United States District Court, D. Connecticut
JOAN T. KLOTH-ZANARD, Plaintiff,
BANK OF AMERICA, ET. AL. Defendants.
RULING ON MOTION 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 (“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.
makes the following factual allegations, which I assume to be
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
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.).
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.).
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.
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
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. 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.
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 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”).
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 ...