Johnson v. JPMorgan Chase Bank, N.A.

          MEMORANDUM OF DECISION ON MOTION TO DISMISS [DKT. 35]

          Hon. Vanessa L. Bryant United States District Judge

         Plaintiff Jacqueline Johnson (“Plaintiff”) commenced this action pro se against JPMorgan Chase Bank, N.A. (“Defendant”) alleging that Defendant violated the Connecticut Unfair Trade Practices Act (“CUTPA”), breached its contract with Plaintiff and inflicted emotional distress upon her. Presently before the Court is Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint (“TAC”) in its entirety. For the foregoing reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART.

         I. Background^[1]

         On October 3, 2005, Plaintiff purchased real property located at 157 Jonathan Drive, Stamford, CT. [Dkt. 34 (Compl.) at 1]. Plaintiff financed the purchase with Washington Mutual Bank with a mortgage in the amount of $798, 750. Id. In September 2008, Defendant acquired Washington Mutual Bank, including Plaintiff's mortgage. Id. In early 2010, Plaintiff sought a mortgage modification to take advantage of lower interest rates. Id. Plaintiff and Defendant began a Verbal Mortgage Process, the prerequisite to entering into a Trial Mortgage. Id. at ¶ 16.

         Plaintiff alleges that from June 24, 2010 to July 23, 2010 iterations of the Trial Mortgage cancelled each other out, subjected Plaintiff to foreclosure before the trial process began, and failed to specify the amount for payment. Id. at Exs. 8-10. On June 24, 2010 and July 23, 2010, Plaintiff received a letter from Defendant informing her that she had a Chase Modification Program Trial Plan Payment due July 1, 2010 (and August 1, 2010, respectively) as a condition of or approval for a permanent modification. Id. at Exs. 2-4. Neither letter included the amount of the mortgage payment due. Plaintiff further alleges “[t]he trial plan that was supposed to begin on July 1, 2010 was canceled before it started as per our conversation with Jennifer Rogers at Chase, on or about June 28, 2010. She said the [June 24, 2010] letter was sent out in error.” Id. at Ex. 8. On July 23, 2010, Defendant wrote Plaintiff informing her “Your Chase Home Affordable Modification Program Trial Period Plan is at Risk” [. . . because] “as of the date of this letter we have not received the payment due on the first of July under your Chase Home Affordable Modification Program Trial Period Plan . . . and your eligibility for participation in this program is at risk.” Id. at Ex. 3. The TAC does not allege a July mortgage payment was made.

         Plaintiff alleges “[d]espite the late notice, on the advice of Ms. Regan at Chase, we sent in a check for $4, 881.54 for the August 2010 payment on an unspecified date.” Id. at Exs. 8-10. The TAC does not allege a payment was made for September 2010. Plaintiff alleges “[a]nother fax transmission to Chase dated October 18, 2010 confirms that we also sent another check for the same amount [$4, 881.54] by mail that Chase claims they did not receive.” Id.

         In response to Plaintiff's inquiry, she had a conversation with Defendant's representative Jeffrey Zahorujko. Id. at Ex. 16. On October 21, 2010, Plaintiff wrote a letter to Mr. Zahorujko memorializing their conversation in which she wrote “we returned from a conference in Barbados [on an unspecified date in October 2010] and went to pay the October mortgage.” Id. The letter states “the bank would not accept the [October] payment, and [Plaintiff] called to find out why, only to be told that the house was in foreclosure.” Id. In her letter, Plaintiff also states Mr. Zahorujko informed Plaintiff he “was also going to find out the name of the lawyer that is supposed to be [handling Plaintiff's foreclosure] and inform him/her that [mortgage modification] papers are going to be re-submitted.” Id.

         Plaintiff acknowledged that in October 2010 Defendant asked her “to refile the information that was previously sent requesting modification and provide some updated information, as the information previously submitted to qualify for the [modified mortgage] rate of 2.8% was dated, ” not missing. Id.

         Plaintiff had to deal with Defendant's “contrived foreclosure” and fear of losing her home. Id. at ¶¶ 13-14. The modification process took approximately two years to complete. Plaintiff claims the process took so long because Defendant falsely claimed Plaintiff's modification application was missing documents and forced her to resubmit her application repeatedly. Id. at ¶¶ 24-25. Plaintiff further claims Defendant intentionally created these delays. Id. Thus, the modification process was complete in 2013.^[2] Plaintiff spoke with twenty-four different JPMorgan representatives during this time and was confused by the conflicting information they provided. Id. at ¶¶ 16, 23. Plaintiff suffered from undue stress at the thought of losing her home, emotional injury and sleepless nights. Id. at ¶¶ 12-13, 36.

         After the mortgage modification was approved, Plaintiff learned that the payoff-mortgage costs and penalties would significantly exceed the initial mortgage with Washington Mutual. Id. at ¶ 27. The principal balance of Plaintiff's mortgage grew from $798, 750 to $881, 521. Id. at ¶ 28. Defendant demanded that Plaintiff sign and return the documents immediately. Id. at ¶ 26. Plaintiff signed them under duress and out of fear that Defendant would foreclose on her home. Id.

         Plaintiff requested information from Defendant years later. Id. at ¶ 30. By letters dated May 1, 2015, January 14, 2016, March 30, 2017, and April 9, 2018 Plaintiff requested information concerning her modified mortgage. Id. at Exs. 8-10, 11-15. Defendant did not provide an explanation for the increased principal balance, but informed Plaintiff that its Executive Office would review her concerns. Id. at Ex. 8-10. On September 15 and October 6, 2015, Defendant wrote Plaintiff informing her that it needed additional time to investigate her mortgage file and respond to her requests for information. Id. The Executive Office requested over forty extensions to research the case. Id. at ¶ 30, Exs. 11-15.

         In June 2018, after this lawsuit was filed, Defendant added a “Deferred Principal Balance” to her statement for the first time in the amount of $112, 836.88. Id. at ¶ 33. Through the date of the TAC, Defendant intentionally impeded Plaintiff from online access to pay her monthly mortgage. Id. at ¶ 19. Plaintiff paid approximately $486, 229 from September 2005 through June 2018, but her balance is still $82, 771 more than the balance when she purchased the home. Id. at 1. Assuming a monthly mortgage payment of $4, 881.54 and total payments of $486, 229, Plaintiff made 99.6 monthly mortgage payments over the 153-month period from September 2005 through June 2018.

         II. Legal Standard

         To 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 ‘well pleaded factual allegations,' assumed to be true, ‘plausibly give rise to an entitlement to ...