United States District Court, D. Connecticut
DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff/Counterclaim Defendant,
MELVIN THOMPSON, Defendant/Counter Claimant.
MEMORANDUM OF DECISION RE: COUNTER CLAIM
DEFENDANT'S MOTIONS TO DISMISS (ECF NOS. 15, 38)
A. DOOLEY, UNITED STATES DISTRICT JUDGE.
Statement of the Case
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
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; and that Deutsche Bank's efforts to
collect the debt further gives rise to the ten counts in 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).
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).
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
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.
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