s motion for a judgment of strict foreclo-
sure and rendered judgment thereon, from which the
named defendant appealed to this court, Keller, Prescott
and Bear, Js., which reversed in part the trial court’s
judgment and remanded the case for further proceed-
ings; thereafter, the substitute plaintiff withdrew counts
five and six of the amended complaint; subsequently,
the court, Aurigemma, J., granted the substitute plain-
tiff’s motion for summary judgment as to liability only
and granted the substitute plaintiff’s motion for a judg-
ment of strict foreclosure and rendered judgment
thereon, from which the named defendant appealed to
this court, Keller, Moll and Bishop, Js., which reversed
the trial court’s judgment and remanded the case for
further proceedings; thereafter, the court, Hon. Edward
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S. Domnarski, judge trial referee, granted the substitute
plaintiff’s motion for a judgment of strict foreclosure
and rendered judgment thereon, from which the named
defendant appealed to this court. Affirmed.
Thomas P. Willcutts, for the appellant (named defen-
dant).
Christopher J. Picard, with whom, on the brief, was
Joseph R. Dunaj, for the appellee (substitute plaintiff).
Opinion

CRADLE, J. The defendant, Daniel J. Scroggin, who
is also known as Daniel F. Scroggin or Daniel Scroggin,
appeals from the judgment of strict foreclosure ren-
dered by the trial court, for the third time, in favor of the
substitute plaintiff, AJX Mortgage Trust I, a Delaware
Trust, Wilmington Savings Fund Society, FSB, Trustee.1
1
This is the third appeal taken from a judgment rendered in this case.
We note that, ‘‘[i]n a prior appeal, this court explained that in September,
2010, after the named plaintiff, Chase Home Finance, LLC (Chase), had
commenced this action against the defendant, Chase filed a motion to cite
in Bank of America, N.A. (Bank of America), as a [third-party] defendant.
The court granted this motion. Subsequently, [Chase] served Bank of
America with an amended complaint that alleged that Bank of America was
a lien holder. In March, 2011, Bank of America was defaulted for failure to
appear. In January, 2012, Middconn Federal Credit Union sought to be made
a party defendant to the action as a postjudgment lis pendens holder. The
court granted the request. Later, Middconn Federal Credit Union was
defaulted for failure to plead and failure to disclose a defense.
‘‘In June, 2012, Chase moved to substitute JPMorgan Chase Bank, N.A.,
as [the] plaintiff in the action. The court granted the motion. In June, 2014,
JPMorgan Chase Bank, N.A., moved to substitute Ventures Trust 2013-I-H-
R by MCM Capital Partners, LLC, its trustee, as [the] plaintiff in the action.
The court granted the motion. In July, 2015, Ventures Trust 2013-I-H-R by
MCM Capital Partners, LLC, its trustee, moved to substitute AJX Mortgage
Trust I, a Delaware Trust, Wilmington Savings Fund Society, FSB, Trustee,
as [the] plaintiff in the action. The court granted the motion. Chase Home
Finance, LLC v. Scroggin, 178 Conn. App. 727, 729 n.1, 176 A.3d 1210 (2017).
As in the prior appeal, we will refer to AJX Mortgage Trust I, a Delaware
Trust, Wilmington Savings Fund Society, FSB, Trustee, as the plaintiff. Addi-
tionally, because neither Bank of America nor Middconn Federal Credit
Union is participating in this appeal, we will refer to Daniel J. Scroggin as
the defendant.’’ (Internal quotation marks omitted.) Chase Home Finance,
LLC v. Scroggin, 194 Conn. App. 843, 846 n.1, 222 A.3d 1025 (2019).
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On appeal, the defendant claims that the court (1) erred
in granting summary judgment as to liability in that
it improperly relied on an affidavit of a loan officer
employed by the plaintiff in determining that the origi-
nal plaintiff, Chase Home Finance, LLC (Chase), was
the holder of the note in this case at the time the action
was commenced and failed to draw an adverse infer-
ence from the plaintiff’s refusal to produce witnesses
and documents requested by the defendant, and (2)
abused its discretion when it implicitly granted the
plaintiff’s motion for a protective order, which, he
alleges, ‘‘resulted in a complete denial of discovery and
a denial of [his] ability to rebut the plaintiff’s claims.’’
We affirm the judgment of the trial court.
The following factual and procedural history is rele-
vant to our resolution of the defendant’s claims on
appeal. In 2009, Chase commenced the present foreclo-
sure action against the defendant. In its original com-
plaint, Chase alleged that, in 2007, the defendant exe-
cuted a promissory note in favor of Chase Bank USA,
N.A., which was secured by a mortgage on certain real
property in Portland owned by the defendant. Chase
further alleged that the mortgage was subsequently
assigned to it, that it was the holder of the note and
mortgage, and that the defendant had defaulted on the
note by failing to make the required payments. By way
of relief, Chase sought, in relevant part, foreclosure of
the mortgage.
In 2010, after the defendant was defaulted for failure
to plead, Chase filed a request for leave to amend its
complaint along with the proposed amended complaint,
to which the defendant did not object. At no time did
the defendant move to set aside the default for failure
to plead.
In November, 2015, the defendant filed an answer to
the original complaint and disclosed a defense challeng-
ing the plaintiff’s ‘‘right and standing to foreclose upon
the subject mortgage . . . .’’ Shortly thereafter, Chase
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moved for a judgment of strict foreclosure. In April,
2016, the defendant filed an answer to Chase’s amended
complaint and an objection to the plaintiff’s motion for
strict foreclosure. Following a hearing, the trial court,
Aurigemma, J., granted the plaintiff’s motion for judg-
ment of strict foreclosure.
The defendant appealed from the judgment of strict
foreclosure to this court. This court reversed the judg-
ment, concluding that the trial court had abused its
discretion in failing to consider the effect of the
amended complaint upon the 2010 default and that the
court should have considered the defendant’s answer to
the amended complaint as well as his disclosed defense.
Chase Home Finance, LLC v. Scroggin, 178 Conn. App.
727, 745–46, 176 A.3d 1210 (2017) (Chase I).
In March, 2018, following remand, the plaintiff moved
for summary judgment as to liability only on its strict
foreclosure claim. In support of its motion, the plaintiff
submitted, inter alia, the affidavit of Naomi Hernandez,
a litigation specialist employed by the plaintiff’s loan
servicer. In her affidavit, Hernandez summarized the
history of the assignment of the mortgage and further
averred, in relevant part, that Chase was the holder of
the note at the time the present action was commenced
and that the plaintiff is the current holder of the note
and is the mortgagee of record.
The deadline for filing a response to the plaintiff’s
motion for summary judgment expired on May 10, 2018.
See Practice Book § 17-45 (b).2 On May 24, 2018, the
2
Practice Book § 17-45 provides: ‘‘(a) A motion for summary judgment
shall be supported by appropriate documents, including but not limited to
affidavits, certified transcripts of testimony under oath, disclosures, written
admissions and other supporting documents.
‘‘(b) Unless otherwise ordered by the judicial authority, any adverse party
shall file and serve a response to the motion for summary judgment within
forty-five days of the filing of the motion, including opposing affidavits and
other available documentary evidence.
‘‘(c) Unless otherwise ordered by the judicial authority, the moving party
shall not claim the motion for summary judgment to the short calendar less
than forty-five days after the filing of the motion for summary judgment.’’
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defendant filed a document captioned ‘‘Practice Book
§ 17-47 Motion for Extension of Time to Respond to
the Plaintiff’s Motion for Summary Judgment, or Alter-
natively, Objection to Summary Judgment.’’3 The court,
Aurigemma, J., denied that motion as untimely. Also
on May 24, 2018, the defendant noticed the deposition
of a designee of the plaintiff, seeking numerous docu-
ments, including ‘‘[a]ll documents in the deponent’s pos-
session, custody or control that the [plaintiff’s] affiant
relied upon in executing the [plaintiff’s] affidavit in sup-
port of summary judgment.’’ The plaintiff filed a motion
for a protective order on the grounds that the defen-
dant’s requests were untimely and sought information
to which he was not entitled, to which the defendant
objected. The trial court, Aurigemma, J., summarily
granted the motion for a protective order.
On May 29, 2018, the parties appeared before the
court, Aurigemma, J., at short calendar. The defen-
dant’s attorney acknowledged that he had not filed a
response to the motion for summary judgment. The
court then proceeded to rule on the motion without a
hearing, concluding: ‘‘ ‘Well, there’s no opposition, so
the motion’s granted, absent opposition.’ ’’ Chase Home
Finance, LLC v. Scroggin, 194 Conn. App. 843, 850,
222 A.3d 1025 (2019) (Chase II). The court thereafter
granted the plaintiff’s subsequent motion for judgment
of strict foreclosure.
The defendant appealed that judgment on the grounds,
inter alia, that the court (1) erred in granting summary
judgment without hearing oral argument as required by
Practice Book § 11-18 and (2) abused its discretion in
3
Practice Book § 17-47 provides: ‘‘Should it appear from the affidavits of
a party opposing the motion [for summary judgment] that such party cannot,
for reasons stated, present facts essential to justify opposition, the judicial
authority may deny the motion for judgment or may order a continuance
to permit affidavits to be obtained or discovery to be had or may make
such other order as is just.’’
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denying his motion for an extension of time to respond
to the plaintiff’s motion for summary judgment pursuant
to Practice Book § 17-47. Id., 846. In Chase II, this court
concluded that ‘‘the defendant had a right to oral argu-
ment, which was not waived, with respect to the plain-
tiff’s motion for summary judgment, and, therefore, the
trial court improperly adjudicated the motion without
permitting oral argument.’’ Id., 859. As to the defen-
dant’s second claim, which the court addressed because
it was likely to arise on remand; see id., 847 n.2; the
court held that, ‘‘[b]ecause the defendant did not timely
comply with the requirements of § 17-47 [which imports
the forty-five day filing deadline set forth in Practice
Book § 17-45] . . . the trial court did not abuse its dis-
cretion by denying the defendant’s motion for an exten-
sion of time to respond to the plaintiff’s motion for
summary judgment and to conduct discovery related
thereto.’’ Id., 862; see also id., 863. This court’s rescript
stated as follows: ‘‘The judgment is reversed and the
case is remanded for further proceedings consistent
with this opinion.’’ Id., 863. Our decision in Chase II
was officially released on December 17, 2019.
On April 5, 2021, during the proceedings on remand,
the plaintiff reclaimed for adjudication its 2018 sum-
mary judgment motion. On that same day, the defendant
issued notices of two depositions, seeking information
nearly identical to the information he sought in 2018,
which was the subject of the protective order.4 On April
4
The defendant requested that the plaintiff make a corporate designee
available for deposition to testify regarding (1) the basis for the averments in
Hernandez’ affidavit, (2) the identity of the owners of the note and mortgage
throughout the pendency of the present action, and (3) the basis for the
current substitute plaintiff’s claim of ownership of the note and mortgage.
The defendant also noticed the deposition of the plaintiff’s keeper of records
and requested that the deponent produce at the deposition (1) the plaintiff’s
complete mortgage file, (2) all correspondence to or from the defendant,
(3) all documents referenced in the plaintiff’s memorandum of law in support
of its motion for summary judgment, and (4) all documents that may be
referenced in the deposition of the plaintiff’s corporate designee.
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12, 2021, the plaintiff moved for a protective order bar-
ring the defendant from deposing the plaintiff’s corpo-
rate designee and keeper of records. The plaintiff
argued that the defendant was seeking information that
he was ‘‘simply not entitled [to] . . . concerning the
trust and the transfers of the loan.’’ The plaintiff also
argued that the trial court was limited by this court’s
2019 remand order in Chase II to hearing oral argument
on the summary judgment motion and that, therefore,
the defendant was precluded from conducting any fur-
ther discovery. On April 21, 2021, the defendant filed
an objection to the plaintiff’s motion, arguing that the
plaintiff’s motion sought ‘‘a complete bar to all discov-
ery’’ in its efforts to ‘‘conceal access to such basic evi-
dentiary matters as being sought by the defendant here
. . . .’’ In response to the plaintiff’s argument that the
defendant’s pursuit of discovery went beyond this
court’s remand order in Chase II, the defendant argued
in his memorandum of law in opposition to the motion
for a protective order, inter alia, that the plaintiff’s
motion ‘‘mis-cites two Appellate Court cases for the
proposition that they place limitations upon the discov-
ery that the defendant is seeking, where the holdings
in neither case even addresses the proper scope of
discovery, let alone restrict the scope of discovery
sought by the defendant here . . . .’’ (Citations omit-
ted.)

On May 13, 2021, the defendant filed a memorandum
of law in opposition to the plaintiff’s motion for sum-
mary judgment, arguing, in relevant part, that the plain-
tiff had failed to meet its burden of establishing that it
had standing to enforce the subject note and mortgage.
The defendant also argued that the trial court should
deny the motion pursuant to Practice Book § 17-47 due
to the plaintiff’s refusal to produce Hernandez for a
deposition. Along with his memorandum of law in oppo-
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sition to the motion for summary judgment, the defen-
dant’s counsel also filed an affidavit pursuant to § 17-
47 in which he explained why the defendant should
be granted a continuance to permit him to conduct
discovery to further support his opposition to the plain-
tiff’s motion for summary judgment.
A hearing was scheduled for August 29, 2022, on the
plaintiff’s motions for a protective order and summary
judgment and the defendant’s objections to those
motions. At that hearing, the court, Hon. Edward S.
Domnarski, judge trial referee, marked the motion for
a protective order off. The court, however, heard oral
argument on the motion for summary judgment and the
defendant’s objection thereto. On September 28, 2022,
the court issued a memorandum of decision granting
the plaintiff’s motion for summary judgment as to liabil-
ity only. On the basis of Hernandez’ affidavit and copies
of the note, mortgage, and assignments, the court con-
cluded that the plaintiff had ‘‘provided evidence suffi-
cient to establish that it is the current holder of the
note and that [Chase] was the holder of the note at the
commencement of this action. The defendant has failed
to present any evidence to contravene ownership, thus,
there is no genuine issue of material fact as to owner-
ship of the note.’’ The court thereafter rendered a judg-
ment of strict foreclosure. This appeal followed. Addi-
tional facts and procedural background will be set forth
as necessary.
I
The defendant first challenges the summary judgment
as to liability rendered in favor of the plaintiff. ‘‘The
standard of review of a trial court’s decision granting
[a motion for] summary judgment is well established.
Practice Book § 17-49 provides that summary judgment
shall be rendered forthwith if the pleadings, affidavits
and any other proof submitted show that there is no
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genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. In
deciding a motion for summary judgment, the trial court
must view the evidence in the light most favorable to
the nonmoving party. . . . The courts are in entire
agreement that the moving party . . . has the burden
of showing the absence of any genuine issue as to all
the material facts . . . . When documents submitted
in support of a motion for summary judgment fail to
establish that there is no genuine issue of material fact,
the nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue. . . .
Once the moving party has met its burden, however,
the [nonmoving] party must present evidence that dem-
onstrates the existence of some disputed factual issue.
. . . A material fact . . . [is] a fact which will make a
difference in the result of the case. . . . Our review
of the trial court’s decision to grant the [defendants’]
motion[s] for summary judgment is plenary.’’ (Citations
omitted; internal quotation marks omitted.) Dusto v.
Rogers Corp., 222 Conn. App. 71, 87, 304 A.3d 446 (2023),
cert. denied, 348 Conn. 939, 307 A.3d 274 (2024). Like-
wise, our review of a court’s determination that a party
has standing to assert a claim, which implicates the
court’s subject matter jurisdiction, presents a question
of law over which our review is plenary. Bayview Loan
Servicing, LLC v. Ishikawa, 220 Conn. App. 625, 632,
298 A.3d 1276 (2023).
The defendant claims that the court erred in granting
summary judgment as to liability in that it improperly
relied on an affidavit of a loan officer employed by the
plaintiff in determining that Chase was the holder of
the note at the time this action was commenced. He
further contends that the court failed to give him, as
the nonmoving party, the benefit of all favorable infer-
ences to be drawn from the evidence by neglecting to
draw an adverse inference from the plaintiff’s refusal
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to produce witnesses and documents requested by the
defendant. We address the defendant’s claims in turn.
A
The defendant first contends that the court erred in
relying on Hernandez’ affidavit as proof that Chase was
the holder of the note at the time this action was com-
menced. Specifically, the defendant argues that ‘‘[t]here
was no foundation for [Hernandez’ statement] that
[Chase] was in possession of and/or [was] the holder
of the note when the action was commenced’’ in that
the statement was not based on Hernandez’ personal
knowledge, as required by Practice Book § 17-46. The
defendant also argues that Hernandez’ statements con-
stitute inadmissible hearsay because the documents
Hernandez purportedly relied on in support of her affi-
davit were not attached to her affidavit. We disagree.5
In the affidavit accompanying the plaintiff’s motion
for summary judgment, Hernandez averred, inter alia:
‘‘Gregory Funding LLC maintains records for the Loan
in its capacity as Substitute Plaintiff’s loan servicer. As
part of my job responsibilities for Gregory Funding LLC,
I am familiar with the type of records maintained by
5
The defendant also argues that Hernandez’ affidavit was insufficient to
establish the plaintiff’s standing because it ‘‘makes no statement as to when
the note was endorsed, nor does the note itself contain a date for the
endorsement.’’ He contends that ‘‘there is nothing in the record here to
indicate when the note was endorsed in blank or that said endorsement
was made prior to the commencement of this action . . . .’’ In so arguing,
the defendant ignores the well established principle that ‘‘[t]he plaintiff’s
possession of a note endorsed in blank is prima facie evidence that it is a
holder and is entitled to enforce the note . . . . After the plaintiff has
presented this prima facie evidence, the burden is on the defendant to
impeach the validity of [the] evidence that [the plaintiff] possessed the note
at the time that it commenced the . . . action or to rebut the presumption
that [the plaintiff] owns the underlying debt.’’ (Internal quotation marks
omitted.) Ditech Financial, LLC v. Joseph, 192 Conn. App. 826, 832, 218
A.3d 690 (2019). Here, after the plaintiff submitted to the court a copy of
the note endorsed in blank, the burden shifted to the defendant to impeach
the plaintiff’s evidence. He failed to do so.
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Gregory Funding LLC in connection with the Loan. . . .
The information in this affidavit is taken from Gregory
Funding LLC’s business records. I have personal knowl-
edge of Gregory Funding LLC’s procedures for creating
these records. They are: (a) made at or near the time
of the occurrence of the matters recorded by persons
with personal knowledge of the information in the busi-
ness record, or from information transmitted by per-
sons with personal knowledge; (b) kept in the course
of Gregory Funding LLC’s regularly conducted business
activities; and (c) it is the regular practice of Gregory
Funding LLC to make such records. To the extent
records related to the Loan come from another entity,
those records were received by Gregory Funding LLC
in the ordinary course of its business, have been incor-
porated into and maintained as part of Gregory Funding
LLC’s business records, and have been relied on by the
Gregory Funding LLC. It is the regular and ordinary
practice of the Gregory Funding LLC to make and
receive such records. I make this Affidavit based upon
personal knowledge that I obtained through the review
of and in reliance upon business records concerning
the Loan. . . . I have personally reviewed Gregory
Funding LLC’s business records that relate to the Note
and Mortgage and to the servicing of the loan evidenced
by the Note, which Note and Mortgage are more particu-
larly described below. . . . In the capacity and by rea-
son of the foregoing, I have personal knowledge of the
facts stated in this affidavit. . . . On or before Decem-
ber 4, 2009, [Chase], directly or through an agent,
acquired and has continuously had possession of the
original promissory note. The promissory note contains
an allonge and is endorsed in blank. [Chase] was the
holder of the Note at the time of commencement of the
instant foreclosure action. Substitute Plaintiff is the
current holder of the Note and mortgagee of record.
Substitute Plaintiff has the right to foreclose the subject
note and mortgage.’’
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The defendant contends that the court erred in relying
on Hernandez’ affidavit because Hernandez lacked per-
sonal knowledge of the facts to which she averred and
her reliance on a review of business records rendered
the affidavit fatally infirm under Practice Book § 17-
466 and constituted inadmissible hearsay. Our Supreme
Court addressed this issue, albeit in the context of an
affidavit of debt, in Jenzack Partners, LLC v. Stoneridge
Associates, LLC, 334 Conn. 374, 222 A.3d 950 (2020)
(Jenzack). In Jenzack, the court explained that ‘‘[t]he
initial rationale for the [business records] exception
was that, although hearsay, business records [are] trust-
worthy because their creators had relied on the records
for business purposes. . . . Because of the trustwor-
thiness of business records, [General Statutes] § 52-180
should be liberally interpreted in favor of admissibility.
. . . Section 52-180 (b) provides that a record shall not
be rendered inadmissible by (1) a party’s failure to
produce as witnesses the person or persons who made
the writing or record, or who have personal knowledge
of the act, transaction, occurrence or event recorded
or (2) the party’s failure to show that such persons are
unavailable as witnesses. Either of such facts and all
other circumstances of the making of the writing or
record, including lack of personal knowledge by the
entrant or maker, may be shown to affect the weight
of the evidence, but not to affect its admissibility. As
such, we have held that the witness introducing the
document need not have made the entry himself or
herself . . . [or] have been employed by the organiza-
tion during the relevant time period. . . . In addition,
[t]here is no requirement in § 52-180 . . . that the docu-
ments must be prepared by the organization itself to
6
Practice Book § 17-46 provides: ‘‘Supporting and opposing affidavits shall
be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is compe-
tent to testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto.’’
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be admissible as that organization’s business records.
. . .
‘‘When a party introduces a document that it did
not create but that it received from a third party, the
business records exception will apply only if the infor-
mation contained in the document is based on the
entrant’s own observation or on information of others
whose business duty it was to transmit it to the entrant.
. . . Where the prior owner of the note had a legitimate
business duty to provide to the next holder the informa-
tion used to generate the payment history, the printout
of that information was the business record of the pres-
ent holder. . . . If part of the data was provided by
another business, as is often the case with loan records
in connection with the purchase and sale of debt, the
proponent does not have to lay a foundation concerning
the preparation of the data it acquired but must simply
show that these data became part of its own business
record as part of a transaction in which the provider had
a business duty to transmit accurate information. . . .
‘‘[R]egardless of whether supporting documentation
or testimony from the third party is offered—it is the
third party’s duty to report [the information] in a busi-
ness context which provides the reliability to justify
[the business records exception to the hearsay rule].
. . . This reliability is further strengthened, in our view,
when the entity receiving the information from a third
party, with a business duty to report it, subsequently
integrates that information into the entity’s own busi-
ness records and has a self-interest in [ensuring] the
accuracy of the outside information . . . . By relying
on information from a third party, an entity stakes not
only its livelihood on the accuracy of the information
received but also its reputation as being a trustworthy
entity with which to do business in the future. . . .
‘‘Furthermore, a business record is admissible if the
information therein is reliable, which, in the case of
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information provided by a third party, is established by
the third party’s business duty to report the information.
[T]here is no requirement that the accuracy of a busi-
ness record be proved as a prerequisite to its admis-
sion.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 390–92.
Here, as indicated previously, Hernandez averred that
she had personal knowledge of the records pertaining
to the note and mortgage in this case based on her
review of those records, which were received and main-
tained in the regular and ordinary practice of the plain-
tiff’s loan servicer.
We also are unpersuaded by the defendant’s argu-
ment that the court should not have relied on Hernan-
dez’ affidavit because she failed to attach to it the docu-
ments on which her averments were based. Our Supreme
Court rejected virtually the same argument in RMS Resi-
dential Properties, LLC v. Miller, 303 Conn. 224, 235–36,
32 A.3d 307 (2011), overruled on other grounds by J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn.
307, 325 n.18, 71 A.3d 492 (2013). In RMS Residential
Properties, LLC, the plaintiff, which was seeking a judg-
ment of foreclosure, moved for summary judgment,
and, in support of its motion, ‘‘filed the affidavit of
Thomas Gilmore, vice president with Specialized Loan
Servicing, LLC, attorney in fact of [the plaintiff], alleging
that, ‘prior to the commencement of this action, [the
plaintiff], through its attorney . . . became the holder
of the note.’ ’’ Id., 227. The trial court rendered summary
judgment in favor of the plaintiff and subsequently ren-
dered a judgement of foreclosure by sale. Id., 228. The
defendant appealed, contending that Gilmore ‘‘lacked
personal knowledge of necessary facts, and therefore
his reliance on a review of business records rendered
the affidavit fatally infirm under Practice Book § 17-46.’’
Id., 235. Our Supreme Court rejected that contention,
concluding that the trial court properly found that the
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affidavit was competent evidence in support of sum-
mary judgment. Id., 236. The court reasoned that,
‘‘[u]nder . . . § 52-180,7 to be competent to testify, the
affiant need only have personal knowledge of the rele-
vant business records.’’ (Footnote in original.) Id., 235–
36. In the present case, because Hernandez’ averments
in her affidavit were based on her personal knowledge
of the business records, they constituted competent
evidence of Chase’s status as holder of the note when
the action was commenced. We therefore conclude that
the court did not err in relying on it.
B
The defendant also claims that the court erred in
failing to give him, as the nonmoving party, the benefit
of all favorable inferences to be drawn from the evi-
dence by neglecting to draw an adverse inference from
the plaintiff’s refusal to produce witnesses and docu-
ments requested by the defendant.8 Specifically, he
7
‘‘General Statutes § 52-180 provides in relevant part: ‘(a) Any writing or
record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall
be admissible as evidence of the act, transaction, occurrence or event, if
the trial judge finds that it was made in the regular course of any business,
and that it was the regular course of the business to make the writing or
record at the time of the act, transaction, or occurrence or event or within
a reasonable time thereafter.
‘‘ ‘(b) The writing or record shall not be rendered inadmissible by (1) a
party’s failure to produce as witnesses the person or persons who made the
writing or record, or who have personal knowledge of the act, transaction,
occurrence or event recorded or (2) the party’s failure to show that such
persons are unavailable as witnesses. Either of such facts and all other
circumstances of the making of the writing or record, including lack of
personal knowledge by the entrant or maker, may be shown to affect the
weight of the evidence, but not to affect its admissibility. . . .’ ’’ RMS Resi-
dential Properties, LLC v. Miller, supra, 303 Conn. 235–36 n.9.
8
The defendant also argues that ‘‘a reasonable inference to be drawn on
summary judgment is that the tortured history of this case flows from the
failure of the original plaintiff to have proper documentation in place under
Connecticut law before initiating this action.’’ The defendant has cited no
legal authority, nor are we aware of any, to support this argument. Further-
more, the defendant’s suggested inference amounts to little more than specu-
lation in which we will not engage.
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argues that the plaintiff ‘‘has taken extraordinary mea-
sures to shield its own witness from answering ques-
tions’’ and asserts that he was entitled to an adverse
inference for the plaintiff’s failure to allow him to
depose Hernandez on the basis of the ‘‘missing witness
rule’’ adopted in Secondino v. New Haven Gas Co., 147
Conn. 672, 165 A.2d 598 (1960), overruled in part by
State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999),
cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d
1099 (2000).9 The defendant’s argument is both factually
and legally flawed.
Factually, the defendant has failed to set forth any
facts, other than the plaintiff’s filing of a motion for a
protective order, which is permitted by our rules of
practice, in support of his contention that the plaintiff
has engaged in extraordinary measures to prevent the
defendant from deposing Hernandez or any other corpo-
rate designees of the plaintiff.
Legally, the missing witness rule was significantly
limited in civil cases by the enactment of No. 98-50
of the 1998 Public Acts, which is codified at General
Statutes § 52-216c, and provides: ‘‘No court in the trial
of a civil action may instruct the jury that an inference
unfavorable to any party’s cause may be drawn from
the failure of any party to call a witness at such trial.
However, counsel for any party to the action shall be
entitled to argue to the trier of fact during closing argu-
ments . . . that the jury should draw an adverse infer-
ence from another party’s failure to call a witness who
has been proven to be available to testify.’’
The defendant failed, in his brief to this court, to
acknowledge the abrogation of Secondino. When asked
9
The ‘‘missing witness rule’’ provided that ‘‘[t]he failure of a party to
produce a witness who is within his power to produce and who would
naturally have been produced by him, permits the inference that the evidence
of the witness would be unfavorable to the party’s cause.’’ (Internal quotation
marks omitted.) Secondino v. New Haven Gas Co., supra, 147 Conn. 675.
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about it at oral argument before this court, the defen-
dant’s attorney contended that the logic of the missing
witness rule applied in the context of summary judg-
ment because this is not a case that would be tried to
a jury. Setting aside the fact that the defendant’s reliance
on Secondino is misplaced, we also note that the defen-
dant is unable to demonstrate that he would have been
entitled to the benefit of the adverse inference permit-
ted by § 52-216c. Accordingly, the defendant’s claim is
unavailing.
II
The defendant also claims that the court abused its
discretion when it implicitly granted the plaintiff’s motion
for a protective order, which, he alleges, ‘‘resulted in a
complete denial of discovery and a denial of [his] ability
to rebut the plaintiff’s claims.’’ We are not persuaded.
On August 29, 2022, the parties appeared before the
court to argue the plaintiff’s motions for summary judg-
ment and a protective order and the defendant’s objec-
tions to those motions. At that hearing, the court asked
the plaintiff’s attorney if it was necessary to rule on its
motion for a protective order in light of the fact that it
was hearing the motion for summary judgment at that
time. The plaintiff’s attorney responded that he believed
it was relevant, but indicated that the defendant might
request that the motion for summary judgment be
marked off based on the defendant’s request to conduct
discovery. The defendant’s attorney did not address
the protective order but confirmed that he would like
additional time to conduct discovery. The defendant’s
attorney acknowledged, however, that there was no
request pursuant to Practice Book § 17-47 pending
before the court at that time.10 The court thus marked
10
At the beginning of the hearing, the parties confirmed that the trial court
was scheduled to hear those motions. The court asked the plaintiff’s attorney
if it was necessary to act on the motion for a protective order, in light of
the court’s intention to hear the motion for summary judgment that day.
The plaintiff’s attorney indicated that the defendant’s attorney might ask
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the motion for a protective order off and heard argument
on the motion for summary judgment.
The defendant argues that ‘‘[t]he court’s failure to rule
upon the plaintiff’s motion for [a] protective order and
its failure to address the relief requested by the defen-
dant under Practice Book § 17-47 resulted in a complete
for the motion for summary judgment to be marked off so the defendant
could conduct discovery. The court responded that it understood that the
defendant’s attorney intended to proceed with the argument that day, stating,
‘‘I haven’t heard anything. There’s been nothing filed regarding further dis-
covery. There’s been nothing filed by way of extension or a continuance.
I’m ready to hear his motion for summary judgment.’’
The defendant’s attorney then stated that, with his objection to the motion
for summary judgment, ‘‘[t]here is a Practice Book § 17-47 affidavit filed
which indicates that we were seeking discovery in connection with the
summary judgment and that on the basis of that affidavit the court can deny
the summary judgment because of the plaintiff’s efforts to not allow their
affiant to be cross-examined or the court can continue it. So, those issues
are before the court based on our [§] 17-47 filing. I do think that the . . .
summary judgment fails without the discovery. But I . . . think that issue
is on the table.’’
The court determined that the motion for summary judgment would be
heard that day. The court further stated that the defendant’s attorney failed
to make a proper request for an extension of time to respond: ‘‘I didn’t see
anything—with all due respect, Attorney Willcutts, I didn’t see any formal
request for extension pursuant to the Practice Book section that says, hey,
we need to extend a—a time to respond in order to do discovery. So, you’ve
gone on and you filed an objection for motion for summary judgment. I
know you’ve raised that.
‘‘But, in terms of the rules of practice, I’m not—unless I’m mistaken, it’s
a long file, a lot of entries—I don’t think there was ever a motion for summary
judgment by the plaintiff, and then, the—then the defendant’s Practice Book
request for an extension of time to respond in order to conduct further dis-
covery.
‘‘If I’m wrong on that, please let me know. I know you’re raising that
issue now. But let’s face it, we’re parsing the Practice Book section pretty
finely here, and I have to do it in the context of what the Appellate Court
did at the status at that time.
‘‘But I think what I’m understanding—unless you—you—and I have misun-
derstood something—you—the motion for summary judgment was filed at
156. You filed an objection at 176, and you’re talking about wanting an
extension but it doesn’t appear that there’s been a compliance with the
Practice Book.’’
The defendant’s attorney then acknowledged that he did not have a pend-
ing request for an extension of the argument scheduled to be held on the
motion for summary judgment.
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denial of discovery and a denial of [his] ability to rebut
the plaintiff’s claims . . . .’’ The defendant’s claim is
belied by the fact that, as reflected in the transcript
quoted previously; see footnote 10 of this opinion; and
confirmed by our review of the trial court file, he neither
filed a request pursuant to § 17-47 with the court nor
requested that the court rule on the plaintiff’s motion
for a protective order.
Moreover, as noted in the procedural history of this
case as set forth herein, the trial court granted the
plaintiff’s motion for a protective order as to the defen-
dant’s request to depose a designee of the plaintiff after
the remand following Chase I and prior to Chase II.
The defendant could have challenged the propriety of
the protective order on appeal in Chase II but chose
not to do so. In challenging the propriety of a protective
order now, the defendant is ‘‘obliquely attempting to
revive an appeal that has succumbed by being aban-
doned.’’ (Internal quotation marks omitted.) JPMorgan
Chase Bank, National Assn. v. Essaghof, 221 Conn.
App. 475, 488, 302 A.3d 339, cert. denied, 348 Conn. 923,
304 A.3d 445 (2023).
Additionally, as the plaintiff aptly points out, further
discovery was beyond the rescript order in Chase II.
As stated previously in this opinion, this court’s rescript
order in Chase II was for ‘‘further proceedings consis-
tent with [its] opinion.’’ Chase Home Finance, LLC
v. Scroggin, supra, 194 Conn. App. 863. Although the
reversal of the trial court’s judgment in Chase II was
based on the denial of the defendant’s right to oral
argument on the plaintiff’s motion for summary judg-
ment, this court addressed the discovery issue because
it was likely to arise on remand, and determined that
the court did not abuse its discretion in ruling that the
defendant’s request for extension of time to conduct
discovery to respond to the plaintiff’s motion for sum-
mary judgment was untimely. Id., 847 n.2, 862. It would
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be illogical to suggest that this court’s remand order
encompassed discovery that the court determined was
untimely. The fact that this court addressed the discov-
ery issue that was not necessary for the disposition of
the appeal in Chase II, but was likely to arise on remand,
can only be read as a limitation of the proceedings on
remand—namely, that the defendant was not entitled
to a further extension of time to conduct discovery.11
The defendant’s claim therefore fails.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.

11
We also note that the defendant’s claim that he was in need of discovery
to respond to the plaintiff’s motion for summary judgment is somewhat
belied by the fact that he waited more than one year from the court’s remand
in Chase II before noticing the deposition of a designee of the plaintiff.
Given the history of this case, such a delay would have been sufficient
reason for the court, in the exercise of its discretion, to deny a request
made pursuant to Practice Book § 17-47.