United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Drena (“Plaintiff” or “Mr. Drena”),
acting pro se, filed a seven-count Complaint against
his mortgagee, Bank of America, N.A. (“Defendant”
or “Bank of America”) for allegedly improperly
(i) increasing his mortgage payments and (ii) delaying review
of his applications for modification of his home mortgage.
Compl., ECF No. 1. The Court dismissed two of his claims-a
breach of the covenant of good faith and fair dealing claim
and a claim under the Fair Credit Reporting Act, 15 U.S.C.
§ 1681s-2(b). ECF No. 30.
America has moved for summary judgment on Mr. Drena's
remaining claims: violation of the Connecticut Unfair Trade
Practices Act (“CUTPA”), Conn. Gen. Stat. §
42-110a et seq. (count one); the Connecticut
Creditor's Collection Practices Act (“CCPA”),
Conn. Gen. Stat. § 36a-645 et seq. (count two);
innocent misrepresentation (count three); negligent
misrepresentation (count four); and negligent infliction of
emotional distress (count six). Mot. Summ. J., ECF No. 39.
following reasons, Bank of America's motion for summary
judgment is GRANTED in part and
DENIED in part. The motion is granted as to
the CCPA claim (count two), the innocent misrepresentation
claim (count three), the negligent misrepresentation claim
(count four), and the negligent infliction of emotional
distress claim (count six), and denied as to the CUTPA claim
FACTUAL AND PROCEDURAL BACKGROUND
February 6, 2008, Mr. Drena and his wife, Mrs. Janine Drena
(the “Drenas”), obtained a $260, 000 home
mortgage loan from Bank of America in exchange for a
promissory note in favor of Bank of America. Def.'s L.R.
56(a)(1) Stmt. (“SMF”) ¶ 1, ECF No.
39-35. To secure the obligations under the
promissory note, the Drenas executed a loan on the property
at 84 Duncaster Road, in Bloomfield, Connecticut, in favor of
Bank of America. Id. ¶ 2. The monthly
installments due on the loan were $1, 476.26. Id.
¶ 5. Because Bank of America had waived payments for an
escrow account,  the monthly installments did not include
property taxes, assessments, and insurance
premiums. Id. ¶ 6. On February 29,
2008, the Drenas provided Bank of America permission to
automatically debit their checking account, beginning with
the installment due on April 1, 2008. Id. ¶ 9.
Consistent with the Drenas' instruction, Bank of America
began debiting the monthly installment due on April 1, 2008,
and all monthly installments thereafter, until October 2010.
Id. ¶ 10. Bank of America has serviced the
mortgage loan since origination and continues to do so.
Id. ¶ 4.
2009, Mr. Drena “suffered a substantial loss of
income.” Def.'s Br., Ex. C at 3, ECF No. 39-32. His
business was reeling from an economic recession that
contracted the business by twenty percent. Id. His
income was further limited by prospective alimony payments as
a result of his impending divorce from his wife. Id.
Discussions Around Mortgage Modification
November 2009, in light of his economic difficulties, Mr.
Drena contacted Bank of America to inquire about options to
modify his home mortgage loan. Def.'s SMF at ¶ 14;
see also Def.'s Br., Ex. C at 5. In December
2009, Bank of America sent Mr. Drena a loan modification
application. Def.'s Br., Ex. C at 6. Upon receiving the
application, Mr. Drena reviewed it but “decided not to
participate due to the fact that a[n] escrow account was
being added in.” Id. With declining business
opportunities, newly imposed alimony payments, and the
seasonal nature of his work, Mr. Drena thought he could not
support the additional payments that an escrow would require.
Id. He “did not sign any documents or send in
any application.” Id.
its December 2009 offer, Bank of America extended another
opportunity to the Drenas to modify their loan. In a letter
dated January 14, 2010, Bank of America informed the Drenas
that their home mortgage loan potentially qualified for a
four-month trial period plan under the Home Affordable
Modification Program (“HAMP”). Def.'s Br.,
Ex. A-3 at 2, ECF No. 39-5. Under HAMP, instead of making
their existing mortgage payment, the Drenas would pay a trial
period mortgage payment of $1, 859.99. Id. at 2. The
trial period payment included payments for escrow items,
“including real estate taxes, insurances premiums, and
other fees.” Id. at 8. To confirm their
eligibility for HAMP, Bank of America attached to its letter
documents for the Drenas to complete and return to Bank of
America. The Drenas did not accept the offer.
Def.'s SMF ¶ 17.
January 22, 2010, Bank of America claims to have completed an
“escrow analysis” on the Drenas' loan and
provided the results to the Drenas along with the monthly
statement for the February 2010 monthly instalment.
Id. ¶ 18. Bank of America claims that the
statement and analysis put the Drenas on notice that,
beginning with the March 10, 2010, installment, the monthly
amount due would increase to $2, 332.21, $855.95 of which was
for escrow payments. Id.
that month, on January 29, 2010, Mr. Drena and Mrs. Drena
divorced, and Mrs. Drena subsequently transferred her
interest in the home to Mr. Drena by quit claim deed on March
15, 2010. Def.'s Br. Ex. D at 2-3, ECF No. 39-33;
Def.'s Br. Ex. E at 2-3, ECF No. 39-34.
March 5, 2010, Mr. Drena called Bank of America after
noticing overdraft charges on his checking account.
Def.'s Br. Ex. C at 7. Bank of America had charged his
account for $830. Id. Bank of America informed Mr.
Drena that the MHAP required an $830 escrow fee.
Id.; see also Def.'s SMF
¶ 24. But, according to Mr. Drena, he had never signed
up to participate in the MHAP. Def.'s Br. Ex. C at 7.
the same time, Mr. Drena went to the Bank of America branch
in Bloomfield, Connecticut, and spoke with the branch's
Vice President, Ms. Vera Lembrecht, concerning his situation.
Id. at 7-8. Ms. Lembrecht called Bank of
America's modification department, and the modification
team member explained that Mr. had been placed in HAMP upon
his verbal authorization. Id. at 8. Further,
according to Mr. Drena, the Bank of America modification team
member explained that, if Mr. Drena failed to apply for the
program, he could not reapply. Id. Therefore,
according to Mr. Drena, he executed the application and
submitted the required information to be considered for the
two weeks later, on March 20, 2010, Bank of America sent the
Drenas a letter informing them that Bank of America required
additional information to verify whether they could
participate in HAMP. Def.'s Br. Ex. A-5 at 2, ECF No.
39-7. The letter instructed the Drenas to send the requested
information by March 30, 2010. Id.
Drenas' loan history statement includes transaction
details on the Drenas' mortgage, beginning in February
2008 and ending in November 2016. Def.'s Br. Ex. A-2, ECF
No. 39-4. From April 1, 2008, through and including February
1, 2010, the report shows that the Drenas made monthly
payments of $1, 476.27. Id. at 3‒4. The report
also shows a $.00 escrow balance and $.00 in late charges and
the unapplied total. Id. For the March 1, 2010,
payment, the report showed a monthly payment of $2, 332.21,
and an escrow balance of $855.96. Id. at 4.
Beginning in April 2010, the escrow balance fluctuated, going
as high as $22, 888.26 in March 2014. Id. at 4-7.
Similarly, beginning in April 2010, unapplied totals
fluctuated, reaching $7, 270.25 in March 2014, and late fees
assessed against the account begin to accrue. Id. at
letter dated November 16, 2010, Bank of America sent the
Drenas a notice of intent to accelerate the mortgage.
Def.'s Br. Ex. A-7 at 3-8, ECF No. 39-9. The notice
provided that the home mortgage loan was “in serious
default because the required payments have not been
made.” Id. at 3. The letter explained that
“[i]f the default is not cured on or before December
16, 2010, the mortgage payments will be
accelerated with the full amount remaining
accelerated and becoming due and payable in full, and
foreclosure proceeding will be initiated at that time.”
Id. The letter further stated that, if the Drenas
were unable to cure the default, Bank of America
“want[ed] [them] to be aware of various options that
may be available . . . to prevent foreclosure sale of the
property.” Id. Those options included:
Repayment Plan: It is possible that you may be eligible for
some form of payment assistance through [Bank of America].
[Bank of America's] basic plan requires that [Bank of
America] receive, up front, at least ½ of the amount
necessary to bring the account current, and that the balance
of the overdue amount be paid, along with the regular monthly
payment, over a defined period of time. Other repayment plans
also are available.
Loan Modification: Or, it is possible that the regular
monthly payments can be lowered through a modification of the
loan by reducing the interest rate and then adding the
delinquent payments to the current loan balance. This
foreclosure alternative, however, is limited to certain loan
Sale of Your Property: Or, if you are willing to sell your
home in order to avoid foreclosure, it is possible that the
sale of your home can be approved through [Bank of America]
even if your home is worth less than what is owed on it.
Deed-In Lieu: Or, if your property is free from other liens
or encumbrances, and if the default is due to a serious
financial hardship which is beyond your control, you may be
eligible to deed your property directly to [Bank of America]
and avoid the foreclosure sale.
Id. at 4.
than one month after sending its notice of intent to
accelerate, on December 10, 2010, Bank of America denied Mr.
Drena's request for a HAMP modification. Def.'s Br.
Ex. A-8 at 2, ECF No. 39-10. In that letter, Bank of America
explained to the Drenas that it had “reviewed [their]
financial information to identify any additional modification
options and unfortunately, [the Drenas'] loan [was] not
eligible for a modification.” Id. Bank of
America stated it “[knew] it was a difficult time for
[the Drenas] and [it] want[ed] to help [them] avoid the
negative consequences of a foreclosure.” Id.
To that end, Bank of America explained the “next step
to help [them] avoid foreclosure is a short sale or a deed in
lieu of foreclosure.” Id. The letter explained
Short Sale: With this program, you agree to sell your home
and the proceeds of the sale are used to pay your mortgage
debt, even if the proceeds are less than the outstanding
balance on you mortgage;
Deed in lieu of foreclosure: With this program, you transfer
the title of your home to [Bank of America] instead of paying
your mortgage debt, even if the value of the property is less
than the outstanding balance on your mortgage;
The Fannie Mae Deed-for-Lease program: With this program, you
agree to a deed in lieu of foreclosure and transfer the title
of your property to Fannie Mae instead of paying your
mortgage debt, even if the value of the property is less than
the outstanding balance on your mortgage. You then lease the
property back from Fannie Mae at a current rental rate.
Drenas appealed the December 2010 decision. Def.'s Br.,
Ex. A ¶ 28, ECF No. 39-2. On February 10, 2011, Bank of
America informed the Drenas of its decision concerning their
appeal. Def's Br., Ex. A-9 at 2, ECF No. 39-11. Bank of
America explained that, based on the HAMP guidelines, the
Drenas were “not eligible for a loan modification based
on the information in [their] original application;
therefore, [their] original application [had] been
closed.” Id. at 2. Bank of America advised the
Drenas that because they indicated that their financial
information had changed, Bank of America invited them to
reapply for the program by sending a new application with the
supporting documents by March 12, 2011. Id. Bank of
America sent another letter to the Drenas on February 28,
2011, explaining that they were not eligible for the HAMP
modification based on the information they had submitted but
invited them to reapply. Id. at 12.
March 2, 2011, Mr. Drena submitted another HAMP modification
request to Bank of America. Def.'s Br., Ex. A-10, ECF No.
39-12. Bank of America responded on April 2, 2011, indicating
that Mr. Drena's application was deficient because it did
not contain all the required information and therefore, it
could not complete its eligibility review. Def.'s Br.,
Ex. A-11 at 2, ECF No. 39-13. Bank of America requested the
Drenas send the missing documents by May 2, 2011.
Id. On May 4, 2011, Bank of America sent another
letter to the Drenas stating that it was still missing
information from them necessary to conduct its review.
Def.'s Br., Ex. A-12 at 2, ECF No. 39-14. Bank of America
gave the Drenas until May 19, 2011, to submit the missing
4, 2011, Bank of America informed the Drenas that they were
not eligible for a HAMP modification because they had failed
to provide it the requisite information. Def.'s Br., Ex.
A-13 at 2-3, ECF No. 39-15. The letter also stated that Bank
of America was reviewing the Drenas' financial
information to determine whether they qualified for other
options including (i) “[a] different modification
program;” (ii) “a forbearance program” that
would allow them to “receive lower payments or no
payments for a limited number of months to either give [them]
time to resolve [their] financial difficulties or give [Bank
of America] time to work together with [him] on a more
permanent solution;” (iii) “a short sale;”
(iv) “[a] deed in lieu of foreclosure;” (v)
“[t]he Fannie Mae Deed-for-Lease program.”
the June 4 denial, and after Mr. Drena had submitted an
additional HAMP modification request, Def.'s Br., Ex.
A-14, ECF No. 39-16, Bank of America informed the Drenas that
they had been approved for a trial period plan under the
Fannie Mae Modification program, Def.'s Br., A-15 at 2-3,
ECF No. 39-17. The Drenas declined to participate in the
program but did submit an application for an additional HAMP
modification. Def.'s Br., Ex. A ¶ 36.
April 6, 2012, Bank of America offered the Drenas a permanent
loan modification. Def.'s Br., A-17, ECF No. 39-19. The
proposed modification reduced the Drenas' home mortgage
loan's interest, monthly installments, and capitalized
delinquent interest and delinquent escrow. Id. at
2-5. As with Bank of America's other offers, the Drenas
rejected the offer. Def.'s Br., Ex. A ¶ 38. Instead,
the Drenas submitted another HAMP modification request on May
15, 2012. Def.'s Br., Ex. A-18. Less than a month later,
on June 13, 2012, Bank of America informed the Drenas that
their “mortgage [was] seriously delinquent.”
Def.'s Br., Ex. A-19 at 2, ECF No. 39-21. The letter
stated that Bank of America “tried to contact [the
Drenas] to discuss foreclosure prevention options that [were]
available, but time [was] running out.” Id.
The letter further provided that the Drenas had been approved
to participate in a trial period plan to assist the Drenas in
making “affordable and sustainable mortgage
payments.” Id. The Drenas declined to
participate in this program. Def.'s SMF ¶ 46.
a national settlement between Bank of America and U.S.
Department of Justice (“DOJ”), on March 22, 2013,
Bank of America invited the Drenas to apply for another
modification program-the DOJ Modification Program. Def.'s
Br., Ex. A-20 at 2, ECF No. 39- 22. The DOJ Modification
program “included a principal forgiveness component in
addition to modified loan terms.” Def.'s L.R. SMF
¶ 50. Bank of America contacted the Drenas through their
attorney about the program multiple times in June 2013.
Def.'s Br., Ex. A-22 at 2, 11, 20, 29, 38, ECF No. 39-24.
Following those invitations, Mr. Drena submitted two
additional HAMP modification requests. Def.'s Br., Ex.
A-21, ECF No. 39-23; Def.'s Br., Ex. A-27, ECF No. 39-25.
Bank of America then sent the Drenas two additional
invitations to apply to the DOJ Modification program.
Def.'s Br., Ex. A-24 at 2-4, ECF No. 39-26; id.