concurring in the judgment:
I concur in the judgment only because this division of the court is bound by our *999decision in Gordan v. William J. Davis, Inc., D.C.App., 270 A.2d 138 (1970),1 which is premised on Tutt v. Doby, D.C.App., 265 A.2d 304 (1970) — a decision reversed in a persuasive opinion by Judge Leventhal in Tutt v. Doby, 148 U.S.App.D.C. 171, 459 F.2d 1195 (1972).
Judge Leventhal explained why a default judgment in a summary possession action in the Landlord and Tenant Branch should not have a collateral estoppel2 effect on the amount of rent due in a later suit for nonpayment of rent. See id. at 173-76, 459 F.2d at 1197-1200. Similarly, a default judgment in a summary possession action should not bar a tenant from alleging a setoff or counterclaim, based on housing code violations, in a later suit for possession based on alleged nonpayment. As my colleagues concede, see ante at 998 n.ll, the first action did not determine the amount of rent due3 (an amount subject to setoff for code violations); thus, any subsequent action for possession, based on alleged nonpayment of rent, is vulnerable to any previously unasserted code violation claims not barred by the statute of limitations. To hold otherwise improperly makes compulsory, in the first action, what is clearly a permissive counterclaim. See Super.Ct. L &T R. 5(b); Pernall v. Southall Realty, D.C.App., 294 A.2d 490, 498 (1972), rev’d on other grounds, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974).
Recently, moreover, a division of this court in effect rejected Gordan, supra, by reaffirming the view that a possessory action only determines the right to possession, not the amount of rent due, and thus should not bar a subsequent action concerning conditions. In Mahdi v. Poretsky Management, Inc., D.C.App., 433 A.2d 1085, 1089-90 (1981) (per curiam), the court held that the striking of pleadings and entry of judgment for possession in favor of the landlord would not bar a subsequent action brought by a tenant to recover damages for breach of the warranty of habitability. See Hsu v. Thomas, D.C.App., 387 A.2d 588 (1978) (per curiam) (tenant entitled to sue landlord for amount paid in excess of the reasonable rental value of the leased premises).
My colleagues argue that appellant’s payment of arrearages was, in effect, an admission that he had no setoff against the rent thus paid. I disagree. The fact of default does not mean that the tenant “either intends to acquiesce in the allegation of rent due, or has reason to foresee” the conclusive effect of issues not specifically litigated. Tutt, supra, 148 U.S.App.D.C. at 176, 459 F.2d at 1200. I would argue, similarly, that a court should not read into payment of arrearages after default, as the only way to retain one’s housing, a conscious waiver of a setoff or counterclaim not previously litigated.4 Implying such a waiver is particularly inappropriate because this jurisdiction *1000has established conflicting precedent concerning the res judicata effect of judgments for possession. Compare Gordan, supra with Mahdi, supra.
Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER, MACK, FERREN, PRYOR, and BELSON, Associate Judges, and YEAGLEY, Associate Judge, Retired.PER CURIAM.
ORDER
On consideration of appellant’s petition for rehearing en banc pursuant to D.C.C.A. Rule 40, and it appearing that the majority of the judges of this Court has voted to grant the aforesaid petition, it is
ORDERED that appellant’s petition for rehearing en banc is granted and that this Court’s February 11, 1982, opinions and judgment are hereby vacated. The Clerk of the Superior Court is directed to return to this Court the mandate issued on March 5, 1982. It is
FURTHER ORDERED that the Clerk cause this case to be scheduled for argument before the en banc court as promptly as the business of the Court permits. The parties are hereby directed to file ten additional copies of the briefs heretofore filed with the Clerk on or before Thursday, April 15, 1982.
. In Gordan, supra at 140, this court held: “appellant is foreclosed from litigating alleged violations [of housing regulations] existing prior to the last default judgment entered against him in the possessory action....”
. In Tutt, supra, 148 U.S.App.D.C. at 173, 459 F.2d at 1197, Judge Leventhal corrected this court’s invocation of res judicata. See Tutt, supra, 265 A.2d at 305. The distinction between res judicata and collateral estoppel should be vital to this case. Under the doctrine of collateral estoppel, the decision in a prior case acts as a bar only as to issues “actually litigated and determined in the first action.” Tutt v. Doby, 148 U.S.App.D.C. 171, 175, 459 F.2d 7, 11 (1972) (quoting Restatement of Judgments § 68(2)). According to Professor Moore, “probably the preponderant view” and the better view is that “a default judgment has no collateral estoppel effect. To invoke the doctrine of collateral estoppel in default cases is not only an oppressive application of the doctrine, but it misconceives the nature of a default judgment.” IB J. Moore, Federal Practice, ¶ 0.444 at 4006 (2d ed. 1980) (footnotes omitted). See id. (1981 Supp. at 217) (noting the “excellent discussion of this aspect of the question by Judge Leventhal in Tutt v. Doby”); Restatement of Judgments § 68, Comment f, at 302-03 (1942) (default judgment should have no collateral estoppel effect); In re Garland, 401 F.Supp. 608, 610 n.3 (E.D.Pa.1975) (citing Tutt and Moore’s for better practice of giving no collateral estoppel effect to default judgment). But see Annot., 77 A.L.R.2d 1410, 1423-25 (1961) (most courts have rejected the Restatement approach and given collateral es-toppel effect to default judgments).
. See Winchester Management Co. v. Staten, D.C.App., 361 A.2d 187, 192 n.13 (1976); George Worthington & Son Management Corp. v. Levy, D.C.App., 204 A.2d 334, 336 (1964); Trans-Lux Radio City Corporation v. Service Parking Corporation, D.C.Mun.App., 54 A.2d 144, 148 (1947); Shipley v. Major, D.C.Mun.App., 44 A .2d 540, 541 (1945).
. In this connection, it is important to note that in the Landlord and Tenant Branch of Superior Court, 99% of the actions have at least one party who is not represented by counsel — almost always the tenant. See Ferren, Courts, Lawyers, and the Organized Bar: A Joint Pro Bono Responsibility, State Ct.J., Summer 1981, at 4, 37.