Opinion
No. CV 04-4001571S
January 11, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Herman Vaneck, initially filed a six-count complaint against the defendant, Countrywide Home Loans Corporation, (Countrywide), but on July 20, 2005 the plaintiff withdrew counts two, three, five, and six of the complaint. (Respectfully, counts two, three, five, and six alleged intentional and malicious torts, unfair debt collection practices, special harm and a violation of the covenant of good faith and fair dealing.) The remaining counts allege defamation (count one and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), Gen. Stat. § 42-110a et seq.) The alleged defamatory statements arise out of reports made by Countrywide to credit reporting agencies stating that Vaneck's mortgage on property at 24 Ebony Lane in Essex, Connecticut, was in default and that foreclosure proceedings had commenced.
The defendant, Countrywide, on August 17, 2005 filed a motion for summary judgment as to the remaining counts of the complaint. On August 29, 2005, the plaintiff filed a memorandum in opposition to the summary judgment motion.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue (of) material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
The defendant Countrywide argues that the statement made to credit reporting agencies were true and truth is a complete defense to defamation. In Banker's Trust Company of California v. Vaneck, Superior Court, Judicial District of Middlesex, Docket No. CV02-0097949 (April 27, 2005, Spallone, J.T.R.), the court entered a judgment of foreclosure on the plaintiff's Ebony Lane mortgage. The court held that Banker's Trust Company of California was "the owner of the mortgage note and deed in the case . . ." Id. Furthermore, the court ruled tat Vaneck had "failed to make his payments as promised in said note" and found that "the defendant . . . defaulted on the note." Id. The plaintiff Vaneck appealed the trial court's judgment in the foreclosure case and such appeal is currently pending before the Connecticut Appellate Court. Countrywide cites the Superior Court decision on the foreclosure action and asked the court to take judicial notice of that decision. Countrywide notes that the Banker's Trust court made specific findings on the issue of default. As a result, Countrywide argues that the doctrines of res judicata and collateral estoppel bar Vaneck from re-litigating the issues and findings in the foreclosure case and that these doctrines are applicable despite an appeal pending in such case. Countywide further asserts that it has never held itself out as Vaneck's creditor and that Countywide was legally obligated, as a mortgage servicer, to report his default to credit bureaus.
In support of the motion for summary judgment, Countrywide submits the following:
1) one affidavit of Diane Deloney, the assistant manager of Countrywide's foreclosure department, dated August 15, 2005; 2) a certified copy of Vaneck's note; 3) a certified copy of Vaneck's open-end mortgage deed; 4) a certified copy of the assignment of Vaneck's mortgage to Express Capital dated August 1, 2001; 5) a certified copy of the subsequent assignment of Vaneck's mortgage to Banker's Trust dated March 14, 2003; 6) Countrywide's notice of assignment sale or transfer dated October 26, 2001; 7) Countrywide's notice of default dated January 3, 2002; 8) a copy of the memorandum of decision of Banker's Trust Company of California v. Vaneck, supra.
The plaintiff, who is appearing pro se in this matter, argues that material issues of fact exists in the case and thus summary judgment is inappropriate. Vaneck's memorandum in opposition contends that the following facts are in dispute and material to the claims before the court: 1) that the statements were false; 2) that Banker's Trust and Countrywide are not the holders of the note; 3) that Countrywide held itself out to be the creditor on the mortgage; 4) that Countrywide was not Vaneck's creditor, and thus, the reports made to credit agencies were misleading; 5) that the Deloney affidavit is false and fraudulent. Vaneck's memorandum also contains assertions which are in no way material to facts and issues of this case.
The plaintiff, in addition to his affidavit, submits uncertified copies of the complaint and summons from the Banker's Trust v. Vaneck foreclosure case; uncertified copy of the certificate of non-filing of a corporation from the California secretary of state; uncertified copies of trial transcripts from the Banker's Trust case and an uncertified copy of an Experian credit report dated September 15, 2004.
Summary judgment may be the appropriate method for resolving a claim of res judicata as such claim may be dispositive of a case. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
"Collateral estoppel, or issue preclusion probibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action, also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Linden Condominium Ass'n., Inc. v. McKenna, 247 Conn. 575, 596, 726 A.2d 502 (1999). "In order for collateral estoppel to apply . . . there must be an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation." Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 93-94, 616 A.2d 786 (1992). "Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party." (Internal quotation marks omitted.) Willard v. Travelers Ins. Co., 247 Conn. 331, 336, 721 A.2d 894 (1998). In Connecticut the mutuality requirement has been abandoned as an ironclad rule. Mutuality rule will no longer operate automatically to bar the use of collateral estoppel. Labbe v. Pension Commission, 239 Conn. 168, 186, 682 A.2d 490 (1996).
A pending appeal does not prevent the court from applying the rules of collateral estoppel. See Carnemolla v. Walsh, 75 Conn.App. 319, 327, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); see also Preisner v. Aetna Casualty Surety Co., 203 Conn. 407, 414, 525 A.2d 83 (1987). "The fact that a prior judicial determination may be flawed . . . is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked . . . If the judgment (in the prior action) is erroneous, the unsuccessful party's remedy is to have it set aside or reversed in the original proceeding." (Internal quotation marks omitted.) Carnemolla v. Walsh, supra, 75 Conn.App. at 327. "Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum . . . It can be stated, therefore, that collateral estoppel is an aspect of res judicata . . . Because collateral estoppel is a much narrower aspect of res judicata, and a pending appeal does not preclude the application of res judicata, we conclude that the plaintiff's pending appeal in the criminal action did not preclude the defensive application of collateral estoppel in the civil action." (Citations omitted; internal quotation marks omitted.) Id., 327-28.
The finality of a trial court decision is not directly affected by the fact that an appeal automatically stays the enforcement of a judgment period, the stay does not vacate the judgment obtained by the successful litigant. It merely denies that party the immediate fruits of his or her victory in order to protect the full and unhampered exercise of a right of appellate review. Preisner v. Aetna Casualty Surety Co., supra, 203 Conn. at 414.
In reliance on the doctrine collateral estoppel, the court finds that the issue of default has been conclusively established in Banker's Trust Company of California v. Vaneck, supra, Superior Court Docket No. CV02-0097949. The court takes judicial notice of the memorandum of decision filed on April 27, 2005 in such action. See Jewett v. Jewett, 265 Conn. 669, 678 n. 7, 830 A.2d 193 (2003). "There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties." In Banker's Trust, the court after a full hearing, found that the plaintiff Vaneck had failed to make his payments as promised in the note and was in default under the note and entered a judgment of foreclosure by sale. The requirement of collateral estoppel has been satisfied because the issue of default was fully and fairly litigated in the first action. It was actually decided and the decision was necessary to the judgment. Linden Condominium Ass'n., Inc. v. McKenna, supra, 247 Conn. at 596.
In taking judicial notice as Banker's Trust filed with the court notes that process was served on March 20, 2002. This court finds that the issue of Vaneck's default and the commencement of foreclosure proceedings on the Ebony Lane mortgage have been conclusively established and are not issues of material fact in the present case.
"Truth is an absolute defense to an allegation of libel." Strada v. Connecticut Newspapers. Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). "Where the main charge, or gist, of the libel is true, minor errors that do not change a reader's perception of the statement do not make the statement actionable." (Internal quotation marks omitted.) Woodcock v. Journal Publishing, Co., 230 Conn. 525, 554, 646 A.2d 92 (1994), cert. denied, 513 U.S. 11, 49, 115 S.Ct 1098, 130 L.Ed.2d 1066 (1995). "Plaintiffs sometimes sue when the underline sting of what was said about them is true but surrounding details are false. Inaccuracies concerning those details, however, may have absolutely no tendency to injure a reputation therefore not defamatory." R. Smolla, Law of Defamation (2d Ed. 1999) Section 5:28, 5-45.
Vaneck's allegation that Countrywide identified itself as a creditor on the mortgage rather than the loan servicer is not defamatory. The "gist" or "main charge" of the reports made by Countrywide were the truthful assertions that Vaneck was in default and foreclosure on the Ebony Lane mortgage had been commenced. The truth of those assertions has been established by the rules of collateral estoppel.
The plaintiff's CUTPA claim arises out of the alleged defamatory reports made by Countrywide to credit reporting agencies. Collateral estoppel has established the truth of such assertions and thus they are not defamatory and cannot be the basis of a CUTPA claim.
The motion for summary judgment is granted as to remaining counts of plaintiff's complaint, count one and count four.