United States District Court, D. Connecticut
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
in 2013, pro se plaintiffs Brunilda Ramos-Ayala
(formerly ValleCastro) and Nelson Valle, mother and son, have
sued many people and entities associated with the collection
of two debts: a consumer debt that originated in 2006 and a
mortgage that originated in 2005. Both of those debts are in
default and have given rise to state court actions. On
February 22, 2016, four days before an omnibus hearing
scheduled in Valle and Ramos-Ayala's three pending
federal suits,  Nelson Valle, acting pro se,
filed a fourth case against defendant-servicer, Green Tree
Servicing, LLC (now known as Ditech Financial). (doc. 1) The
complaint alleges violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§
1692, et seq., and the Connecticut Unfair Trade
Practices Act (“CUTPA”), Conn. Gen. Stat.
§§ 42-110, et seq., against Green Tree
arising from its collection efforts regarding the mortgage
debt (the subject of two of the previously pending federal
actions). On April 7, 2016, Green Tree moved to dismiss the
new complaint under the principles of preclusion, and
additionally challenged the viability of the complaint on
substantive grounds. (doc. 13)
following reasons, Green Tree's motion is granted in part
with prejudice with respect to Claims One, Two, Five, and
Six, as well as portions of Claims Three and Four. The motion
is denied in part with respect to the portions of Claims
Three and Four that relate to Green Tree's alleged
misrepresentation of the owner of the debt.
Standard of Review
Motion to Dismiss for Failure to State a Claim Upon Which
Relief May Be Granted 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)).
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).
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).
mortgage debt at issue was originated by Countrywide Home
Loans, Inc. in 2005. See, e.g., Def.'s Br., Exs.
A and B (Mortgage Note and Deed)). On or around September 13,
2007, Countrywide informed Ramos-Ayala that the mortgage loan
was in default. Compl. at ¶ 3.1. On or about October 17,
2011, the mortgage was assigned to the Bank of New York
Mellon as trustee for certificate-holders of the CWABS, Inc.
Asset-Backed Certificates Series 2005-4 (the
“Trust”), and the assignment was recorded.
Def.'s Br., Ex. C.
letter to Ramos-Ayala dated September 28, 2012, Green Tree
stated that it had replaced Bank of America as the servicer
of the mortgage debt. Def.'s Br., Ex. D. The letter also
stated that it was “from a debt collector” and
“an attempt to collect a debt.” Id. On
November 9, 2012, in response to Ramos-Ayala's letter
disputing the debt, Green Tree identified the Bank of New
York Mellon as the trustee for the Trust that owned the debt;
stated that servicing had been transferred from BAC Home
Loans Servicing, LP, a subsidiary of Bank of America, to
Green Tree on September 16, 2012; and enclosed a copy of the
original promissory note, a credit reference inquiry, and a
payment history on the loan. 1796 Green Tree Defs.' Mot.
to Dismiss, Ex. F (doc. 56-6).
15, 2014, an employee of Bendett & McHugh, the law firm
that represented the Trust in the state foreclosure action,
filed a notice of lis pendens on the mortgaged premises with
Hartford County. 1081 Am. Compl., Ex. H. A Green Tree
employee was listed on the notice as the contact person for
Green Tree, who would receive mail for the Trust as the
plaintiff in the foreclosure action. 1081 Am. Compl., Ex. I.
On July 23, 2014, the Bank of New York Mellon on behalf of
the Trust, represented by Bendett, filed an action to
foreclose on the mortgage in Connecticut Superior Court.
Def.'s Br., Ex. E (state foreclosure docket).
about September 2, 2014, Valle and/or Ramos-Ayala emailed the
Bank of New York Mellon to verify the ownership of the debt.
1081 Am. Compl., Ex. E. The Bank of New York Mellon informed
them that it was a Trustee for the Trust, and did not itself
own the debt. Id. It identified Bank of America as
the servicer of the debt. Id. On the basis of that
communication, Ramos-Ayala filed a motion to dismiss the
state court action for lack of standing on September 19,
2014. Def.'s Br., Ex. E (entry 107.00). Ramos-Ayala's
motion was denied on December 10, 2014. Id. (entry
Correspondence at Issue in the Present Complaint
complaint in this action is predicated on the following chain
of correspondence: On April 24, 2015, in response to a letter
from Valle, Green Tree stated that Bank of America was the
creditor and Green Tree was the servicer and note-holder of
the mortgage debt. Compl., Ex. A. The April 24 letter did not
include a disclosure that Green Tree was a debt collector. On
May 11, 2015, Green Tree sent a monthly billing statement
including Valle's name along with Ramos-Ayala's in
the address line, and stating that “a first notice or
filing to initiate foreclosure on your account has
occurred.” Compl., Ex. A2. The letter included a return
address to a P.O. Box in Rapid City, South Dakota.
Id. Green Tree asserts that Valle's name was
included because he requested that all correspondence be
addressed to him in a letter dated February 9,
2015.Def.'s Br., Ex. G.
response to the April 24 letter, Valle again requested
validation of the debt in a letter dated May 1, 2015.
Def.'s Br., Ex. I. Green Tree responded in a letter dated
May 15, 2015, again stating that the “owner” of
the debt was Bank of America. Def.'s Br., Ex. K.