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Masi v. G.M.A.C. Mortgage Co.

United States District Court, D. Connecticut

December 11, 2019

VINCENT P. DI MASI, et al., Plaintiffs,
v.
G.M.A.C. MORTGAGE CO., et al., Defendants .

          MEMORANDUM AND ORDER RE: DEFENDANTS' MOTIONS TO DISMISS [ECF NOS. 27, 31, 36, 69]

          Kari A. Dooley, United States District Judge

         Preliminary Statement of the Case

         Plaintiffs, 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”)[1], 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.[2] (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.

         Allegations

         The 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 law[3] 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.[4] The Court sets forth below the allegations which do appear in the Complaint.

         Plaintiffs 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).

         Significant 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. ¶ 23).[5]

         Standard of Review

         Rule 12(b)(1)

         Several of the Defendants assert that the Court is without subject matter jurisdiction to hear Plaintiffs' claims.

         Federal 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).

         The 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. 1282 (2007).

         Rule 12(b)(6)/Rule 8

         The Defendants also each assert that the Complaint should be dismissed for failure to state a claim ...


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