Deutsche Bank Nat'l Trust Co. v. Bertrand

• Decision Date: 12 February 2013
• Docket Number: No. 33650.,33650.
• Citation: 140 Conn.App. 646,59 A.3d 864
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. David P. BERTRAND et al.
• Court: Connecticut Court of Appeals

140 Conn.App. 646

59 A.3d 864

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee

v.David P. BERTRAND et al.

No. 33650.

Appellate Court of Connecticut.

Argued Sept. 19, 2012.

Decided Feb. 12, 2013.

J. Hanson Guest, with whom, on the brief, was Jeremy E. Baver, for the appellant (named defendant).

David M. Bizar, for the appellee (plaintiff).

ROBINSON, BEAR and ESPINOSA, Js.

ROBINSON, J.

The defendant David P. Bertrand ¹ appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Deutsche Bank National Trust Company, as trustee for FFMLT 2006–FF13. The defendant claims that the trial court improperly (1) granted the plaintiff's motion for a protective order, (2) defaulted the defendant for failure to plead and (3) refused to accept the defendant's answer and special defenses when he offered to file it with the court after he was defaulted at the hearing on the motion for judgment of strict foreclosure.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's claims on appeal. The plaintiff filed this action in January, 2009, seeking to foreclose a residential mortgage on property located at 12 Jeffrey Alan Drive in Manchester. According to the complaint, the defendant executed the mortgage in 2006 as security for a $180,000 note, which was in default. On March 6, 2009, the plaintiff filed a motion to default the defendant for failure to appear, which the clerk of the court granted on March 9, 2009. See Practice Book § 17–20(d). That same day, the defendant filed an appearance as a self-represented party, which automatically set aside the default as a matter of law. See Practice Book § 17–20(d).

On May 20, 2009, the plaintiff filed a motion for default for failure to plead and a motion for judgment of strict foreclosure. On May 26, 2009, the defendant filed an objection to the motion for default along with a request that he be granted an additional thirty days in which to obtain counsel. Although the clerk of the court initially granted the motion for default for failure to plead on May 27, 2009, that ruling was vacated the next day, presumably on the basis of the defendant's May 26, 2009 pleadings.

On July 2, 2009, the plaintiff filed a second motion for default for failure to plead. The clerk of the court denied that motion because, on July 6, 2009, the defendant filed a motion to dismiss the foreclosure complaint, in which he alleged that the plaintiff lacked standing to maintain the action because it had not been assigned the mortgage until after the commencement of the action and had not produced the original promissory note. The plaintiff filed an objection to the motion to dismiss on July 22, 2009, arguing that the motion was frivolous and that it was filed solely to further delay the foreclosure proceedings. The next day, Attorney J. Hanson Guest filed an appearance on behalf of the defendant.³ On August 7, 2009, the defendant, now through counsel, filed a motion seeking an extension of time to respond to the plaintiff's objection. More than two months later, on October 8, 2009, the defendant filed an amended motion to dismiss claiming that the plaintiff had failed to allege sufficient facts in the complaint to establish standing to foreclose on the defendant's mortgage. The plaintiff filed a memorandum in opposition to the amended motion to dismiss.

Shortly after filing the motion to dismiss, the defendant served the plaintiff with interrogatories, a request for production and a request for admission. On December 11, 2009, the defendant filed a motion to compel the plaintiff to comply with his discovery requests. The plaintiff objected, arguing that it intended to respond, but that, to reduce costs, it was waiting for an adjudication of the motion to dismiss that the defendant had filed prior to his discovery requests. The court, Aurigemma, J., sustained the objection and denied the motion to compel on March 8,2010. On March 19, 2010, the plaintiff filed an objection and responses to the request for admissions.

The court, Scholl, J., denied the defendant's motion to dismiss on April 1, 2010. It held that the factual assertions in the complaint, namely, that the plaintiff was the holder of the note, that it had been assigned the mortgage and that the mortgage was in default, were sufficient to support standing. The court also held that, contrary to the defendant's assertion in the amended motion to dismiss, the plaintiff was not required to allege the evidence by which it would prove those factual assertions. See Practice Book § 10–1.

On June 17, 2010, the defendant filed a new motion to compel the plaintiff to respond to interrogatories and to comply with his request for production. The plaintiff filed an objection indicating that the defendant had made “over 140 separate requests for a one count foreclosure matter in which the [d]efendant has not filed any defenses” and that the only explanation was “annoyance, embarrassment, oppression, or undue burden or expense.” The plaintiff also noted that it was simultaneously filing a motion for a protective order, in which it argued that the defendant's requests for interrogatories and production were unduly burdensome and sought information well in excess of what was necessary by law to set forth a prima facie case of foreclosure. The defendant objected to the motion for a protective order arguing that “securitized mortgages are very complicated and require significant discovery to determine the relevant facts and issues.” In August, 2010, the court, Aurigemma, J., without comment, sustained the plaintiff's objection to the motion to compel and granted its motion for a protective order.

On November 19, 2010, the plaintiff filed a third motion to default the defendant for failure to advance the pleadings in accordance with Practice Book § 10–8. Five days later, the defendant filed a request to revise the complaint. As a result of the filing of the request to revise, the court clerk denied the motion for default. The plaintiff filed an objection to the request to revise, arguing that the complaint adequately set forth the necessary allegations for a foreclosure complaint and that the defendant improperly was attempting to substantively challenge those allegations. The court sustained the plaintiff's objection to the request to revise on January 18, 2011.

The plaintiff filed its fourth motion for default for failure to plead on February 22, 2011, which was denied because, three days later, the defendant filed a motion to strike the complaint. The motion sought to have the court strike from the complaint the plaintiff's assertions that it was the holder of the note and mortgage and that the note was in default. The defendant argued that if those provisions were stricken, the court should strike the entire complaint as legally insufficient to state a cause of action. The plaintiff filed an objection to the motion to strike. On March 14, 2011, the court, Robaina, J., denied the motion to strike without comment. The defendant filed a motion for clarification of that ruling and a motion seeking an extension of time in which to file a motion to reargue the decision, both of which Judge Robaina denied on April 21, 2011.

On June 15, 2011, the plaintiff reclaimed its motion for judgment of strict foreclosure and, on June 22, 2011, filed its fifth motion for default for failure to plead because, as of that date, the defendant had not filed any substantive answer to the allegations in the foreclosure complaint. The following day, the plaintiff filed with the court a foreclosure worksheet, an updated affidavit of debt and an affidavit of compliance with the emergency mortgage assistance program.

The motion for judgment of strict foreclosure was taken up at a June 27, 2011 short calendar hearing before Judge Aurigemma. Counsel for the defendant began the hearing by arguing that the plaintiff should not be allowed to move forward with its adjudication of the motion for judgment of strict foreclosure because there had not yet been any action taken on the plaintiff's motion for default for failure to plead, and, therefore, on the basis of counsel's reading of Practice Book § 17–32, he still had two days to avoid the entry of a default by filing an answer. Counsel for the plaintiff argued that the defendant already had delayed proceedings in this matter for nearly two years by filing frivolous motions and by engaging in unnecessary discovery and that the defendant could have avoided the current proceeding on the motion for judgment of strict foreclosure simply by having filed his answer prior to the hearing. Counsel for the defendant then revealed to the court that he had brought copies of the defendant's answer and special defenses to the hearing and would like to file them with the court at that time. The court stated that it was too late to do so, that the defendant was required to electronically file his answer and that “this is an outrageous example of just unfounded delay, sir.” The court told the parties that “[d]efault is entering” ⁴and, over the objection of the defendant, proceeded to render a judgment of strict foreclosure in favor of the plaintiff. The court found that the fair market value of the property was $195,500 and the debt owed was $237,350.48. It set law days to commence on August 1, 2011. This appeal followed.⁵

I

We first briefly address the defendant's claim that the trial court improperly granted the plaintiff's motion for a protective order, thereby allegedly preventing the defendant from obtaining necessary discovery. It is well settled that “[t]he granting or denial of a discovery request rests in the sound discretion of the court.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). That discretion includes the use of protective orders to limit the extent of discovery. See Peatie v. Wal–Mart...