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Moorer v. U.S. Bank N.A.

United States District Court, D. Connecticut

January 29, 2018

TANIA MOORER, Plaintiff,
U.S. BANK N.A., et al., Defendants.



         Tania Moorer (“Plaintiff” or “Ms. Moorer”), proceeding pro se, sued U.S. Bank N.A., Successor Trustee to Bank of America, N.A., Successor in Interest to LaSalle Bank N.A., On Behalf of the Registered Holders of Bear Stearns Asset Backed Securities I L.L.C. (“the Trust”) and Selective Portfolio Servicing, Inc. (“SPS”) (collectively “U.S. Bank Defendants” or “U.S. Bank”); Glass & Braus, L.L.C. (“Glass & Braus”); and Bendett & McHugh, P.C. (“Bendett & McHugh”) (collectively “Defendants”), alleging misconduct on the part of Defendants related to a state-court foreclosure action in violation of the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.; the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq.; and the Fifth and Fourteenth Amendments to the U.S. Constitution; and under the common-law torts of defamation, fraud, and intentional infliction of emotional distress (“IIEP”), and civil conspiracy. ECF No. 56.

         Defendants now move to dismiss the Amended Complaint, Mots. To Dismiss, ECF Nos. 17, 20, 30, and Ms. Moorer has moved to amend the Amended Complaint, ECF No. 63.

         For the reasons that follow, the Court GRANTS the motions to dismiss and DENIES the motion to amend and motions to strike.



         Ms. Moorer argues that Defendants “unlawfully trespassed and committed fraud upon and against the Plaintiff and her property and unlawfully slandered Plaintiff's reputation, unlawfully caused monetary and emotional injury to Plaintiff due to their direct and intentional acts.” Amend. Compl. ¶ 1, ECF No. 56 at 3. In support of this contention, the Amended Complaint maintains that Ms. Moorer never entered into a contract with Defendants. Am. Compl. ¶ 9. U.S. Bank allegedly has not loaned Ms. Moorer “any amount of money, ” and therefore she does not owe any money to U.S. Bank. Id. ¶¶ 10-11. The Amended Complaint further maintains that Defendants are third-party debt collectors “since they are not the original creditors.” Id. ¶ 12.

         1. The 2014 Foreclosure Proceeding

         On October 21, 2014, U.S. Bank, through its counsel at Bendett & McHugh, P.C., sued “Tania D. Paige Moorer” in Connecticut Superior Court allegedly seeking payment on a promissory note and mortgage in default that had been assigned to U.S. Bank. See generally Oct. 21, 2014, Compl. ¶¶ 1, 6, U.S. Bank's Br., Ex. A, ECF No. 17-3. On August 10, 2015, the court granted U.S. Bank's motion for strict foreclosure. Aug. 10, 2015 Order, U.S. Bank's Br., Ex. B, ECF No. 17-4. U.S. Bank, however, moved, on December 14, 2015, to vacate the judgment because the account was allegedly “being reviewed for a loan modification, ” U.S. Bank's Mot. to Vacate at 1, U.S. Bank's Br., Ex. C, ECF No. 17-5, which the court granted. Jan. 5, 2016, Order, U.S. Bank's Br., Ex. D, ECF No. 17-6.

         On or around February 23, 2016, U.S. Bank again moved the court for judgment and strict foreclosure. U.S. Bank's Mot. for J. of Strict Foreclosure, U.S. Bank Br., Ex. E, ECF No. 17-7; Amend. Comp. ¶ 28. Ms. Moorer, in response, moved to dismiss U.S. Bank's claim in its entirety. Moorer's Mot. to Dismiss at 1, U.S. Bank's Br., Ex. F, ECF No. 17-8. The court summarily dismissed the case under Connecticut Practice Book Section 17-4(c)(1).[2] May 6, 2016, Order at 1, U.S. Bank's Br., Ex. G., ECF No. 17-9. The court denied U.S. Bank's motion to open the judgment of dismissal. July 5, 2016, Order at 1, U.S. Bank's Br., Ex. I, ECF No. 17-11.

         2. The 2016 Foreclosure Proceeding

         On November 20, 2016, Glass & Braus sent Ms. Moorer a letter that read, in relevant part:

We have been retained by [U.S. Bank] to collect [the] debt, which is, according to our client's records, overdue. This letter represents our demand for payment. If you intend to contest this debt or request validation thereof . . . or to exercise your rights . . . please call or otherwise contact us . . . within the next 30 days.

         Notice Under the Fair Debt Collection Practices Act, Glass & Braus Br., Ex. A, ECF No. 21. The letter further stated:

If you dispute the validity of this debt, please contact us within the next 30 days. If you do not dispute the validity of the debt, or portion thereof, within 30 days of the receipt of this letter, we will assume it is valid. If you dispute the validity of this debt or any portion thereof within 30 days of receipt of this letter, we will obtain and mail you verification of the debt or a copy of the judgment against you. At your request, within 30 days of receipt of this letter, we will provide you with the name and address of the original creditor, if different from the current creditor.


         On December 7, 2016, U.S. Bank, through counsel at Glass & Braus, brought a new action to foreclose upon Ms. Moorer's mortgage. See generally Dec. 7, 2016, Compl., U.S. Bank's Br., Ex. J, ECF No. 17-12; Amend. Compl. Id. ¶ 28. According to Glass & Braus, that same day it received a Notice of Dispute dated December 9, 2016, from Ms. Moorer. Glass & Braus Br. at 3, ECF No. 21; December 9, 2016, Notice of Dispute (“Notice of Dispute”), Pl.'s Opp. to U.S. Bank's Mot. to Dismiss, Ex. J, ECF No. 25 at 59. The Notice of Dispute, which was directed at Glass & Braus states:

In response to a letter that was sent by you dated November 20, 2016, I hereby dispute the validity of this debt pursuant to the Fair Debt Collections Practic[es] Act, 15 U.S.C. [§] 1692g []. Please send to me all of the certified documents that you have in your file at the time of this request concerning the alleged debt. In addition, please send the name and business address of the alleged original creditor.

Notice of Dispute, Pl.'s Opp. to U.S. Bank's Mot. to Dimiss, Ex. J, ECF No. 25 at 59.

         Upon receiving such notice, Glass & Braus allegedly ceased all action against Ms. Moorer and forwarded the Notice of Dispute to its client. Glass & Braus Br. at 3. SPS allegedly provided a copy of a copy of the Mortgage Note and a copy of her transaction history to Ms. Moorer. Id., Ex. C. Since filing the December 7, 2016, complaint, Glass & Braus alleges that it has “undertaken absolutely no action in the foreclosure matter against [Ms. Moorer] and has withdrawn as counsel.” Id. a 4.

         3. Debt Collection

         The Amended Complaint alleges that before, during, and after U.S. Bank filed suit against Ms. Moorer, and notwithstanding her alleged “prior cease requests, ” Defendants sent payment requests to Ms. Moorer. Id. ¶¶ 13. The Amended Complaint alleges that, by way of SPS, U.S. Bank, presumably in correspondence seeking to collect on Ms. Moorer's debt, misrepresented the dollar amount at issue and that any amount U.S. Bank and SPS claimed Ms. Moorer owed was fraudulent due to the fact that she owed them no money. Id. ¶ 15. On July 18, 2016, allegedly, U.S. Bank, again through SPS, sent correspondence through the mail to Ms. Moorer that threatened the sale of Moorer's property. Id. ¶ 17.

         On November 20, 2016, Glass & Braus allegedly falsely held itself out as acting in the capacity of attorneys, when, in fact, the Amended Complaint alleges, it was acting “in a debt-collector's capacity.” Id. at 18. On December 7, 2016, U.S. Bank, through Glass & Braus, again allegedly threatened the sale of Ms. Moorer's property, which was unlawful, the Amended Complaint maintains, because Ms. Moorer had disputed the amount owed. Id. ¶ 19.

         4. Credit Reporting

         The Amended Complaint alleges that, on September 12, 2016, U.S. Bank, acting through SPS, “defamed” Ms. Moorer's character by reporting false debts on her credit report. Id. ¶ 21. U.S. Bank allegedly failed to remove the false information from Ms. Moorer's credit report “in a timely manner” as she requested. Id. ¶ 24. U.S. Bank, acting through Bendett & McHugh, also allegedly defamed Ms. Moorer's “public reputation” by allegedly entering false public records into the Town of Stratford's land records in the form of lis pendens. Id. ¶ 22. Under the terms of 15 U.S.C. § 1681i, Ms. Moorer allegedly, through U.S. Bank's “express acknowledgement of Plaintiff's dispute, ” indirectly notified the credit reporting agency of the disputed debt. Id. ¶ 25.


         On January 12, 2017, Ms. Moorer brought suit against Defendants. U.S. Bank moved to dismiss the Complaint arguing that her claims are barred under the Noerr-Pennington and Connecticut litigation privilege doctrines, which, U.S. Bank argues, protect its right to petition the state court for redress. U.S. Bank's Mot. to Dismiss at 1, ECF No. 17. In the alternative, U.S. Bank argues that the Complaint must be dismissed because it “fails to state any claim.” Id. at 2.

         Glass & Braus moved to dismiss the Complaint by challenging the Court's subject matter jurisdiction and on the basis that the Complaint fails to state a claim upon which the Court may grant relief. Glass & Braus Mot. to Dismiss at 1, ECF No. 20.

         Finally, Bendett & McHugh moved to dismiss the Complaint for failure to state a claim upon which the Court may grant relief. ECF No. 30.

         The Court granted leave for Ms. Moorer to file an Amended Complaint and noted that it would consider Defendants' pending motions as addressed to the Amended Complaint. ECF No. Further, the Court granted leave for Defendants to submit supplemental briefs to address the Amended Complaint. Id. None did so. Ms. Moorer's Amended Complaint maintains that U.S. Bank and SPS intended to and did “damage Plaintiff financially by not returning all payments made to them, coerced from her by fraud.” Id. ¶ 29. Defendants allegedly damaged Ms. Moorer's “standing in her community, defam[ed] her character [and] creditworthiness, ” causing her “loss of time at work, financial loss, [] trauma, humiliation, pain, ridicule, mental distress and mental anguish.” Id. ¶ 33.

         Under four subsections, each labeled a “Cause, ” the Amended Complaint, liberally construed, brings four largely overlapping causes of action. The first count alleges that Defendants, acted in concert to willfully violate the FDCPA, 15 USC § 1692c, et seq., and the FCRA, 15 U.S.C §1681i. Id. ¶¶ 34-40.

         The second count claims that Defendants, acted in concert, to willfully cause Ms. Moorer mental distress, id. ¶ 42, and their efforts did cause Ms. Moorer mental distress, id. ¶ 43, 44.

knew or should have known that their acts were in direct violation of clearly established law and any reasonable bank, debt collector, counsel and/or service agency would have know[n] that . . . sending correspondence regarding an invalidated debt, using unconscionable means to charge fees and interest not allowed by law without contract, stating false representations of the character amount, giving false implications of attorneys capacity in letterheads, filing unlawful civil actions to deprive Plaintiff Moorer of property, false credit reporting not removing false credit reporting, not ceasing collection efforts, and falsely representing services rendered would cause Plaintiff Moorer severe mental distress and mental anguish.

Id. ¶ 44.

         The Amended Complaint, in the third count, alleges that Defendants “knew or should have known that monetary damages sustained by Plaintiff Moorer [were] the likely result of their conduct after filing civil actions to harass, false credit reporting, not removing false credit reporting as requested, and not returning payments coerced from Moorer by fraud.” Id. ¶ 48.

         In the fourth count, the Amended Complaint maintains that Defendants acted in “concert” to “maintain a pattern and practice of putting under duress, depriving of due process, and causing damage.” Id. ¶ 52. Defendants allegedly “acted wantonly, recklessly, willfully, and maliciously in concert . . . . with the direct intent and sole purpose of harassing, injuring, humiliating, vexing, oppressing, and causing mental anguish to Plaintiff Moorer.” Id. ¶ 57.

         Ms. Moorer seeks compensatory and punitive damages and equitable relief, as well as reasonable attorney's fees and costs. Id. at 9.

         At oral argument, Defendants again moved to dismiss Ms. Moorer's Amended Complaint by oral motion, ECF No. 59, and Ms. Moorer objected to Defendants' motions, ECF No. 61. The Court granted leave for the parties to file “supplemental briefing” by December 12, 2017. ECF No. 16. No party timely filed any supplemental briefing. On December 28, 2017, Ms. Moorer sought leave from the Court to amend the Amended Complaint. ECF No. 63. U.S. Bank and Glass & Braus have opposed the motion. ECF Nos. 64-65.

         The Court addresses all pending motions below.


         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); see also Fed. R. Civ. P. 8(a)(2) (requiring that a plaintiff plead only “a short and plain statement of the claim showing that the pleader is entitled to relief”).

         A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In other words, to state a plausible claim, a plaintiff's complaint must have “enough fact to raise a reasonable expectation that discovery will reveal evidence” supporting the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Although “detailed factual allegations” are not required, a complaint must offer more than “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “naked assertion[s]” devoid of “further factual enhancement.” Id. at 555, 557.

         In determining whether the plaintiff has met this standard, the Court must accept the allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007); Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996) (citations omitted).

         In considering a motion to dismiss, “a district court must [also] limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.” Newman & Schwartz, 102 F.3d at 662 (citation and internal quotation marks omitted). The Court notes that the operative Complaint makes a number of references to attached exhibits, yet, Ms. Moorer did not attach exhibits to the Amended Complaint. See ECF No. 56. The Court thus relies solely upon the alleged facts in her Amended Complaint.

         Finally, pro se complaints “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing the “special solicitude” courts afford pro se litigants).


         Construing the Amended Complaint “liberally and interpret[ing it] to raise the strongest arguments they suggest, ” Sykes, 723 F.3d at 403, the Court concludes that Ms. Moorer brings claims for damages under the Fifth and Fourteenth Amendments, FDCPA, FCRA, and Connecticut common-law torts of fraud, conspiracy, and intentional infliction of emotional distress and will address each of these claims in turn.


         The Amended Complaint asserts Defendants violated Ms. Moorer's Fifth Amendment rights “as purview through the 14th Amendment of the U.S. Constitution.” Amend. Compl. ¶ 3. The Fourteenth Amendment constricts the conduct of states, not federal actors. Sw. Oil Co. v. State of Tex., 217 U.S. 114, 119 (1910). The Amended Complaint plainly states that Defendants are entities operating “in the State of Connecticut.” Amend. Compl. ¶¶ 5-8. As a result, U.S. Bank is subject, if at all, to the Fourteenth Amendment and not the Fifth, which applies to federal entities. Accordingly, the Court addresses Ms. Moorer's claims as arising under the Fourteenth Amendment.

         Ms. Moorer alleges that Defendants' “trespassed . . . against Plaintiff and her property. Id. U.S. Bank contends Ms. Moorer fails to state a claim upon which this Court may grant relief because “[a] claim for Constitutional violations lies only where there is state action.” U.S. Bank's Br. at 25. The Court agrees.

         “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty' or ‘property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “[T]he due process analysis is basically the same under both the Fifth and Fourteenth Amendments.” Chew v. Dietrich, 143 F.3d 24, 28 (2d Cir. 1998).

         “‘Because the United States Constitution regulates only the Government, not private parties, ' a litigant . . . who alleges that her ‘constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.'” Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 263 (2d Cir. 2014) (quoting Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005)). As a corollary to the state-action requirement, “Title 42 U.S.C. § 1983 provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . .'” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Ms. Moorer has not sufficiently plead either theory of liability.

         a. No State Action

         “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation and quotation marks omitted). “[T]he root requirement” of the Due Process Clause is “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citing Boddie v. Connecticut, 401 U.S. 371, 379 (1971)).

         The time and manner of the predeprivation hearing is determined by balancing the competing interests at stake. A court must weigh (1) the private interests; (2) the governmental interests; (3) the need to avoid administrative burden and delay; and (4) the risk of error. Loudermill, 470 U.S. at 542-43 (citing Mathews, 424 U.S. at 335). Some situations exist where a postdeprivation hearing will satisfy the Fifth Amendment's due process requirement. Id. at 542 n.7 (citation omitted).

         Ms. Moorer's claim fails for a lack of state action. Ms. Moorer does not, nor could she, allege facts that would support an allegation that the Defendants are state actors. The fact that a governmental actor may have granted them corporate charters does not change this. “All corporations act under charters granted by a government, usually by a State. They do not thereby lose their essentially private character.” San Francisco Arts & Athletics, 483 U.S. at 543-44. Nor has Ms. Moorer alleged facts that would support an allegation that Defendants perform functions that have been “traditionally the exclusive prerogative” of the Federal Government. Id. at 544 (internal quotation marks and citation omitted). Finally, and perhaps most fundamentally, the Amended Complaint fails to allege sufficient facts to plausibly allege that the government has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government].” Id. at 546.

         The Amended Complaint also contains insufficient factual detail to support an inference, to which she is entitled as Plaintiff, that she has been dispossessed of her home. Neither has Ms. Moorer refuted U.S. Bank's assertion that the 2016 foreclosure proceeding remains pending.

         Swanson Aff. ¶ 5, ECF No. 17-1. As a result, it is unclear that she has been divested of her right to the real property for which she took out the mortgage at issue here.

         b. No Taking

          Assuming Ms. Moorer had alleged, which she has not, that Defendants were acting on behalf of the state, to the extent that Ms. Moorer alleges that Defendants' demand for payment on her mortgage is a “taking, ”[3] this theory of liability also fails.

         The Takings Clause of the Fifth Amendment[4] provides that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V. There are two general categories of takings: physical takings and regulatory takings. Vizio, Inc. v. Klee, No. 3:15-CV-00929 (VAB), 2016 WL 1305116, at *17 (D. Conn. Mar. 31, 2016) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321 (2002)).

         “To state a claim under . . . the Takings Clause, plaintiffs [are] required to allege facts showing that state action deprived them of a protected property interest.” Story v. Green, 978 F.2d 60, 62 (2d Cir. 1992) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-04 (1984)). The Takings Clause does not proscribe the “vast governmental power” to take private property for public use, provided that the government pays just compensation when it does. Stop the Beach Renourishment, Inc. v. Florida Dep't of Envtl. Prot., 560 U.S. 702, 734 (2010) (Kennedy, J. concurring). Therefore, takings claims typically involve property interests for which the government can provide monetary compensation without the government being deprived of the property or public benefit that it seeks. See Id. at 740-41 (“It makes perfect sense that the remedy for a Takings Clause violation is only damages, as the Clause does not proscribe the taking of property; it proscribes taking without just compensation.”) (internal quotation marks omitted). Vizio, Inc., 2016 WL 1305116, at *18.

         Regulatory takings claims must allege “specific and identified properties or property rights . . . to come within the regulatory takings prohibition, ” such that the challenged regulations are “so excessive as to destroy, or take, a specific property interest.” Eastern Enterprises v. Apfel, 524 U.S. 498, 541, 542 (1998) (Kennedy, J. concurring in the judgment and dissenting in part) (collecting cases identifying various specific property interests). See also Id. at 554 (Breyer, J. dissenting) (“The ‘private property' upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property.”).

         Under the Takings Clause, ordinary obligations to pay money are different. “Unlike real or personal property, money is fungible.” United States v. Sperry Corp., 493 U.S. 52, 62 n. 9 (1989). In Easter Enterprises v. Apfel, a majority of five justices of the Supreme Court agreed that simply imposing an obligation to perform an act, such as making a payment, does not take property in a constitutional sense. See 524 U.S. at 539-47 (Kennedy, J.); id. at 554-58 (Breyer, J.). “As [its] language suggests, at the heart of the [Takings] Clause lies a concern, not with preventing arbitrary or unfair government action, but with providing compensation for legitimate government action that takes ‘private property' to serve the ‘public' good.” Id. at 554 (Breyer, J.). The Takings Clause is not “a substantive or absolute limit on the government's power to act. The ...

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