Connecticut Housing Finance Authority v. Joseph J. Moniz et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

In September 2013 the plaintiff, Connecticut Housing Finance Authority, filed this motion for summary judgment as to liability against the defendants, Joseph J. Moniz and Stacey L. Parker.   One year and two weeks later, on September 22, 2014, this court heard argument on that motion.   The defendants oppose this motion for summary judgment but have not filed any affidavits or other evidentiary material.   They argue the motion is premature and improper because the plaintiff had never responded to the defendant's request for disclosure and production dated October 12, 2013.

A. Procedural Posture

This action has a return date in September of 2012.   On September 5, 2013 the plaintiff moved for summary judgment as to liability on the underlying note and mortgage.   Pursuant to Practice Book 17–45 the defendants requested and the court granted a continuance so as to allow the defendants to conduct discovery necessary to respond to the motion.   On October 4, 2013 the defendants served requests for production and disclosure on the plaintiff.   On November 1, 2013 the plaintiff filed objections to the defendants' requests for disclosure and production.   Between November 1 and December 23, 2013 neither party sought the assistance of the court to resolve this discovery dispute.

On December 23, 2013, the defendants filed their objection to the plaintiff's motion for summary judgment in which they argued that the motion was premature and not proper since the plaintiff had not properly responded to the defendants' request for disclosure and production that had been filed on October 4, 2013.

Nine months later, on September 22, 2014 the plaintiff's motion for summary judgment was argued to the court.

B.

The court first considers the defendants' argument that the motion for summary judgment is premature and improper because the parties' disputes about discovery have not been resolved.   Resolution of discovery disputes is governed by the Practice Book. Practice Book § 13–7(b) allows a party objecting to interrogatories to file an objection in accordance with 13–8 of the Practice Book. Practice Book § 13–8(b) provides that no objections to interrogatories shall be placed on the short calendar until an affidavit is filed by either counsel certifying that bona fide attempts to resolve the discovery dispute have been made.   A similar procedure is set up for resolving objections for requests for production in Practice Book § 13–10.

The Practice Book indicates that either counsel may initiate the steps necessary to bring a bona fide discovery dispute to the attention of the court for resolution.   Neither counsel has initiated these steps.   The question presented is who bear the burden of pursuing the resolution of these objections.   This court holds that while either counsel may initiate this process, the proponent of discovery, in this case the defendants, bear the burden of pursuing the discovery and obtaining a resolution from the court as to those disputes.   The defendants are the parties who assert that they need this information in order to respond to the motion for summary judgment.   The court granted a continuance so that the defendants could pursue additional discovery.   Ample time has elapsed since when the objections were filed for the defendants to obtain judicial resolution of the discovery dispute.   Absent the defendants taking the steps available to them to overcome the objections and obtain the information the court must assume the objections were sound.   The court does not find merit to the defendants' arguments that the motion for summary judgment is premature or improper because the manner in which the plaintiff has responded to the defendants' request for discovery.

C.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․” (Citations omitted;  internal quotation marks omitted.)  Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998).

D.

The court now turns to the substance of the plaintiff's motion for summary judgment.   On August 28, 1998, the defendants borrowed $118,000.00 from Old Kent Mortgage Company.   The debt was secured by a mortgage on property owned by the defendants located at 16 Ledgewood Drive, Ledyard, Connecticut.   On the same date that the note and mortgage were executed, they were assigned to the plaintiff, Connecticut Housing Finance Authority.   The plaintiff affies that the note and mortgage went into default on March 1, 2012, and that the demand for acceleration and payment had been made.   The court is satisfied from an examination of the affidavits supporting this motion that the plaintiff has made out a prima facie case entitling it to a judgment of foreclosure in this matter.   The court now turns to the special defense that was filed by the defendants.

The defendants, through their attorneys, filed a special defense in this action asserting that the foreclosure was barred by the doctrines of equitable estoppel and unclean hands.   The “factual” basis for these defenses is “an apparent ongoing relationship between a defendant's real estate agent in this matter who recommended Old Kent Bank for financing and also a home inspector all of whom failed to notify the defendants, Joseph J. Moniz and Stacey L. Parker, of serious structural defects in the premises in question, thereby inducing the defendants to sign the instant promissory note and mortgage.”   The defendants claim that the plaintiff, CHFA, as the successor to the Old Kent Bank be barred from prevailing in this foreclosure action.

Neither defendant has filed an affidavit in opposition to this motion for summary judgment.   There is no evidence to support any of the alleged facts contained in this special defense.   Furthermore, even if affidavits were filed relating to this special defense, the allegations of the defendants are related to the real estate broker who recommended the Old Kent Mortgage Company and who also recommended the home inspector.   These allegations do not relate to the making, validity or enforcement of the note and mortgage.   These allegations are not a legally sufficient defense against the current plaintiff in this case.

For the above reasons, the court grants the motion for summary judgment as to liability only.

Cosgrove, J.

Cosgrove, Emmet L., J.