United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
DeForest and Kathleen DeForest (“Plaintiffs”)
filed this lawsuit pro se, alleging that Defendants
violated their rights related to a series of mortgages on the
DeForests' primary residence in Darien, Connecticut.
See generally Compl., ECF No. 1. Defendants now move
to dismiss the Complaint in its entirety, with prejudice.
Defs. Mot. to Dismiss (“Defs. Mot.”), ECF No. 10.
reasons stated below, Defendants' motion is
GRANTED and the case is dismissed with
prejudice. The Court will also construe Plaintiffs'
Response, ECF No. 22, as a motion for leave to amend the
complaint. That request is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
DeForests are residents of Darien, Connecticut. Compl. ¶
4. Defendants - the Bank of New York Mellon, the Bank of
America, and Does 1 through 100 (“Defendants”) -
are banks or bank employees allegedly involved with the
DeForests' mortgage on their primary residence. Compl.
¶¶ 5-10, 11.
DeForests allege that they purchased the property at 17 Fitch
Ave in Darien, Connecticut on August 4, 2004. Compl.
¶¶ 11, 42. They also allege that they
“refinanced” their mortgages on the property at
that time, and received a first mortgage of $515, 000 and a
second mortgage of $125, 000. Compl. ¶ 11. Additionally,
they allege that there was an earlier, prior mortgage of $80,
000 “that is still a lien of record . . . .”
Id. In connection with the mortgages, they allege
that “America's Wholesale Lender (Countrywide)
placed Plaintiffs in a predatory loan with an adjustable
rate” but that “America's Wholesale Lender
has never been licensed to do business in Ct. and
Plaintif[fs] contend this loan is void.” Id.
They claim that Countrywide “illegally, deceptively,
and/or otherwise unjustly qualified Plaintiffs for a loan
which Countrywide knew or should have known that Plaintiffs
could not qualify for or afford.” Id. ¶
DeForests allege that at some point Countrywide assigned the
loan to Defendant Bank of New York Mellon, but they allege
that they “did not receive proper notice of the two
assignments or transfer of their loan from Countrywide to the
Bank of New York Mellon or the servicer Bank of
America.” Id. ¶ 36. They claim that
Defendant Bank of America is the current servicer on the
loan. Id. ¶ 33. Additionally, they claim they
have “attempted a series of attempts to get a loan
modification, all of which were repeatedly delayed due to
lost paperwork, claimed ‘incomplete' paperwork, and
repeated re-assigned to new loan officers.”
Id. ¶ 38.
Deforests allege that a forensic audit was performed
on the property in 2016, revealing that there was a
“break in the chain of title” and “there
was no assignment of the Mortgage from America's
Wholesale Lender (Countrywide) to Bank of New York Mellon,
Bank of America, or any either trust or servicer.”
Id. ¶ 12. They allege that the
original lender - America's Wholesale Lender - was a
fictitious entity “used to conceal the identity of the
actual lender” and that the actual lender is unknown.
Id. ¶ 15(a). They allege that this demonstrates
that the “chain of title is clouded and
defective.” Id. ¶ 15(b). Furthermore,
they allege that “[a]t all times material hereto
Defendants knew of America's Wholesale Lender's
actions and participated in them” and that the Bank of
America “was the successor in interest to America's
Wholesale was responsible for the actions of
Countrywide.” Id. ¶¶ 40-41
DeForests filed the initial complaint pro se on
September 7, 2017. The Complaint included twelve separate
1. Count I alleges that Defendants “do not have an
equitable right to foreclose on the Property because
Defendants . . . have failed to perfect any security interest
in the Real Property collateral” and that the
“Deed of Trust is a nullity by operation of law.”
Compl. ¶¶ 44-45. Additionally, Plaintiffs allege
that “Defendant MERS Cannot be a Real Party in Interest
in a Securitized Mortgage.” Compl. ¶¶ 46-56.
2. Count II alleges “fraud in the concealment”
against the Bank of New York Mellon, alleging that the bank
“concealed the fact that they were not a Federal
Reserve Depository Bank.” Id. ¶¶
3. Count III alleges “fraud in the inducement”
against all Defendants, claiming that “Defendants,
intentionally misrepresented to Plaintiff those Defendants
were entitled to exercise the power of sale provision
contained in the Mortgage/Deed of Trust” and
“misrepresented that they are the ‘holder and
owner' of the Tangible Note . . . .” Id.
4. Count IV appears to allege that loan documents were an
“unconscionable contract.” Id.
¶¶ 76-83. Plaintiffs claim that the Bank of New
York Mellon's actions “resulted in Plaintiff being
forced, tricked, and mislead into parting with their
property.” Id. ¶ 77.
5. Count V alleges breach of contract against Bank of New
York Mellon. Id. ¶¶ 84-88.
6. Count VI alleges that Bank of New York Mellon
“failed to disclose to Plaintiff that they were not the
legitimate creditor, ” and was “acting not in the
best interest of the grantor of the Mortgage/Deed of
Trust” and therefore “failed to adhere to their
Fiduciary Duties.” Id. ¶¶ 91, 94.
7. Count VII seeks to quiet title. Id. ¶¶
8. Count VIII alleges a “grave error Slander of Title
causing special damage.” Id. ¶ 109.
9. Count IX seeks declaratory relief and Plaintiffs
“request a judicial determination of the rights,
obligations and interest of the parties with regard to the
subject property” and “seek to quiet title . .
. .” Id. ¶¶ 112-114.
10. Count X alleges violations of the Connecticut
Homeowner's Protection Bill, Conn. Gen. Stat. §
49-31k et seq.
11. Count XI alleges violation of the Consumer Credit
Protection Act, 15 U.S.C. § 1461, because Defendants
failed to disclose the “purported assignments/transfer
of the ...