United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION TO DISMISS
R. Underhill, United States District Judge
Nelson, proceeding pro se, brought this action
against Countrywide Home Loans, Inc., Bank of America, N.A.,
American Brokers Conduit, U.S. Bank National Association,
Wells Fargo Bank, N.A., Mortgage Electronic Registration
Systems, Inc., “John Does 1 through 100, ” and
“Jane Roes 1 through 100” (collectively,
“Defendants”). Defendants Countrywide Home Loans,
Inc., Bank of America, N.A., and Mortgage Electronic
Registration System, Inc. (collectively, “Moving
Defendants”) have moved to dismiss under Federal Rules
of Civil Procedure Rules 12(b)(1) and 12(b)(6). For the
reasons set forth below, the motion to dismiss is
alleged in the complaint, Nelson entered into two mortgage
loans on two separate properties (“the
Properties”). Specifically, on January 28, 2005, Nelson
executed a note and mortgage, which were secured by the
property located at 757-759 Iranistan Avenue, Bridgeport, CT
06605 (the “757 Property”). See Compl.,
Doc. No. 1, at ¶ 2. On October 18, 2006, Nelson executed
a note and mortgage, which were secured by the property
located at 1584-1586 North Avenue, Bridgeport, CT 06604 (the
“1584 Property”). Id. Nelson principally
alleges that Defendants “fraudulently misrepresented
the Value of the subject property(s) and misrepresented the
Loan to Fair Market Value Ratio based upon a false and
inflated appraisal overstating the property value.”
See Compl., Doc. No. 1, at ¶ 4.
asserts violations of 18 section 1962(a) and 1964(c) of the
Federal Racketeer Influenced and Corrupt Organizations Act
(“RICO”) on the basis of “mortgage fraud,
” as well as “fraud in the factum” and
“fraud in the inducement.” See Compl.,
Doc. No. 1, at ¶¶ 99, 111-16. Along with
compensation for damages and attorneys' fees, Nelson
requests “vacatur of final foreclosure
judgments, discharge of lis pendens, Satisfaction of
Mortgage, ” and cancellation of the promissory notes.
Id. at 47. He further requests a “permanent
injunction against all Defendant(s), Successors, Assigns and
Agents who try to enforce a claim or judgment that has been
fraudulently procured.” Id.
not alleged in the complaint, I will take judicial notice of
the following four court proceedings, which are established
by publicly-available court records. Bailey v. Interbay
Funding, LLC, 2018 WL 1660553, at *2 n. 2 (D. Conn. Apr.
4, 2018) (“At the pleading stage, courts may take
judicial notice of matters of public record such as pleadings
and orders in another action.”) (internal citations
omitted). First, on April 14, 2014, Nelson filed a complaint
against Moving Defendants in the Superior Court for the
Judicial District of Fairfield, No. FBT-CV14-5030155-S,
alleging, inter alia, misrepresentation, misconduct,
and fraud, and seeking quiet title with respect to the 757
Property. See Exs. B, C to Mot. to Dismiss, Doc.
Nos. 14-3, 14-4. The court granted Moving Defendants'
motion to strike the complaint on June 4, 2016, and dismissed
the case on July 19, 2016 for failure to comply with a court
order and for failure to “prosecute the matter with due
diligence.” See Exs. D, E to Mot. to Dismiss,
Doc. Nos. 14-5, 14-6.
on June 29, 2015, the Superior Court of Connecticut entered a
Judgment of Strict Foreclosure on the 1584 Property, No.
FBT-CV17-6061693-S. See Ex. H to Mot. to Dismiss,
Doc. No. 14-9. Third, on December 5, 2017, Nelson filed for
Chapter 13 bankruptcy protection in the United States
Bankruptcy Court for the District of Connecticut, Case No.
17-50872, which was later dismissed. See Exs. I, J
to Mot. to Dismiss, Doc. Nos. 10, 11. Finally, on February 4,
2019, the Superior Court of Connecticut entered a Judgment of
Strict Foreclosure on the 757 Property. See Bank of
America, N.A. v. Nelson et al., No. FBT-CV17-6061693-S
(Conn. Super. Ct. Feb 10, 2019). That proceeding was ongoing
when the complaint in the instant matter was filed.
Standard of Review
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.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). A party that moves to dismiss for lack of
subject matter jurisdiction “may refer to evidence
outside the pleadings.” Id. (quoting Kamen
v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure Rule 12(b)(6) is designed
“merely to assess the legal feasibility of a complaint,
not to assay the weight of evidence which might be offered in
support thereof.” Ryder Energy Distribution Corp.
v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984) (quoting Geisler v. Petrocelli, 616
F.2d 636, 639 (2d Cir. 1980)).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must accept the material facts alleged in the complaint
as true, draw all reasonable inferences in favor of the
plaintiffs, and decide whether it is plausible that
plaintiffs have a valid claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Twombly, “[f]actual allegations must be enough
to raise a right to relief above the speculative level,
” and assert a cause of action with enough heft to show
entitlement to relief and “enough facts to state a
claim to relief that is plausible on its face.” 550
U.S. at 555, 570; see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of
a complaint, they must be supported by factual
allegations.”). The plausibility standard set forth in
Twombly and Iqbal obligates the plaintiff
to “provide the grounds of his entitlement to
relief” through more than “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555
(internal quotation marks omitted). Plausibility at the
pleading stage is nonetheless distinct from probability, and
“a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the claims] is
improbable, and . . . recovery is very remote and
unlikely.” Id. at 556 (internal quotation