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`DOCKET NO: KNL-CV-20-6045519-
`S
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`WELLS FARGO BANK, NATIONAL
`ASSOCIATION AS TRUSTEE FOR
`SOUNDVIEW HOME LOAN TRUST
`2007-OPT5, ASSET-BACKED
`CERTIFICATES, SERIES 2007-OPT5
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`VS
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`SHERI SPEER, ET AL, ET AL
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`SUPERIOR COURT
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`J.D. OF NEW LONDON
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`AT NEW LONDON
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`JANUARY 31, 2023
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`PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND OBJECTION TO NOTICE
`OF DEPOSITION
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`Without waiving any objections, the Plaintiff, Wells Fargo Bank, National Association as
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`Trustee for Soundview Home Loan Trust 2007-OPT5, Asset-Backed Certificates, Series 2007-
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`OPT5 (the “Plaintiff”), respectfully submits this Motion for a Protective Order and Objection to
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`Notice of Deposition, as to a Notice of Deposition (the “Notice”) served by the Defendant, Sheri
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`Speer (the “Defendant”), dated January 21, 2023. A copy of the Notice, which is directed
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`specifically as to Wells Fargo Bank, N.A. and not the Plaintiff, is attached hereto as Exhibit A.
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`See also Doc. Entry # 156.00. The Plaintiff moves as follows.
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`I.
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`OBJECTION TO THE NOTICE OF DEPOSITION
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`First and foremost, it is the Plaintiff’s position that the Notice is not directed at the
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`Plaintiff, the Plaintiff is not bound to the Notice, and thus the Plaintiff objects to the Notice in
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`and of itself. Practice Book §§ 13-26 & 13-27(a) allow a party deponent, or an officer, director
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`or managing agent of a party deponent, to be noticed simply by sending notice to the party or the
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`attorney. However, if a deposition is directed at a non-party, the party seeking the deposition has
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`to comply with Practice Book § 13-28(b) and notice must be served via a subpoena.
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`The Notice of Deposition is directed at Wells Fargo Bank, N.A. However, Wells Fargo
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`Bank, N.A. is not a named party in this case. Wells Fargo Bank, National Association as
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`Trustee for Soundview Home Loan Trust 2007-OPT5, Asset-Backed Certificates, Series
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`2007-OPT5 is the Plaintiff in this case, not Wells Fargo Bank, N.A. Wells Fargo Bank,
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`National Association as Trustee for Soundview Home Loan Trust 2007-OPT5, Asset-
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`Backed Certificates, Series 2007-OPT5 is not named in the Notice of Deposition. “A fiduciary
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`acting in a representative capacity is a different person for judicial purposes from the same
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`person acting in an individual capacity” (internal citations and quotations omitted) Bank of New
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`York v. Bell, 142 Conn. App. 125, 133-134, 63 A.3d 1026, cert. denied 310 Conn. 901, 75 A.3d
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`30 (2013). In Bell, the Appellate Court held that a trial court’s discovery order was improper
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`when addressed generally to the Bank of New York, a non-party, while the named plaintiff was
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`actually the Bank of New York acting in its trustee capacity for the BS ALT A 2005-9 trust.
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`Here, the Notice of Deposition is not directed to the Plaintiff, it does not comply with the
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`Practice Book, and therefore the Plaintiff is not bound by it.
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`In addition, the Defendant should be well aware of the errors with the Notice. The Notice
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`is identical to the prior Notice of Deposition served by the Defendant last year, with the
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`exception of updated dates. See Doc. Entry # 123.00. The Plaintiff advised the Court and the
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`Defendant of its position regarding the deficiencies in the prior Notice in a couple of court
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`filings. See Doc. Entry # 129.00 & 144.00. The Defendant tacitly admitted that the prior Notice
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`was not directed at the Plaintiff and was thus erroneous when she applied for a subpoena, and the
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`Court implicitly held that the Notice was erroneous and not directed at the Plaintiff when the
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`Application was denied. See Doc. Entry ## 137.00, 137.02, & 144.01. Given the very same
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`errors contained in the current Notice, the Court should sustain the Plaintiff’s Objection as to the
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`Notice.
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`II. MOTION FOR PROTECTIVE ORDER
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`Without waiving the argument in Section I, should the Court deem the Notice to be
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`directed at the Plaintiff, a point the Plaintiff does not concede, the Plaintiff moves for a
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`protective order under Conn. Gen. Stat. § 13-5. The protective order is necessary because (1) the
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`Notice is premature; (2) the Defendant’s Notice is procedurally improper; (3) the Defendant’s
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`Notice amounts to a mere fishing expedition; and (4) the Defendant’s Notice fails to comply with
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`Practice Book § 13-27 (a) and (h), which requires parties to “designate with reasonable
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`particularity the matters on which examination is requested”.
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`A. Motions for Protective Order, Generally.
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`Practice Book § 13-5 provides for the issuance of protective orders, as follows:
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`Upon motion by a party from whom discovery is sought, and for good cause shown,
`the judicial authority may make any order which justice requires to protect a party
`from annoyance, embarrassment, oppression, or undue burden or expense, including
`one or more of the following: (1) that the discovery not be had; ... (4) that certain
`matters not be inquired into, or that the scope of the discovery be limited to certain
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`matters. . . .
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`“The extent of discovery and use of protective orders is clearly within the discretion of the trial
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`judge.” State of Connecticut Dept, of Transp. v. Steinman, Boynton, Gronguist & Birdsall,
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`Superior Court, No. CV-970571964, 22 Conn. L. Rptr. 233 at *2 (May 27, 1998) (citation
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`omitted). “The party seeking to bar a deposition must make a threshold showing that there is
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`good cause that the protective order issue.” Estate of Cook v. Hall, Superior Court, judicial
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`district of New Haven, No. NNHCV106010851, 51 Conn. L. Rptr. 443 (Feb. 9, 2011). “Good
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`cause has been defined as a sound basis or legitimate need to take judicial action.” Vance v.
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`Smith, Superior Court, judicial district of Ansonia-Milford, No. CV044000491S, 2006 WL
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`2730299 (Sept. 1, 2006) (citations omitted). “A finding of good cause must be based on a
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`particular factual demonstration of potential harm, not on conclusory statements.” Sarfatv v.
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`PNN Enterprises Inc., Superior Court, judicial district of New Haven, No. CV020280255S, 2004
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`WL 1052340 (Apr. 19, 2004). Ultimately, whether to issue a protective order lies within the
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`sound discretion of the court….That discretion is limited, however, by the provisions of the rules
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`pertaining to discovery. See Sabanosh v. Durant, Superior Court, 21 Conn. L. Rptr. 213, No. CV
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`96054525 (Dec. 17, 1997) at *6. (Citations omitted).
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`B.
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`The Notice is Premature
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`First, the Defendant’s Notice is premature. On January 17, 2023, the Court (Goodrow,
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`J.) denied the Plaintiff’s Motion for Summary Judgment without prejudice, and scheduled a
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`status conference, wherein the Defendant was ordered to be prepared to articulate what discovery
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`she needs in order to properly defend this foreclosure. See Doc. Entry # 120.03. Very clearly, it
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`is highly likely that the Court intends to define and limit the scope of the Defendant’s discovery
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`requests. Therefore, any notice of deposition is premature at this time, and a protective order
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`should issue.
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`C.
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`Defendant’s Notice is Non-Compliant
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`The Defendant’s Notice fails to comply with the rules governing depositions. Conn. Gen.
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`Stat. § 52-148b(a) and Practice Book § 13-27(a) both direct that a notice of deposition must
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`include the address of each person who will be examined, and, if the name of the person is
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`unknown, “a general description sufficient to identify such person or the particular class or group
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`to which he or she belongs and the manner of recording”. The Defendant’s Notice does not
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`contain the address of the Plaintiff. Further, although Practice Book § 13-27(h) allows a party to
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`depose a corporation, the Defendant’s Notice fails to identify a particular class or group of
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`person to be examined, such as an officer, director, manager, or other corporate designee. The
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`Defendant’s Notice is non-compliant with the rules governing depositions, and therefore a
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`protective order should issue.
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`D.
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`Defendant is Engaged in a Fishing Expedition.
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`Beyond the procedural issues raised above, the Defendant’s Notice amounts to nothing
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`more than a fishing expedition, which is barred by our rules of practice. Accordingly, the
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`Plaintiff is entitled to a protective order.
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`Practice Book § 13-2 states that the discovery or disclosure must relate “to the claim or
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`defense of the party seeking discovery or to the claim or defense of any other party . . . .”
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`Practice Book § 13-5 states that a party may be protected from discovery meant as an
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`“annoyance, embarrassment, oppression, or undue burden or expense . . . .” It is clear, on its
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`face, that this Notice was propounded only as an annoyance or undue burden on the Plaintiff, or
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`simply to frustrate justice. A party’s right to discovery should not be abused by broad “fishing
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`expeditions” designed to enable a party to ascertain whether or not he has a cause of action
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`and/or special defenses, “[it] should be carefully limited to situations where the ends of justice
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`clearly require its use.” Smith v. Hartford Firefighters, Local 760, Superior Court, No. CV
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`960565304, 1997 WL 150654 (March 17, 1997), citing Muti v. New Haven, 24 Conn. Supp. 452,
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`454, 194 A.2d 447 (1963). A party issuing discovery “should not be allowed to indulge a hope
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`that through ransacking of any information and material which the party may possess would turn
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`up evidence helpful to [their] case.” Id. at *5, citing Pottetti v. Clifford, 146 Conn. 252, 259 and
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`263, 150 A.2d 207 (1959); Katz v. Richman, 114 Conn. 165, 171, 158 A. 219 (1932); Mobile
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`Gas Co. v. Patterson, 288 Fed. 884, 885 (1923). “Discovery is confined to facts material to the .
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`. . cause of action and does not afford an open invitation to delve into the defendant’s
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`affairs.” (Citation omitted.) Berger v. Cuomo, 230 Conn. 1, 6, 644 A.2d 333 (1994). “Judicial
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`supervision of discovery should always seek to minimize its costs and inconvenience and to
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`prevent improper uses of discovery requests." (Citation omitted.) Pietraroia v. Northeast Utils.,
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`254 Conn. 60, 77, 756 A.2d 845 (2000).
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`Here, the Defendant’s Notice is broad in nature and entirely repetitive of her prior Notice
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`of Deposition (Doc. Entry # 123.00). The Court already denied the Defendant’s Application for
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`a Subpoena, wherein she sought this information. See Doc. Entry ## 137.02 & 144.01. It’s clear
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`that the Defendant is seeking to cast a wide net as to obtaining information in order to harass the
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`Plaintiff and delay this case. None of the information requested is necessary or relevant for her
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`to defend this case, nor is a deposition necessary for any of this information.
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`The Notice first seeks, in the first and second items, information related to the amounts
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`claimed to be due and any charges to the Defendant’s account. The Defendant also seeks, in the
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`fourth item, information as to the record keeping practices concerning the amounts/charges of the
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`Plaintiff’s debt. Any information as to the amount of the debt is not necessary to a defense of a
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`Motion for Summary Judgment. The Defendant has not raised any specific defense as to the
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`amount of the debt. Moreover, the Plaintiff’s Motion for Summary Judgment addresses the issue
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`of liability only. The amount of the debt will be addressed if and when the court enters a
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`judgment of foreclosure. Insofar that the Defendant contends that this information is necessary
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`to her Seventh Special Defense of Payment (Doc. Entry # 114.00), a point the Plaintiff does not
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`concede, the Defendant fails to state why a deposition is necessary. If anything, the Defendant
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`should already have this information because the Defendant would know whether the loan has
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`been paid off or not. Further, this information could more easily be obtained via a payoff request
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`or a request for a payment history, which the Defendant has not requested to date.
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`The Defendant seeks, in the third item, “persons with first hand knowledge of the value
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`of the property subject to this action hired to do inspections or appraisals.” This information has
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`no relation whatsoever to the Defendant’s ability to defend this case, and a deposition is not
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`necessary to obtain this information. The Plaintiff’s Motion for Summary Judgment addresses
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`the issue of liability only. The amount of the fair market value will be addressed if and when the
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`court enters a judgment of foreclosure. At the time, an appraisal will be obtained from a licensed
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`appraisal. The Defendant, at the time, will be free to obtain an appraisal of her own.
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`The Defendant seeks, in the fifth item, information as to the original location of the Note.
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`The Defendant has been repeatedly advised, since at least February 23, 20221, that the original
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`Note is in the custody of Plaintiff’s counsel. At the April 2022 discovery conference between
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`the parties, the Defendant was invited to view the original Note, yet she has delayed in providing
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`appointment dates, and has cancelled appointment dates that were scheduled. The Plaintiff’s
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`counsel intends to present the loan documents for review at the March 10, 2023 status
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`conference, thereby obviating the necessity of a deposition on the matter.
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`The Defendant seeks, in the sixth item, information regarding “Disputes and Qualified
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`Written Requests”, and she seeks such documentation via her first item requested for production.
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`The Plaintiff objected to the production of this information in its prior Objections (Doc. Entry #
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`113.00 – Objection # 52 to Interrogatories and Objection # 1 to Production) and the Court
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`1 Plaintiff’s counsel represented in the Memorandum of Law (Doc. Entry # 121.00) that counsel is in custody of the
`original Note.
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`already sustained the Plaintiff’s Objection to the adjudication of these discovery objections. See
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`Doc. Entry # 142.01. The Plaintiff reiterates its Objections here. The information requested is
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`vague and ambiguous. Moreover, any of this documentation should already be in the
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`Defendant’s possession, and a deposition is not necessary.
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`The Defendant seeks, in her seventh item, information regarding the Plaintiff’s
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`compliance with Conn. Gen. Stat. § 7-148ii. Any information as to Conn. Gen. Stat. § 7-148ii,
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`regarding the Plaintiff’s compliance for Property Registration with the Town, has already been
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`provided and has already been addressed by this court in denying the Defendant’s Motion to
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`Dismiss. See Doc. Entry ## 104.00, 105.00, & 104.02. Further, the Defendant has already
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`conceded that her Second Defense regarding this statute has been addressed by the law of the
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`case. See Doc. Entry # 126.00.
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`The Defendant seeks, in her seventh and eighth items, information regarding the notary
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`logs for Brenda Frazier and Douglas Townsend. Brenda Frazier notarized the Assignment of
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`Mortgage to the Plaintiff, which was recorded in 2012. See Doc. Entry # 121.00, Exhibit C.
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`Douglas Townsend notarized the Affidavit in Support of the Motion for Summary Judgment,
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`which has since been denied. See Doc. Entry # 121.00, Exhibit A. Any information regarding
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`notary logs of various notaries is not relevant to the defense of this foreclosure case, nor does the
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`Defendant explain how this information would be reasonably calculated to lead to the discovery
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`of admissible evidence. Further, the information is not relevant at this time. The Plaintiff’s
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`Motion for Summary Judgment was denied by the Court. See Doc. Entry # 120.03. And, any
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`notarization defect as to the Assignment of Mortgage, of which none exists, would be validated
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`at this point in time, per Conn. Gen. Stat. § 47-36aa(a)(1).
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`The Defendant seeks, in her second item requested to be produced, all items related to her
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`October 19, 2021 Requests for Production. However, as noted, the Plaintiff objected to the
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`production of this information in its prior Objections (Doc. Entry # 113.00) and the Court
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`already sustained the Plaintiff’s Objection to the adjudication of these discovery objections. See
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`Doc. Entry # 142.01. The Defendant’s requests here is an attempt to get around the Court’s prior
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`order.
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`Finally, in her third item requested to be produced, the Defendant seeks all information
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`related to a FEMA related hold. However such information is not relevant to any claim or
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`defense. The Defendant filed her Answer and Defenses on December 9, 2021 (Doc. Entry #
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`114.00), and then moved to nonsuit the Plaintiff for failing to respond to the Defenses (Doc
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`Entry # 116.00). In response, the Plaintiff filed a Motion for Extension of Time to plead (Doc.
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`Entry # 118.00). The Plaintiff represented in its Motion for Extension of Time that a FEMA
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`hold was entered on this loan, which hold expired at the end of January 2022, and that the
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`Plaintiff was merely seeking an extension of time to plead a Reply to her Answer and Special
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`Defenses and also file a Motion for Summary Judgment, which were filed on February 23, 2022
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`(Doc. Entry ## 120.00, 121.00, & 123.00). The FEMA hold had no relation to either the
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`Plaintiff’s case in chief or the Defendant’s defenses. Further, insofar that the Defendant claims
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`the FEMA hold help up discovery, the Plaintiff did not seek an extension of time to respond to
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`the first sets of discovery, and in fact, the Plaintiff’s Objections to her various discovery requests
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`were already filed before the Answer and Special Defenses were filed. See Doc Entry Nos.
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`112.00 & 113.00.
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`Through the Notice, the Defendant is engaging in discovery as nothing more than an
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`attempt to delay this case, and nothing more than a fishing expedition “to indulge a hope that
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`through ransacking of any information and material which the party may possess would turn up
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`evidence helpful to [Defendants’] case.” As such, this Motion must be granted.
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`E. Defendant’s Notice does not designate the matters with particularity upon
`which examination is requested.
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`
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`The Defendant’s Notice also fails to comply with Practice Book § 13-27(h), which states:
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`A party may in the notice and in the subpoena name as the deponent a public or
`private corporation or a partnership or an association or a governmental agency or a
`state officer in an action arising out of the officer’s performance of employment and
`designate with reasonable particularity the matters on which examination is
`requested. The organization or state officer so named shall designate one or more
`officers, directors, or managing agents, or other persons who consent to testify on its
`behalf, and may set forth, for each person designated, the matters on which the person
`will testify. [Emphasis added.]
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`The Appellate Court has determined that failing to designate the matters upon which the
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`examination is requested pursuant to § 13-27(h) allows the court to preclude the use of such
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`depositions at trial. See Friends of Animals, Inc. v. United Illuminating Co., 124 Conn. App.
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`823, 830–836 (2010) (finding that the trial court did not abuse its discretion in precluding
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`depositions which were not designated under § 13-27(h)).
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`The Defendant has not, and cannot, designate the matters upon which the examination is
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`requested. At best, as described in Section II, Subsection D above, all the Defendant does is
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`provide a generic laundry list of documents she seeks in a deposition, none of which would aid in
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`her defense in this case. The Defendant has no basis for seeking a deposition here and this
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`Motion should be granted.
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`WHEREFORE, this Motion should be granted and the Court should enter orders as
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`appropriate.
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`THE PLAINTIFF
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`By___427656_____________________
` Joseph R. Dunaj, Esq.
` Bendett & McHugh, P.C.
` Its Attorneys
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`EXHIBIT A
`EXHIBIT A
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`
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`DOCKETNO. KNL-CV20-6045519-S
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`WELLS FARGO BANK, NA
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`vs
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`SHERI SPEER
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`:
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`:
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`:
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`:
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`SUPERIOR COURT
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`J.D. OF NEW LONDON
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`AT NEW LONDON
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`JANUARY21, 2023
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`NOTICE OF DEPOSITION
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`The Defendant hereby notices the deposition of the Plaintiff, Wells Fargo Bank,
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`NA pursuant to Practice Book §13-27(h) to be taken Friday March 31, 2023 at 1 PM
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`before Cassian Reporting 21 Oak St, Unit 307, Hartford, CT 06106, before a
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`stenographer, oath to be administered by notary public or other qualified officer.
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`The Plaintiffs designee(s) should be prepared, knowledgeable and competent
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`to testify on:
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`(1) Amounts claimed to be due on the Note.
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`(2) Charges madeto the accountalleged by the Plaintiff.
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`(3) Personswith first hand knowledge of the value of the property subject to this
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`action hired to do inspections or appraisals.
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`(4) Recordkeeping practices relating to the computer generated business.
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`recordsrelied upon to calculate the amounts and charges claimed due.
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`(5) The physical location of the Original Note, and its present custodian.
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`(6) Disputes and Qualified Written Requests concerning the Mortgageat issue
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`in this Action.
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`(7) Steps taken to comply with General Statutes §7-418ii including all business
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`FILED
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`"
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`JAN23 2023
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`SUPERIOR COURT- NEW LONDON
`JUDICIAL DISTRICT AT NEW LONDON
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`
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`records relied upon to do the same.
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`(8) The Notary Log Bookof Florida Notary Brenda Frazier.
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`(9) The Notary Log Bookof Florida Notary Douglas Townsend
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`The Plaintiff is also directed to bring with it and produce:
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`(1) Acopyofall disputes and Qualified Written Requests the Plaintiff has
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`received concerning the Mortgage and the Plaintiffs responsethereto.
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`(2) All items sought in the Defendant's October 19, 2021 Requests for
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`Production
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`(3) All documents evidencing the FEMA Related Hold on the Mortgage
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`referenced by the Plaintiffs January 5, 2022 motion for extension of time to
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`plead.
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`
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`THE DEFENDANT,
`SHERI SPEER
`
`c
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`/s/ Sheri Speer
`Sheri Speer
`151 Talman Ave
`Norwich, CT 06360
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`
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`CERTIFICATE OF SERVICE
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`|, Sheri Speer, hereby certify that a copy of the foregoing was was sent to the
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`following parties ofrecord on the dateofitsfiling: — ae
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`Speer
`/s/ Sheri
`Sheri Speer
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`Bendett & McHugh 270 Farmington Ave Suite 151 Farmington, CT 06032 via
`ctpleadings@bmpc-law.com
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`
`
`
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`CERTIFICATION
`
` I
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` hereby certify that a copy of the above was mailed or electronically delivered on January 31,
`2023 to all counsel and pro se parties of record and that written consent for electronic delivery
`was received from all counsel and pro se parties of record who were electronically served, as
`follows:
`
`SHERI A SPEER A/K/A SPEER SHERI
`151 TALMAN STREET
`NORWICH, CT 06360
`E-Services Only: speercommercial@gmail.com
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`
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`___427656_______________________
`Joseph R. Dunaj
`Commissioner of the Superior Court
`NOTICE: THE LAW FIRM OF BENDETT & MCHUGH, P.C. IS A DEBT
`COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION
`WE OBTAIN WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY
`RECEIVED A DISCHARGE IN BANKRUPTCY WHICH DISCHARGED THIS DEBT,
`THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN
`ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN
`AGAINST PROPERTY.
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`
`
`
`
`
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