United States District Court, D. Connecticut
JOAN T. KLOTH-ZANARD Plaintiff,
BANK OF AMERICA & SPECIALIZED LOAN SERVICING, Defendants.
INITIAL REVIEW ORDER AND RULING ON PENDING MOTIONS
Michael P. Shea, U.S.D.J.
On August 7, 2015, plaintiff Joan T. Kloth-Zanard filed a thirteen count complaint against Bank of America and Specialized Loan Servicing, alleging violations of the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, and various Connecticut consumer protection laws, among other claims. Because the plaintiff seeks to proceed in forma pauperis, the Court must evaluate her complaint and determine whether it should advance. For the reasons discussed below, the Court dismisses the claims in Count II under 15 U.S.C. §§ 1692c(a) and 1692e, and the claims in Counts IV through XIII. The following claims remain: the claim under 47 U.S.C. § 227(b)(1) in Count I, the claims under 15 U.S.C. §§ 1692d and 1692g in Count II, and the claim under Conn. Gen. Stat. § 26a-648 in Count III.
II. Motion to Proceed in Forma Pauperis
“[A]ny court of the United States may authorize the commencement . . . of any suit . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1).
Based on the information that the plaintiff has submitted in her motion, it appears that she is unable to pay the costs and fees associated with this lawsuit. The plaintiff has submitted an affidavit stating that her spouse has no income and that she receives $766 a month in social security or disability benefits as well as an undisclosed amount of income, which she earns at a rate of $13 an hour. (ECF No. 2-2 at 3.) This would meet the requirements of 28 U.S.C. § 1915(a)(1) and warrant granting leave to proceed in forma pauperis.
Nonetheless, a court may take judicial notice of a litigant’s motions to proceed in forma pauperis that are filed in other cases. Green v. White, 616 F.2d 1054, 1055-56 (8th Cir. 1980). Based on the information that the plaintiff has submitted in her Motion to Proceed in Forma Pauperis in Kloth-Zanard v. Department of Social Services, et al., No. 3:15-cv-01521 (MPS) (D. Conn. October 20, 2015), shortly after filing her pending motion in this case, there may be a question about whether she is unable to pay the costs and fees associated with this lawsuit. In Kloth-Zanard v. Department of Social Services, et al., No. 3:15-cv-01521, Ms. Kloth-Zanard lists her spouse’s income as being $9, 500 a month. She also receives $766 a month in disability payments. These figures suggest that her annual income is roughly $123, 192. In Kloth-Zanard v. Department of Social Services, No. 3:15-cv-00124 (MPS) (D. Conn. January 29, 2015), in Ms. Kloth-Zanard’s affidavit accompanying her Motion to Proceed in Forma Pauperis, she listed her $766 monthly disability payment as her only income. The Court notes this apparent discrepancy, but nevertheless grants the pending motion, subject to the following conditions. The Court orders the plaintiff to file under seal in this case by February 22, 2016 her and her husband’s 2014 tax returns, copies of her husband’s last three pay stubs, an estimate of her and her husband’s income for 2015, and an affidavit by Ms. Kloth-Zanard explaining the differences in the three in forma pauperis affidavits over time. The affidavit shall be limited to five double-spaced pages. Failure to comply with this order may result in dismissal of this case with prejudice.
III. Initial Review
A. Legal Standard
Under 28 U.S.C. § 1915(e)(2)(B)(ii), the Court must evaluate the plaintiff’s complaint and dismiss the case if it “fails to state a claim on which relief may be granted.” In evaluating whether a plaintiff has stated a claim for relief, the Court must “accept as true all factual allegations in the complaint and draw all reasonable inferences” in plaintiff’s favor. Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000). The Court need not accept conclusory allegations and may allow the case to proceed only if the complaint pleads “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S. at 554-55). When a plaintiff submits a complaint pro se, the reviewing Court shall construe the allegations liberally, raising “the strongest arguments [they] suggest.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Even a pro se plaintiff, however, must meet the standard of facial plausibility set forth above. See Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (“[A] pro se complaint must state a plausible claim for relief.”) (citing Harris v. Mills, 572, F.3d 66, 73 (2d Cir. 2009)).
B. Factual Allegations
The plaintiff alleges the following facts in her complaint. The plaintiff obtained an adjustable rate, subprime mortgage from Country Wide Home Loans. (Complaint at ¶¶ 17-18, 26.) Brokers sold the loans to the plaintiff as “the ‘best’ loans available, ” but did not disclose the risk associated with them, such as future rate increases or underwriting standards. (Id. at ¶ 21.) In 2008, the defendant Bank of America took over the plaintiff’s mortgage from Countrywide. (Id. at ¶ 18.) Bank of America “steer[ed]” the plaintiff to loans that offered interest-only payments or minimum monthly payments that were less than the amount of interest owed. (Id.) The plaintiff filed for a loan modification in June 2008. (Id. at ¶ 22.) She received a 5-year loan modification but was not told at the time that after five years the loan would return to an adjustable rate mortgage. (Id. at ¶ 23.) In 2010, when Bank of America told the plaintiff that the loan would revert to an adjustable rate mortgage in 2013, the plaintiff informed Bank of America that she was disabled and could only afford to pay the loan as modified without an adjustable rate. (Id. at ¶¶ 23-25.) Bank of America “refused to work with her” and stalled attempts to arrange a second loan modification by causing her to restart the loan modification application six times in two years. (Id. at ¶ 27.)
During this time, Bank of America and Specialized Loan Servicing, neither of which had permission to call the plaintiff’s home or cellular phones, repeatedly called the plaintiff to “harass” her. (Id. at ¶ 30.) At least six times in one year, Bank of America entered the plaintiff’s property to place foreclosure notices at her front door. (Id. at ¶ 31.) The defendants called plaintiff’s home and cellular phone at least 104 times using an “automatic telephone dialing system” from February 2014 to April 2015 until the plaintiff told Specialized Loan Servicing to stop. (Id. at ¶¶ 36, 39.)
On May 6, 2015, the plaintiff contacted Bank of America and Specialized Loan Servicing for “Investor Information pertaining to her supposed mortgage debt.” (Id. at ¶ 32.) The defendants did not respond. (Id. at ¶ 34.) On July 9, 2015, Specialized Loan Servicing then sent a “strange man” driving a “blue Prius type vehicle” onto her property with a camera. (Id. at ¶ 37.)
On June 15, 2015, after the plaintiff received a collection notice from Bank of America and Specialized Loan Servicing, she sent another request for “Investor Information, ” and a written dispute of the debt “requesting validation of the debt” and the name and address of the original creditor. (Id. at ¶¶ 33, 35.) On August 3, 2015, Specialized Loan Servicing sent a harassing email to the plaintiff, which threatened foreclosure because the plaintiff had not provided “necessary information, ” even though the plaintiff had sent “numerous copies of the same documents over and over . . . .” (Id. at ¶ 42.)
The thirteen counts will be addressed seriatim.
1.Count I: Violations of 47 U.S.C. § ...