Deutsche Bank National Trust Co. v. Thompson

          MEMORANDUM OF DECISION RE: COUNTER CLAIM DEFENDANT'S MOTIONS TO DISMISS (ECF NOS. 15, 38)

          KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE.

         Preliminary Statement of the Case

         The Defendant/Counter Claimant, Melvin Thompson (“Thompson”), proceeding pro se, brings a variety counterclaims against the Plaintiff/Counterclaim Defendant, Deutsche Bank National Trust Company (“Deutsche Bank”), arising out of the origination of, assignment of, and efforts to collect a home mortgage loan issued in 2003. In his amended counterclaim (ECF No. 14), Thompson alleges the following causes of action: violation of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2605; violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635; violation of the Home Ownership Equity Partnership Act (“HOEPA”), 12 C.F.R. § 1026.32; violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), 15 U.S.C. § 1639(c); common law fraud; a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. §42-110a; negligence; slander of title; residential mortgage fraud, in violation of Conn. Gen.Stat. § 53-379a; and defamation. Deutsche Bank filed a motion to dismiss counts one through eight (ECF No. 15) of the amended counterclaim for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6). Deutsche Bank filed a motion to dismiss counts nine and ten of the amended counterclaim (ECF No. 38) for lack of subject matter jurisdiction under Rule 12 (b)(1). Thompson objected to both motions. (ECF Nos. 19, 40.) For the following reasons, the Deutsche Bank's Motions to Dismiss are GRANTED.

         Allegations

         Thompson alleges that the loan at issue in this foreclosure action, when issued in 2003, was void ab initio as having been procured through fraud by one or more third parties. He alleges that he was unaware of the fraudulent documentation associated with the loan before 2007. Thompson alleges that the Defendant, and others who have either serviced the loan, assigned the loan, or attempted to collect the loan, are fully aware that the loan was the product of fraud and that therefore, any effort to assign or to collect the debt are illegal pursuant to the various causes of action asserted. Specifically, he alleges that the loan was assigned to Deutsche Bank on or about July 31, 2015; that Deutsche Bank was aware the loan was the product of fraudulent conduct; that Deutsche Bank is therefore liable for the conduct of the third parties involved in the original transaction^[1]; and that Deutsche Bank's efforts to collect the debt further gives rise to the ten counts in the amended counterclaim.

         Standard of Review

         The Defendant moves 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. As is appropriate, the Court will address the existence of federal subject matter jurisdiction prior to considering the adequacy of the allegations in the complaint. See, e.g., Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).

         For purposes of a Rule 12(b)(1) or Rule 12(b)(6) motion to dismiss, the Court must accept as true all facts alleged in a complaint. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction … when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A party asserting jurisdiction bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Aurechione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).

         For purposes of Rule 12(b)(6), a complaint must include adequate factual allegations to 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).

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. But the 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). The Court, in recognition of Thompson's status as a pro se litigant, interprets his claims liberally and “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation and internal quotation marks omitted).

         Discussion

         Thompson has spent many years seeking relief in federal court against Deutsche Bank and others involved in the origination, assignment, or collection of the 2003 mortgage. See Thompson v. Wachovia Corp., No. 3:06-cv-595 (SRU); Thompson v. Barclays Capital Real Estate, Inc., d/b/a Barclays Homeq Servicing, No. 3:10-cv-317 (AWT); Thompson v. Accent Capital, No. 3:11-cv-69 (AWT), 2011 WL 3651848 (D. Conn. Aug. 11, 2011), aff'd, 491 Fed.Appx. 264 (2d Cir. 2012); Thompson v. Ocwen Financial Corp., No. 3:13-cv-386 (JCH), 2013 WL 4522504 (D. Conn. Aug. 27, 2013), Thompson v. Ocwen Fin. Corp., No. 3:16-CV-01606 (JAM), 2018 WL 513720 (D. Conn. Jan. 23, 2018). Of particular significance to the present amended counterclaim are the cases captioned Thompson v. Ocwen Financial Corp., et al., No. 3:16-cv-01606 (JAM) and Thompson v. Ocwen Financial Corp., No. 3:13-cv-386 (JCH). Each of these prior cases, like this case, was predicated on the allegedly fraudulent mortgage transaction in 2003 and subsequent assignments of the debt or efforts to collect the debt. And in each of those cases, the Court held that Thompson did not have standing to assert those claims because the claims were the property of Thompson's bankruptcy estate.

         Deutsche Bank moves to dismiss the instant amended counterclaim, asserting that the decisions in these prior cases have equal application to the amended counterclaim and that Thompson therefore ...