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Nelson v. Countrywide Home Loans, Inc.

United States District Court, D. Connecticut

September 30, 2019

MOSES NELSON, Plaintiff,
v.
COUNTRYWIDE HOME LOANS, INC., et al., Defendants.

          RULING ON DEFENDANTS' MOTION TO DISMISS

          Stefan R. Underhill, United States District Judge

         Moses 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 GRANTED.

         I. Background

         As 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.

         Nelson 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.

         Although 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.

         Second, 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.

         II. Standard of Review

         a) Rule 12(b)(1)

         “A 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 Cir. 1986)).

         b) Rule 12(b)(6)

         A 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)).

         When 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).

         Under 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 marks omitted).

         III. ...


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