Opinion
No. CV 07-5103037
November 12, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S OBJECTION TO DEFENDANT, JONATHAN BELL'S INTERROGATORIES AND REQUESTS FOR PRODUCTION
On October 15, 2005, the plaintiff objected, to all of the interrogatories and requests for production submitted by defendant, Jonathan Bell. Before ruling on these objections, the court must make some general comments.
Defendant's motion to dismiss attacks plaintiff's standing to bring this action. That standing depends on whether or not plaintiff was holder of the defendant's mortgage note on or before it instituted this action on September 6, 2007. The defendant's mortgage note was last endorsed to J.P. Morgan Chase Bank, N.A., as Trustee. It has not been endorsed to the plaintiff bank. The plaintiff claims ownership of the note as a result of the transfer of all of the corporate trust business of J.P. Morgan Chase to the plaintiff pursuant to a certain Purchase and Assumption agreement and an Assignment and Assumption agreement. The Purchase and Assumption Agreement, admitted as Exhibit 2, is not executed. The Assignment and Assumption Agreement, admitted as Exhibit 3 and Exhibit C, is dated as of October 1, 2006, but there is no indication when it was signed.
Plaintiff also relies on a Resignation and Assumption agreement between J.P. Morgan Chase and plaintiff, Bank of New York in which J.P. Morgan Chase Bank resigned as trustee under various agreements listed in Schedule A and plaintiff Bank of New York succeeded to all the right, title and interest of the resigning trustee (Exhibit A). That document is "dated as of October 1, 2006" but it was signed by an officer of J.P. Morgan Chase and notarized on December 20, 2007, and signed by an officer of Bank of New York on January 9, 2008, with a notary stamp but no notarial certificate.
Defendants contest the bonafides of the transfer of defendant's mortgage note pursuant to the above documents. It challenges whether, in fact, J.P. Morgan Chase did transfer its corporate trust business, including defendant's mortgage note, to the plaintiff and when it did so, and also when J.P. Morgan Chase resigned as trustee and was succeeded by the plaintiff bank.
These defenses implicate the entire transaction between J.P. Morgan Chase and the Bank of New York. They are not limited to its specific bundle of assets, known as B.S. Alt-A Series 2005-2009, because that bundle of assets is not mentioned in the Purchase and Assignment agreements, and it is only one of the bundle of assets involved in the entire transaction.
Plaintiff also asserts that it has standing because it is a successor trustee and a successor trustee can sue on a mortgage note, pursuant to Conn. Gen. Stat. § 42a-3-110. But defendant's defense attacks whether, in fact plaintiff, was a successor trustee before this action was started on September 6, 2007.
Plaintiff, itself, called the court's attention to the case of Bank of New York, N.A. v. Gagnon, CV 08-5003461-S, Judicial District of Windham (May 19, 2009), in which the Bank of New York Trust Company, N.A. claims to be successor trustee to J.P. Morgan Chase by virtue of the Purchase Agreement dated in October 2006.
Because of this perception of the case, defendants can inquire into the documents purporting to make the transfer of assets from J.P. Morgan Chase to plaintiff Bank of New York, and into the actions J.P. Morgan Chase and plaintiff have taken as to those assets after the purported transfer and purported resignation of J.P. Morgan Chase, as trustee.
This enormously enlarges the scope of the defendant's discovery and puts an enormous burden on the plaintiff to provide information and documents requested by the defendant. However that is a consequence of the complexity of the underlying transaction.
The court has suggested to the parties a way to avoid inquiry into the massive transaction between J.P. Morgan Chase and Bank of New York, but plaintiff has declined to follow that suggestion. As a result, it must fulfill its burden of discovery.
Some of plaintiff's objections are based on specious grounds. For example, plaintiff asserts that defendant, Jonathan Bell cannot make the inquiries and requests he has made because he is not a party to the underlying mortgage note. Plaintiff claims, "Only a party to a contract may challenge its enforcement." Jonathan Bell has an interest in the subject property as a result of his establishing a resulting trust. He can assert defenses to the documents purporting to give the plaintiff standing to bring this foreclosure action.
Another of plaintiff's specious basis for objecting to interrogatories is that Jonathan Bell has no equity in the subject property. Lack of equity of an owner or a subsequent encumbrancer does not accord standing to the foreclosing plaintiff. Moreover, that issue of equity in the property can only be determined at the time a judgment of foreclosure is entered.
Plaintiff also argues that the name of the trustee holding the defendant's mortgage note doesn't matter, but, rather, what matters is who gets the proceeds of the foreclosure. Plaintiff is wrong. The name of the trustee matters enormously because the trustee must hold the note on which it bases its standing. Beneficiaries of the trusts have only an equitable interest in the assets of the trust and cannot bring an action in their names.
However, many of defendant's interrogatories and requests for discovery are vague, overly broad, duplicative, and not reasonably related to any potential defense to this action.
The court has carefully read and considered each of the eighty-one interrogatories and ninety-one requests for production. After much reflection, it rules as follows:
As to Interrogatory Number 1 Sustained
As to Interrogatory Number 2 Sustained
As to Interrogatory Number 3 Overruled
As to Interrogatory Number 4 Overruled
As to Interrogatory Number 5 Overruled
As to Interrogatory Number 6 Overruled
As to Interrogatory Number 7 Sustained
As to Interrogatory Number 8 Sustained
As to Interrogatory Number 9 Sustained
CT Page 18477
As to Interrogatory Number 10 Overruled
As to Interrogatory Number 11 Overruled
As to Interrogatory Number 12 Overruled
As to Interrogatory Number 13 Sustained
As to Interrogatory Number 14 Sustained
As to Interrogatory Number 15 Sustained
As to Interrogatory Number 16 Sustained
As to Interrogatory Number 17 Sustained
As to Interrogatory Number 18 Overruled
As to Interrogatory Number 19 Overruled
As to Interrogatory Number 20 Overruled
As to Interrogatory Number 21 Overruled
As to Interrogatory Number 22 Overruled
As to Interrogatory Number 23 Overruled
As to Interrogatory Number 24 Overruled
As to Interrogatory Number 25 Overruled
As to Interrogatory Number 26 Overruled
As to Interrogatory Number 27 Sustained
As to Interrogatory Number 28 Sustained
As to Interrogatory Number 29 Sustained
As to Interrogatory Number 30 Sustained
As to Interrogatory Number 31 Overruled
As to Interrogatory Number 32 Overruled
As to Interrogatory Number 33 Overruled
As to Interrogatory Number 34 Overruled
As to Interrogatory Number 35 Sustained
As to Interrogatory Number 36 Sustained
As to Interrogatory Number 37 Sustained
As to Interrogatory Number 38 Overruled
As to Interrogatory Number 39 Sustained
As to Interrogatory Number 40 Overruled
As to Interrogatory Number 41 Overruled
As to Interrogatory Number 42 Sustained
As to Interrogatory Number 43 Sustained
As to Interrogatory Number 44 Sustained
As to Interrogatory Number 45 Sustained
As to Interrogatory Number 46 Overruled
As to Interrogatory Number 47 Sustained
As to Interrogatory Number 48 Overruled
As to Interrogatory Number 49 Sustained
As to Interrogatory Number 50 Sustained
As to Interrogatory Number 51 Sustained
As to Interrogatory Number 52 Sustained
As to Interrogatory Number 53 Overruled
As to Interrogatory Number 54 Sustained
CT Page 18479
As to Interrogatory Number 55 Sustained
As to Interrogatory Number 56 Sustained
As to Interrogatory Number 57 Sustained
As to Interrogatory Number 58 Overruled
As to Interrogatory Number 59 Overruled
As to Interrogatory Number 60 Sustained
As to Interrogatory Number 61 Overruled
As to Interrogatory Number 62 Overruled
As to Interrogatory Number 63 Sustained
As to Interrogatory Number 64 Sustained
As to Interrogatory Number 65 Overruled
As to Interrogatory Number 66 Sustained
As to Interrogatory Number 67 Sustained
As to Interrogatory Number 68 Overruled
As to Interrogatory Number 69 Overruled
As to Interrogatory Number 70 Overruled
As to Interrogatory Number 71 Overruled
As to Interrogatory Number 72 Overruled
As to Interrogatory Number 73 Sustained
As to Interrogatory Number 74 Sustained
As to Interrogatory Number 75 Sustained
As to Interrogatory Number 76 Sustained
As to Interrogatory Number 77 Sustained
As to Interrogatory Number 78 Overruled
As to Interrogatory Number 79 Overruled
As to Interrogatory Number 80 Sustained
As to Interrogatory Number 81 Sustained
As to Request for Production Number 1 Sustained
As to Request for Production Number 2 Sustained
As to Request for Production Number 3 Overruled
As to Request for Production Number 4 Overruled
As to Request for Production Number 5 Overruled
As to Request for Production Number 6 Overruled
As to Request for Production Number 7 Sustained
As to Request for Production Number 8 Sustained
As to Request for Production Number 9 Sustained
As to Request for Production Number 10 Overruled
As to Request for Production Number 11 Overruled
As to Request for Production Number 12 Overruled
As to Request for Production Number 13 Sustained
As to Request for Production Number 14 Sustained
As to Request for Production Number 15 Sustained
As to Request for Production Number 16 Sustained
As to Request for Production Number 17 Sustained
As to Request for Production Number 18 Overruled
CT Page 18481
As to Request for Production Number 19 Overruled
As to Request for Production Number 20 Overruled
As to Request for Production Number 21 Overruled
As to Request for Production Number 22 Overruled
As to Request for Production Number 23 Overruled
As to Request for Production Number 24 Overruled
As to Request for Production Number 25 Overruled
As to Request for Production Number 26 Overruled
As to Request for Production Number 27 Sustained
As to Request for Production Number 28 Sustained
As to Request for Production Number 29 Sustained
As to Request for Production Number 30 Sustained
As to Request for Production Number 31 Overruled
As to Request for Production Number 32 Overruled
As to Request for Production Number 33 Overruled
As to Request for Production Number 34 Overruled
As to Request for Production Number 35 Sustained
As to Request for Production Number 36 Sustained
As to Request for Production Number 37 Sustained
As to Request for Production Number 38 Overruled
As to Request for Production Number 39 Sustained
As to Request for Production Number 40 Overruled
As to Request for Production Number 41 Overruled
As to Request for Production Number 42 Sustained
As to Request for Production Number 43 Sustained
As to Request for Production Number 44 Sustained
As to Request for Production Number 45 Sustained
As to Request for Production Number 46 Overruled
As to Request for Production Number 47 Sustained
As to Request for Production Number 48 Overruled
As to Request for Production Number 49 Sustained
As to Request for Production Number 50 Sustained
As to Request for Production Number 51 Sustained
As to Request for Production Number 52 Sustained
As to Request for Production Number 53 Overruled
As to Request for Production Number 54 Sustained
As to Request for Production Number 55 Sustained
As to Request for Production Number 56 Sustained
As to Request for Production Number 57 Sustained
As to Request for Production Number 58 Overruled
As to Request for Production Number 59 Overruled
As to Request for Production Number 60 Sustained
As to Request for Production Number 61 Overruled
As to Request for Production Number 62 Overruled
As to Request for Production Number 63 Sustained
CT Page 18483
As to Request for Production Number 64 Sustained
As to Request for Production Number 65 Overruled
As to Request for Production Number 66 Sustained
As to Request for Production Number 67 Sustained
As to Request for Production Number 68 Overruled
As to Request for Production Number 69 Overruled
As to Request for Production Number 70 Overruled
As to Request for Production Number 71 Overruled
As to Request for Production Number 72 Overruled
As to Request for Production Number 73 Sustained
As to Request for Production Number 74 Sustained
As to Request for Production Number 75 Sustained
As to Request for Production Number 76 Sustained
As to Request for Production Number 77 Sustained
As to Request for Production Number 78 Overruled
As to Request for Production Number 79 Overruled
As to Request for Production Number 80 Sustained
As to Request for Production Number 81 Sustained
As to Request for Production Number 82 Overruled
As to Request for Production Number 83 Sustained
As to Request for Production Number 84 Sustained
As to Request for Production Number 85 Sustained
As to Request for Production Number 86 Sustained
As to Request for Production Number 87 Sustained
As to Request for Production Number 88 Sustained
As to Request for Production Number 89 Sustained
As to Request for Production Number 90 Sustained
As to Request for Production Number 91 Sustained