United States District Court, D. Connecticut
NATIONSTAR MORTGAGE LLC d/b/a CHAMPION MORTGAGE COMPANY, Plaintiff,
AHMED A. DADI and SECRETARY OF HOUSING AND URBAN DEVELOPMENT, Defendants. AHMED A. DADI, Counterclaimant,
NATIONSTAR MORTGAGE LLC, d/b/a CHAMPION MORTGAGE COMPANY, Counterclaim Defendant.
RULING ON MOTION TO DISMISS COUNTERCLAIMS AND STRIKE
Michael P. Shea, U.S.D.J.
Nationstar Mortgage LLC (“Nationstar”) has moved
under Rule 12(b)(6) to dismiss defendant Ahmed A. Dadi's
(“Dadi”) counterclaim and under Rule 12(f) to
strike Dadi's affirmative defenses. (ECF No.
For the reasons discussed below, I GRANT Nationstar's
motion to dismiss Dadi's counterclaim and GRANT
Nationstar's motion to strike Dadi's affirmative
following facts are taken from Dadi's amended
answer/cross-claim and counter-claim complaint and the
admitted facts in plaintiff Nationstar's complaint.
the owner of the property located at 269 Mountain Road, West
Hartford, Connecticut. (ECF No. 47-2.) On July 31, 2009, he
entered into a Home Equity Conversion Mortgage
(“HECM”) with Webster Bank, N.A., for $796,
500.00, which was recorded on the land records. (Id.
at ¶ 1.) Webster Bank, N.A. assigned Dadi's HECM to
Nationstar. (Id. at ¶ 4.) Dadi did not pay the
installment of principal and interest that was due on July
16, 2014 or any of the payments due for following months.
(Id. at ¶ 6.) On November 2, 2015, Nationstar
exercised its option to declare the entire balance due on the
note due and payable, filing suit in the Superior Court,
Judicial District of Hartford. (Id. at ¶ 5.)
complaint requests foreclosure of Dadi's mortgage,
immediate possession of the mortgaged premises, a deficiency
judgment against Dadi, the appointment of a receiver to
collect rents and profits accruing from the premises, and
costs and fees. (Id. at 4.) The complaint names the
Secretary of Housing and Urban Development
(“HUD”) as a defendant on the grounds that it
“may claim an interest in the property by virtue of a
reverse mortgage” in the original principal amount.
(Id. at 2, ¶ 7.) Dadi filed an answer with
affirmative defenses, as well as counterclaims and
cross-claims against both Nationstar and HUD. (ECF No. 1-1.)
HUD removed this case to this Court on February 2, 2017 under
28 U.S.C. § 1442(a)(1) as a suit against a federal
agency. (ECF No. 1.)
HUD removed, it filed a motion to dismiss the cross-claims.
(ECF No. 9.) Nationstar filed a motion to dismiss the
counterclaims and strike Dadi's affirmative defenses on
June 16, 2017. (ECF No. 31.) In response, Dadi filed an
amended answer on August 8, 2017, including amended defenses,
cross-claims, and counterclaims. (ECF No. 37.) Dadi sought
leave to amend his complaint again on August 21, 2017, which
this Court denied. (ECF Nos. 39, 42.) Both Nationstar and HUD
renewed their motions to dismiss, asserting that Dadi's
claims fail under both Rule 12(b)(1) and 12(b)(6). (ECF Nos.
November 1, 2017, I granted HUD's motion to dismiss
Dadi's cross-claims. (ECF No. 63.) In an oral decision, I
held that the Court lacked jurisdiction over Dadi's
cross-claims because Dadi did not satisfy the requirements of
Article III standing and because HUD is protected from suit
by sovereign immunity. However, I reserved decision on
Nationstar's instant motion to dismiss Dadi's
counterclaims and its motion to strike Dadi's affirmative
defenses. On January 5, 2018, I noted that my dismissal of
the cross-claims against HUD had raised a potential issue
with the Court's continued subject matter jurisdiction
over the case, and sua sponte ordered additional
briefing from HUD and Nationstar on that issue. (ECF No. 69.)
Nationstar filed its jurisdictional brief on January 26,
2018, and HUD filed its brief on February 2, 2018. (ECF Nos.
Dadi's Remaining Counterclaims and Defenses
amended counterclaim complaint alleges in relevant part that:
(1) “Nationstar  never provided the required
documents necessary to have [HUD] accept assignment of the
mortgage subject of this litigation” (ECF No. 37 at 4,
¶ 1); (2) Dadi “attempted to negotiate and settle
any and all outstanding alleged delinquencies under the
Federal Guidelines” (id. at 5, ¶ 5); (3)
Nationstar “was properly notified of the hardships and
medical condition of [Dadi] as with the claimed
self-employment declined as a result of his medical
conditions and failed to properly inform [him] of his options
as required by any lender, ” (id. at ¶
6); (4) Nationstar violated the Truth in Lending Act
(“TILA”) “by not properly informing Mr.
Dadi of all options available to him as required prior to
initiating foreclosure proceedings, ” which was
“predatory, ” and that Dadi being “elderly
and sickly was entitled to relief and alternative options not
properly afforded to him” by Nationstar (id.
at 6, ¶ 8); and (5) Nationstar violated the Dodd-Frank
Act by “not properly notifying, informing Mr. Dadi of
all options and alternative [sic] available to him and his
family to prevent foreclosure, ” “failed to
properly work with Mr. Dadi as required to prevent
foreclosure, ” “failed to follow mortgage
servicing rules as required, ” “failed to follow
each and every HUD guideline, regulation, and process prior
to initiating foreclosure proceedings, ” and violated
“Public Act 83-547 as amended.” (Id. at
7, ¶ 11.)
amended answer also asserts nine special defenses,
specifically that: (1) HUD “should accept assignment of
mortgage and consider all applicable law” due “to
the medical conditions of the Defendant Ahmed Dadi” and
“the poor health of both Adhmed Dadi and spouse Mrs.
Dadi under 12 U.S.C.A. § 1712u(b)”; (2) HUD
“should accept assignment of mortgage and consider all
applicable law conditions allowed, requirements including but
not limited to the down turn in self-employment conditions
for Mr. Ahmed Dadi pursuant to 12 U.S.C.A. § 1712u(b),
” (3) “[t]he Property subject of this civil
action is the Principal Residence of Mr. Ahmed Dadi and his
family, ” citing Lamison v. United States HUD,
C.A. No. 83-766, 1983 U.S. Dist. LEXIS 18037 (W.D. Pa. Apr.
1, 1983); (4) Dadi “has ability to maintain future
payments”; (5) HUD should “accept assignment of
said mortgage and provide the proper application to [Dadi],
” “assist [Dadi] with the application process
which would enable HUD to accept assignment of the mortgage
subject of this litigation, ” and that HUD “has
not assisted nor provided the required documents, protection
or assistance under their own Guidelines and Federal
Law”; (6) “Real Estate Property Tax
Increases”; (7) Nationstar violated TILA and the
Dodd-Frank Act by “not properly notifying, informing or
offering Mr. Dadi all options and remedies available to him
surrounding alleged defaults and the options available to
cure the alleged defaults of the mortgage subject of this
litigation”; (8) HUD violated TILA and the Dodd-Frank
Act by “not properly notifying, informing or offering
Mr. Dadi all options and remedies available to him
surrounding alleged defaults and the options available to
cure the alleged defaults”; and (9) “[Dadi] is
entitled to relief provisions under the Connecticut Public
Act 83-547 as amended by Public Act 83-29.” (ECF No. 37
at ¶¶ 9- 17.)
Standard of Review
survive a [Rule 12(b)(6)] motion to dismiss, a [counterclaim]
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. The Court must accept the
well-pleaded factual allegations of the complaint as true and
draw all reasonable inferences in the plaintiff's favor.
See Warren v. Colvin, 744 F.3d 841, 843 (2d Cir.
2014). The Court must then determine whether those
allegations “plausibly give rise to an entitlement to
relief.” Hayden v. Paterson, 594 F.3d 150, 161
(2d Cir. 2010).
deciding the motion, the Court must limit itself “to
facts stated in the complaint or in documents attached to the
complaint as exhibits or incorporated in the complaint by
reference, ” as well as matters of which judicial
notice may be taken. Kramer v. Time Warner Inc., 937
F.2d 767, 773 (2d Cir. 1991). Because Dadi is pro
se, the Court must “construe his pleadings
liberally to raise the strongest arguments they
suggest.” Warren, 744 F.3d at 843. However,
“the Court need not engage in ‘rank
speculations' to manufacture a federal claim for pro se
plaintiffs, ” and the “court may dismiss a
complaint if it appears beyond doubt that no set of facts
could be proven that would establish an entitlement to
relief.” Gonzalez v. Option One Mortg. Corp.,
No. 3:12-CV-1470 CSH, 2014 WL 2475893, at *5 (D. Conn. June
Fed R. Civ. P. 12(f), the court may strike from any pleading
“an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed R. Civ. P.
12(f). To prevail on its motion to strike Dadi's
affirmative defenses, Nationstar “must establish that:
“(1) there is no question of fact that might allow the
defense to succeed; (2) there is no substantial question of
law that might allow the defense to succeed; and (3)[it]
would be prejudiced by the inclusion of the defense.”
Vallecastro v. Tobin, Melien & Marohn, No.
313-CV-1441SRU, 2014 WL 7185513, at *7 (D. Conn. Dec. 16,
2014) (citing New England Health Care Emps. Welfare Fund
v. iCare Mgmt., LLC, 792 F.Supp.2d 269, 288 (D. Conn.
2011)). The first two prongs “examine the
legal sufficiency of the asserted defense” and are
determined “solely upon the face of the pleading”
under the same standards applicable to a Rule 12(b)(6) motion
to dismiss. Walters v. Performant Recovery, Inc.,
124 F.Supp.3d 75, 78 (D. Conn. 2015) (citing Coach, Inc.
v. Kmart Corps., 756 F.Supp.2d 421, 425 (S.D.N.Y.
2010)). “A motion to strike an affirmative defense . .
. for legal insufficiency is not favored . . . .” and
will not succeed unless the defense is plainly legally
insufficient. Fed. Hous. Agency v. Royal Bank of Scotland
Grp. PLC, 204 F.Supp.3d 426, 428 (D. Conn. 2016).
However, if the court does determine that a defense is
legally insufficient, the prejudice that results from
needlessly increasing the duration and expenses of litigation
requires the court to strike the defense. See Coach,
756 F.Supp.2d at 425 (“[I]nclusion of a defense that
must fail as a matter of law prejudices the plaintiff because
it will needlessly increase the duration and expense of
Subject Matter Jurisdiction
noted above, Nationstar named HUD, as a party that may claim
an interest in Dadi's home, as a defendant, and Dadi
later asserted cross-claims against HUD, at which point HUD
removed the case to this Court under the federal officer
removal statute, 28 U.S.C. § 1442(a). After I dismissed
Dadi's cross-claims against HUD, I asked the parties to
submit briefs on the question whether the Court still has, or
should continue to exercise, subject matter
jurisdiction. “[A] court must satisfy itself that
it has subject matter jurisdiction and may at any time in the
course of litigation consider whether such jurisdiction
exists.” Mitskovski v. Buffalo & Fort Erie Pub.
Bridge Auth., 435 F.3d 127, 133 (2d Cir. 2006); see
also Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)
(“When a requirement goes to subject-matter
jurisdiction, courts are ...