United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON MOTION TO DISMISS [DKT.
Vanessa L. Bryant, United States District Judge
Karl Paul Vossbrinck (“Plaintiff” or “Mr.
Vossbrinck”), brings this action against Defendant
Eckert Seamans Cherin and Mellot, LLC
(“Defendant” or “Eckert Seamans”) for
claims of replevin under Conn. Gen. Stat. § 52-515,
civil theft under Conn. Gen. Stat. § 52-564, common law
conversion, and deprivation of rights in violation of 42
U.S.C. § 1983. The case was initially filed in
Connecticut state court but was properly removed under both
diversity and federal question jurisdiction. See
Dkt. 1-1 (Notice of Removal) at 4]. Defendants have moved to
dismiss the case in its entirety pursuant to Fed.R.Civ.P.
12(b)(6) on the basis that Plaintiff's claims are
time-barred and that the Plaintiff has failed to adequately
plead each claim. For the reasons that follow,
Defendant's Motion to Dismiss is GRANTED.
following facts and allegations are taken from the Complaint
and assumed to be true for the purpose of this motion. This
action arises out of a foreclosure of a mortgage on
Plaintiff's home brought by Accredited Home Lenders, LLC
(“Accredited”) and Deutsche Bank National Trust
Company, as Indenture Trustee, on behalf of The Holders Of
The Accredited Mortgage Loan Trust 2005-4 Asset Backed Notes
the successor in title to the mortgage and note. See
Accredited Home Lenders, Inc. (Deutsche Bank) v.
Vossbrinck, judicial district of Waterbury, Docket No.
CV-08-5007144-S; see also Vossbrinck v. Accredited Home
Lenders, Inc., No. CV125016343S, 2016 WL 3266384, at *1
(Conn. Super. Ct. May 26, 2016) (recognizing successor in
title). Defendant Eckert Seamans is the law firm that
represented Accredited in the foreclosure and Attorney
Geraldine Cheverko (“Attorney Cheverko”) is
associated with the law firm.
21, 2011, an Order of Strict Foreclosure was granted against
Mr. Vossbrinck and a law date was set for August 23, 2011.
[Dkt. 1-1 (Compl.) ¶ 1]. The Complaint does not allege
that Mr. Vossbrinck redeemed legal title by the law
or vacated the premises. See Id. ¶¶ 1-2.
An Order of Ejectment was issued on August 13, 2012.
Id. ¶ 2. Attorney Cheverko of Eckert Seamans
“was in contact with” Ms. Estelle Stevenson of
Prudential Real Estate (“Ms. Stevenson”), Marshal
Brian Hobart, (“Marshal Hobart”) and Select
Portfolio Servicing and Safeguard Properties. Id.
¶ 3. Plaintiff claims Attorney Cheverko instructed these
individuals to eject Mr. Vossbrinck from the foreclosed
about October 2, 2012, Marshal Hobart appeared at
Plaintiff's house, and instructed him to collect his
belongings within an hour and vacate the premises.
Id. ¶ 4-5. Marshal Hobart and Officer Tierney
of the Southbury Police Department instructed Mr. Vossbrinck
he could not return under any circumstances. Id.
¶ 4-5. Attorneys Julie Beth Vacek and Dorothy Davis,
both of Eckert Seamans, were present during the ejectment.
Id. ¶ 5. The ejectment lasted about five days
and Mr. Vossbrinck vacated the premises by the end of the
week. Id. ¶ 6.
Complaint alleges Plaintiff did not remove all of his
belongings from the premises at the time he vacated, and
among the items he left were photographs, a commercial range,
a washing machine and dryer, a full kitchen in two downstairs
guest apartments, and a wood burning stove. Id.
¶ 16. Plaintiff's Objection to the Motion to Dismiss
includes photographs of some of the belongings he left
behind. [Dkt. 13-1 (Opp'n Ex. 1, Photographs)]. Those
photographs depict the two kitchens which appear to be
installed on the premises, an exercise machine, cord wood,
two metal shelf systems containing cleaning products and
other assorted consumer items, a furnace, a hot water heater,
and an oil tank. Id. Also depicted is a storage tent
located on the grounds of the premises constructed on a
concrete block linear foundation. Id. Under the tent
was a pallet, a milk crate, and assorted items lying in
disarray on the bare ground. Mr. Vossbrinck alleges the
intrinsic or replacement value of Plaintiff's belongings
remaining after the ejectment “was in excess of $200,
000.” [Dkt. 1-1 ¶ 18].
subsequently learned that Marshal Hobart had not properly
stored Plaintiff's belongings in a town facility, as
mandated by Conn. Gen. Stat. § 49-22, but rather in
several different locations. Id. ¶ 7. Marshal
Hobart also failed to notify the police and Plaintiff where
he was taking Plaintiff's belongings as required by law
and did not provide Plaintiff with an inventory or the
location of his belongings. Id. ¶¶ 8, 10.
period of three weeks, Plaintiff contacted Marshal Hobart,
Attorney Cheverko, and Ms. Stevenson and they “refused
to tell Plaintiff where his belongings were” located.
Id. ¶ 11. Plaintiff ultimately learned where
his belongings were located, but he discovered many items
were missing when he retrieved them. Id.
¶¶ 12-13. One month following Plaintiff's
October 2012 ejectment, Plaintiff learned that Marshal Hobart
left approximately half of Plaintiff's belongings at the
premises. Id. ¶ 14. Plaintiff did not demand
his property, but rather left his belongings on the premises,
assuming they would be secure while he appealed the
foreclosure and his friend was residing in an apartment on
the premises. Id.
Vossbrinck left his property on the premises for two more
years until “the second quarter of 2014” at which
point Attorney Cheverko “had the remaining entirety of
Plaintiff's personal property removed from all exterior
areas of Plaintiff's home and liquidated . . . without
any notification to Plaintiff whatsoever.” Id.
¶ 15. He alleges this liquidation took place without a
court order and while a lis pendens existed on his
Vossbrinck alleges that on June 6, 2014, Ms. Stevenson listed
Plaintiff's belongings for sale for $363, 600.00, at
which time Plaintiff's belongings described above were on
the premises. Id. ¶ 16. After the premise was
listed for sale, “upon Geraldine Cheverko's
instructions, the entire inside contents of Plaintiff's
home were removed.” Id.¶17. Plaintiff
admits in his Complaint that “[t[hese items would
normally be left in a house listed for sale.”
survive a motion to dismiss, a plaintiff must plead
“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). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
considering a motion to dismiss for failure to state a claim,
the Court should follow a “two-pronged approach”
to evaluate the sufficiency of the complaint. Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A
court ‘can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth.'” Id.
(quoting Iqbal, 556 U.S. at 679). “At the
second step, a court should determine whether the
‘wellpleaded factual allegations, ' assumed to be
true, ‘plausibly give rise to an entitlement to
relief.'” Id. (quoting Iqbal, 556
U.S. at 679). “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.”
Iqbal, 556 U.S. at 678 (internal quotations
general, the Court's review on a motion to dismiss
pursuant to Rule 12(b)(6) “is limited to the facts as
asserted within the four corners of the complaint, the
documents attached to the complaint as exhibits, and any
documents incorporated by reference.” McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court may also consider “matters of which
judicial notice may be taken” and “documents
either in plaintiffs' possession or of which plaintiffs
had knowledge and relied on in bringing suit.”
Brass v. Am. Film Techs., Inc., 987 F.2d
142, 150 (2d Cir. 1993); Patrowicz v. Transamerica
HomeFirst, Inc., 359 F.Supp.2d 140, 144 (D. Conn. 2005).
document filed pro se is to be liberally construed
and a pro se 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 (2007)). The Court
interprets a pro se complaint to ...