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Seaside National Bank & Trust v. Lussier

Court of Appeals of Connecticut

October 16, 2018

SEASIDE NATIONAL BANK & TRUST
v.
GERALD LUSSIER

          Argued May 17, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the defendant, and for other relief, brought to the Superior Court in the judicial district of

         Middlesex, where the court, Aurigemma, J., granted the plaintiff's motion for summary judgment as to liability only; thereafter, the court granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the defendant appealed to this court. Affirmed.

          Michael J. Habib, for the appellant (defendant).

          Christopher J. Picard, for the appellee (plaintiff).

          Keller, Elgo and Beach, Js.

          OPINION

          BEACH, J.

         Thedefendant, Gerald Lussier, also known as Gerald J. Lussier, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, Seaside National Bank & Trust. On appeal, the defendant claims that the trial court (1) improperly granted the plaintiff's motion for summary judgment as to liability, (2) violated his constitutional right to procedural due process by denying him the opportunity to depose the plaintiff's affiant upon whose testimony the court relied in rendering judgment, and (3) abused its discretion in denying his request for a continuance pursuant to Practice Book § 17-47 and in granting the plaintiff's motion for a protective order. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our discussion. The defendant executed an adjustable rate note, dated July 16, 2009, in favor of Taylor, Bean & Whitaker Mortgage Corporation (Taylor Bean) in the principal amount of $318, 131. To secure the note, the defendant executed and delivered a mortgage to Mortgage Electronic Registration System, Inc. (MERS), as nominee for Taylor Bean, on property located at 9 Patterson Place in Old Saybrook, which mortgage was duly recorded. The note was endorsed twice, first by Taylor Bean to the plaintiff and second by the plaintiff in blank. MERS assigned the mortgage to the plaintiff; this assignment was recorded on April 2, 2015.

         Following a dispute over the amount of monthly mortgage payments and the defendant's decision to stop making payments, the plaintiff commenced the underlying foreclosure action on January 14, 2014. After unsuccessful mediation, the plaintiff filed a motion for summary judgment as to liability on July 17, 2015. The defendant filed a motion for a thirty day extension of time to respond to the motion. The court granted the defendant's motion and the motion for summary judgment was marked ready for a hearing for August 31, 2015. On that day, the defendant filed an objection to the plaintiff's motion for summary judgment, stating that he needed more time to conduct discovery. The defendant also filed a request for a continuance pursuant to Practice Book § 17-47, claiming that he needed to depose the affiant upon whose testimony the plaintiff was relying in support of its motion for summary judgment. On the same day, the defendant's counsel sent a notice of deposition to the plaintiff. The plaintiff subsequently filed a motion for a protective order to prohibit the deposition of the affiant, which the court granted on October 5, 2015.

         The court granted the defendant one week to respond to the plaintiff's motion for summary judgment. On September 21, 2015, the defendant responded by filing an affidavit in opposition to the plaintiff's motion for summary judgment. On September 25, 2015, the court granted the plaintiff's motion for summary judgment as to liability. The plaintiff subsequently moved for a judgment of strict foreclosure. On March 7, 2016, the day of the hearing for the motion for a judgment of strict foreclosure, the defendant filed an objection to that motion, claiming that he needed to depose the plaintiff's affiant before the court entered final judgment. After hearing argument, the court overruled the defendant's objection and rendered a judgment of strict foreclosure. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the court improperly granted the motion for summary judgment as to liability. Specifically, the defendant argues that there was a genuine issue of material fact as to whether the defendant had defaulted on his mortgage. We disagree.

         ‘‘Our review of the trial court's decision to grant [a] motion for summary judgment is plenary. . . . [I]n seeking summary judgment, it is the movant who has the burden of showing . . . the absence of any genuine issue as to all the material facts [that], under ...


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