Opinion
NO. 3:04cv1506 (MRK).
February 7, 2008
MEMORANDUM OF DECISION
Pending before the Court are Defendants SN Servicing Corporation, SN Commercial, LLC, and Ingomar Limited Partnership's (the "SN Defendants") Motion for Summary Judgment [doc. # 164] and Defendant Wells Fargo Foothill, Inc.'s ("Wells Fargo") Motion for Summary Judgment [doc. # 170] (joining in the SN Defendants' Motion, but raising an additional issue). Defendants' motions seek summary judgment on Plaintiffs' Curtis Packer and Loraine Denaro's ten-count Amended Complaint [doc. # 40]. For the reasons detailed below, the Court GRANTS IN PART and DENIES IN PART the SN Defendants' Motion for Summary Judgment [doc. # 164] and GRANTS Wells Fargo's Motion for Summary Judgment [doc. # 170].
The SN Defendants and Wells Fargo will be collectively referred to as "Defendants."
Though removed to this Court on September 10, 2004, see Notice of Removal [doc. # 1], the speed at which this case has progressed has been considerably delayed by the parties' prolonged and — the Court must add — regrettable discovery disputes. Two of these disputes — a Motion to Quash [doc. # 129] and Motion for Protective Order [doc. # 130] — remain pending before the Special Master appointed to hear them. See Order of Reference to Special Master [doc. # 102]. At oral argument, the parties agreed that the issues presently before the Special Master would not affect the Court's decision on summary judgment and that the Court should proceed to decide the summary judgment motions despite the pendency of their discovery issues before the Special Master.
I.
The summary judgment standard is a familiar one. Summary judgment is appropriate only when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). "The substantive law governing the case will identify those facts that are material, and '[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (alteration in original)).The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986), and the Court must resolve all ambiguities and draw all inferences in favor of the plaintiff, see Anderson, 477 U.S. at 255. If the moving party carries its burden, the party opposing summary judgment "may not rely merely on allegations or denials. . . ." Fed.R.Civ.P. 56(e)(2). Rather, the opposing party must "set out specific facts showing a genuine issue for trial." Id. In short, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
II.
The Court recites the facts in the light most favorable to Plaintiffs. The dispute underlying this case has its genesis in mortgage debts pertaining to two properties — the Blatchley Avenue and Elm Street properties — located in New Haven, Connecticut, and both previously owned solely by Mr. Packer. In the early-to-mid-1990s, Mr. Packer mortgaged the Blatchley Avenue property, and together, Mr. Packer and his life partner, Ms. Denaro (though having no ownership interest), mortgaged the Elm Street property, to the Bank of New Haven. Ownership of the Blatchley Avenue and Elm Street properties' notes and mortgages was then assigned as follows. In 1997 or 1998, the Bank of New Haven assigned them to Citizens Bank, which on April 30, 2001, assigned them to SN Commercial, which on the same day assigned them to Wells Fargo as collateral for a loan to enable SN Commercial to purchase the Blatchley Avenue and Elm Street properties' notes and mortgages. On August 22, 2002, Wells Fargo assigned the notes and mortgages to Ingomar, which along with SN Commercial is an affiliate of Security National Servicing ("SN Servicing"). SN Servicing assumed loan servicing duties as of the April 30, 2001 assignments. See Am. Compl. [doc. # 40], ¶ 29; see Ingomar Ltd. P'Ship v. Packer, NNH-CV-02-0467401-S, 2007 WL 1675846 at *1 (Conn.Super.Ct. May 23, 2007) (DeMayo, Anthony, J.) (hereinafter cited as "Foreclosure J." and referred to as the "Foreclosure Judgment"). The assignments were recorded in the New Haven Land Registry on the following dates: Citizens Bank to SN Commercial on January 14, 2002; SN Commercial to Wells Fargo, on January 14, 2002 as well; and Wells Fargo to Ingomar, on or about August 23, 2002 or September 29, 2003. See Foreclosure J. at *1; Defs.' Local Rule 56(a)(1) Statement [doc. # 168], ¶ 4; Pls.' Local Rule 56(a)(2) Statement [doc. # 184-2], at 3, ¶ 4 (denying on other grounds).Plaintiffs' Complaint centers around Defendants' alleged failings following the April 30, 2001 assignment from Citizens Bank. As agreed during oral argument, Plaintiffs' claims are limited to the following: (1) Defendants' failure to provide adequate notice of assignment of the mortgages and notes; (2) Defendants' failure to timely record the assignments; (3) Defendants' failure to properly state the amount of debt, including interest calculations; and (4) Ingomar and SN Servicing's failure to provide timely payoff statements. These derelictions began to come to Plaintiffs' attention on May 1, 2001, when, apparently unaware of the loan assignment and delinquency on the notes, Mr. Packer allegedly attempted to make payments to Citizens Bank, which the bank would not accept because there was no record of his loan on its computer system. See Foreclosure J. at *10; Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184-5], Ex. 3, at 14. Mr. Packer says that he then tried to identify the new owner of his debts, and to make payments to Citizens Bank. According to him, these attempts were unsuccessful, but on June 8, 2001, a representative of SN Servicing called him and informed him of the April 30, 2001 assignment. Concerned that he might be a victim of fraud, Mr. Packer asked the representative for proof of the assignment, which he says he did not receive, and then he tried, but was unable, to verify SN Servicing's existence and its authority to operate in Connecticut. The situation further deteriorated when, starting in July 2001, SN Servicing began sending default notices to Mr. Packer, who again, in both verbal and written form, requested proof of assignment. Meanwhile, Mr. Packer asserts that he began to experience various symptoms of depression, which affected his relationship with Ms. Denaro and his parents, and as a result of which he subsequently entered a depression study.
In the absence of payment from Mr. Packer, in mid-2002, Ingomar commenced foreclosure proceedings against Mr. Packer and Ms. Denaro on the Elm Street property, and against Mr. Packer on the Blatchley Avenue property. See Ingomar Ltd. P'Ship v. Packer, No. NNH-CV-02-0467305-S (Conn.Super.Ct. filed July 30, 2002) (Elm Street property); Foreclosure J. (filed Aug. 1, 2002) (Blatchley Avenue property). Presumably seeking to sell the properties and resolve the Elm Street and Blatchley Avenue debts, Mr. Packer made several requests, including through his attorney, to the SN Defendants for payoff statements. Before and after requesting these payoff statements, Mr. Packer also claims to have received several informal offers to sell the properties. See Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], Exs. 9a — 9c ("Packer Dep."), at 55-56, 263-67, 271-72, 277-78. In early 2003, the SN Defendants sent Mr. Packer the payoff figures as to the Blatchley Avenue property, and then in late 2003, sent the payoff figures for the Elm Street property. In February 2005, Mr. Packer sold the Elm Street property for $169,950 — which was the highest firm offer he had received for the property as of that date — Mr. Packer's attorney forwarded, under protest, a payment for $78,266 to pay the Elm Street debt in full, and the Elm Street foreclosure action was subsequently dismissed. See Ingomar Ltd. P'Ship v. Packer, No. NNH-CV-02-0467305-S (Conn.Super.Ct. withdrawn Apr. 18, 2005). The Blatchley Avenue foreclosure action came to a different end, however, when on May 23, 2007, Connecticut Superior Judge Anthony DeMayo entered judgment finding Mr. Packer liable for $109,630.32 and making several findings of fact that affect the present lawsuit. See Foreclosure J.
Prior to commencing suit, in October 2001, SN Commercial paid Mr. Packer's outstanding property taxes on both properties. See SN Defs.' Mem. in Supp. of Mot. for Summ. J. [doc. # 167-21] Ex. 5; Foreclosure J. at *13.
The SN Defendants claim that the delay in sending the Elm Street payoff figures was an oversight. See Defs.' Local Rule 56(a)(1) Statement [doc. # 168], ¶ 17.
III.
At the outset, it is important to discuss the effect of the Foreclosure Judgment on the claims in this action. Defendants assert that the judgment bars Mr. Packer's claims regarding the Blatchley Avenue property based on the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion).
With good reason, Defendants do not assert that the Elm Street property or Ms. Denaro's claims are subject to collateral estoppel or res judicata. This is because the Elm Street matter was terminated prior to the rendering of a decision that would warrant preclusion, and Ms. Denaro, as co-maker only on the Elm Street note, brings claims focusing solely on the conduct at issue as to the Elm Street property as well as a non-germane loss of consortium claim. Nevertheless, Defendants invite the Court to view the Foreclosure Judgment as "persuasive authority" on the factual issues pertaining to the Elm Street property. The Court declines this invitation in light of the fact that the two properties are distinct and moreover, because Plaintiffs are due all favorable inferences at the summary judgment stage. See Anderson, 477 U.S. at 255.
It is apparent that the doctrine of res judicata does not bar Plaintiffs from asserting their claims in this suit. In determining whether res judicata applies, "[t]he appropriate inquiry . . . is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding. . . ." Conn. Nat'l Bank v. Rytman, 241 Conn. 24, 43-44 (1997) (quotation marks omitted).
[A] decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close; and the competing interest of the plaintiff in the vindication of a just claim.Delahunty v. Mass. Mut. Life Ins. Co., 236 Conn. 582, 591 (1996). Mr. Packer did not have an adequate opportunity to litigate all of his legal claims in the Blatchley Avenue foreclosure proceeding because under Connecticut law, a defendant in a foreclosure proceeding can only raise defenses relating to the making, validity and enforceability of the mortgage. See Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705-06 (2002); Foreclosure J. at *8. In fact, in the Blatchley Avenue action, Mr. Packer tried to assert counterclaims, but the Superior Court granted Ingomar's motion to strike them. See Foreclosure J. at *1; Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], at 35. Additionally, a consideration of the doctrine's underlying policies counsels against applying res judicata. See Delahunty, 236 Conn. at 591-98 (refusing to apply res judicata in the context of a divorce dissolution).
Nonetheless, as Plaintiffs' counsel acknowledged at oral argument, Defendants are correct in asserting that collateral estoppel applies to any factual determinations in the foreclosure proceeding. Under Connecticut law, which controls, to assert successfully the doctrine of collateral estoppel "a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case." Delahunty, 236 Conn. at 600-01. In their brief and at oral argument, Plaintiffs candidly conceded that preclusion is appropriate as to matters actually litigated between Mr. Packer and Ingomar regarding the Blatchley Avenue mortgage. See Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], at 34. This Court concludes that collateral estoppel principles also apply to facts that concern SN Servicing and SN Commercial, because those entities were in privity with Ingomar. "Privity requires identity of interest through succession to the same property rights involved in the prior litigation." Marine Midland Bank v. Slyman, 995 F.2d 362, 365 (2d Cir. 1993) (quotation marks omitted). The undisputed facts establish that the SN Defendants had identical interests in the Blatchley Avenue foreclosure and these interests came about through successive rights to the Blatchley Avenue debt.
At oral argument, Plaintiffs also conceded that preclusion applies even where, as here, an appeal is pending. See, e.g., LaBow v. Rubin, 95 Conn. App. 454, 467 (2006) ("In Connecticut, this court has held the judgment of a trial court to be final, despite a pending appeal, when the issue was . . . the applicability of the rules of res judicata . . . [or] the narrower doctrine of collateral estoppel." (citations omitted)).
The question of whether privity applies to Wells Fargo is less clear, but this Court need not decide that issue since it finds that Wells Fargo cannot be held vicariously liable for the SN Defendants' acts. See infra Part IV.5.
Recognizing that collateral estoppel is appropriate, the parties agree that during the foreclosure proceeding the following facts were conclusively established: (1) Citizens Bank validly assigned the Blatchley Avenue mortgage and note to SN Commercial, which validly assigned them to Ingomar, see Foreclosure J. at *4-*5; (2) Ingomar provided Mr. Packer with sufficient notice of the Blatchley Avenue assignment, see id. at *1; (3) Ingomar correctly stated the amount of debt, including interest, due on the Blatchley Avenue note, see id. at *12; (4) Mr. Packer did not attempt to make payments to Citizens Bank on the Blatchley Avenue debt from October 2000 through March 2001, see id. at *10; and (5) SN Servicing was Ingomar's agent, see id. at *14. These binding factual findings mean that insofar as the Blatchley Avenue property is concerned, Mr. Packer's claims in this action necessarily fail, and Plaintiffs' counsel commendably conceded as much at oral argument. Therefore, the Court grants summary judgment to Defendants' on all of Mr. Packer's claims involving the Blatchley Avenue property: Counts Five, Six, Seven and Eight of the Amended Complaint [doc. # 40]. The balance of this decision will focus on his claims regarding the Elm Street property, though the Court's rulings regarding the validity of Mr. Packer's statutory claims regarding the Elm Street property apply equally to the Blatchley Avenue property. See infra Part IV.
Although Plaintiffs' counsel conceded during oral argument that all claims based on the Blatchley Avenue property are precluded by the Foreclosure Judgment, it is unclear whether Plaintiffs' claims as to the Blatchley Avenue payoff statement are barred by the Foreclosure Judgment. Nonetheless, any such claim still fails because at oral argument Plaintiffs' counsel admitted that Defendants provided timely payoff statements for the Blatchley Avenue property.
IV.
In the remaining six counts of the Amended Complaint [doc. # 40], Plaintiffs jointly allege that Defendants violated Connecticut General Statutes §§ 49-10, 49-10a, and § 47-10, and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. 42-100 et seq., Mr. Packer independently asserts claims for intentional and negligent infliction of emotional distress, and Ms. Denaro independently advances a claim for loss of consortium. The SN Defendants seek summary judgment on all counts. See SN Defs.' Mot. for Summ. J. [doc. # 164]. Wells Fargo joins in the SN Defendants' arguments and also asserts that it is entitled to summary judgment in any event because of its lack of involvement in the matters that form the basis of Plaintiffs' claims. See Wells Fargo's Mot. for Summ. J. [doc. # 170]. The Court will address each claim in turn.
A. Violations of Conn. Gen. Stat. §§ 49-10; 49-10a; and § 47-10
In Count One, Plaintiffs allege that Defendants violated § 49-10 of the Connecticut General Statutes by failing to provide reasonable proof of assignment regarding the Elm Street property. In Count Two, they allege that Defendants violated § 47-10 of the Connecticut General Statutes by failing to timely record the Elm Street assignments. In Count Three, they contend that Defendants' Ingomar and SN Servicing violated § 49-10a of the Connecticut General Statutes by failing to provide timely and proper payoff letters for the Elm Street property.
Counts Five, Six and Seven are identical to Counts One, Two and Three but relate solely to the Blatchley Avenue property.
In requesting summary judgment, Defendants argue that none of these statutes provides a private cause of action. The Court agrees. Neither §§ 49-10, 47-10, nor § 49-10a provides for an express or implied private cause of action and thus the Court grants summary judgment to Defendants on Counts One, Two, and Three of the Amended Complaint [doc. # 40].
As an initial matter, both parties agree that none of these statutes provides for an express private cause of action. Nevertheless, Plaintiffs contend that the Court should imply a private cause of action in each statute. Under Connecticut law, determining whether a statute that does not contain an express cause of action nonetheless provides for an implied private remedy requires the Court to answer three questions, which are known as the " Napoletano factors," after the case that gives them its name:
"First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?"Rollins v. People's Bank Corp., 283 Conn. 136, 142 (2007) (quoting Napoletano v. Cigna Healthcare of Conn., 238 Conn. 216, 249 (1996)). Plaintiffs bear the burden on each question and must demonstrate not only that "no factor weighs against affording an implied right of action," but also that the "balance of factors weighs in [their] favor." Id. (quotation marks omitted). Moreover, the Connecticut Supreme Court has instructed that in examining the balance of these three factors, "each is not necessarily entitled to equal weight [and] the ultimate question is whether there is sufficient evidence that the legislature intended to authorize the plaintiff to bring a private cause of action despite having failed expressly to provide for one." Id. (quotation marks and alterations omitted). See also Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246-59 (2006) (finding no implied private right of action under state fair housing law); Napoletano, 238 Conn. at 249-53 (recognizing implied private right of action under state managed care law).
1. Conn. Gen. Stat. § 49-10 (reasonable proof of assignment)
As always, the Court's analysis must begin with the words of the statute. See Rollins, 283 Conn. at 143. Connecticut General Statutes § 49-10 provides as follows:
If a mortgage debt is assigned, a party obliged to pay such mortgage debt may discharge it, to the extent of the payment, by paying the assignor until the party obliged to pay receives sufficient notice in accordance with subsection (f) of this section that the mortgage debt has been assigned and that payment is to be made to the assignee. In addition to such notice, if requested by the party obliged to pay, the assignee shall furnish reasonable proof that the assignment has been made, and until the assignee does so, the party obliged to pay may pay the assignor. For purposes of this subsection, "reasonable proof" means (1) written notice of assignment signed by both the assignor and the assignee, (2) a copy of the assignment instrument, or (3) other proof of the assignment as agreed to by the party obliged to pay such mortgage debt.
Conn. Gen. Stat. § 49-10(d). Under this provision, notice is sufficient if made by mail to the last known address of the party obliged to pay the debt. See id. § 49-10(f).
Although Plaintiffs would appear to be within the class of persons that § 49-10 was designed to protect, thus satisfying the first factor in the Napoletano analysis, they fail to make the required showing on the second factor — namely, whether there is any indication of legislative intent, explicit or implicit, either to create a private right of action or deny one. See Napoletano, 238 Conn. at 249. At oral argument both parties acknowledged, and the Court's independent review reveals, that the legislative history does not tip the balance for or against implying a private cause of action. More importantly, however, § 49-10 itself explicitly provides a remedy for failure to comply with its terms. For the statute provides that "a party obliged to pay such mortgage debt may discharge it, to the extent of the payment, by paying the assignor." Conn. Gen. Stat. § 49-10(d). "[T]he existence of such alternative remedies and procedures for the enforcement of a statute [is] strong, if not conclusive, evidence of legislative intent not to create additional implied remedies under the statute." Rollins, 283 Conn. at 150-51. This is the case because "the existence of express remedies within a statute indicates that the legislature knows how to create remedies under the statute and, more importantly, that the legislature would have provided the remedy sought by the plaintiff if it had intended to do so." Id. at 151 (refusing to imply right of action in part because statutory scheme vested oversight and enforcement in other entity); see also Asylum Hill, 277 Conn. at 254 (same); Eder Bros., Inc. v. Wine Merchants of Conn., Inc., 275 Conn. 363, 373-75 (2005) (same, with one exception).
Plaintiffs argued in their brief that the legislative intent to create a private cause of action was evidenced by the fact that changes to § 49-10 were coupled with changes to § 42a-3-602, which provides that a note is discharged when payments are made in accordance with § 49-10. See Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], at 27-28. Given Plaintiffs' concession at oral argument, the Court deems this argument to have been abandoned.
Furthermore, if any more evidence was needed as to legislative intent, it is provided by § 49-8, which expressly creates a private cause of action for a failure to release a mortgage. See Conn. Gen. Stat. 49-8(c) ("The mortgagee or plaintiff shall be liable for damages to any person aggrieved . . . as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorney's fees."). Therefore, the Connecticut legislature that enacted § 49-10 certainly knew how to create private causes of action when it wished to do so. Yet, the General Assembly did not include such a private remedy in § 49-10, but instead provided an alternative remedy — a party could pay the assignor. Therefore, the Court concludes that Plaintiffs have failed to shoulder their burden as to the second Napoletano factor.
As to the third Napoletano factor — whether implying a private cause of action is consistent with the underlying purposes of the legislative scheme — Plaintiffs argue that § 49-10 would not achieve its desired effect if it were not coupled with a private cause of action. They note that although the statute provides that a mortgagor can make payment to the assignor instead of the assignee, it does not say what happens if the assignor refuses to take payment. Particularly at this time of great instability in the mortgage markets and rising foreclosures, Plaintiffs' argument may well have merit. However, whether or not recognizing a cause of action is the "most effective way to guarantee" compliance with a statute is not relevant to the question of whether this Court should find an implied private remedy. For as the Connecticut Supreme Court observed recently in Rollins, "[courts] do not decide whether the legislature should have supplied a private right of action; rather, [they] consider whether and how remedies were provided as an indication of the legislature's intent to confer a private cause of action." Rollins, 283 Conn. at 155 (quoting Asylum Hill, 277 Conn. at 258). Therefore, even if the existence of a private right of action would, as a policy matter, assist in furthering the goals of § 49-10, it is not this Court's "province to override the clear preferences of the legislature regarding how the statutes are to be enforced, as evidenced by the remedies that were adopted." Rollins, 238 Conn. at 155.
Accordingly, this Court concludes that Plaintiffs have failed to meet their burden of establishing that the Napoletano factors weigh in favor of recognizing an implied private right of action under § 49-10. Defendants are therefore entitled to summary judgment on Count One of the Amended Complaint [doc. # 40].
2. Conn. Gen. Stat. § 49-10a (provision of proper and timely payoff letters)
The analysis as to § 49-10a is similar to that as to § 49-10. Subsection (a) of § 49-10a instructs mortgagees to provide written payoff statements when requested to do so by the mortgagor, stating:
A mortgagee shall, upon written request of the mortgagor or the mortgagor's attorney or other authorized agent provide a payoff statement in writing to the person requesting the payoff statement on or before the date specified in such request, provided such request date is at least ten business days after the date of receipt of the written request for a payoff statement.
Conn. Gen. Stat. § 49-10a(a). Subsection (b) goes on to provide an express remedy when a mortgagee fails to comply with the statute:
If the mortgagee fails to provide the payoff statement on or before such request date, the mortgagee shall not be entitled to the payment of any interest on the mortgage loan which is secured by such mortgage which accrues after the expiration of such request date. If the mortgagee provides the payoff statement to the person requesting the payoff statement after the expiration of such request date, interest on the mortgage loan which accrues after the receipt of the payoff statement by the person who has requested it shall again be payable.Id. § 49-10a(b).
As with § 49-10, Plaintiffs fall within the class of individuals for whose benefit § 49-10a was enacted — that is, mortgagors — and thus satisfy the first Napoletano factor. But, as was true of § 49-10, Plaintiffs utterly fail to make the showing required to satisfy the second Napoletano factor. Plaintiffs concede — and the Court's research reveals — that the legislative history does not tip the balance in either direction. It is also apparent that by expressly providing for deductions of interest in accordance with a mortgagee's failure to comply with § 49-10a, the legislature provided an explicit remedy for violations of the statute, thus evincing the legislature's intent not to provide a private cause of action. See Rollins, 238 Conn. at 150-01; Asylum Hill, 277 Conn. at 254. Finally, as with § 49-10, the provision of an express private cause of action in § 49-8 cuts against implying one under § 49-10a.
Section 49-10a(b) also states that the "burden of proof" is on the mortgagor, which suggests that the legislature envisioned that this issue would be raised in a judicial action. However, that judicial action need not be a private cause of action for damages. Instead, the language of this section is fully consistent with a mortgagor raising the statute as a defense in a foreclosure proceeding. This appears to be the current practice in the Connecticut Superior Courts. See, e.g., Metro. Mortgages Secs. Co., Inc. v. Capozziello, No. CV020392900S, 2003 WL 21040662, at *1 (Conn.Super.Ct. Apr. 30, 2003) (noting that § 49-10a "does not go to the issue of defendant's liability for the debt," but rather to the amount of debt due); Ostrager v. Hasiuk, No. 45414, 1991 WL 86203, at *4 (Conn.Super.Ct. May 9, 1991) (raising § 49-10a as a special defense).
Plaintiffs' argument as to the third Napoletano factor also fails. Plaintiffs state that § 49-10a would not achieve its desired effect except if accompanied by a private cause of action because
[g]iven the reality that payoff statements are sought when property is being sold or refinanced, both of which require receiving a release from [the] mortgagee, which will not be given unless the mortgagee is paid what it demands, to claim that there is no implied right of action would defeat the entire purpose of the statute.
Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], at 28. This policy argument may resonate in the General Assembly, particularly in light of the current mortgage crisis, but it is made in the wrong forum; this Court's task is not to decide whether the legislature should have provided a different remedy than it did.
As with § 49-10, Plaintiffs have failed to meet their burden of establishing that the balance of the Napoletano factors weighs in favor of recognizing a private right of action under § 49-10a. Therefore, Defendants are entitled to summary judgment on Count Two of the Amended Complaint [doc. # 40].
3. Conn. Gen. Stat. § 47-10 (timely recording of assignments)
Subsection (a) of § 47-10 of the Connecticut General Statutes provides that "[n]o conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies." Conn. Gen. Stat. § 47-10(a). As Plaintiffs themselves essentially admitted at oral argument, they fail to satisfy the first Napoletano factor for § 47-10. The words of the statute clearly indicate that it is designed to protect bona fide purchasers against subsequent fraudulent assignments without notice, and Connecticut courts have acknowledged as much. See, e.g., Owades v. Assocs. Home Equity Servs., No. CV010380582S, 2001 WL 1358769, at *2 (Conn.Super.Ct. July 16, 2001) (citing to § 47-10 and stating that "[r]ecordation is . . . desirable in order to protect the interests of the mortgagee against a subsequent holder in due course of a note secured by the same collateral without notice of the prior mortgage."). Therefore, Plaintiffs fail to make the necessary showing on the first Napoletano factor. Since the Connecticut Supreme Court requires a plaintiff to demonstrate that none of the three Napoletano factors "weighs against affording an implied right of action," Napoletano, 238 Conn. at 249, the Court has no need to progress to the second and third factors. Plaintiffs may not pursue a private right of action for Defendants' alleged violation of § 47-10, and thus Defendants are entitled to summary judgment on Count Three of the Amended Complaint [doc. # 40].
B. CUTPA
In Count Four, Plaintiffs claim that Defendants' failures to comply with Connecticut General Statutes §§ 49-10, 49-10a and § 47-10 constituted unfair trade practices in violation of CUTPA. Even if, as here, there is no private cause of action for violating a Connecticut statute, a plaintiff may still be able to pursue a CUTPA action based upon the statutory violation. See Eder Bros., 275 Conn. at 379-81.
Whether a defendant's acts or omissions are unfair or deceptive in violation of CUTPA is dependent on the following factors:
(1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (competitors or other businessmen).Cheshire Mortgage Serv., Inc. v. Montes, 223 Conn. 80, 105-06 (1992) (quotation marks and alterations omitted) (the "Cigarette Rule"). "All three criteria do not need to be satisfied to support a finding of an unfair or deceptive practice. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Id. at 106. Further, "a party need not prove an intent to deceive to prevail under CUTPA." Id. Under the third requirement of the Cigarette Rule, an injury "must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided." Id. at 113. Whether a defendant's actions or omissions violate CUTPA is generally a question for the jury. See Willow Springs Condo. Ass'n, Inc. v. Seventh BRT Dev. Corp., 245 Conn. 1, 43 (1998). However, as a threshold matter, a court must determine whether a plaintiff has sustained an "ascertainable loss of money or property, real or personal," Conn. Gen. Stat. § 42-110g(a), that is "capable of being discovered, observed or established," or put differently, that is "measurable even though the precise amount of the loss is not known," see Hinchliffe v. Am. Motors Corp., 184 Conn. 607, 613-14 (1981) (quotation marks omitted).
The parties agreed at oral argument that for purposes of the present motion, the only issue at the summary judgment stage is whether Plaintiffs have shown an "ascertainable loss" within the meaning of CUTPA and if so, as to what aspects of Defendants' alleged conduct. As determined during oral argument, Plaintiffs assert three types of losses under CUTPA: (1) Mr. Packer's lost sale opportunities on the Elm Street property as a result of Defendants' alleged delinquency in providing timely and proper payoff statements; (2) Mr. Packer's emotional distress and ensuing alleged financial losses resulting from the debilitative effect his emotional distress had on his ability to retain and manage the Elm Street property; and (3) Plaintiffs' payment of approximately $2,200 in interest that was otherwise not due under Connecticut General Statute § 49-10a in light of Defendants' failure to provide the Elm Street payoff letters in a timely manner. The Court will consider each claim in turn.
In their briefings, Defendants also argued that at most their conduct should be characterized as negligent, and not intentional conduct, which might take it outside of CUTPA's realm. See A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215 (1990) (finding that negligent supervision did not suffice for a CUTPA violation). However, at oral argument they conceded that whether the conduct was intentional or negligent, as well as whether it rises to the level of a CUTPA violation, are questions of fact that must be left to a jury. See Willow Springs, 245 Conn. at 43.
The alleged "lost sale opportunities" and "emotional distress and ensuing financial losses" apply to Mr. Packer alone since Ms. Denaro did not have an ownership interest in the Elm Street property.
Plaintiffs' claimed lost sales opportunities could qualify as ascertainable losses within the meaning of CUTPA, but it became clear at oral argument that Plaintiffs cannot provide any proof of such losses. Indeed, Plaintiffs' counsel conceded that Plaintiffs have no admissible evidence of any firm offers for the Elm Street property, and that, to the extent any "informal" offers were made, they were for amounts less than that for which the Elm Street property was ultimately sold. Therefore, Mr. Packer has no ascertainable losses attributable to any claimed lost sales opportunities.
Mr. Packer's second claimed loss stems from the emotional distress he alleges Defendants' actions caused. Connecticut appellate courts appear not to have ruled on the question of whether emotional distress and related damages constitute ascertainable losses under CUTPA. However, the overwhelming majority of Superior Courts that have considered this question have ruled that emotional distress and related damages do not constitute ascertainable losses under CUTPA. See Green v. Konover Residential Corp., No. 3:95CV1984(GLG), 1997 WL 736528, at *7 (D. Conn. Nov. 24, 1997) ("Connecticut courts have held that CUTPA does not provide a remedy for suffering and emotional distress alone. . . ."). The Court is persuaded by those decisions. After all, CUPTA provides a remedy for "ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by [CUTPA]." Conn. Gen. Stat. § 42-110g(a) (emphasis added). It is difficult to understand how emotional distress can properly be labeled a loss of "money or property." See Jaworski v. Anderson, No. CV940537265S, 2001 WL 1028893, at *1 (Conn.Super.Ct. Aug. 7, 2001) ("[E]motional distress is more of a loss of mental stability than a loss of money."). While Mr. Packer asserts that his ensuing emotional distress led to his failure to manage the Elm Street property and that this, in turn, resulted in a loss of money or property, his claim remains one that is tied to emotional distress. According to Mr. Packer, it was the emotional distress he experienced (albeit caused by Defendants' actions) that directly led to the alleged financial losses he claims to have suffered. The Court concludes that Mr. Packer's claims for emotional distress and resulting financial losses do not fall within CUTPA's ambit, and therefore he may not seek to recover for such losses on his CUTPA claim. See id. (finding that plaintiff could not recover for monies expended for emotional distress).
See Toms v. Physicians Health Servs., Inc., No. X02CV010167077S, 2002 WL 31501256, at *1 (Conn.Super.Ct. Oct. 24, 2002); Lane v. First Union Nat'l Bank, No. CV010446552S, 2002 WL 982697, at *2 (Conn.Super.Ct. Apr. 19, 2002); Burney v. Downer Funeral Home, Inc., No. CV990175648, 2001 WL 1029613, at *5 (Conn.Super.Ct. Aug. 13, 2001); Jaworski v. Anderson, No. CV940537265S, 2001 WL 1028893, at *1 (Conn.Super.Ct. Aug. 7, 2001); Sullivan v. Mang, No. CV000372972S, 2001 WL 717471, at *4 (Conn.Super.Ct. June 4, 2001); Printed Circuits Unlimited, Inc. v. Sensor Switch, Inc., No. CV 910288532S, 1996 WL 634259, at *5 (Conn.Super.Ct. Oct. 23, 1996); Ross v. Co. Store, No. CV910115710S, 1991 WL 204357, at *1 (Conn.Super.Ct. Oct. 1, 1991); accord Rees v. Flaherty, No. CV010077316, 2002 WL 1492177, at *2 (Conn.Super.Ct. June 7, 2002) ("[E]motional distress and loss of life's enjoyment . . . do not appear to come within the meaning of ascertainable loss or actual damages as contemplated by the CUTPA statute."); Murphy v. McNamara, 416 A.2d 170, 178 (1979). But see Salomonson v. Billistics, Inc., No. CV-88-508292, 1991 WL 204385, at *15 (Conn.Super.Ct. Sept. 27, 1991) ("'ascertainable loss' includes mental or emotional distress." (citation omitted)).
Nonetheless, Plaintiffs' CUTPA claim survives summary judgment because Plaintiffs can show an ascertainable loss of money resulting from the allegedly erroneous calculations of interest due under § 40-10a. Section 49-10a(b) of the Connecticut General Statutes provides that "[i]f the mortgagee fails to provide the payoff statement on or before [the] request date, the mortgagee shall not be entitled to the payment of any interest on the mortgage loan which is secured by such mortgage which accrues after the expiration of such request date." Conn. Gen. Stat. § 49-10a(b). Responding to this directive and in light of the delay in sending the Elm Street payoff statement, Defendants deducted $433.95 from Plaintiffs' debt. However, Plaintiffs calculate that at $8.74 a day for 308 days, the interest would amount to $2,691.92, not $433.95. See Pls.' 56(a)(2) Statement [doc. # 184-2] at 14, ¶ 18(4). Thus, they argue that Defendants' interest deduction of $433.95 is approximately $2,200 less than the amount Plaintiffs are owed.
During oral argument, Defendants conceded that if sufficiently pled, Plaintiffs have shown ascertainable losses based on these interest amounts. However, they maintain that Plaintiffs failed to plead the loss of interest in their complaint. The Court finds otherwise. Plaintiffs' Amended Complaint alleged that they were sent "invoices and/or notices that contained erroneous calculations and totals, contained . . . interest and other charges that were not in accordance with the Elm Street Note," Am. Compl. [doc. # 40], ¶ 184, and "incurred and continued to incur additional interest, costs and expenses," id. ¶ 189(a). Although this language does not specifically recite what interest amount is being referenced, the Court finds it to be sufficiently pled to provide Defendants with notice of the claim. See Fed.R.Civ.P. 8(a), (d), (f); Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007) (stating that a Rule 8 statement "must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." (quotation marks omitted)). Thus, Plaintiffs can show an ascertainable loss of approximately $2,200 on the interest calculations, and can pursue their CUTPA claim to the extent of that loss only. Insofar as Plaintiffs seek recovery under CUTPA for alleged lost sales opportunities or for emotional distress and related damages, Defendants are entitled to summary judgment.
C. Infliction of Emotional Distress
In Count Nine, Mr. Packer seeks recovery for what he claims are Defendants' intentional, as well as negligent, infliction of emotional distress. The Court grants summary judgment to Defendants on Mr. Packer's intentional infliction claim, but not on his claim of negligent infliction of emotional distress.
1. Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress under Connecticut law, a plaintiff must establish four elements:
(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.Appleton v. Bd. of Ed. of Stonington, 254 Conn. 205, 210 (2000) (alterations omitted). The Connecticut Supreme Court has made it clear that whether conduct is extreme and outrageous is a question for the court in the first instance. See id. That court has also explained that to be actionable, the conduct at issue must be "regarded as atrocious, and utterly intolerable in a civilized community." Id.
This Court concludes that based upon the particular facts of this case, no reasonable jury could find that Defendants' alleged failure to provide notices and payoff statements, as well as their alleged failure to record the assignments and to correctly compute Mr. Packer's debt obligations, was "extreme," "outrageous," "atrocious" or "utterly intolerable in a civilized community," as the Connecticut courts have used those terms. Connecticut courts have come to the same conclusion in somewhat similar circumstances. For instance, in Heim v. California Federal Bank, 78 Conn. App. 351 (2003), the Appellate Court affirmed the trial court's finding that the plaintiff did not show extreme and outrageous conduct where the defendants, despite making misrepresentations to the plaintiff, filed a foreclosure action against plaintiff and among other things, withheld documents to which the plaintiff was entitled and sent a letter containing falsehoods to him. See Heim, 78 Conn. App. at 369-72. The court found that the defendants' conduct was tied to the filing of a lawsuit, which, "even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior or make the average member of the community raise their hand and exclaim, 'Outrageous!'" Id. at 371. Also, in Mazzella v. J.E. Robert Co. of New England, No. CV970400690S, 2001 WL 1132146 (Conn.Super.Ct. Aug. 17, 2001), the court found that the defendant's failure to accept a proposal of refinancing, which ultimately resulted in foreclosure on the plaintiff's property and eviction of plaintiff and his family from their home, did not amount to extreme and outrageous conduct. See Mazzella, 2001 WL 1132146, at *2.
At oral argument, the SN Defendants agreed not to pursue summary judgment on the intent element of the intentional infliction claim because of the pendency of disputes before the Special Master on a Motion to Quash [doc. # 129] and Motion for Protective Order [doc. # 130]. The Court's decision to dismiss Mr. Packer's claim for intentional infliction of emotional distress is based solely on his failure to make a showing as to the second element of the tort, and the Court did not consider the issue of intent in rendering this decision.
Similarly, it is apparent that Defendants' behavior, while inappropriate as Plaintiffs have characterized it, does not meet the high standards that the Connecticut Supreme Court has established for this tort. As a result, the Court grants summary judgment to Defendants on Mr. Packer's intentional infliction of emotional distress claim.
2. Negligent Infliction of Emotional Distress
To prove negligent infliction of emotional distress in Connecticut, a plaintiff must show that: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003). "The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm." Olson v. Bristol-Burlington Health Dist., 87 Conn. App. 1, 5 (2005). The conduct at issue for negligent infliction of emotional distress claims is adjudged under a lower standard than that for intentional infliction of emotional distress claims. See id. at 7-8.
Defendants argue that Mr. Packer has failed to make the necessary showing on all four prongs of the negligent infliction tort. First, they contend that no reasonable jury could find that Defendants' alleged failure to provide Mr. Packer with a notice of assignment on the Elm Street property despite repeated requests, failure to timely record their assignments so that Mr. Packer could verify Defendants' existence, and incorrect computations of his debt, created an unreasonable and foreseeable risk that Mr. Packer would experience emotional distress severe enough so as to result in illness or bodily harm. However, given Mr. Packer's repeated requests to Defendants and the amount of debt owed, this Court concludes that he has raised factual issues regarding the reasonableness of Defendants' conduct and whether emotional distress was a foreseeable consequence. Therefore, these issues must be left to the trier of fact. Furthermore, Connecticut courts have concluded that injuries such as those Mr. Packer is alleging were sufficient to make a showing for the third prong. See, e.g., Carrol, 262 Conn. at 448 (finding that there was sufficient evidence for a jury to find that the distress might result in illness or bodily harm, where plaintiff testified that he could not sleep, had frequent nightmares, had a loss of appetite, and experienced depression and a sense of isolation from his community because of the defendant's actions). Thus, the Court concludes that taking all of the evidence in the light most favorable to Mr. Packer, he has provided sufficient evidence regarding the first three requirements of the negligent infliction of emotional distress analysis to survive summary judgment.
Next, Defendants argue that Mr. Packer cannot establish the fourth requirement — causation — because he has not provided expert testimony to support his claim that his emotional distress was caused by Defendants. Mr. Packer concedes as much, but states that expert testimony is not required under Connecticut law and that in any case, there is expert testimony in the record, including the results of an independent medical examination, sufficient to permit a reasonable jury to conclude that Mr. Packer's acknowledged pre-existing distress was exacerbated by Defendants' actions.
Under Connecticut law, "expert testimony is not required to prevail on a claim on mental suffering." LaBieniec v. Baker, 11 Conn. App. 199, 204 (1987) (emphasis added); see also McNamara v. Tournament Players Club of Conn., Inc., 270 Conn. 179, 196 (2004) (suggesting that trial court would be wrong to require expert testimony for negligent infliction of emotional distress claim). However, in establishing "a claim for mental or emotional distress by a fair preponderance of the evidence," LaBieniec, 11 Conn. App. at 204 (quotation marks omitted), a plaintiff "must provide sufficient evidence of the distress and that the [defendant's act] was more likely than not the cause of the distress." Id. at 206. Mere "self-serving" testimony is unlikely to suffice. But a plaintiff who can provide some objective evidence in the form of expert testimony or other testimony may be able to establish the necessary causation to prevail on his claim. See id. at 205-06 (finding that plaintiff's testimony and his wife's testimony regarding plaintiff's thoughts was insufficient to prove causation); Ordner v. Kirschner, No. CV040413046, 2006 WL 3878157, at *4 (Conn.Super.Ct. Dec. 20, 2006) (dismissing plaintiff's negligent infliction of emotional distress claim in part because plaintiff failed to offer "any objective evidence, in the form of medical notes, reports, bills, prescriptions or otherwise or any testimonial evidence other than his own self-serving testimony. . . ."); Doe v. Advisors Healthcare, Inc., No. X01CV020170300S, 2005 WL 1089176, at *5 (Conn.Super.Ct. Mar. 25, 2005).
In addition to his own testimony, Mr. Packer offers testimony from Ms. Denaro stating that in May 2001, Mr. Packer started becoming "very withdrawn," "distant," "uncharacteristically ornery," gained weight, that his work, sleeping and sex habits deteriorated, and that he seemed depressed, changes which in her opinion, were caused by the "SN Servicing situation." See Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], Ex. 10 ("Denaro Dep."), at 28-33, 39-40, 46-48, 101-03. Moreover, Mr. Packer can point to expert testimony in the record that could be construed by a reasonable jury to support his assertion that Defendants' actions exacerbated his pre-existing mental and emotional conditions. See Pls.' Mem. in Opp. to SN Defs.' Mot. for Summ. J. [doc. # 184], Ex. 14a-14b, at 191-93. Accordingly, the Court concludes that there are genuine issues of fact regarding causation that preclude the grant of summary judgment. See, e.g., Doe, 2005 WL 1089176, at *5 (denying summary judgment over the defendant's claim that expert testimony was required to prove causation in negligent infliction of emotional distress claim). Therefore, the Court denies summary judgment for Defendants on Mr. Packer's claim of negligent infliction of emotional distress.
D. Loss of Consortium
In the final count, Count Ten, Ms. Denaro asserts a claim for loss of consortium against all Defendants alleging that she "has been deprived of the care, comfort, protection, society, support and services" of Mr. Packer as a result of the injuries they caused to him. See Am. Compl. [doc. # 40], ¶ 230. Defendants are entitled to summary judgment on Ms. Denaro's loss of consortium claim for several reasons.
Under Connecticut law, claims for loss of consortium are limited to those brought by: (1) a spouse in a marriage that follows certain formalities that are prerequisites to a valid marriage contract under Connecticut law, or (2) a spouse in another form of marriage, such as a common-law marriage, that is valid in another state and thus is recognized by Connecticut. See Gurliacci v. Mayer, 218 Conn. 531, 564 (1991) (limiting the loss of consortium cause of action to couples married at the time of the injury because "the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance." (emphasis added) (quotation marks omitted)); Collier v. Milford, 206 Conn. 242, 249 (1988) ("[I]t is the generally accepted rule that a marriage that is valid in the state where contracted is valid everywhere. . . ."); Garrity v. Gingras, No. CV 94-0459955S, 1994 WL 442763, at *1 (Conn.Super.Ct. Aug. 8, 1994) (indicating that a spouse in a common-law marriage that is recognized by another state would likely be able to bring a loss of consortium claim under Connecticut law). Plaintiffs do not fall into either group.
See also Kaya v. New London, 458 F. Supp. 2d 1, 6 (D. Conn. 2006) (noting that Gurliacci limits claims for loss of consortium to married couples); Mendillo v. Bd of Ed. of East Haddam, 246 Conn. 456, 495-96 (1998) (declining to recognize cause of action for loss of parental consortium by a minor child); Dognin v. Black, No. CV990067320S, 2000 WL 638952, at *1 (Conn.Super.Ct. May 1, 2000) (rejecting argument that the focus should be on the time of the forming of the marriage contract, i.e., the time of engagement); Gross v. Sauer, No. 37 83 58, 1992 WL 205277, at *2 (Conn.Super.Ct. Aug. 14, 1992) (refusing to expand cause of action to encompass injuries sustained prior to marriage but discovered after marriage).
Here, Plaintiffs admit they are not formally married. However, they assert they are in a relationship that they claim is a common-law marriage. The problem with that argument is that Connecticut does not recognize common-law marriages. See Boland v. Catalano, 202 Conn. 333, 339 (1987) (refusing to recognize common-law marriages in Connecticut, stating "[t]he rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit outside the marital relationship."). And, at oral argument, counsel for Ms. Denaro admitted that he had no evidence to show that Ms. Denaro and Mr. Packer had entered into a common-law marriage in any other jurisdiction that would be subject to full faith and credit under Connecticut law. See also Denaro Dep. at 9-10, 25; Packer Dep. at 17-18 (indicating that Ms. Denaro and Mr. Packer have not had a civil or religious marriage ceremony and have lived solely in the State of Connecticut since 1993).
Because there is no dispute about the material facts regarding Ms. Denaro's loss of consortium claim and Defendants are entitled to judgment on that claim as a matter of law, the Court grants summary judgment to Defendants on Count Ten of the Amended Complaint [doc. # 40].
E. Defendant Wells Fargo Foothill's Motion for Summary Judgment
In bringing suit against Wells Fargo, Plaintiffs rely on a theory of vicarious liability. Under Connecticut law,
[v]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720 (1999). A relationship giving rise to vicarious liability might exist "when one entity, called the principal, authorizes another entity, called the agent, to act for the principal in dealing with third parties." Ingomar, 2007 WL 1675846, at *14 (quotation marks omitted). That is what Plaintiffs appear to assert in this case. In response, Wells Fargo contends that the SN Defendants were not acting as Wells Fargo's agents in dealing with Plaintiffs and thus Wells Fargo cannot be held vicariously liable for the actions of the SN Defendants.
The existence of an agency relationship is ordinarily a question of fact. See Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543 (2006). But the party asserting its existence has the burden of coming forward with facts to support the claim. See Lee v. Duncan, 88 Conn. App. 319, 324 (2005). To meet this burden, the party must show: "(1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." Wesley, 277 Conn. at 543. "[T]he labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." Id. at 543-44 (quotation marks omitted). Even taking the evidence in the light most favorable to Plaintiffs, it is apparent that they cannot satisfy these requirements.
The parties agree that Wells Fargo held Mr. Packer's loans from April 2001 through August 2002 as collateral in connection with an Amended and Restated Loan and Security Agreement between SN Commercial and Mr. Packer. See Foreclosure J. at *1, *7; Pls.' Mem. in Opp. to Wells Fargo's Mot. for Summ. J. [doc. # 185], at 2-3; Wells Fargo's Mem. in Supp. of Mot. for Summ. J. [doc. # 171], Ex. 3 ("Collateral Assignment of Mortgage Deed Assignment of Leases"). Wells Fargo has provided a sworn declaration attesting that its "interest in the Packer Mortgage Loans was solely as a creditor of SN Commercial," and that although the Amended and Restated Loan and Security Agreement allowed Wells Fargo to collect the monies owed on SN Commercial's behalf, Wells Fargo never did so and did not participate in any of the decisions regarding Mr. Packer's debts. See Wells Fargo's Mem. in Supp. of Mot. for Summ. J. [doc. # 171], Ex. 1 ("Declaration of John Noæita") ¶ 6; see also id. Ex. 2 ("Amended and Restated Loan and Security Agreement"). The documentary record supports Wells Fargo's assertions. Plaintiffs have engaged in extensive discovery, but they have submitted no evidence to counter Wells Fargo's statements regarding its creditor-borrower relationship with SN Commercial or its lack of involvement in the decisions regarding Mr. Packer's debts. Nor have Plaintiffs submitted to the Court any evidence at all that Wells Fargo asked, directed or wanted the SN Defendants to act for Wells Fargo in dealing with Plaintiffs or that the SN Defendants accepted the obligation to do so.
As a consequence, Plaintiffs have not met their burden of coming forth with evidence from which a reasonable jury could conclude that there was an agency relationship between Wells Fargo and the SN Defendants. See Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir. 2007) ("Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'") (quoting Fed.R.Civ.P. 56(c)); Lee, 88 Conn. App. at 326 ("[A] title insurance company's activities in investigating the title to a particular property prior to issuance of a policy does not constitute an agency relationship between the insurance company and the insured."). Therefore, Wells Fargo's Motion for Summary Judgment [doc. # 170] is granted and it is entitled to judgment on all of Plaintiffs' claims.
Further, in the Blatchley Avenue foreclosure proceedings, Judge DeMayo found that Ingomar was the beneficial owner of the Blatchley Avenue note, over Mr. Packer objections that Ingomar failed to establish that the SN Commercial-Wells Fargo assignment was intended "only to be a security, rather than a transfer of all rights in the note and mortgage." Foreclosure J. at *6-*7. This factual finding is binding on Mr. Packer. See supra Part III.
V.
For the reasons discussed, this Court GRANTS IN PART and DENIES IN PART the SN Defendants' Motion for Summary Judgment [doc. # 164]. Summary judgment shall enter for Defendants as follows: on Counts One, Two, Three, Five, Six, Seven, Eight, and Ten; on Count Four to the extent it seeks recovery for lost sale opportunities or emotional distress and related losses; and on Count Nine to the extent it seeks recovery on a claim of intentional infliction of emotional distress. Summary judgment is denied as follows: on Count Four to the extent it alleges CUTPA violations premised on the incorrectly computed interest payments; and on Count Nine to the extent that it alleges a claim of negligent infliction of emotional distress. Further, Wells Fargo's Motion for Summary Judgment [doc. # 170] is GRANTED in its entirety, and summary judgment shall enter for Wells Fargo on all counts. By separate order, the Court will issue a trial schedule.
IT IS SO ORDERED.