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Drena v. Bank of America, N.A.

United States District Court, D. Connecticut

February 23, 2016

MICHAEL W. DRENA, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

RULING AND ORDER

MICHAEL P. SHEA, U.S.D.J.

The pro se plaintiff Michael W. Drena brings seven counts against Bank of America, N.A. that relate to a mortgage on the plaintiff’s property. In Count I, he invokes the Connecticut Unfair Trade Practices Act. In Count II, he claims that the defendants violated the Connecticut Creditor’s Collection Practices Act. He alleges that the defendants made an innocent or fraudulent misrepresentation in Count III and a negligent misrepresentation in Count IV. In Count V, he claims that the defendants breached the covenant of good faith and fair dealing. He says that the defendant negligently inflicted emotional distress in Count VI. Finally, Count VII is brought under the Fair Credit Reporting Act, specifically 15 U.S.C. § 1681s-2(b), which concerns the responsibilities of persons who provide information to credit reporting agencies. The defendant has moved to dismiss the Complaint in its entirety. For the reasons discussed below, I deny the motion to dismiss as to Count I, II, III, IV, and VI, and grant the motion to dismiss as to Counts V and VII.

I. Factual Allegations

Construed liberally and in the light most favorable to the plaintiff, Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007), the Complaint pleads the following facts. Bank of America held a mortgage on the plaintiff’s property. (ECF No. 1 at ¶ 8.) In 2009, after the plaintiff’s income decreased because of a divorce and the economic recession, the plaintiff spoke with Bank of America to learn about options for modifying his mortgage and to prevent foreclosure. (Id. at ¶ 10.) The plaintiff did not apply for a mortgage modification program at that time. (Id. at ¶ 12.) Nevertheless, Bank of America began to take from the plaintiff’s bank account an additional $630 per month on top of the plaintiff’s previous mortgage payment without the plaintiff’s authorization. (Id. at ¶¶ 12-14.) The plaintiff discovered this when he learned of overdrafts on his bank account caused by the unauthorized deductions by Bank of America. (Id. at ¶¶ 13-14.) The plaintiff called the defendant and was told that the higher payments were because the bank approved his participation in a mortgage modification program. (Id. at ¶ 15.) The plaintiff then informed the defendant that, because it was already considering him for a loan modification, “he did wish to be considered for permanent modification.” (Id. at ¶ 16.) Thereafter, the plaintiff spent several years repeatedly providing Bank of America with the information that it requested in connection with the loan modification, but Bank of America would repeatedly delay reviewing the information until it was already out of date and had to be resubmitted. (Id. at ¶¶ 16-19.) Then, in 2012, Bank of America brought a foreclosure action against the plaintiff. (Id. at ¶ 20.)

The plaintiff hired an attorney and continued to try to modify his loan, but Bank of America did not “properly review” the plaintiff’s loan modification application until 2013. (Id. at ¶¶ 21-26.) Bank of America’s errors in computing his financial information and use of “incorrect or improper criteria” to review his loans for “modification options, ” caused the plaintiff to incur costs and fees, including a substantial increase in his interest rate. (Id. at ¶¶ 24, 27.) The increased payments on this mortgage prevented the plaintiff from making his mortgage payments on a separate property, which he ultimately lost through foreclosure. (Id. at ¶ 28.) Bank of America gave negative information about the plaintiff to one or more Credit Reporting Agencies, which harmed the plaintiff’s FICO score and caused his credit reports to show negative information. (Id. at ¶ 69.)

II. Standard of Review

In evaluating whether a plaintiff has stated a claim for relief, I must “accept as true all factual allegations in the complaint and draw all reasonable inferences” in the plaintiff’s favor. Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000). Courts will not accept conclusory allegations and may only allow the case to proceed 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). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations and quotations omitted). 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)).

III. Discussion

A. Count I: Connecticut Unfair Trade Practices Act

To state a CUTPA claim, a plaintiff must allege that “(1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce; and (2) [he or she] has suffered an ascertainable loss of money or property as a result of the defendant’s acts or practices.” See Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18 (2008) (citations omitted) (applying CUTPA in the context of an appeal from class certification).

1.Whether the plaintiff has alleged an unfair or deceptive act or practice.

Whether an act or practice is unfair or deceptive is determined by the “cigarette rule, ” which asks:

(1) [w]hether 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.

Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 725 (1995) (citing Conaway v. Prestia, 191 Conn. 484, 492-93 (1983)). A party need not allege facts about each of these factors; a CUTPA violation, which depends on “all the circumstances of the particular case, ” can be pleaded by alleging either an ...


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