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1
DOCKET NO: HHD-CV16-6065355-S ) SUPERIOR COURT
)
2 )
DITECH FINANCIAL LLC FKA GREEN ) J.D. OF HARTFORD
3 TREE SERVICING LLC ) AT HARTFORD
)
4 v. )
) July 31, 2023
)
5 GANSSLE, GLEN R., ET AL )
6 DEFENDANT’S MOTION FOR ORDER OF COMPLIANCE
Pursuant to Practice Book § 13-14, the defendant (Glen R. Ganssle, herein,
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7
8 “Defendant”) respectfully move for an Order of Compliance with Judge Matthew
9 Budzik’s 6/21/2021 Order,1 as stated on the record at the remote hearing, regarding
10 outstanding discovery requests. Pursuant to §13-15, Defendant requests for an order
J.E. BAVER LAW GROUP, LLC
11 for further compliance regarding other responses that require supplement. In support
ATTORNEYS AT LAW
12 of this motion, the undersigned respectfully represents the following.
13 PROCEDURAL POSTURING: THE INTERROGATORY & DOCUMENT REQUEST2
14 1. On 2/23/2021, the Plaintiff filed a Motion for Summary Judgment.3 Upon review
15 of the Affidavit in Support, the Defendant found information and statements of
16 ownership made by the affiant relating to the servicer and the alleged owner that
17 appeared to conflict with correspondence that Defendant received that identified
18 the servicer.
19
20
21 1 Entry No. 157.87.
2 The Defendant submitted three affidavits detailing the dispute, see Entry No. 155.00,
22 3/11/2021 - attached as “Exhibit A” “CPB §17-47 - Affidavit of Unavailability of
Appropriate Documents”, Entry No. 161.00, 5/28/2021 – “Affidavit of Attempt to
23 Resolve Discovery Objection”, and Entry No. 170.00, 7/31/2023 – “CPB §17-47 -
Affidavit of Unavailability of Appropriate Documents.”
3 Entry No. 153.00.
24
25 1
1 2. On 3/5/2021, Defendant served the Substitute Plaintiff with Interrogatory
2 Questions and Requests for Production4 (the “Discovery Requests”).
3 3. On 3/11/2021, Defendant filed a CPB §17-47 Motion for Extension of Time to
4 respond to summary judgment based on the outstanding discovery.5
5 4. On 3/29/2021, Judge Taylor granted the extension and requested to extend the
6 response to the Motion for Summary Judgment until thirty (30) days after the
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7 plaintiff complies with the outstanding discovery requests.6
8 5. Plaintiff partially complied and objected to the Discovery Request on 3/25/2021.7
9 6. Undersigned counsel and counsel for Plaintiff held a discovery conference, but
10 were unable to resolve any of the disputes. Undersigned counsel filed his
J.E. BAVER LAW GROUP, LLC
11 affidavit of discovery conference on 5/28/2021.8
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12 7. On 6/21/2021, a discovery dispute hearing was held regarding the Plaintiff’s
13 objections.
14 8. Judge Budzik determined that some of the Plaintiff’s objections and responses
15 were inadequate. Judge Budzik ordered Plaintiff to provide further responses
16 regarding requests seeking information about ownership and possession of the
17 note at the time of commencement.
18 9. While not explicit in the order, the Court’s direction was in regard to the following
19 two interrogatories, and related requests for production:
20
21
22 4 Entry No. 154.00.
5 Entry No. 155.00.
6 Entry No. 155.86.
23
7 Entry No. 168.00.
8 Entry No. 161.00.
24
25 2
1 Interrogatory #3: Identify and Describe each owner of the Defendants’ Note
and Mortgage from origination to present day.
2
Interrogatory #5: Identify and describe the current entity in physical possession
3 of the Note and the chain of custody that transferred possession to all previous
entities that possessed the Note.
4
5 10. Counsel for Plaintiff and Defendant agreed that the Plaintiff was to inquire and
6 respond with information about ownership and possession (holder status) at the
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7 time of commencement of the suit.
8 11. On 7/14/2021, the Plaintiff’s counsel sent Defendant an email indicating that it
9 would not supplement its responses. However, it alleged statements of fact that
10 appeared to be quoted from prior counsel, not the Plaintiff.9
J.E. BAVER LAW GROUP, LLC
11 12. Without conferring with Defendant, on 7/14/2021, Plaintiff simultaneously filed a
ATTORNEYS AT LAW
12 Notice of Compliance and reclaimed its Motion for Summary Judgment.10
13 13. On 7/16/2021, Defendant responded to Plaintiff via email, disputing the alleged
14 compliance, and indicating that pursuant to Judge Taylor’s prior order, the
15 Defendant’s objection to summary judgment was not due until 30 days after
16 Plaintiff responded to the discovery. 11
17 14. On 7/22/2021, Plaintiff emailed Defendant indicating that it was inquiring with
18 the prior servicer about information about possession and chain of title of the
19 note to resolve the question, and it was marking the motion for summary
20 judgment “off”.12
21
22
9 See Exhibit A.
23 10 Entry No. 165.00.
11 See Exhibit B.
12 See Exhibit C.
24
25 3
1 15. Plaintiff indicated that it would hold off reclaiming the motion for summary
2 judgment until it had a response regarding the chain of title.13
3 16. The Plaintiff did not supplement its response or reclaim its motion for summary
4 judgment.
5 17. On 4/14/2022, the Plaintiff moved to substitute party.14
6 18. The Defendant objected on 4/27/2022 based on the incomplete discovery
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7 disputes and other grounds.15
8 19. The Court granted the substitution, however, it stated: “Without prejudice to any
9 defenses defendant may have with respect to plaintiff proving ownership of
10 mortgage”.16
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11 20. New counsel appeared for the Plaintiff, and on 5/15/2023, Plaintiff filed a second
ATTORNEYS AT LAW
12 motion for summary judgment.17
13 21. The first motion for summary judgment was not adjudicated.
14 22. Defendant discussed the outstanding discovery and current procedural
15 posturing with Plaintiff’s current counsel, but, was not able to resolve the
16 dispute.
17 23. The prior discovery dispute was not resolved.
18 24. Also, Plaintiff has also failed in its continuing duty to supplement responses to
19 existing requests.
20
21
22 13 See Exhibit D.
14 Entry No. 166.00.
15 Entry No. No. 167.00.
23
16 Entry No. No. 166.86.
17 Entry No. 168.00.
24
25 4
1
2
LAW & ARGUMENT
3
The Plaintiff failed to adequately respond to the interrogatory questions and
4
requests for production and is in violation of CPB § 13-1418 and CPB §13-15.19
5
6
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7 18 Order for Compliance; Failure to Answer or Comply with Order
8 (a) If any party has failed to answer interrogatories or to answer them fairly, or
has intentionally answered them falsely or in a manner calculated to mislead, or
9 has failed to respond to requests for production [...] or has failed to comply with
a discovery order made pursuant to Section 13-13, or has failed to comply with
10 the provisions of Section 13-15 […], or has failed otherwise substantially to
J.E. BAVER LAW GROUP, LLC
comply with any other discovery order made pursuant to Sections 13-6 through
11 13-11, the judicial authority may, on motion, make such order proportional to
ATTORNEYS AT LAW
the noncompliance as the ends of justice require.
12
(b) Such orders may include the following:
13 (1) An order of compliance;
(2) The award to the discovering party of the costs of the motion, including a
14 reasonable attorney's fee;
(3) The entry of an order that the matters regarding which the discovery was
15 sought or other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party obtaining
16 the order;
(4) The entry of an order prohibiting the party who has failed to comply from
17 introducing designated matters in evidence;
(5) An order of dismissal, nonsuit or default.
18
19 Continuing Duty to Disclose
19
If, subsequent to compliance with any request or order for discovery, including
20 partial compliance subject to an objection or made notwithstanding an objection,
and prior to or during trial, a party discovers additional or new material or
21 information previously requested and ordered subject to discovery or inspection
or discovers that the prior compliance was totally or partially incorrect or, though
22 correct when made, is no longer true and the circumstances are such that a failure
to amend the compliance is in substance a knowing concealment, that party shall
23 promptly notify the other party, or the other party's attorney, and file and serve in
accordance with Sections 10-12 through 10-17 a supplemental or corrected
24 compliance.
25 5
1 When a party fails to respond to discovery, the Court has several remedies at its
2 disposal. The Appellate Court stated:
3 Practice Book § 13-14 provides sanctions for failure to answer
interrogatories, which the court may order upon motion as the ends of
4 justice require. These orders may vary in severity from entry of a nonsuit
or default or judgment of dismissal to an award of costs of] the motion,
5 including a reasonable attorneys fee. Decisions on the entry of such
sanctions rest within the sound discretion of the trial court . . . On viewing
6 a claim that this discretion has been abused, great weight is due to the
action of the trial court and every reasonable presumption should be
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7 given in favor of its correctness . . . [T]he ultimate issue is whether the
court could reasonably conclude as it did." (Citation omitted; internal
8 quotation marks omitted).20
9 Previous counsel for the Plaintiff clearly indicated that it was conducting further inquiry
10 into the outstanding discovery disputes. Why, upon the appearance of new counsel,
J.E. BAVER LAW GROUP, LLC
11 Plaintiff’s position has changed is uncertain.
ATTORNEYS AT LAW
12
Plaintiff’s attempt to litigate a new, second motion for summary judgment, while
13
an extension order contingent on completing discovery on the prior summary judgment
14
motion is still in effect, appears intended to circumvent a fair discovery process.
15
16 Discussion
17
The Plaintiff’s existing responses are evasive and incomplete, fail to adequately
18
respond to the Defendant’s requests, and are in violation of the 6/21/2021 Order.
19
The Plaintiff admitted that it was not the owner of the Defendant’s note.21 The
20
Defendant is seeking information and documentation that demonstrates the owner of
21
22
23
20 Tuccio v. Garamella, 114 Conn.App. 205, 208 (2009).
24 21 See Exhibit E.
25 6
1 the note at commencement. The Plaintiff’s response that “as the holder of the note, the
2 Plaintiff has the ability to foreclose” is simply non-responsive. "A plaintiff cannot use
3 one hand to seek affirmative relief in court and with the other lower an iron curtain of
4 silence against otherwise pertinent and proper questions which may have a bearing
5 upon his right to maintain his action." Pavlinko v. Yale-New Haven Hospital, 192 Conn.
6 138, 146-47 (1984).
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7
The ownership issue is a key component of the Defendant’s defense and has
8
direct import into his response to the motion for summary judgment. As the Appellate
9
Court stated in U.S. Bank v. Schaeffer:
10
J.E. BAVER LAW GROUP, LLC
11 If the foreclosing party shows that it is a valid holder of the note and
can produce the note, it is presumed that the foreclosing party is the
ATTORNEYS AT LAW
12 rightful owner of the debt. That presumption may be rebutted by the
defending party, but the burden is on the defending party to provide
13 sufficient proof that the holder of the note is not the owner of the debt,
for example, by showing that ownership of the debt had passed to
14 another party […] In order to rebut the presumption, the defendant
must prove that someone else is the owner of the note and debt.
15 Absent that proof, the plaintiff may rest its standing to foreclose on its
status as the holder of the note.22
16
Defendant believes that the discovery will provide information that is material to
17
his defense and will further his objection to the summary judgment:
18
1) Evidence from a custodian of records indicating receipt, possession, or
19
processing of the Defendants’ note leading up to the time of commencement.
20
2) Identification of chain of custody of the Defendants’ note.
21
22
23
22U.S. Bank, Nat. Ass'n v. Schaeffer, No. 36910, 2015 WL 5554144, at *6 (Conn. App.
24 Ct. Sept. 29, 2015).
25 7
1 3) Delivery receipts/confirmations from mail or courier service or servicer’s
2 business records of computer systems entries evidencing physical transfers
3 of the Defendants’ note.
4 4) Information on servicing rights regarding the Defendants’ loan at the time of
5 commencement.
6 5) Information on authority to enforce the Defendants’ loan at the time of
HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703
7 commencement.
8 As stated, the Defendant established, through the Plaintiff’s own response it is
9 not the owner of the Defendant’s note. Therefore, in order for the Defendant to carry its
10 burden to rebut the Plaintiff’s presumed ownership as “holder” of the note, the
J.E. BAVER LAW GROUP, LLC
11 Defendant wants the documentary evidence to demonstrate the true owner of the
ATTORNEYS AT LAW
12 Defendant’s note.
13
Also, the Plaintiff should provide information to demonstrate its claimed status
14
as the “holder” to understand the relationship between the true owner, and the Plaintiff
15
(presumed owner). Without this information, the response is non-compliant. Given the
16
correspondence and conduct of the Plaintiff, its 7/14/2021 Notice of Compliance is
17
deficient and should be struck.
18
19 Finally, despite the fact that the alleged servicing rights and alleged ownership
20 of the note/mortgage have changed, the Plaintiff did not update its discovery responses
21
22
23
24
25 8
1 to interrogatories requesting information on the servicer, owner, and possession of the
2 note.23
3
REQUEST FOR RELIEF
4
WHEREFORE, Defendant respectfully moves the Court for an Order:
5
1. Compelling Plaintiff to (a) produce the requested documents; and/or,
Preview
1 DOCKET NO: HHD-CV16-6065355-S ) SUPERIOR COURT ) 2 ) DITECH FINANCIAL LLC FKA GREEN ) J.D. OF HARTFORD 3 TREE SERVICING LLC ) AT HARTFORD ) 4 v. ) ) July 31, 2023 ) 5 GANSSLE, GLEN R., ET AL ) 6 DEFENDANT’S MOTION FOR ORDER OF COMPLIANCE Pursuant to Practice Book § 13-14, the defendant (Glen R. Ganssle, herein, HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 8 “Defendant”) respectfully move for an Order of Compliance with Judge Matthew 9 Budzik’s 6/21/2021 Order,1 as stated on the record at the remote hearing, regarding 10 outstanding discovery requests. Pursuant to §13-15, Defendant requests for an order J.E. BAVER LAW GROUP, LLC 11 for further compliance regarding other responses that require supplement. In support ATTORNEYS AT LAW 12 of this motion, the undersigned respectfully represents the following. 13 PROCEDURAL POSTURING: THE INTERROGATORY & DOCUMENT REQUEST2 14 1. On 2/23/2021, the Plaintiff filed a Motion for Summary Judgment.3 Upon review 15 of the Affidavit in Support, the Defendant found information and statements of 16 ownership made by the affiant relating to the servicer and the alleged owner that 17 appeared to conflict with correspondence that Defendant received that identified 18 the servicer. 19 20 21 1 Entry No. 157.87. 2 The Defendant submitted three affidavits detailing the dispute, see Entry No. 155.00, 22 3/11/2021 - attached as “Exhibit A” “CPB §17-47 - Affidavit of Unavailability of Appropriate Documents”, Entry No. 161.00, 5/28/2021 – “Affidavit of Attempt to 23 Resolve Discovery Objection”, and Entry No. 170.00, 7/31/2023 – “CPB §17-47 - Affidavit of Unavailability of Appropriate Documents.” 3 Entry No. 153.00. 24 25 1 1 2. On 3/5/2021, Defendant served the Substitute Plaintiff with Interrogatory 2 Questions and Requests for Production4 (the “Discovery Requests”). 3 3. On 3/11/2021, Defendant filed a CPB §17-47 Motion for Extension of Time to 4 respond to summary judgment based on the outstanding discovery.5 5 4. On 3/29/2021, Judge Taylor granted the extension and requested to extend the 6 response to the Motion for Summary Judgment until thirty (30) days after the HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 plaintiff complies with the outstanding discovery requests.6 8 5. Plaintiff partially complied and objected to the Discovery Request on 3/25/2021.7 9 6. Undersigned counsel and counsel for Plaintiff held a discovery conference, but 10 were unable to resolve any of the disputes. Undersigned counsel filed his J.E. BAVER LAW GROUP, LLC 11 affidavit of discovery conference on 5/28/2021.8 ATTORNEYS AT LAW 12 7. On 6/21/2021, a discovery dispute hearing was held regarding the Plaintiff’s 13 objections. 14 8. Judge Budzik determined that some of the Plaintiff’s objections and responses 15 were inadequate. Judge Budzik ordered Plaintiff to provide further responses 16 regarding requests seeking information about ownership and possession of the 17 note at the time of commencement. 18 9. While not explicit in the order, the Court’s direction was in regard to the following 19 two interrogatories, and related requests for production: 20 21 22 4 Entry No. 154.00. 5 Entry No. 155.00. 6 Entry No. 155.86. 23 7 Entry No. 168.00. 8 Entry No. 161.00. 24 25 2 1 Interrogatory #3: Identify and Describe each owner of the Defendants’ Note and Mortgage from origination to present day. 2 Interrogatory #5: Identify and describe the current entity in physical possession 3 of the Note and the chain of custody that transferred possession to all previous entities that possessed the Note. 4 5 10. Counsel for Plaintiff and Defendant agreed that the Plaintiff was to inquire and 6 respond with information about ownership and possession (holder status) at the HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 time of commencement of the suit. 8 11. On 7/14/2021, the Plaintiff’s counsel sent Defendant an email indicating that it 9 would not supplement its responses. However, it alleged statements of fact that 10 appeared to be quoted from prior counsel, not the Plaintiff.9 J.E. BAVER LAW GROUP, LLC 11 12. Without conferring with Defendant, on 7/14/2021, Plaintiff simultaneously filed a ATTORNEYS AT LAW 12 Notice of Compliance and reclaimed its Motion for Summary Judgment.10 13 13. On 7/16/2021, Defendant responded to Plaintiff via email, disputing the alleged 14 compliance, and indicating that pursuant to Judge Taylor’s prior order, the 15 Defendant’s objection to summary judgment was not due until 30 days after 16 Plaintiff responded to the discovery. 11 17 14. On 7/22/2021, Plaintiff emailed Defendant indicating that it was inquiring with 18 the prior servicer about information about possession and chain of title of the 19 note to resolve the question, and it was marking the motion for summary 20 judgment “off”.12 21 22 9 See Exhibit A. 23 10 Entry No. 165.00. 11 See Exhibit B. 12 See Exhibit C. 24 25 3 1 15. Plaintiff indicated that it would hold off reclaiming the motion for summary 2 judgment until it had a response regarding the chain of title.13 3 16. The Plaintiff did not supplement its response or reclaim its motion for summary 4 judgment. 5 17. On 4/14/2022, the Plaintiff moved to substitute party.14 6 18. The Defendant objected on 4/27/2022 based on the incomplete discovery HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 disputes and other grounds.15 8 19. The Court granted the substitution, however, it stated: “Without prejudice to any 9 defenses defendant may have with respect to plaintiff proving ownership of 10 mortgage”.16 J.E. BAVER LAW GROUP, LLC 11 20. New counsel appeared for the Plaintiff, and on 5/15/2023, Plaintiff filed a second ATTORNEYS AT LAW 12 motion for summary judgment.17 13 21. The first motion for summary judgment was not adjudicated. 14 22. Defendant discussed the outstanding discovery and current procedural 15 posturing with Plaintiff’s current counsel, but, was not able to resolve the 16 dispute. 17 23. The prior discovery dispute was not resolved. 18 24. Also, Plaintiff has also failed in its continuing duty to supplement responses to 19 existing requests. 20 21 22 13 See Exhibit D. 14 Entry No. 166.00. 15 Entry No. No. 167.00. 23 16 Entry No. No. 166.86. 17 Entry No. 168.00. 24 25 4 1 2 LAW & ARGUMENT 3 The Plaintiff failed to adequately respond to the interrogatory questions and 4 requests for production and is in violation of CPB § 13-1418 and CPB §13-15.19 5 6 HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 18 Order for Compliance; Failure to Answer or Comply with Order 8 (a) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or 9 has failed to respond to requests for production [...] or has failed to comply with a discovery order made pursuant to Section 13-13, or has failed to comply with 10 the provisions of Section 13-15 […], or has failed otherwise substantially to J.E. BAVER LAW GROUP, LLC comply with any other discovery order made pursuant to Sections 13-6 through 11 13-11, the judicial authority may, on motion, make such order proportional to ATTORNEYS AT LAW the noncompliance as the ends of justice require. 12 (b) Such orders may include the following: 13 (1) An order of compliance; (2) The award to the discovering party of the costs of the motion, including a 14 reasonable attorney's fee; (3) The entry of an order that the matters regarding which the discovery was 15 sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining 16 the order; (4) The entry of an order prohibiting the party who has failed to comply from 17 introducing designated matters in evidence; (5) An order of dismissal, nonsuit or default. 18 19 Continuing Duty to Disclose 19 If, subsequent to compliance with any request or order for discovery, including 20 partial compliance subject to an objection or made notwithstanding an objection, and prior to or during trial, a party discovers additional or new material or 21 information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though 22 correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, that party shall 23 promptly notify the other party, or the other party's attorney, and file and serve in accordance with Sections 10-12 through 10-17 a supplemental or corrected 24 compliance. 25 5 1 When a party fails to respond to discovery, the Court has several remedies at its 2 disposal. The Appellate Court stated: 3 Practice Book § 13-14 provides sanctions for failure to answer interrogatories, which the court may order upon motion as the ends of 4 justice require. These orders may vary in severity from entry of a nonsuit or default or judgment of dismissal to an award of costs of] the motion, 5 including a reasonable attorneys fee. Decisions on the entry of such sanctions rest within the sound discretion of the trial court . . . On viewing 6 a claim that this discretion has been abused, great weight is due to the action of the trial court and every reasonable presumption should be HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 given in favor of its correctness . . . [T]he ultimate issue is whether the court could reasonably conclude as it did." (Citation omitted; internal 8 quotation marks omitted).20 9 Previous counsel for the Plaintiff clearly indicated that it was conducting further inquiry 10 into the outstanding discovery disputes. Why, upon the appearance of new counsel, J.E. BAVER LAW GROUP, LLC 11 Plaintiff’s position has changed is uncertain. ATTORNEYS AT LAW 12 Plaintiff’s attempt to litigate a new, second motion for summary judgment, while 13 an extension order contingent on completing discovery on the prior summary judgment 14 motion is still in effect, appears intended to circumvent a fair discovery process. 15 16 Discussion 17 The Plaintiff’s existing responses are evasive and incomplete, fail to adequately 18 respond to the Defendant’s requests, and are in violation of the 6/21/2021 Order. 19 The Plaintiff admitted that it was not the owner of the Defendant’s note.21 The 20 Defendant is seeking information and documentation that demonstrates the owner of 21 22 23 20 Tuccio v. Garamella, 114 Conn.App. 205, 208 (2009). 24 21 See Exhibit E. 25 6 1 the note at commencement. The Plaintiff’s response that “as the holder of the note, the 2 Plaintiff has the ability to foreclose” is simply non-responsive. "A plaintiff cannot use 3 one hand to seek affirmative relief in court and with the other lower an iron curtain of 4 silence against otherwise pertinent and proper questions which may have a bearing 5 upon his right to maintain his action." Pavlinko v. Yale-New Haven Hospital, 192 Conn. 6 138, 146-47 (1984). HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 The ownership issue is a key component of the Defendant’s defense and has 8 direct import into his response to the motion for summary judgment. As the Appellate 9 Court stated in U.S. Bank v. Schaeffer: 10 J.E. BAVER LAW GROUP, LLC 11 If the foreclosing party shows that it is a valid holder of the note and can produce the note, it is presumed that the foreclosing party is the ATTORNEYS AT LAW 12 rightful owner of the debt. That presumption may be rebutted by the defending party, but the burden is on the defending party to provide 13 sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt had passed to 14 another party […] In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. 15 Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note.22 16 Defendant believes that the discovery will provide information that is material to 17 his defense and will further his objection to the summary judgment: 18 1) Evidence from a custodian of records indicating receipt, possession, or 19 processing of the Defendants’ note leading up to the time of commencement. 20 2) Identification of chain of custody of the Defendants’ note. 21 22 23 22U.S. Bank, Nat. Ass'n v. Schaeffer, No. 36910, 2015 WL 5554144, at *6 (Conn. App. 24 Ct. Sept. 29, 2015). 25 7 1 3) Delivery receipts/confirmations from mail or courier service or servicer’s 2 business records of computer systems entries evidencing physical transfers 3 of the Defendants’ note. 4 4) Information on servicing rights regarding the Defendants’ loan at the time of 5 commencement. 6 5) Information on authority to enforce the Defendants’ loan at the time of HARTFORD, CONNECTICUT 06105 · (860) 656-7719· FAX (860) 656-6929· JURIS NO. 433703 7 commencement. 8 As stated, the Defendant established, through the Plaintiff’s own response it is 9 not the owner of the Defendant’s note. Therefore, in order for the Defendant to carry its 10 burden to rebut the Plaintiff’s presumed ownership as “holder” of the note, the J.E. BAVER LAW GROUP, LLC 11 Defendant wants the documentary evidence to demonstrate the true owner of the ATTORNEYS AT LAW 12 Defendant’s note. 13 Also, the Plaintiff should provide information to demonstrate its claimed status 14 as the “holder” to understand the relationship between the true owner, and the Plaintiff 15 (presumed owner). Without this information, the response is non-compliant. Given the 16 correspondence and conduct of the Plaintiff, its 7/14/2021 Notice of Compliance is 17 deficient and should be struck. 18 19 Finally, despite the fact that the alleged servicing rights and alleged ownership 20 of the note/mortgage have changed, the Plaintiff did not update its discovery responses 21 22 23 24 25 8 1 to interrogatories requesting information on the servicer, owner, and possession of the 2 note.23 3 REQUEST FOR RELIEF 4 WHEREFORE, Defendant respectfully moves the Court for an Order: 5 1. Compelling Plaintiff to (a) produce the requested documents; and/or,