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Bromfield v. Lend-Mor Mortgage Bankers Corp.

United States District Court, D. Connecticut

February 17, 2016

LENORA BROMFIELD, Plaintiff
v.
LEND-MOR MORTGAGE BANKERS CORP., MORTGAGE ELECTRONIC REGISTRY SYSTEMS, BANK OF AMERICA, N.A., U.S. BANK NATIONAL ASSOCIATION, SPECIALIZED LOAN SERVICING, MICHELE CRAMPTON, HUNT LEIBERT JACOBSON, P.C., and MARIO R. ARENA, ESQ., Defendants.

RULING ON MOTION TO DISMISS

Michael P. Shea, U.S.D.J.

Pro se plaintiff Lenora Bromfield brings this Complaint against Lend-Mor Mortgage Bankers Corporation (“Lend-Mor”); Mortgage Electronic Registry Systems (“MERS”); Bank of America N.A. (“BOA”), successor by merger to BAC Home Loans Servicing, LP (“BAC”); U.S Bank N.A. as Legal Title Trustee (“U.S. Bank N.A. as Trustee”); Specialized Loan Servicing (“SLS”); Michele Crampton, an Assistant Vice President of SLS; Hunt Leibert Jacobson, P.C. (“Hunt Leibert”), a Connecticut law firm; and Mario R. Arena, Esq., an attorney employed by Hunt Leibert (together, “Defendants”). Bromfield alleges that Defendants were involved in bringing a fraudulent state foreclosure action against her. Specifically, Bromfield claims that Lend-Mor “unconscionably bifurcated” her mortgage from her promissory note by assigning MERS as “nominee” to be the mortgagee of her security agreement with Lend-Mor. She argues that BOA, which obtained the mortgage by assignment and as a successor by merger, did not have standing to foreclose on the mortgage instruments. Therefore, she argues, the attempt by Hunt Leibert to bring a foreclosure action in state court on behalf of BOA was fraudulent, making the foreclosure void and unenforceable. Bromfield’s nine-count Complaint alleges various deprivations of her constitutional rights under 42 U.S.C. §§ 1983, 1985, and 1986; violations of federal criminal statutes, including 18 U.S.C. §§ 241 and 242 and mail fraud; and violations of state law, including fraud and abuse of process.

On August 19, 2015, Defendants moved to remand this action to state court, arguing that the Complaint was an improper attempt by Bromfield to remove the state foreclosure action to federal court. (ECF No. 7.) On September 3, 2015, Defendants moved to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 9.) For the reasons below, the Court GRANTS Defendants’ motion to dismiss the Complaint and DENIES Defendant’s motion to remand as moot. Because the case is dismissed, Plaintiff’s motion (ECF No. 14) for an extension of time to complete discovery is also DENIED as moot.

I. BACKGROUND

This action arises out of a July 2012 foreclosure proceeding begun by BOA: Bank of America NA Successor by Merger to BAC Home v. Bromfield, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FBT-CV-126029073-S (the “State Foreclosure Action”). In the State Foreclosure Action, BOA sought to foreclose on the mortgage held on Bromfield’s property located at 66 Washington Terrace, Bridgeport, Connecticut (the “Property”). The Court takes judicial notice of court documents and rulings in the State Foreclosure Action. See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely take judicial notice of documents filed in other courts . . . not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”) (citations omitted).

On January 31, 2008, Bromfield executed a promissory note (“Note”) in the amount of $215, 687.00 (Def.’s Opposition Brief (“Def.’s Opp. Br.”), ECF No. 10-1, Ex. 1), and entered into an Mortgage agreement with Lend-Mor (the “Mortgage”) for the Property. (ECF No. 1 ¶ 13; Def.’s Opp. Br. Ex. 2.) Because the Note and Mortgage are integral to the Complaint, the Court also considers them in this motion to dismiss. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect, ’ which renders the document ‘integral’ to the complaint.”) (citation omitted).

Bromfield alleges that Lend-Mor later “unconscionably bifurcated” the Mortgage from the Note by assigning MERS “as ‘nominee’ to be the Mortgagee of her Security Agreement and trading her Mortgage and . . . Note as an investment security in a Trust on Wall Street.” (ECF No. 1 ¶ 14.) The Mortgage and the Note were assigned and transferred to various entities over the next several years.[1] On January 6, 2011, Bromfield executed a Loan Modification Agreement and Amended and Restated Note with BAC as the lender. (Def.’s Opp. Br. Ex. 4.) In July of 2012, with Bromfield in default, the then-owner of the Mortgage and the Note, BOA, filed the State Foreclosure Action against Bromfield. (ECF No. 1 ¶ 28; Def.’s Opp. Br. Ex. 9.) Bromfield represented herself pro se in the State Foreclosure Action. (Def.’s Opp. Br. Ex. 10.) On July 14, 2014, U.S. Bank N.A. as Trustee was substituted as the Plaintiff in the State Foreclosure Action (Def.’s Opp. Br. Ex. 10, Nos. 106.00 and 106.10), and on May 21, 2015, the state court granted summary judgment to U.S. Bank N.A. as Trustee as to liability only. (Def.’s Opp. Br. Ex. 10; FBT-CV-126029073-S, Order No. 113.50.) On July 20, 2015, Bromfield filed a “Notice of Removal to Federal District Court” in the State Foreclosure Action. (FBT-CV-126029073-S, No. 127.) Bromfield also filed her Complaint in this Court on July 20, 2015, but filed no removal papers in this Court. (ECF No. 1.) She later withdrew her “notice of removal” in the State Foreclosure Action. (See Plaintiff’s Opposition Brief (“Pl.’s Opp. Br.”), ECF No. 11 at 2.) The state court entered Judgment of Strict Foreclosure in December of 2015. (FBT-CV-126029073-S, Nos. 137.10 and 137.50.)

In this federal action, the Defendants include assignees to which the Mortgage and Note were transferred: Lend-Mor, MERS, BAC, BOA, and U.S. Bank N.A. as Trustee. Bromfield is also suing SLS, a loan servicer; Crampton, an Assistant Vice President of SLS; Hunt Leibert, the law firm representing the plaintiff in the State Foreclosure Action; and Arena, an attorney employed by Hunt Leibert.[2] (ECF No. 1 ¶¶ 9-12.) In Count One, Bromfield alleges that Defendants violated 42 U.S.C. § 1983 by unjustly foreclosing upon her property, which deprived her of a “Bundle of Rights, ” including the rights to possess, control, and enjoy her property; the right of exclusion and privacy; and the right of disposition of her property. (Id. ¶ 57.) In Count Two, Bromfield alleges that Defendants violated 42 U.S.C. §§ 1983 and 1985 by (1) “conspir[ing] to intercept, co-opt or invalidate the integrity and solvency of Plaintiff’s Mortgage (Title) and Promissory Note at the inception of the purchasing agreement through fraudulent conversion of said security instruments without lawful justification, and deprive her of the use and possession thereof for their unjust enrichment”; (2) Lend-Mor’s assignment of MERS as “nominee” of the Mortgage; and (3) improperly splitting the Note and the Mortgage. (ECF No. 1 ¶¶ 58-61.) In Count Three, Bromfield alleges that Defendants “violated [her] constitutionally protected [r]ights by refusing or neglecting to prevent the deprivation of [her] rights under [c]olor of [l]aw.” (Id. ¶ 62.) Bromfield further alleges that such neglect or refusal to prevent violations of her rights “can also be construed as a criminal act pursuant to 18 U.S.C. §§ 241 & 242.” (Id. ¶ 65.) In Count Four, Bromfield alleges that Hunt Leibert “knew or should have reasonably known that the [State] [F]oreclosure [A]ction . . . was a misuse or misapplication of process because the integrity of the [c]hain of [t]itle of Plaintiff’s Mortgage and Note was compromised at its inception and [Hunt Leibert] did not have [s]tanding to pursue their alleged claims.” (Id. ¶ 67.) She alleges that Defendants “abused the foreclosure process . . . because they had an ulterior motive to benefit from a fraudulent financial obligation of which they never intended or expected Plaintiff to achieve.” (Id. ¶ 68.) In Count Five, Bromfield alleges that Defendants obstructed justice and denied her due process by “failing to disclose the true nature of the Mortgage Loan Agreement, the separation of the Note from the Mortgage at its inception, and avoiding or omitting evidence from the Court in the foreclosure action.” (Id. ¶ 69.) She further alleges that Defendants violated 18 U.S.C. §§ 241 and 242. (Id. ¶ 72.) In Count Six, Bromfield alleges that Defendants conspired to deprive her of her constitutionally protected rights “through the initiation and implementation of a fraudulent foreclosure proceeding that culminated in an adverse judgment against” her (id. ¶ 74), and that their “acts of conspiracy and in collusion to omit, avoid or falsify the disclosure of documents” violated §§ 1985 and 1986. (Id. ¶ 75.) In Count Seven, Bromfield alleges that Defendants Lend-Mor and MERS committed fraud by failing to disclose the “true nature of the Loan Agreement, ” by failing to disclose and obtain Bromfield’s consent to the securitization of the Note and Mortgage, and by initiating the State Foreclosure Action. (Id. ¶¶ 76-80.) In Count Eight, Bromfield alleges that Lend-Mor and Hunt Leibert “perpetrated fraud upon the Court in the initiation and pursuit of a fraudulent foreclosure action against” her (id. ¶ 81), and therefore she alleges that the State Foreclosure Action “should be void, vacated or set aside.” (Id. ¶ 83.) Finally, in Count Nine, Bromfield alleges that Lend-Mor and Hunt Leibert “deliberately sent fraudulent correspondences by United States Mail . . . detailing the particulars of their fraudulent foreclosure Complaint, ” thereby committing the federal offense of mail fraud. (Id. ¶¶ 84-85.)

II. STANDARD

Defendants argue that the Court should abstain from exercising jurisdiction over this action under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) and dismiss the case under Rule 12(b)(1). (ECF No. 10 at 2.)

In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction. But [w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.

Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.2014) (citations and quotation marks omitted).

“Where, as here, the defendant moves for dismissal under Rule 12(b)(1), Fed.R.Civ.P., as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Rhulen Agency, Inc. v. AlabamaIns. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) (internal quotation marks and citations omitted). Because Bromfield “is proceeding pro se, her complaint is held to less stringent standards than formal pleadings drafted by lawyers.” Solomon v. Ocwen Loan Servicing, LLC, No. 12-CV-2856 SJF GRB, 2013 WL 1715878, at *3 (E.D.N.Y. Apr. 12, 2013) (internal quotation marks and citations omitted). “Plaintiff’s pro se status notwithstanding, ‘subject-matter jurisdiction, because it involves the court’s power to hear a case, can never be ...


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