135 Conn. App. 670
Conn. App. Ct.2012Background
- Briarwood defaulted on a $13.5 million note secured by a North Haven apartment complex mortgage in 2009.
- LaSalle Bank National Association, as initial trustee, assigned the note and mortgage to the plaintiff, Bank of America, N.A., as successor trustee.
- Pooling and servicing agreement created a trust fund whose primary assets included the subject loan; LaSalle later merged into Bank of America, which became trustee.
- Plaintiff filed foreclosure in September 2009; Briarwood answered May 2010 with a payment special defense and later asserted discovery needs.
- Plaintiff moved for summary judgment on liability in June 2010; Briarwood sought discovery on the payment defense and later sought a continuance.
- The court granted summary judgment for plaintiff on liability in October 2010 and later entered a judgment of strict foreclosure; Briarwood appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Briarwood was denied a continuance for discovery on the payment defense | Briarwood failed to timely request a § 17-47 continuance or affidavit; discovery request untimely. | Briarwood needed discovery to support its payment defense and cure the lack of information. | No reversible error; denial proper as no timely continuance affidavit. |
| Whether the court should consider plaintiff's receipt of TARP funds in the payment defense | Payment defense independent of TARP funds; no need to offset. | TARP funds receipt affects rights/defenses under payment defense. | Not reached on appeal; affirmance of summary judgment renders issue unnecessary. |
Key Cases Cited
- Peerless Ins. Co. v. Gonzalez, 241 Conn. 476 (1997) (burden to justify denial or postponement of discovery under § 17-47)
- Dorazio v. M. B. Foster Electric Co., 157 Conn. 226 (1968) (opposing party must show what facts are exclusive to moving party and steps to obtain them)
- Altfeter v. Naugatuck, 53 Conn.App. 791 (1999) (failure to timely file continuance under § 17-47 justified denial of discovery)
- Great Country Bank v. Pastore, 241 Conn. 423 (1997) (timeliness of discovery requests and continuance be examined; continuance denial affirmed)
- Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569 (2006) (summary judgment standard and plenary review)