United States District Court, D. Connecticut
VINCENT P. DI MASI, et al., Plaintiffs,
G.M.A.C. MORTGAGE CO., et al., Defendants .
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTIONS TO
DISMISS [ECF NOS. 27, 31, 36, 69]
A. Dooley, United States District Judge
Statement of the Case
Vincent P. Di Masi and Jodi B. Rappaport, proceeding pro
se, bring this action against Ditech Financial LLC F/K/A
Green Tree Servicing LLC (hereinafter “Green
Tree”), Fay Servicing, LLC (“Fay”),
Christina Trust (as Trustee of ARLP Trust 2)
(“Christina Trust”), Ocwen Loan Servicing, LLC
(“Ocwen”), Selene Finance LP and U.S. Bank
National Association (as Trustee of BlueWater Investment
Trust 2017-1) (together, the “Selene
Defendants”). The Plaintiffs purport to allege both
common law and statutory claims arising from the origination
of, servicing of and foreclosure upon a mortgage and Note on
property owned by them. (ECF No. 1). Each Defendant filed a
motion to dismiss the Complaint contending generally that
this Court lacks jurisdiction to hear or adjudicate
Plaintiffs' claims, that Plaintiffs fail to state claims
upon which relief can be granted, or both. (ECF Nos. 27, 31,
36, 69). Plaintiffs filed a single opposition (ECF No. 40),
addressed to the motion filed by the Selene Defendants (ECF
No. 31), the motion filed by Fay and Christiana Trust (ECF
No. 27) and the motion filed by Green Tree (ECF No. 36). The
Plaintiffs did not respond to the motion filed by Ocwen (ECF
No. 69). For the reasons discussed below, the Defendants'
Motions are GRANTED.
Plaintiffs' Complaint is largely devoid of factual
allegations, making it difficult to assess the validity of
some of the various Defendants' claims. The substantive
allegations purportedly giving rise to the Defendants'
liability, appear at paragraphs fourteen through twenty-four,
eleven paragraphs which appear to span a 12-year time period.
In paragraph nineteen, the Plaintiffs list claims which they
purport to bring against the Defendants, to include:
“fraud, emotional distress, rescission of a legally
executed contract and violations of T.I.L.A., H.O.E.P.A. and
R.E.S.P.A.” (ECF No. 1). In paragraph 20, in addition,
the Plaintiffs assert “a right of action for relief
under Connecticut State law C.U.T.P.A. and Connecticut tort
and C.C.C.P.A.” (Id.). The Complaint does not
distinguish between Defendants or provide any specific
factual allegations which might reveal the basis for each of
these causes of action. It is clear however that the events
giving rise to the Complaint began with the origination of
the Note and mortgage on the Plaintiffs' property, the
servicing of that loan by the various Defendants over time
and ultimately the foreclosure which resulted in a judgment
of strict foreclosure. The Court sets forth below the allegations
which do appear in the Complaint.
entered into a mortgage agreement on December 20, 2006 with
GMAC Mortgage, LLC regarding the property located at 1
Charcoal Hill Road, Westport, CT 06880. (Id. at pgs.
16-34). Since 2008, Plaintiffs allege that the mortgage has
been assigned to and serviced by various entities,
collectively referred to in the Complaint as “the
Defendants.” (Id. ¶ 16). During this
time, Plaintiffs allege, “none of the defendants
adjusted, modified or even considered helping because the
common response was ‘You're not under water',
despite that the original mortgage states that even though
the loan may be sold the ‘obligations of the lender
will be assumed by the note purchaser'.”
(Id.). With respect to the alleged servicing agents,
referred to as, “Greentree, Ocwen, Fay and Selene,
” Plaintiffs allege that “they all wanted a
financial affidavit and a good faith payment, however not a
single manager could give an exact payoff amount. So the
plaintiffs could market their home to retain some equity . .
. [The servicing agents would call Plaintiffs] to harass for
more payments and paperwork, but still not a single person
called with a payoff. Even the payments made were never
applied to the principal balance.” (Id.
¶¶ 17-18). According to the Plaintiffs, “each
and every Defendant's account manager is asking for
financials and affidavits for the sole purpose of finding out
how much the Plaintiffs have available and are willing to
offer to the Defendants to stop the harassing phone calls,
not to help cure the problems for the plaintiffs.”
(Id. ¶ 21).
to the motions to dismiss, Plaintiffs ask this Court to: (1)
“quiet title in Plaintiff's property to
Plaintiff;” (Id. ¶ 19); (2) enter an
“immediate Injunction against all Defendants not to
move forward with a foreclosure as it would cause irreparable
harm to the Plaintiffs;” (Id. ¶ 24); and
(3) order an accounting of sorts-“have each of the
Defendants . . . itemize the amounts owed at the time they
were servicing the Plaintiff's mortgage. Also amounts
paid, and where posted, and if possible with the Courts
permission the amounts purchased for, and why Plaintiffs
didn't have first rights of refusal as the plaintiffs may
have been in a position to remortgage their home with a lower
rate and principal balance.” (Id. ¶
of the Defendants assert that the Court is without subject
matter jurisdiction to hear Plaintiffs' claims.
district courts are courts of limited jurisdiction under
Article III, Section 2 of the United States Constitution.
See, e.g., Chicot Cnty. Drainage Dist. v. Baxter State
Bank, 308 U.S. 371, 376 (1940), reh'g
denied, 309 U.S. 695 (1940). If subject matter
jurisdiction is lacking, the action must be dismissed.
See Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). The
Court may dismiss an action for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) when the Court
“lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000).
question of subject matter jurisdiction is so fundamental
that the Court must raise the issue sua sponte, even
when the issue is not identified or raised by the parties.
See Mansfield, Coldwater & Lake Michigan Rwy. Co. v.
Swan, 111 U.S. 379, 382 (1884); Joseph v.
Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (“Although
neither party has suggested that we lack appellate
jurisdiction, we have an independent obligation to consider
the presence or absence of subject matter jurisdiction
sua sponte.”), cert. denied, 549 U.S.
Defendants also each assert that the Complaint should be
dismissed for failure to state a claim ...