May 17, 2018
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
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
Michael J. Habib, for the appellant (defendant).
Christopher J. Picard, for the appellee (plaintiff).
Keller, Elgo and Beach, Js.
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.
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.
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.
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.
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.
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 ...