United States District Court, D. Connecticut
RULING GRANTING MOTIONS TO DISMISS
Jeffrey Alker Meyer, United States District Judge.
Mel Thompson believes his 2003 mortgage was fraudulent, and
he has spent many years seeking relief in federal court. In
this latest round of litigation, he asserts a variety of
fraud-related claims against many defendants whom he has sued
before, as well as against a law firm and one of its lawyers.
Because plaintiff lacks standing for most of his claims and
because his remaining claims fail as a matter of law, I will
grant defendants' motions to dismiss.
has filed an amended complaint (Doc. #44) that names the
following defendants: Ocwen Financial Corporation and two of
its officers (William Erbey and Ronald Faris); New Century
Mortgage and one of its agents (Karen Smith); Deutsche Bank
National Trust Company; Morgan Stanley Abs Capital I Inc.;
the law firm of Bendett & McHugh as well as one of its
attorneys (Alex Ricciardone); and Accent Capital and its
owner (Terrence Riordan). This case is the most recent of many
federal lawsuits that plaintiff has filed stemming from what
he claims was an allegedly fraudulent mortgage loan
transaction for his home in 2003 and from the later unlawful
efforts of defendants to collect or enforce the debt against
plaintiff. The first four counts of the amended
complaint allege violations of different provisions of the
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. The remaining
non-dismissed counts of the complaint allege violations of
state law: the Connecticut Unfair Trade Practices Act
(“CUTPA”), Conn. Gen. Stat. § 42-110a et
seq. (Count 5); fraud (Count 6); negligence (Count 7);
and slander of title (Count 8).
for the disposition of this case, plaintiff filed a Chapter 7
bankruptcy petition on November 21, 2011. See In re
Melvin Thompson, No. 3:11-bk-32924-LMW. Plaintiff listed
on his bankruptcy schedules the various suits in which he was
a party at the time he filed his petition, see Doc.
#24 to id., which included two of his prior federal
cases concerning this mortgage that were before Judge
Thompson. See Thompson v. Barclays Capital Real Estate,
Inc., d/b/a Barclays Homeq Servicing, No. 3:10-cv-317
(D. Conn. 2010); Thompson v. Accent Capital, No.
3:11-cv-69 (AWT), 2011 WL 3651848 (D. Conn. 2011),
aff'd, 491 F. App'x 264 (2d Cir. 2012).
March 19, 2012, the trustee of plaintiff's bankruptcy
estate, Barbara Katz, issued a report of no distribution.
That same day she also filed a report of abandonment, in
which she abandoned “all litigation in which the Debtor
is a Plaintiff or Counter Plaintiff pending in the
Connecticut Superior Court and in Federal Court, both
District Court and the Court of Appeals.” Doc. #60 to
In re Melvin Thompson, No.
eventually received his final discharge from bankruptcy on
April 24, 2014, and the bankruptcy case was closed on October
8, 2015. At the time of plaintiff's discharge, he
received a discharge injunction pursuant to 11 U.S.C. §
524(a)(2), which prohibits a creditor from attempting to
collect on a personal liability which has been discharged in
bankruptcy. All properly scheduled property of the bankruptcy
estate that had not been discharged reverted to
have moved to dismiss the complaint on a variety of grounds
under Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim. It is well established that federal courts
should ordinarily resolve any doubts about the existence of
federal subject matter jurisdiction prior to considering the
merits of a complaint. See, e.g., Rhulen Agency,
Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678
(2d Cir. 1990).
purposes of a Rule 12(b)(1) or Rule 12(b)(6) motion to
dismiss, the Court must accept as true all factual matters
alleged in a complaint, although a complaint may not survive
unless its factual recitations state a claim to relief that
is plausible on its face. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177
(2d Cir. 2014); Lapaglia v. Transamerica Cas. Ins.
Co., 155 F.Supp.3d 153, 155-56 (D. Conn. 2016). The
Supreme Court has elaborated as follows on the
“plausibility” standard for evaluating a motion
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.... The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.... Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.
Iqbal, 556 U.S. at 678. Naturally enough, because
the focus of “plausibility” review is on what
facts a complaint alleges, a court is “not
bound to accept as true a legal conclusion couched as a
factual allegation” nor “to accept as true
allegations that are wholly conclusory.” Krys v.
Pigott, 749 F.3d 117, 128 (2d Cir. 2014).
as to Claims of Bankruptcy Estate
move to dismiss on grounds that plaintiff lacks standing to
pursue claims that were the property of the bankruptcy
estate. I agree for substantially the same reasons stated by
Judge Hall in previously dismissing one of plaintiff's
prior lawsuits against many of the same defendants now named
in this action. See Thompson v. Ocwen Financial Corp. et
al., 2013 WL 4522504, at *3-5 (D. Conn. 2013). As
explained in Judge Hall's opinion, all causes of action
possessed by a debtor when the debtor's bankruptcy
petition is filed no longer belong to the debtor but to the
bankruptcy estate. So too do causes of action that arise
after filing but before the bankruptcy case is closed, at
least if they are “sufficiently rooted in the
pre-bankruptcy past.” See id. at *3
(explaining the different approaches different courts have
taken as to this issue). Once a claim becomes part of the
bankruptcy estate, it is only the trustee who has standing to
pursue that claim until it has been validly abandoned. And
while “properly scheduled estate property that has not