United States District Court, D. Connecticut
EDWARD J. O’HARA, Plaintiff,
MORTGAGEIT, INC.; U.S. BANK NATIONAL ASSOCIATION as Trustee for LXS 2006-12N; INDYMAC BANCORP, INC. a Unit of one West Bank that is now a division of CIT BANK, N.A.; OCWEN LOAN SERVICING, INC.; CITIBANK, N.A. as Trustee for MLMI Trust Series 2006-HE5; LEOPOLD & ASSOCIATES PLLC; HINSHAW & CULBERTSON, LLP, Defendants.
RULING ON MOTIONS TO DISMISS
Michael P. Shea, U.S.D.J.
plaintiff Edward J. O’Hara brought this action on
October 9, 2018 against Defendants MortgageIT, Inc.; U.S.
Bank National Association as Trustee for LXS 2006-12N;
IndyMac Bancorp, Inc., a Unit of OneWest Bank that is now a
division of CIT Bank, N.A.; Ocwen Loan Servicing, Inc.;
Citibank, N.A. as Trustee for MLMI Trust Series 2006-HE5;
Leopold & Associates, PLLC, a multistate law firm; and
Hinshaw & Culbertson, LLP, a national law firm (together,
“Defendants”). Complaint, ECF No. 1. Mr.
O’Hara alleges that the Defendants improperly
securitized his Note and Mortgage and then brought a
fraudulent foreclosure action against him. His Complaint
alleges violations of various federal and state laws,
including the First, Fifth, and Fourteenth Amendments to the
U.S. Constitution; 42 U.S.C. §§ 1983 and
1985–86; the Truth in Lending Act (TILA); the Fair Debt
Collection Practices Act (FDCPA); the Federal Tort Claims Act
(FTCA); fraudulent conveyance; abuse of process; and unfair
business practices and failure to prevent deprivations of
U.S. Bank National Association as Trustee for LXS 2006-12N
(“U.S. Bank”), Ocwen Loan Servicing, LLC (named
“Ocwen Loan Servicing, Inc.” in the Complaint)
(“Ocwen”), and Hinshaw & Culbertson LLP
(“Hinshaw”) moved to dismiss the Complaint under
Fed.R.Civ.P. 12(b)(1) on December 12, 2018. See U.S. Bank
Mot. to Dismiss, ECF No. 10. Defendant CIT Bank, N.A. (named
“IndyMac Bancorp, Inc.” in the Complaint)
(“CIT Bank”) moved to dismiss under Fed.R.Civ.P.
12(b)(1) and 12(b)(6) on December 31, 2018, for substantially
the same reasons. See CIT Bank Mot. to Dismiss, ECF No. 16.
Mr. O’Hara filed objections to both motions. ECF Nos.
23, 27. Defendants MortgageIT, Inc.
(“MortgageIT”), Citibank, N.A. as Trustee for
MLMI Trust Series 2006-HE5 (“Citibank”), and
Leopold & Associates PLLC (“Leopold &
Associates”) have not appeared in this
reasons below, the Court GRANTS both motions to dismiss
October 2013, Defendant U.S. Bank, as Trustee, brought a
foreclosure action against Mr. O’Hara in the Superior
Court of Connecticut, seeking to foreclose on residential
property located at 1414 King Street, Greenwich, Connecticut.
U.S. Bank Nat’l Ass’n, as Trustee for the LXS
2006-12N v. O’Hara, Superior Court, Judicial District
of Stamford, No. FST-CV13-6020232-S (the “State
Foreclosure Action”). Mr. O’Hara appeared in that
action, filed an Answer with Special Defenses, and the court
entered a judgment of foreclosure by sale in December 2015.
U.S. Bank Mem., ECF No. 11 at 2. The Court takes judicial
notice of the court documents and rulings in the State
Foreclosure Action. See Kramer v. Time Warner Inc.,
937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely
take judicial notice of documents filed in other courts . . .
not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such
litigation and related filings.”) (citations omitted).
The state trial court opened the judgment in June 2016, and
the case remains pending. U.S. Bank Mem., ECF No. 11 at 3.
O’Hara’s Complaint makes the following
allegations, which I accept as true for purposes of this
motion. The complaint alleges, in sum, that the Defendants
improperly securitized his Note and Mortgage, and that the
foreclosure action against him was fraudulent as a
consequence. On or about May 6, 2006, Mr. O’Hara signed
a Note and Mortgage originated by MortgageIT, Inc. Compl.,
ECF No. 1 ¶¶ 21, 23. He alleges that MortgageIT
sold the loan in 2006 to Lehman Brothers Holdings, Inc.,
which securitized the mortgage, held it in a trust (Lehman XS
Trust Series 2006-12N, for which U.S. Bank was the Trustee),
and then resold it to a Merrill Lynch trust (MLMI 2006-HE5).
Id. ¶ 24. Because the loan was sold to a
Merrill Lynch trust in 2006, Mr. O’Hara asserts that a
purported 2011 Assignment of the mortgage from MortgageIT to
U.S. Bank was invalid. Id. ¶¶ 24, 27. He
also alleges that MortgageIT failed to document any transfer
of the mortgage to U.S. Bank in the local land records.
Id. ¶ 32. For these reasons, he argues that
U.S. Bank is not a “true part[y] in interest who can
make any claim against Plaintiff’s Mortgage
transaction” and does not have standing to enforce the
note or the mortgage. Id. ¶¶ 28, 37. He
characterizes the mortgage documents (including the note, the
mortgage, and the assignment) as “falsely made, void ab
initio, and slanderous, ” Id. ¶ 33,
accuses the law firm defendants of filing “fraudulent
documents” in the State Foreclosure Action,
Id. ¶ 35, and calls that entire action a
“fraudulent proceeding, ” Id. ¶ 38.
O’Hara makes additional allegations of fraudulent
activity. He avers that U.S. Bank made misrepresentations to
the plaintiff about the nature of his mortgage, telling him
it was a “traditional ‘mortgage loan’
consisting of a paper note and security instrument a/k/a
‘mortgage, ’” when in fact the mortgage had
been securitized and “fraudulently converted into
Stock-like Bond Investment Securities.” Id.
¶¶ 26, 28. He claims that U.S. Bank
“deliberately caused the original ‘Promissory
Note’ . . . to be destroyed, ” and that there is
no proof his brother, Francis O’Hara, “ever
electronically signed the ‘electronic note’ that
was made part of the ‘Mortgage.’”
Id. ¶¶ 29–30. Finally, he argues
that the mortgage, assignment, and three versions of the
original note are “acts of forgery and counterfeiting
of non-negotiable Security Instruments that are actually
Investment Securities.” Id. ¶ 35.
“pleadings of a pro se plaintiff must be read liberally
and should be interpreted to ‘raise the strongest
arguments that they suggest.’” Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
A pro se complaint is “held to less stringent standards
than formal pleadings drafted by lawyers.”
Bromfield v. Lend-Mor Mortg. Bankers Corp., No.
3:15-CV-1103 (MPS), 2016 WL 632443, at *3 (D. Conn. Feb. 17,
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it
. . . . A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000).
deciding a motion to dismiss under Rule 12(b)(6), the Court
must determine whether the plaintiff has alleged
“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 pleaded factual content 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). The Court accepts the
complaint’s factual allegations as true, and
“draw[s] all reasonable inferences in favor of the
non-moving party.” Vietnam Ass’n for Victims
of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d
Cir. 2008). “However, the tenet that a court must
accept a complaint’s allegations as true is
inapplicable to ‘[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements.’” Gonzales v. Eagle Leasing
Co., No. 3:13-CV-1565 JCH, 2014 WL 4794536, at *2 (D.
Conn. Sept. 25, 2014) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “When a complaint is based
solely on ‘wholly conclusory allegations’ and
provides no factual support for such claims, it is
appropriate to grant defendants motion to dismiss. Scott
v. Town of Monroe, 306 F.Supp.2d 191, 198 (D. Conn.
bring their motions to dismiss, ECF Nos. 10, 16, under Rule
12(b)(1) and Rule 12(b)(6). Both memoranda rely primarily on
abstention, arguing that this Court should decline to
exercise jurisdiction and dismiss the action on account of
Mr. O’Hara’s pending State Foreclosure Action. I
need not undertake an analysis of abstention factors,
however, because Mr. O’Hara fails to state a federal
cause of action in his Complaint. Without any federal
question adequately pled, I dismiss the federal claims
without prejudice and decline to exercise supplemental
jurisdiction over the state law claims. I also provide Mr.
O’Hara with an opportunity to replead the federal
claims within thirty days to address the deficiencies
Constitutional and § 1983 Claims
Counts One, Two, and Four, Mr. O’Hara alleges
violations of his constitutional rights, citing the First,
Fifth, and Fourteenth Amendments as well as 42 U.S.C.
§§ 1983, 1985–86. Defendants argue that these
claims must be dismissed because the Defendants are not state
actors for the purposes of constitutional or § 1983
liability. I agree. I also dismiss the claims under
§§ 1985–86 because the facts alleged do not
the United States Constitution regulates only the Government,
not private parties, a litigant . . . who alleges that [his]
constitutional rights have been violated must first establish
that the challenged conduct constitutes ‘state
action.’” Grogan v. Blooming Grove Volunteer
Ambulance Corps, 768 F.3d 259, 263 (2d Cir. 2014).
“Title 42 U.S.C. § 1983 provides a remedy for
deprivations of rights secured by the Constitution and laws
of the United States when that deprivation takes place under
color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory.” Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982). To
state a claim under 42 U.S.C. § 1983, “the
plaintiff must allege that the challenged conduct  was
attributable to a person acting under color of state
law.” Whalen v. Cty. of Fulton, 126 F.3d 400,
405 (2d Cir. 1997). “[T]he acts of private attorneys
are not deemed to be under color of state law, and an
otherwise private person acts under color of state law only
if he or she conspires with state officials to deprive
another of federal rights.” Kash v. Honey, 38
Fed.Appx. 73, 75–76 (2d Cir. 2002).
O’Hara makes only conclusory allegations of state
action, stating that Defendants deprived him of his
constitutional rights “through their Attorney Agents,
who acted under Color of State Law, using their privilege as
Officers of the Court to make claims against
Plaintiff’s property in the foreclosure action, ”
and that the action as a whole was a “fraudulent
proceeding under Color of State Law.” Compl., ECF No. 1
¶¶ 34, 38. In his objections, he reiterates the
allegations in the Complaint that “the Defendants used
a State authorized foreclosure proceeding under Color of Law
to fraudulently deprive me of my Constitutionally protected
rights.” Objection, ECF No. 27 at 8. He also argues
that “[a]ttorneys admitted to the bar are officers of
the Court, and pursuant to [7 C.J.S. § 4], an
attorney’s first duty is to the court and the public,
not to the client . . . . Therefore, attorneys, whose first
duty is as officers of the Court, are effectively State
Actors.” Objection, ECF No. 23 at 3–4. But the
Second Circuit has made clear that- attorneys’ duties
to the Court notwithstanding-“the acts of private
attorneys are not deemed to be under color of state law,
” Kash, 38 Fed.Appx. at 75–76, unless
plaintiff alleges “facts demonstrating that the private
entity acted in concert with the state actor, ”
Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d
Cir. 1992). Mr. O’Hara has alleged no such facts to
suggest that any of the Defendants, including any attorneys,
contracted or conspired with any governmental office or
official. Because a “merely conclusory allegation that
a private entity acted in concert with a state actor does not
suffice to state a § 1983 claim against the private
entity, ” Mr. O’Hara fails to state a claim for
any constitutional violation or for § 1983 liability.
O’Hara also cites 42 U.S.C. §§ 1985–86,
1988 in his Complaint. Id. ¶¶ 1, 52
(“invok[ing] the jurisdiction and venue of this Court
for violations of Civil Rights per 42 U.S.C. §§
1983 . . ., 1985(3) . . ., 1986 and 1988” and alleging
that defendants are “accountable for violations of the
Plaintiff’s rights” under §§ 1983,
1985–86). The first two subsections of § 1985 are
not implicated by the facts alleged. Gilliam v.
Black, No. 3:18CV1740 (SRU), 2019 WL 3716545, at *16 (D.
Conn. Aug. 7, 2019) (“Section 1985(1) prohibits
conspiracies to prevent federal officials from performing
their duties and Section 1985(2) ...