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Lundstedt v. Deutsche Bank National Trust Co.

United States District Court, D. Connecticut

June 2, 2016

PETER LUNDSTEDT, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee for Long Beach Mortgage Loan Trust, et al., Defendants.

          RULING GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS

          Jeffrey Alker Meyer United States District Judge.

         This case arises out of a mortgage loan issued to pro se plaintiff Peter Lundstedt in 2006. Plaintiff alleges that he was lied to about his credit score and that he was fraudulently induced to sign a high-interest mortgage loan when he should have been eligible for a mortgage loan on more favorable terms. He also alleges that, after he defaulted on the loan, he received "hundreds if not thousands" of phone calls from defendants in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. I will dismiss all of plaintiff's claims except for his claims under the TCPA and for negligent infliction of emotional distress against defendant J.P.Morgan Chase Bank ("Chase").

         Background

         Plaintiff Peter Lundstedt, a disabled veteran, signed a subprime mortgage contract in September 2006, apparently with Washington Mutual ("WaMu") as the originator. Plaintiff alleges that WaMu lied to him about his credit score, telling him it was 100 points below the real score, and therefore induced him to sign a mortgage loan with a very high interest rate. He sought to confirm his credit score at the time with credit reporting agencies such as Equifax, and he then informed WaMu that the score told to him was incorrect. WaMu responded that it had its own credit assessment, and did not accept plaintiff's arguments. He then accepted the loan offer from WaMu.

         Some defendants, seemingly including Deutsche Bank National Trust Company ("Deutsch Bank") and Select Portfolio Serving Inc. ("Select"), then packaged plaintiff's mortgage loan into an allegedly "fraudulently created SEC-regulated security instrument." Doc. #88 at 3. Plaintiff defaulted on the loan in November 2007. In 2009 at the latest, plaintiff notified defendants that he believed he had been defrauded when he signed the mortgage loan agreement. See Doc. #89 at 20. Following plaintiff's default, WaMu allegedly began making numerous phone calls to plaintiff seeking to collect on the debt.

         During the financial crisis of 2008, WaMu failed and was taken into receivership by the Federal Deposit Insurance Corporation ("FDIC"). The FDIC then sold substantially all of WaMu's assets and liabilities to defendant Chase.[1] Having acquired plaintiff's mortgage, Chase then allegedly began making similar calls to plaintiff. Plaintiff contends that, while most of these calls were to his residence, some were to his cell phone. He also stated at oral argument that "you could tell it was a computer [calling him] because you would be waiting and waiting and waiting, you know. And then somebody would come on." Doc. #89 at 24. He also alleges that, as defendants knew, he had "past and current injuries" that made him more susceptible to harm as a result of these calls, and that they resulted "in illness and bodily harm, where plaintiff [cannot] sleep, has frequent nightmares, [cannot] engage in personal or emotional or physical relationships, [and] has debilitating depression and anxiety resulting in isolation from Plaintiff's community because of the Defendant's actions." Doc. #88 at 12.

         Plaintiff filed this lawsuit in September 2013. He alleges six different claims, including that defendants committed "breach of contract fraud" (Count One); that defendants negligently inflicted emotional distress (Count Two); that defendants violated the TCPA (Count Three); that defendants violated the Bank Secrecy Act (Count Five); and that defendants violated the Financial Institutions Reform, Recovery and Enforcement Act (Count Six).[2] Defendants have moved to dismiss plaintiffs complaint in its entirety. Docs. #92, #93.

         Discussion

         The principles governing this Court's consideration of a Rule 12(b)(6) motion are well established. First, the Court must accept as true all factual matter alleged in a complaint and draw all reasonable inferences in a plaintiffs favor. See Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013). But "'[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Techno Marine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In addition, a pro se plaintiffs complaint should be construed liberally and interpreted to raise the strongest arguments that its wording suggests. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).

         Count One - "Breach of Contract Fraud"

         Plaintiff alleges that the defendant lender "outrageously lied to Plaintiff at the contract's origination (called Mortgage Loan Origination Fraud)." Doc. #65 at 9, ¶ 3. From plaintiffs statements at oral argument, it appears that this defendant lender was WaMu. As plaintiff does not allege any contractual obligation that any defendant breached, I construe this as a claim of fraud. But this claim is barred by Connecticut's three-year statute of limitations for tort claims, Conn. Gen. Stat. § 52-577. Even if I were to accept plaintiffs argument that the cause of action did not accrue until plaintiff discovered the fraud in March 2009, plaintiff filed this case in September 2013, well beyond the three-year statutory period.

         Plaintiff contends that the litigation stay during defendant WaMu's bankruptcy proceeding, which was ongoing from September 28, 2008 through March 19, 2012, would have tolled the statute of limitations, pursuant to 11 U.S.C. § 108(c), which extends certain filing deadlines for civil actions against debtors. Doc. #103 at 16. But the Second Circuit has discounted this argument. In Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067 (2d Cir. 1993), the court concluded that "§ 108(c) does not provide for tolling of any externally imposed time bars, such as those found in . . . statutes of limitations" and that the bankruptcy statute "only calls for applicable time deadlines to be extended for 30 days after notice of the termination of a bankruptcy stay, if any such deadline would have fallen on an earlier date." Id. at 1073; see also In re Parmalat Sec. Litig., 493 F.Supp.2d 723, 732 n. 51 (S.D.N.Y. 2007). Because plaintiff claims that the bankruptcy stay ended on March 19, 2012, plaintiff would have had to file his claim by April 18, 2012. Instead, he waited 17 more months before filing, and therefore his action here is not made timely by the fact of any bankruptcy stay. See Franco v. Bradlees, Inc., 2005 WL 2338889, at *3 (D. Conn. 2005) (applying Aslandis rule to Connecticut's statute of limitations).

         A court may permit equitable tolling of a filing deadline "where the claimant has actively pursued his judicial remedies by filing a defective pleading or where he has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Seeking to qualify on this basis for equitable tolling, plaintiff points to an emailed motion for an extension of time that he filed with the Connecticut Appellate Court. Doc. #103 at 8, 50. But plaintiffs email does not qualify as a "defective pleading" sufficient to trigger such tolling, even when viewed liberally in light of plaintiff's pro se status, because it does not satisfy the basic pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. See, e.g., Molnar v. Legal Sea Foods, Inc., 473 F.Supp.2d 428, 430 (S.D.N.Y. 2007) (letter to court's pro se office inquiring how to "further pursue" discrimination claim was not a "defective pleading" sufficient to toll the statute of limitations); Dimakos v. New York Police Dep’t, 2006 WL 3437417, at *2 (E.D.N.Y. 2006) (letter to DOJ from plaintiff inquiring how plaintiff could get his job back with the NYPD was not a "defective pleading" sufficient to toll the statute of limitations).

         Absent concrete evidence, I further decline to toll the filing deadline based on plaintiff's unsupported contentions that his failure to timely file was due to health impairments. See Doc. #103 at 17. Accordingly, I dismiss Count One as to all defendants ...


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