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Vaneck v. DLJ Mortgage Capital, Inc.

United States District Court, D. Connecticut

February 1, 2016



Stefan R. Underhill United States District Judge

This ruling concerns pro se appellant Hermann Vaneck a/k/a Jan Van Eck’s lengthy efforts to avoid foreclosure via the bankruptcy process. Van Eck has appealed twice from an order of the Bankruptcy Court that was vacated and then renewed, which grants appellee, DLJ Mortgage Capital, Inc. (''DLJ''), relief from the automatic stay in order to proceed with its Summary Process action in state court to evict Van Eck from its property. See 3:15-cv-343 [hereinafter referred to as the ''first appeal, '' with citations to the ''343'' docket] (343, doc. 1); 3:15-cv-757 [hereinafter referred to as the ''second appeal, '' with citations to the ''757'' docket] (757, doc. 1). DLJ has moved to dismiss both appeals on the grounds that Van Eck lacks standing to bring either appeal, and that he has failed to state a claim. (343, doc. 10; 757, doc. 10)

For the following reasons, DLJ’s motions are both granted in full and the appeals are dismissed.

I. Standard of Review

A. Lack of Subject-Matter Jurisdiction Under Rule 12(b)(1)

The party who seeks to invoke a court’s jurisdiction bears the burden of establishing that jurisdiction. Thompson v. Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)). To survive a motion brought under Rule 12(b)(1), a plaintiff must allege facts demonstrating that the plaintiff is a proper party to seek judicial resolution of the dispute. Id.

B. Failure to State a Claim Under Rule 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed ''merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.'' Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).

When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

Under Twombly, ''[f]actual allegations must be enough to raise a right to relief above the speculative level, '' and assert a cause of action with enough heft to show entitlement to relief and ''enough facts to state a claim to relief that is plausible on its face.'' 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 (''While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.''). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to ''provide the grounds of his entitlement to relief'' through more than ''labels and conclusions, and a formulaic recitation of the elements of a cause of action.'' Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and ''a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely.'' Id. at 556 (quotation marks omitted).

II. Background

This dispute turns on the validity of DLJ’s interest in a mortgage on Van Eck’s home at 24 Ebony Lane, Essex, CT. DLJ states that it is both the owner of the mortgage, and because it successfully foreclosed on the house three years before the current bankruptcy proceedings, the owner of the property. Van Eck asserts that there is no mortgage, and moreover that DLJ is a shell company that has not shown any interest or ownership in such a mortgage, if one does exist.[1] A previous bankruptcy court, in a memorandum accompanying its decision to dismiss one of Van Eck’s prior bankruptcy petitions with prejudice, provides a helpful history of the mortgage litigation through March, 2010:

In 2002, Bankers Trust Company of California (''Bankers Trust'') commenced (Connecticut) state court foreclosure proceedings with respect to a certain first mortgage (the ''Mortgage'') on the Essex Property. See Bankers Trust Co. of California, N.A. v. Van Eck, 96 Conn.App. 390, 391, 899 A.2d 41 (opinion by Peters, J.), cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006). Subsequently, the trial court granted Bankers Trust a judgment of foreclosure by sale (the ''Foreclosure Judgment''). See Id. The Debtor appealed the Foreclosure Judgment arguing, among other things, that Bankers Trust did not have standing to foreclose the Mortgage. The Appellate Court rejected that argument, confirmed Bankers Trust's standing and affirmed the Foreclosure Judgment. See Bankers Trust, supra. See also Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 2010 WL 653239 (2010). It should be noted that the mortgage debt had been assigned to Wells Fargo Bank (which had filed a motion to be substituted as party plaintiff in the foreclosure action, ''Wells Fargo'') some time after the Debtor lost his appeal. (See Doc. I.D. No. 37, Exhibit I at 2 et seq.) Subsequently, Wells Fargo assigned the debt to GRP. Wells Fargo withdrew its motion for substitution and GRP filed its own motion for substitution. (See id.) On February 4, 2008, the Connecticut Superior Court (Holzberg, J.) granted the motion of GRP to be substituted as party plaintiff in the foreclosure action. Over the objection of the Debtor (who then was represented by counsel), GRP was substituted as plaintiff and an updated Foreclosure Judgment was issued. See Bankers Trust Co. of California, N.A. v. Van Eck, No. CV-02-0097949-S (order dated Feb. 4, 2008) (copy of related Case Detail and transcript of related February 4, 2008 hearing attached as exhibits to Doc. I.D. No. 37). The updated Foreclosure Judgment was made necessary by the Debtor's bankruptcy filing prior to the foreclosure sale (see Chapter 13 Case No. 06-31703 filed on October 5, 2006 (the ''Prior Chapter 13 Case'')). The Prior Chapter 13 Case was dismissed before confirmation for failure to file tax returns by an order dated July 26, 2007 (see Prior Chapter 13 Case Doc. I.D. No. 43 (Dabrowski, J.)). The Debtor subsequently removed (the ''Attempted Removal'') the state court proceedings to the District Court for this district. See GRP Loan, LLC v. Van Eck, No. 3:08-CV-375(WWE), 2008 WL 2902607 (D.Conn. July 24, 2008.) The District Court (Eginton, J.) granted GRP's motion to remand for reasons including the Rooker-Feldman doctrine commenting: ''The history of this case demonstrates that defendant [Debtor] is attempt[ing] to relitigate issues already decided by the state trial and appellate courts. This Court is not the appropriate forum for such a challenge.'' Id. at *1.
This court has consistently held in this case that the state court judgment and later order conclusively establish (1) an unpaid Mortgage debt at least in the amount of the Foreclosure Judgment and (2) GRP's standing to file the Lift Stay Motion (subject to proof of relevant post-judgment and post-substitution order events). (See Doc. I.D. Nos. 61, 62, 64; Oral Record of March 26, 2009 hearing (collectively, the ''Rulings'').) See also Willow Funding Co., L.P. v. Grencom Assocs., 63 Conn.App. 832, 779 A.2d 174 (2001) (judgment of foreclosure by sale a final order even before sale); cf. In re Carpenter, 331 B.R. 529 (Bankr. D. Conn. 2005) (Krechevsky, J.) (same). That fact alone distinguishes this case from the case upon which the Debtor relies, In re Parades, Case No. 09-22261(RDD) (Bankr. S.D.N.Y.), in which there was no such judgment or order. (A transcript of the Parades bench ruling has been admitted as Debtor's Exhibit A with respect to GRP's Motion To Dismiss.) As noted above, much of the activity in this case has been comprised of the Debtor's attacks on the referenced state court judgment and order. (See, e.g., Doc. I.D. Nos. 48, 228; A.P. # 10-3006 (Complaint).) At the Hearing, the Debtor attempted yet again to challenge the state court judgment and order by attacking GRP's standing (prior to the alleged assignment to DLJ) in this bankruptcy case. (See Oral Record at 6:09:26 et seq.) The Debtor also ...

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