United States District Court, D. Connecticut
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Omotosho, Plaintiff, Pro se, Bridgeport, CT.
Mortgage Electronic Registration Systems, Inc., (MERS),
CitiMortgage, Inc, and its Agents, Defendants: Donald E.
Frechette, Tara Lynn Trifon, Locke Lord LLP - CT, Hartford,
Hunt Leibert Jacobson, P.C., Defendant: Geoffrey K. Milne,
Hunt Leibert Chester & Jacobson, Hartford, CT.
ON MOTIONS TO DISMISS AND MOTION FOR LEAVE TO AMEND
W. Thompson, United States District Judge.
se plaintiff brings this action seeking damages and seeking
to void, vacate, and set aside a foreclosure judgment
rendered in Connecticut Superior Court and to be granted free
and clear title to the property that was the subject of the
CitiMortgage, Inc. (" CitiMortgage" ), Mortgage
Electronic Registration Systems, Inc. (" MERS" ),
and Hunt Leibert Jacobson, P.C. (" Hunt Leibert" )
have moved to dismiss the complaint in its entirety pursuant
to Fed.R.Civ.P. Rules 12(b)(1) and 12(b)(6), and the
plaintiff has moved for leave to amend the complaint. The
motions to dismiss are being granted, and the motion for
leave to amend the complaint is being denied.
August 14, 2007 the plaintiff executed an Open-End Mortgage
in favor of
Intercontinental. MERS was named as nominee for
Intercontinental, and its successors and assigns. On February
19, 2010 MERS assigned the mortgage to CitiMortgage.
February 9, 2010, CitiMortgage initiated foreclosure
proceedings. Hunt Leibert represented CitiMortgage. On
November 24, 2014, the Connecticut Superior Court entered a
final judgment of foreclosure. On January 20, 2015, the
Connecticut Superior Court denied the plaintiff's motion
to open the judgment. The plaintiff's law day ran on
April 21, 2015.
the course of the foreclosure proceedings, on April 22, 2014,
the plaintiff declared bankruptcy under Chapter 13 of the
Bankruptcy Code. See In re Omotosho, 14-bk-50590,
Doc. No. 1 (Bank. D. Conn). His Schedule B listing of
personal property did not contain any reference to the claims
pled in the instant lawsuit. On August 21, 2014, the
plaintiff's bankruptcy case was converted to a Chapter 7
" no asset" case. On January 22, 2015, the
plaintiff was granted a discharge under section 727 of the
Bankruptcy Code, 11 U.S.C. § 727.
plaintiff filed the this action on April 28, 2015. In Count
I, the plaintiff alleges that the defendants, acting "
under Color of Law[,]" deprived him of his " Bundle
of Rights" for his property by " unjustly"
foreclosing on his house. (Verified Complaint ("
Complaint" ) at ¶ ¶ 53, 54.) In Count II, the
plaintiff alleges that the defendants " conspired 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." (Id. at ¶ 55.) He alleges
that Freemont " unconscionably bifurcated
Plaintiff's Mortgage from the Promissory Note by
assigning MERS as 'nominee' to be the Mortgage of his
Security Agreement with [Freemont]," (Id. at
¶ 10), and that Freemont, " and its Agents and
Assignees intended to securitize his security instruments on
Wall Street in Mortgage Backed Securities schemes to profit
off his debt obligations." (Id. at ¶ 33.)
Thus, he alleges, the assignment of the Mortgage was "
unconscionable" and a " conspiratorial act
perpetrated by the Defendant(s) for the illicit purpose of
unjustly enriching their investment interests at
Plaintiff's expense." (Id. at ¶ 57.)
In Count III, the plaintiff alleges that the defendants had a
duty to " prevent the violation of Plaintiff's
Rights" and that Hunt Leibert was " bound" to
" prevent the injury or violation of Plaintiff's
constitutionally protected Rights in the interest of justice
and the implied covenant of Good Faith and Fair
Dealing." (Id. at ¶ ¶ 60, 61.) In
Count IV, the plaintiff alleges that Hunt Leibert " knew
or should have reasonably known that the foreclosure action
initiated by them against Plaintiff was a misuse or
misapplication of process" and that the 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. at ¶ ¶ 64, 65). In
Count V, the plaintiff alleges that " 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, is in effect an obstruction of justice
and denial of due process." (Id. at ¶ 66.)
In Count VI, the plaintiff alleges that the defendants "
conspired to deprive Plaintiff of constitutionally protected
Rights under Color of Law through the initiation and
implementation of a fraudulent foreclosure proceeding."
(Id. at ¶ 71.) In Count VII, the plaintiff
alleges that " [Freemont] and MERS committed fraud in
the factum in the Mortgage Agreement and purchase transaction
of the Mortgage Agreement
respectively" and that they " did not disclose or
get consent from Plaintiff in the securitization of his Note
and Mortgage." (Id. at ¶ ¶ 73, 75.)
The plaintiff also alleges that Intercontinental and Hunt
Leibert " committed fraud by initiating the foreclosure
action." (Id. at ¶ 77.) In Count VIII, the
plaintiff alleges that Intercontinental and Hunt Leibert also
perpetrated fraud upon the court by initiating the alleged
" fraudulent foreclosure action." (Id. at
¶ 78.) Finally, in Count IX, the plaintiff alleges that
Intercontinental and Hunt Leibert committed mail fraud by
" using the mail to instigate their intention to defraud
Plaintiff out of his property interests under Color of
Law." (Id. at ¶ 83.)
[T]he standards for reviewing dismissals granted under
12(b)(1) and 12(b)(6) are identical." Moore v.
PaineWebber Inc., 189 F.3d 165, 169 n.3 (2d Cir. 1999).
When deciding a motion to dismiss under Fed.R.Civ.P. Rule
12(b)(6), the court must accept as true all factual
allegations in the complaint and must draw inferences in a
light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974). Although a complaint " does not need detailed
factual allegations, a plaintiff's obligation to provide
the 'grounds' of his 'entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(citing Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986)(on a motion to dismiss,
courts " are not bound to accept as true a legal
conclusion couched as a factual allegation" )). "
Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement. Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009)(quoting Twombly, 550 U.S. at 557). " Factual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all allegations
in the complaint are true (even if doubtful in fact)."
Id. (citations omitted). However, the plaintiff must
plead " only enough facts to state a claim to relief
that is plausible on its face." Id. at 1974.
" The function of a motion to dismiss is 'merely to
assess the legal feasibility of the complaint, not to assay
the weight of the evidence which might be offered in support
thereof.'" Mytych v. May Dep't Stores
Co., 34 F.Supp.2d 130, 131 (D. Conn. 1999) (quoting
Ryder Energy Distribution v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984)). " The
issue on a motion to dismiss is not whether the plaintiff
will prevail, but whether the plaintiff is entitled to offer
evidence to support his claims." United States v.
Yale New Haven Hosp., 727 F.Supp. 784, 786 (D. Conn.
1990) (citing Scheuer, 416 U.S. at 232).
considering a motion to dismiss, the district court may only
consider " the facts alleged in the pleadings, documents
attached as exhibits or incorporated by reference in the
pleadings and matters of which judicial notice may be
taken." Samuels v. Air Transport Local 504, 992
F.2d 12, 15 (2d Cir. 1993). The court may take judicial
notice of public records. Taylor v. Vermont Dept. of
Educ., 313 F.3d 768, 776 (2d Cir. 2002). " [D]ocket
sheets are public records of which the court [may] take
judicial notice." Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006).
Claims Owned by Bankruptcy Estate
CitiMortgage and MERS argue that Counts II, IV, V, VII,
and VIII are owned by the plaintiff's bankruptcy estate
and, therefore, the plaintiff lacks standing to bring
them. Commencement of a bankruptcy
proceeding creates an estate comprised of " all legal or
equitable interests of the debtor in property as of the
commencement of the case." 11 U.S.C. § 541(a)(1).
The debtor must file a schedule of assets and liabilities
with the Bankruptcy Court. See 11 U.S.C. §
521(a)(1)(B)(i). The debtor's equitable interests "
include causes of action possessed by the debtor at the time
of filing." In re Jackson, 593 F.3d 171, 176 (2d Cir.
2010). " [B]ecause an unscheduled claim remains the
property of the bankruptcy estate, the debtor lacks standing
to pursue the claim after emerging from bankruptcy."
Rosenshein v. Kleban, 918 F.Supp. 98, 103 (S.D.N.Y.
In order to determine whether a debtor had a property
interest in a cause of action at the time he filed for
bankruptcy, we look to state law. In Connecticut, a cause of
action accrues when a plaintiff suffers actionable harm. The
fact that this accrual date may be different than the date on
which the statute of limitations begins to run is irrelevant.
Calabrese v. McHugh, 170 F.Supp.2d 243, 257 (D.
Conn. 2001) (citations omitted).
defendants argue that the claims in Counts II, IV, V, VII,
and VIII accrued prior to the bankruptcy filing and were not
scheduled and, they are, therefore, assets of the
plaintiff's bankruptcy estate and may not be asserted by
the plaintiff. The plaintiff filed for bankruptcy on April
22, 2014. Thus, all unscheduled claims in the Complaint that
accrued prior to April 22, 2014 are part of the bankruptcy
estate and may not be asserted by the plaintiff. The court
concludes that Counts II, IV, and VII are owned by the
bankruptcy estate, so the plaintiff lacks standing to bring