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Kloth-Zanard v. Bank of America

United States District Court, D. Connecticut

October 5, 2017

BANK OF AMERICA, ET. AL. Defendants.


          Michael P. Shea, U.S.D.J.

         Pro 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.[1] (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.

         I. Factual Allegations

         Plaintiff makes the following factual allegations, which I assume to be true.[2]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)[3] 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.)

         Some 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. (Id.)

         Beginning 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. at 12.)

         II. Legal Standard

         In 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 omitted).

         III. Discussion

         At the 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.

         A. The ADA and Rehabilitation Act Claims (count 1)

         In 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).

         Her 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 therefore dismissed.

         Finally, 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 ...

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