Heim v. California Federal Bank

• Decision Date: 29 July 2003
• Docket Number: (AC 23105).
• Citation: 828 A.2d 129,78 Conn. App. 351
• Court: Connecticut Court of Appeals
• Parties: RICHARD A. HEIM v. CALIFORNIA FEDERAL BANK ET AL.

78 Conn. App. 351

828 A.2d 129

RICHARD A. HEIM v. CALIFORNIA FEDERAL BANK ET AL.

(AC 23105).

Appellate Court of Connecticut.

Argued February 20, 2003.

Officially released July 29, 2003.

Foti, Flynn and Healey, Js.

Richard A. Heim, pro se, the appellant (plaintiff).

Rodd J. Mantell, with whom was Christopher P. Kreisen, for the appellee (defendant Reiner, Reiner and Bendett, P.C.).

Opinion

HEALEY, J.

The pro se plaintiff, Richard A. Heim, appeals from the judgment of the trial court, rendered subsequent to its granting of the motion to strike filed by the defendant Reiner, Reiner and Bendett, P.C., a Connecticut law firm.¹ This action involves the circumstances and conduct of the parties, especially that of the defendant banks, First Nationwide Mortgage Corporation (First Nationwide), California Federal Bank, FSB (Calfed), and Telebank, in a foreclosure action brought concerning a mortgage loan on a condominium owned by the plaintiff in Cromwell. The lengthy² revised complaint sets forth nine causes of action.³ The defendant filed a motion to strike counts one, two, four, five, six and nine as "asserted against them because they are legally insufficient."⁴ The court filed a written memorandum of decision in which it granted the defendant's motion with respect to all counts. Thereafter, the plaintiff appealed from the court's ruling striking counts three, four and nine as to the defendant.

On appeal, the plaintiff claims that the court improperly struck (1) count three in the absence of any motion to strike that count by the defendant, (2) count four on the ground that the defendant had failed to allege extreme or outrageous conduct and (3) count nine on the ground that it had failed to allege harassing, abusive or unfair practices or any other specific violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. We agree with the plaintiff with respect to counts three and nine and, accordingly, reverse those parts of the judgment. We conclude, however, that the court properly struck count four and therefore affirm that part of the judgment.

I

Drawing on the allegations⁵ set forth in the plaintiff's revised complaint at this point will serve to furnish the background helpful for our discussion of the issues to be resolved. In 1987, the plaintiff purchased a certain premises in Cromwell. He executed a mortgage deed and note in connection with that purchase. In 1996, First Nationwide, the owner of the mortgage deed and note, issued a statement in December, 1996, notifying the plaintiff that it was buying all the assets and liabilities of Calfed and the merger, to be effective on or about March 21, 1997, would result in a new entity, California Federal Bank. The plaintiff, who had an unpaid balance on his mortgage loan at that time, relied on the representation that the new company was the owner and holder of his mortgage. Prior to 1997, the plaintiff suffered from continuing, multiple health problems and was no longer able to manage his premises. On April 9, 1997, before his mortgage was accelerated on default and without prior notification to the banks, he executed a quitclaim deed to Calfed, giving title to the premises and to all the appliances. He also granted Calfed the right to collect past and future rents. The plaintiff thereupon delivered the deed, the keys to the premises, the lease, a security deposit belonging to the tenants, a signed conveyance tax statement and a copy of the notice of deed with the original, which he had recorded in the Cromwell land records. In addition, he sent a cover letter to Calfed for a receipt of such documents; the letter⁶ also set forth his health problems. The plaintiff sent all the items referred to Calfed by certified mail, requesting acknowledgement of receipt.⁷ The deed recited "that it was in lieu of foreclosure and all judgments" and stated that the "premises had a fair market value at [that] time of about the balance of said note." The plaintiff alleged in count one of his complaint that "[i]n spite of all of the foregoing, and while holding said deed and keys and security deposit and other items, and while in control of [the] premises, Defendants Calfed and First Nationwide, using the name Telebank, or acting in concert with the Defendant, Telebank, engaged the services of, and acted in concert with, the Defendant . . . ."

According to the plaintiff, the defendant "was aware of the [substantial] facts from its ... clients and from [the] Land Records when it nonetheless instituted a foreclosure suit against the Plaintiff . . . ." The plaintiff alleged that the defendant and the banks instituted a foreclosure action about seven months after the materials had been mailed by the plaintiff, who had relied on the receipt of the cover letter and materials by CalFed, as well as the absence of contact in the interim. The plaintiff also alleged that in that foreclosure action, "[a]ll [the] Defendants omitted or allowed to be omitted [any reference to the] recorded Notice of Deed and [the] delivery of and retention of deed, keys [and] security deposit . . . ." In addition, the action was instituted about four months after the plaintiff had established a new home in Wisconsin⁸ under a lease. The plaintiff further alleged in his complaint that all the defendants "knowingly allowed and caused to be issued" the foreclosure action against the plaintiff "without [the] Defendants, Telebank, Calfed and First Nationwide [owning] record title to [the] mortgage [deed] and note," and, further, that Telebank "did not obtain record title until December 11, 1998 from Provident Bank, some thirteen months after said return [date] . . . ." As a result, the plaintiff was forced to give up his Wisconsin home, return to Connecticut, hire counsel and remain here to assist his counsel. Since November, 1997, the complaint alleged, the defendant, and then the banks, "largely neglected and refused to respond to numerous attempts by [the] plaintiff and counsel to resolve the [matter] by agreement . . . ." The mortgage debt was increased by the inaction and delay, resulting in a judgment of foreclosure against the defendant on April 19, 1999, in which the court found that the debt was about $82,000, about $20,000 higher than the debt in April, 1997.⁹

The plaintiff further alleged that all the defendants "withheld" from the plaintiff copies of the foreclosure documents that were filed at the hearing until the court ordered them to furnish such copies to the plaintiff. The defendant issued a written notice to the plaintiff that the time set for the foreclosure hearing on April 19, 1999, was 10:30 a.m., instead of 9:30 a.m., as previously ordered by the court. The plaintiff also alleged that the court found the Cromwell premises to be worth $62,000 on the basis of a filed affidavit, made a "strong suggestion" that the defendants not attempt to obtain a deficiency judgment and that if such an attempt was made, the court "could make certain findings at such time against [the] same . . . ."¹⁰ The plaintiff alleged that approximately twenty-two days after the foreclosure hearing, the banks took title to the premises, maintaining their control over it and the appliances. On or about May 20, 1999, a motion for a deficiency judgment was filed. The plaintiff alleged that when that motion came up for a hearing on June 7, 1999, all the defendants "neglected and refused" to prosecute it. The plaintiff claimed that he wrote to the defendants requesting that they either advance the pending motion or withdraw it, but that he was ignored, either to punish him or to induce him to leave Connecticut so that they could then proceed toward a deficiency judgment without opposition. Thereafter, the banks, acting through the defendant, wrote a letter to the plaintiff that the plaintiff alleged contained several lies. The court, without objection from the defendants, granted the plaintiff's motion to dismiss the motion for a deficiency judgment for lack of due diligence. In connection with the various matters, the plaintiff had to appear in court several times.¹¹

On February 26, 2001, the defendant filed a motion to strike pursuant to Practice Book § 10-42.¹² In its motion, the defendant set forth as to each count the reasons for seeking to have those counts stricken. Nowhere in that motion or the accompanying memorandum of law did the defendant refer to count three of the complaint. After a hearing, the court issued its written decision.¹³ In the decision, the court discussed its reasoning as to each count on which it acted. Significantly, the court set forth the allegations contained in count three and concluded that the plaintiff had failed to allege any duty owed by the defendant. That was done despite the failure of the defendant to include any reference to count three in its February 26, 2001 motion to strike.¹⁴ The court, without much discussion regarding count three, specifically struck that count.¹⁵ In the conclusion to its decision, the court stated that the "[m]otion to strike by [the defendant is] granted as to all counts [including counts four and nine] directed to the [defendant]." This appeal followed. Additional facts will be set forth as necessary.

II

Preliminarily, we set out the standard of review applicable to the plaintiff's appeal challenging the court's ruling in striking¹⁶ counts three, four and nine.¹⁷ "The standard of review for granting a motion to strike is well settled. In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . A motion to strike admits all facts well pleaded. See Practice Book § [10-39]. A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary.. . . If facts...