United States District Court, D. Connecticut
JOAN T. KLOTH-ZANARD, Plaintiff,
BANK OF AMERICA, ET. AL. Defendants.
RULING ON MOTIONS TO DISMISS
Michael P. Shea, U.S.D.J.
se Plaintiff, Joan T. Kloth-Zanard, has sued Bank of
America, N.A. (“Bank of America”), Specialized
Loan Services, LLC, Wells Fargo/Northwest Bank Minnesota
(“Wells Fargo”), Mortgage Electronic Registration
Services, Inc., and The Bank of New York Mellon. She alleges
defendants violated: (i) Title II of the Americans with
Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act (“Rehabilitation Act”) (count
one); (ii) the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 et. seq. (“TCPA”) (count two); (iii)
the Connecticut Creditors Collection Practices Act, Conn.
Gen. Stat. § 36a-645 et. seq. (“CCPA”)
(count three); (iv) 18 U.S.C. § 242 (count four); (v)
the covenant of good faith and fair dealing (count five); and
(iv) 18 U.S.C. §§ 471-74 (count six). Bank of
America and Wells Fargo have filed separate motions to
dismiss Plaintiff's complaint. (ECF Nos. 49, 62.) For the
reasons set forth below, (i) Bank of America's motion to
dismiss is granted in part and denied in part. All of
Plaintiff's claims against Bank of America are dismissed
except for her TCPA and CCPA claims; and (ii) Wells
Fargo's motion to dismiss is granted.
makes the following factual allegations, which I assume to be
true.Countrywide Home Loans provided an
adjustable rate, subprime mortgage loan to the Plaintiff
secured by her home in Southbury, Connecticut. (ECF No. 17 at
7); (ECF No. 49-2 at 2) In 2008, Countrywide transferred that
mortgage to Bank of America. (Id.) On October 1,
2008, Bank of America approved Plaintiff for a loan
modification. (Id. at 9.) Under the terms of the
loan modification, the interest due on Plaintiff's loan
was 1.5% interest for five years. (Id.) Bank of
America did not disclose to Plaintiff that the interest rate
would return to an adjustable rate interest after the
five-year term expired. (Id.)
time during 2008 or 2009, Plaintiff became disabled.
(Id.) Two years later, in April 2010, Plaintiff
became “legally disabled.” (Id.) That
same month, Plaintiff informed Bank of America of her legal
disability and that she was “on a small fixed income
that would only support the present loan modification.”
(Id.) Despite knowledge of her disability and her
fixed income, Bank of America “refused to work with
[the Plaintiff]” in modifying her loan. (Id.
at (ECF No. 69.) In accordance with my order (ECF No. 68),
Plaintiff has until October 17, 2017 to file a response,
after which time, I will consider the motion to be fully
briefed. 10.) Bank of America “deliberate[ly]
stall[ed]” the loan modification process. (Id.
at 3.) Bank of America's delays caused Plaintiff to
restart the loan modification application process six times
in two years. (Id. at 10.) Bank of America also
dispatched an agent on six different occasions to post
foreclosure notices on Plaintiff's front door.
in February 2014, Bank of America - without Plaintiff's
permission - began calling her using an “automatic
telephone dialing system.” (Id. at 11.) Using
that system, over the next fourteen months until April 2015,
Bank of America called Plaintiff's cellular and home
phones “no less than 104 times.” (Id.)
The next month, on May 6, 2015, Plaintiff contacted Bank of
America and Specialized Loan Servicing for “Investor
Information pertaining to her supposed mortgage debt.”
(Id. at 10.) Neither Bank of America nor Specialized
Loan Services responded. (Id.) Specialized Loan
Servicing, however, did send a “strange man”
driving a “blue Prius type vehicle” to
Plaintiff's home. (Id. at 11.) On November 5,
2015, Plaintiff received a delinquency notice. (Id.
considering a motion to dismiss under Rule 12(b)(6), I must
construe the complaint liberally, “accepting all
factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d
Cir. 2002). A court may allow a case to proceed only if the
complaint pleads “enough facts to state a claim to
relief that is plausible on its face.” Id.
“A claim has facial plausibility when the pleaded
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(internal quotation marks and citations omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). When a plaintiff submits a complaint pro
se, the court must construe the allegations liberally,
raising “the strongest arguments [they]
suggest.” Abbas v. Dixon, 480 F.3d. 636, 639
(2d Cir. 2007). A pro se plaintiff, however, still
must meet the standard of facial plausibility. See Hogan
v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)(“[A]
pro se complaint must state a plausible claim for
relief.”)(internal quotation marks and citations
outset, I note that the amended complaint names Wells Fargo
as a defendant but makes no allegations concerning any
conduct that Wells Fargo allegedly engaged in that gave rise
to any of Plaintiff's claims. She only makes a single
allegation concerning it: that on January 19, 2005, there was
a release of the mortgage from “what looks like [Wells
Fargo.]” (ECF No. 17 at 6.) Even liberally construed,
this does not describe actionable conduct. Accordingly,
because there are no allegations to support her causes of
action against Wells Fargo, all of Plaintiff's claims
against Wells Fargo are dismissed. I now consider Bank of
America's motion to dismiss the claims against it.
The ADA and Rehabilitation Act Claims (count 1)
count one, Plaintiff invokes Title II of the ADA -- 42 U.S.C.
§§ 12131-12134 and 28 C.F.R. §§ 35 --, 29
U.S.C. § 794, and 28 C.F.R. § 36. (ECF No.17 at
12.) Her Title II claims fail - for the same reason noted in
the Court's earlier order - because Bank of America is a
private entity (a national banking association), not a
“public entity, ” and as a private entity, it may
not be sued under Title II. (ECF No. 12 at 11); see
Positano v. Zimmer, 2013 WL 12084482, at *4 (E.D.N.Y.
Dec. 9, 2013)(observing Title II “does not [apply to]
private individuals or private entities”); Warren
v. Goord, 2006 WL 1582385, at *17 (W.D.N.Y. May 26,
2006)(noting “Title II of the ADA does not recognize a
cause of action for discrimination by private [entities], but
rather, only public entities”)(internal quotation marks
and citations omitted).
claim under 29 U.S.C. § 794 suffers from a similar flaw,
which was also noted in the Court's earlier order: she
does not allege, as she must, that she was subject to
discrimination under a program or activity receiving Federal
financial assistance, and other than her conclusory
allegation that she is “legally disabled, ” she
does not allege that she is a “qualified individual
with a disability.” (ECF No. 12 at 11.) That claim is
Plaintiff has failed to state a claim under 28 C.F.R. §
36. First, that regulation implements Title III, not Title
II, of the ADA, and Plaintiff makes no claim under Title III.
28 C.F.R. 36.101 (a)(“The purpose of this part is to
implement subtitle A of title III of the Americans with
Disabilities Act of 1990…”) In any event, that
rule applies to “any (1) public accommodation; (2)
commercial facility; or (3) private entity that offers
examinations or courses related to applications licensing,
certification, or credentialing for secondary or
postsecondary education, professional, or trade