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Kloth-Zanard v. Bank of America

United States District Court, D. Connecticut

October 31, 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 (“SLS”), Wells Fargo/Northwest Bank Minnesota, Mortgage Electronic Registration Services, Inc. (“MERS”), and The Bank of New York Mellon (“BONY”). 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). A motion to dismiss filed by defendants Bank of America and Wells Fargo was granted in part and denied in part. (See ECF No. 70). Defendants BONY, MERS, and SLS also jointly move to dismiss Plaintiff's complaint. For the reasons set forth below, (i) the motion to dismiss is granted with respect to the claims against MERS and BONY; (ii) the motion is granted in part and denied in part with respect to SLS. All of Plaintiff's claims against SLS are dismissed except for her TCPA and CCPA claims.

         I. Factual Allegations

         Plaintiff makes the following factual allegations, which I assume to be true.[1]

         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).[2] The mortgage was transferred several times, with MERS serving as a facilitator, before eventually ending up with Bank of America in 2008. (ECF. No. 17 at 6). In 2008, Bank of America approved Plaintiff for a loan modification, which provided for a 1.5% interest rate for five years. (Id.). Bank of America failed to disclose to Plaintiff that the interest rate would return to an adjustable rate after the five-year term expired. (Id.).

         In 2008, plaintiff became disabled and confined to a wheelchair. (Id. at 9). Plaintiff contacted Bank of America in April of 2010 to inform it that she was legally disabled and that she would only be able to afford the 1.5% modified rate going forward. (Id.). Despite this knowledge, Bank of America “refused to work with [the Plaintiff]” in modifying the terms of her loan. (Id. at 10). As Plaintiff attempted to engage with Bank of America to modify the terms of the mortgage, it and SLS “repeatedly called to harass the Plaintiff.” (Id.). Bank of America and SLS called the Plaintiff's cellular and home telephone “no less than 104 times from February, 2014, [through] April 2015” using an automated dialing system. (Id. at 11). In July of 2015, “SLS sent a strange man onto [Plaintiff's] property armed with a camera.” (Id.).

         In April of 2014, Bank of America and SLS “transferred the mortgage to SLS, ” at which point “the Plaintiff told SLS [that] they could not call her home or mobile numbers anymore because of abuse of the privilege.” (Id.). In May of 2015, Bank of America and SLS contacted the Plaintiff “for Investor Information pertaining to her supposed mortgage debt.” (Id. at 10). After Bank of America and SLS sent Plaintiff a collection notice, she “called to discuss this matter and sent a timely written dispute within [thirty] days of this notice requesting validation of the debt, name and address of the original creditor on June 15, 2015.” (Id.). Neither Bank of America nor SLS responded to Plaintiff's request. (Id.). Plaintiff resent her request along with “another request disputing the debt and requesting original creditor [information] on June 15, 2015.” (Id. at 11). Neither party responded. (Id.). Instead, SLS sent Plaintiff a “harassing letter” claiming that it and Bank of America were closing her case due to her purported failure to provide information that Plaintiff had already provided numerous times. (Id.). In August of 2015, Plaintiff received a harassing email from SLS threatening her with foreclosure and asking for her to supply documents that she had already provided. (Id. at 12). Plaintiff received a delinquency notice in November of 2015. (Id.).

         II. Legal Standard

         Under Fed.R.Civ.P. 12(b)(6), the Court must determine whether plaintiffs have alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Twombly, the Court accepts as true all of the complaint's factual allegations - but not conclusory allegations - when evaluating a motion to dismiss. Id. at 572. The Court must “draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). “When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant defendants['] motion to dismiss.” Scott v. Town of Monroe, 306 F.Supp.2d 191, 198 (D. Conn. 2004). For a complaint to survive a motion to dismiss, “[a]fter the court strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations to nudge plaintiff's claims across the line from conceivable to plausible.” In re Fosamax Products Liab. Litig., No. 09-cv-1412, 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). In cases with a pro se plaintiff, “the complaint, however, inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. Keycorp, 521 F.3d 202, 214 (2d Cir. 2008), quoting Erickson v. Pardus, 551 U.S. 89, 94 (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

         Prior to addressing Plaintiff's counts, I note that the amended complaint does not make any substantive allegations against BONY or MERS. Plaintiff mentions BONY only once in her complaint, noting the following in the “Land Record History” section: “March 31, 2015, Mortgage Transferred (sic) from MERS to [BONY].” (ECF No. 17 at 6). This passage cannot plausibly be construed to allege actionable conduct. Plaintiff mentions MERS several times in her complaint but does not allege that it engaged in any actionable malfeasance.[3] The only part of Plaintiff's complaint which could be construed to allege wrongdoing on the part of MERS avers that the company “illegally listed themselves (sic) as a holder of the Plaintiffs (sic) mortgage prior to and on June 6, 2006.” (Id. at 2). Yet Plaintiff does not mention this purported illegal transfer of her mortgage in the counts of her complaint. Even if Plaintiff's fleeting statement were construed as alleging that MERS improperly held title in facilitating transfer of Plaintiff's mortgage to other entities, such a claim would fail in any event. See RMS Residential Props., LLC v. Miller, 303 Conn. 224, 237-38 (Conn. 2011) (holding mortgage not void “by virtue of the naming of a nominee of the disclosed lender as mortgagee”); In re Residential Capital, LLC, No. 12-12020 (MG), 2013 WL 5952004, at *5 (Bankr. S.D.N.Y. Nov. 7, 2013) (“Connecticut courts have already rejected arguments that MERS lacks authority to act as a nominee of a lender and transfer mortgages.”). Thus, Plaintiff's claims against BONY and MERS are dismissed. I now consider the claims against SLS.

         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 claim is unavailing for the same reasons stated in the Court's prior orders - SLS is not a “public entity, ” and as a private entity, it may be not be sued under Title II. (ECF No. 70 at 4, ECF No. 12 at 11). See Tennessee v. Lane, 541 U.S. 509, 517 (2004) (“Title II . . . prohibits any public entity from discriminating against ‘qualified' persons with disabilities in the provision or operation of public services, programs, or activities. The [ADA] defines the term ‘public entity' to include state and local governments, as well as their agencies and instrumentalities.”) (emphasis added); 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”).

         Plaintiff's claim under 29 U.S.C. § 794 suffers from the same flaw, which was also noted in the Court's prior orders: 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 ...

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