Deutsche Bank National Trust Company, Trustee v. Shivers
The fact that the defendant had not filed his answer and special defenses to the foreclosure complaint did not strengthen his argument that summary judgment as to liability was improperly granted under the circumstances, where more than two years had elapsed since the filing of the complaint and Practice Book §17-44 expressly provides that a motion for summary judgment may be filed "at any time…" Deutsche Bank National Trust Company, as trustee for First Franklin Mortgage Loan Trust 2006-FF9, mortgage pass-through certificates, series 2006-FF9, commenced this residential mortgage foreclosure action in Dec. 2007 against Thomas Shivers, Jr. The trial court granted the plaintiff's motion for summary judgment as to liability and rendered a judgment of strict foreclosure in June, 2010. The defendant appealed claiming that the trial court improperly granted the summary judgment motion. The Appellate Court affirmed the judgment. The defendant argued that the plaintiff failed to demonstrate that no material issues of fact existed and maintained that the plaintiff had a heightened burden because the defendant had not yet filed his answer and special defenses. However, the plaintiff submitted an affidavit and documentation demonstrating that it was the holder of the note and mortgage and that the defendant had defaulted under the terms of the note. The defendant filed no counter-affidavit or documentary evidence to contradict the plaintiff's evidence or to support any potential defense. The fact that he had not yet filed his answer and special defenses did not, under the circumstances, strengthen his argument. Practice Book §17-44 expressly provides that a motion for summary judgment may be filed "at any time…" Moreover, by the time the motion was scheduled for argument, more than two years had passed from the commencement of the action. The trial court's well reasoned decision was adopted as a statement of the facts and applicable law on the issues.