Deutsche Bank National Trust Co. v. Bertrand

Citations: 140 Conn. App. 646; 59 A.3d 864; 2013 Conn. App. LEXIS 65Docket: AC 33650

Court: Connecticut Appellate Court; February 12, 2013; Connecticut; State Appellate Court

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David P. Bertrand appeals the trial court's judgment of strict foreclosure in favor of Deutsche Bank National Trust Company, claiming several procedural errors. The defendant argues that the court improperly granted a protective order, defaulted him for failure to plead, and refused to accept his answer and special defenses after defaulting him during the strict foreclosure judgment hearing. The court affirms the trial's judgment.

The case originated in January 2009 when the plaintiff sought to foreclose a mortgage for property at 12 Jeffrey Alan Drive, which the defendant executed in 2006 for a $180,000 note in default. The plaintiff initially sought a default for the defendant's failure to appear, which was granted. However, the defendant's subsequent appearance as a self-represented party set aside the default automatically. 

In May 2009, the plaintiff moved for default due to the defendant's failure to plead, leading the defendant to request additional time to obtain counsel. The initial ruling for default was vacated, but a second motion for default was filed by the plaintiff after the defendant filed a motion to dismiss the foreclosure based on the plaintiff's alleged lack of standing. The court denied the defendant’s motion to dismiss, determining that the plaintiff had sufficiently established standing by asserting it was the holder of the note, had been assigned the mortgage, and that the mortgage was in default. The court also denied the defendant's motion to compel discovery from the plaintiff, agreeing with the plaintiff's argument that it was waiting for a ruling on the motion to dismiss before responding to discovery requests.

The court determined that the plaintiff was not obligated to provide evidence supporting its factual assertions, contrary to the defendant's claims in the amended motion to dismiss. Subsequently, the defendant filed a motion on June 17, 2010, to compel the plaintiff's responses to interrogatories and production requests. The plaintiff objected, citing over 140 requests in a simple foreclosure case, arguing that they were burdensome and unnecessary for establishing a prima facie case. The plaintiff also sought a protective order against these requests. The defendant contended that the complexity of securitized mortgages warranted extensive discovery. In August 2010, the court sustained the plaintiff's objection to the motion to compel and granted the protective order without comment.

On November 19, 2010, the plaintiff filed a motion for default against the defendant for not advancing pleadings per Practice Book 10-8. The defendant then requested to revise the complaint, leading the court clerk to deny the motion for default. The plaintiff opposed the revision, asserting the complaint's sufficiency and claiming the defendant's challenge was improper. The court upheld the plaintiff's objection on January 18, 2011.

The plaintiff filed a fourth motion for default on February 22, 2011, which was denied after the defendant filed a motion to strike the complaint, arguing that striking the claims of being the holder of the note and mortgage would render the entire complaint insufficient. The plaintiff objected to this motion. On March 14, 2011, the court denied the motion to strike without commentary. The defendant's subsequent motions for clarification and extension to reargue were denied on April 21, 2011.

On June 15, 2011, the plaintiff sought a judgment of strict foreclosure and filed a fifth motion for default due to the defendant's failure to plead. The following day, the plaintiff submitted additional documentation to the court. During a June 27, 2011 hearing on the motion for strict foreclosure, the defendant's counsel argued that the motion for default had not been resolved, claiming they had two days left to avoid default by filing an answer, based on Practice Book 17-32.

Counsel for the plaintiff asserted that the defendant delayed proceedings for nearly two years through frivolous motions and unnecessary discovery, arguing that the defendant could have avoided the current motion for judgment of strict foreclosure by filing his answer before the hearing. The defendant’s counsel indicated he had the answer and special defenses ready to file but the court denied this, citing it was too late and characterizing the delay as outrageous. The court entered a default against the defendant and rendered a judgment of strict foreclosure in favor of the plaintiff, determining the property’s fair market value at $195,500 against a debt of $237,350.48, with law days commencing on August 1, 2011. 

The defendant appealed, claiming the trial court improperly granted a protective order that hindered his discovery efforts. The court's discretion in granting or denying discovery requests is well established and only reversed if proven to be an abuse of that discretion. The trial court granted the protective order without explanation, and without evidence of error, the appellate court presumed the correctness of the trial court’s judgment, placing the burden on the appellant to demonstrate harmful error. The defendant failed to provide sufficient record to review the protective order claim.

Additionally, the defendant contended that the court wrongfully defaulted him for not pleading at the hearing, arguing he had seven days to respond after the motion for default was filed, and only five days had lapsed by the hearing date. He claimed this default unjustly denied him the right to plead and have his case resolved on its merits.

The defendant presents two main claims: a challenge to the court's authority to issue a default judgment and an assertion that even if the court had such authority, it abused its discretion in doing so. The review of the court's authority is plenary, as established in State v. Perez, meaning it examines questions of law without deference to the lower court. Similarly, the interpretation of relevant statutory provisions and rules of practice is also subject to plenary review, with the aim of discerning the intent of the drafters.

If the court is found to have had the authority to act, the exercise of that authority is evaluated under an abuse of discretion standard. This involves presuming the correctness of the trial court's actions and assessing whether the court applied the law correctly and reached a reasonable conclusion.

General Statutes § 52-119 and Practice Book § 10-18 allow the court to impose a default on parties that fail to comply with court rules regarding pleadings. This authority is essential for maintaining orderly court procedures and ensuring fair justice. In foreclosure actions, Practice Book § 10-8 mandates that pleadings must advance regularly, and the time requirements are not suspended by the filing of discovery requests unless good cause is shown.

A defendant who fails to plead timely as required by Practice Book 10-8 may face a motion for default filed by the plaintiff, which the court clerk can act on without judicial input per Practice Book 17-32. However, this does not limit the court's authority to declare a default under 52-119 and Practice Book 10-18. If a court finds the defendant has not met their pleading obligations, it has the authority to declare them in default, particularly if the defendant's delay is deemed egregious. The trial court has inherent authority to impose sanctions for dilatory conduct, even absent a specific rule violation.

In this case, the court's decision to enter a default was not an abuse of discretion. The court acknowledged a preference for trials on the merits but emphasized that procedural rules are designed to facilitate justice and should be interpreted liberally. The defendant failed to comply with pleading requirements, having not filed an answer or special defenses by the deadline despite being aware of these obligations and not seeking an extension. The defendant’s habitual violations of the rules culminated in an overdue answer by the time of the default hearing. The plaintiff's motion for default did not extend the defendant's time to plead but merely paused the clerk's authority to act on the motion for seven days.

The defendant had over two years to respond to the foreclosure complaint but appeared in court without filing an answer. Despite having prepared a pleading, the court denied his counsel's request to file it after rejecting a motion for judgment. The court deemed the defendant's behavior outrageous and indicative of dilatory tactics, ultimately deciding to default him without providing a specific factual or legal basis on record. The court acted within its discretion to ensure fair administration of justice, dismissing the defendant's claims that it improperly refused to accept his answer and special defenses. The court's authority includes the discretion to accept or reject documents filed directly during a hearing, rather than through standard procedures. The defendant's interpretation of Practice Book 17-32 (b), which pertains to the clerk's duty to set aside a default if a late answer is filed before a judgment, was found inapplicable as it does not address the court's discretion. Additionally, Practice Book 17-33 allows for simultaneous rendering of a default and judgment in foreclosure cases. The court also rejected the defendant’s argument regarding a violation of General Statutes 52-121 (a), which permits late pleadings until a motion for judgment is heard, emphasizing that the court’s discretion in such matters is acknowledged and that failing to accept late pleadings prior to judgment could constitute plain error.

In Hartford Federal Savings, Loan Assn. v. Tucker, the plaintiff objected to the defendant’s late answer and failure to electronically file it. Although the court did not provide a detailed rationale for rejecting the pleading, it indicated that the timing was an issue and emphasized the need for electronic filing. The appellate court found insufficient grounds to conclude that the trial court abused its discretion in refusing to accept the answer based solely on timeliness. The judgment was affirmed, and the case was remanded to set a new law day. Mortgage Electronic Registration Systems, Inc., named as a defendant, was defaulted by the trial court and is not part of this appeal. The defendant, David P. Bertrand, attempted to challenge various motions but did not adequately brief any claims of error, leading to their abandonment. The court acknowledged a default but did not clarify its timing, and the defendant did not seek clarification. Additionally, Bertrand filed motions to reargue the court’s decisions on default and strict foreclosure, both denied without comment, and he did not amend his appeal to include these rulings. He also claimed violations of due process rights, but the appellate court agreed with the plaintiff that these claims were not properly raised in the trial court.

The defendant asserted a due process violation in motions to reargue and reconsider but failed to analyze this claim, and the court did not address it when denying those motions. The defendant did not amend his appeal to challenge the court’s decision or request review under State v. Golding or the plain error doctrine, leading to the rejection of his due process claims. The procedural framework for pleadings is outlined in Practice Book 10-6, detailing the sequence from the plaintiff's complaint to the plaintiff's reply to special defenses. Additionally, Practice Book 17-32(a) allows a plaintiff to file a motion for default if a defendant fails to plead, which the clerk must act on within seven days. Although the defendant did not contest the court's authority to render judgment on the default, Practice Book 17-33(b) grants the court such authority, especially in foreclosure cases. The plaintiff had submitted a motion for judgment of strict foreclosure, along with necessary documentation. The defendant did not attempt to open the judgment to file his answer electronically post-hearing.