Chase Home Fin. v. Scroggin

313 A.3d 1260

224 Conn.App. 549

CHASE HOME FINANCE, LLC

v.Daniel J. SCROGGIN

(AC 45996)

Appellate Court of Connecticut.

Argued January 3, 2024

Officially Released April 9, 2024

Thomas P. Willcutts, Hartford, for the appellant (named defendant).

Christopher J. Picard, Hartford, with whom, on the brief, was Joseph R. Dunaj, for the appellee (substitute plaintiff).

Bright, C. J., and Cradle and Suarez, Js.

CRADLE, J.

₅₅₂The defendant, Daniel J. Scroggin, who is also known as Daniel F. Scroggin or Daniel Scroggin, appeals from the judgment of strict foreclosure rendered by the trial court, for the third time, in favor of the substitute plaintiff, AJX Mortgage Trust I, a Delaware ₅₅₃Trust, Wilmington Savings Fund Society, FSB, Trustee.¹ 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 original 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 inference 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.

₅₅₄The following factual and procedural history is relevant to our resolution of the defendant’s claims on appeal. In 2009, Chase commenced the present foreclosure action against the defendant. In its original complaint, Chase alleged that, in 2007, the defendant executed 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 challenging the plaintiff’s "right and standing to foreclose upon the subject mortgage …" Shortly thereafter, Chase 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, Auri gemma, J., granted the plaintiff’s motion for judgment of strict foreclosure.

The defendant appealed from the judgment of strict foreclosure to this court. This court reversed the judgment, 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 ₅₅₅the 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 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 Alternatively, Objection to Summary Judgment."³ The court, Aurigmma, J., denied that motion as untimely. Also on May 24, 2018, the defendant noticed the deposition ₅₅₆of a designee of the plaintiff, seeking numerous documents, including "[a]ll documents in the deponent’s possession, custody or control that the [plaintiff’s] affiant relied upon in executing the [plaintiff’s] affidavit in support of summary judgment." The plaintiff filed a motion for a protective order on the grounds that the defendant’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 defendant’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 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., at 846, 222 A.3d 1025. In Chase II, this court concluded that "the defendant had a right to oral argument, which was not waived, with respect to the plaintiff’s motion for summary judgment, and, therefore, the trial court improperly adjudicated the motion without permitting oral argument." Id., at 859, 222 A.3d 1025. As to the defendant’s second claim, which the court addressed because it was likely to arise on remand; see id., at 847 n.2, 222 A.3d 1025; the court held that, "[b]ecause the defendant did not timely comply with the requirements of § 17-47 [which imports ₅₅₇the forty-five day filing deadline set forth in Practice Book § 17-45] … the trial court did not abuse its discretion by denying the defendant’s motion for an extension of time to respond to the plaintiff’s motion for summary judgment and to conduct discovery related thereto." Id., at 862, 222 A.3d 1025; see also id., at 863, 222 A.3d 1025. This court’s rescript stated as follows; "The judgment is reversed and the case is remanded for further proceedings consistent with this opinion." Id., at 863, 222 A.3d 1025. 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 summary 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 12, 2021, the plaintiff moved for a protective order barring the defendant from deposing the plaintiff’s corporate 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 further discovery. On April 21, 2021, the defendant filed ₅₅₈an objection to the plaintiff’s motion, arguing that the plaintiff’s motion sought "a complete bar to all discovery" in its efforts to "conceal access to such basic evidentiary 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 discovery 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 omitted.)

On May 13, 2021, the defendant filed a memorandum of law in opposition to the plaintiff’s motion for summary judgment, arguing, in relevant part, that the plaintiff 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 opposition to the motion for summary judgment, the defendant’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 plaintiff’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 ₅...