United States District Court, D. Vermont
ERNEST J. CICCOTELLI, Plaintiff,
DEUTSCHE BANK AG, DEUTSCHE BANK AMERICAS HOLDING CORP., DEUTSCHE BANK NATIONAL TRUST CO. Trustee for the Long Beach Mortgage Loan Trust 2006-WL2, JUERGEN FITSCHEN, ANSHU JAIN, & DONNA M. MILROD, Defendants.
OPINION AND ORDER
WILLIAM K. SESSIONS III, District Judge.
Ernest J. Ciccotelli, an attorney proceeding pro se,
brings the present case against Deutsche Bank National Trust
Company, as Trustee for Long Beach Mortgage Loan Trust
2006-WL2 ("DBNTC"), and several related entities
and individuals. Ciccotelli seeks both monetary damages and a
discharge of his 2005 mortgage on the grounds that Defendants
have engaged in unfair and deceptive acts, and have caused
the title to his property to become unmarketable.
before the Court are (1) DBNTC's motion to dismiss (ECF
No. 18); (2) Ciccotelli's motion to amend the Complaint
(ECF No. 26); (3) Ciccotelli's motion for default
judgment (ECF No. 30); (4) Defendants' motion to vacate
the entry of default (ECF No. 37); (5) DBNTC's motion to
seal (ECF No. 32); and (6) Ciccotelli's motion to dismiss
the motion to seal (ECF No. 34). For the reasons that follow,
the Court grants DBNTC's motion to dismiss and denies
Ciccotelli's motion to amend. The Court also denies
Ciccotelli's motion for default judgment and grants
Defendants' motion to vacate the entry of default.
Finally, the Court grants DBNTC's motion to seal and
denies Ciccotelli's related motion.
Ciccotelli lives in a home that he designed and built at 49
Tigertown Road in Norwich, Vermont ("Property"). On
September 19, 2005, Ciccotelli executed a $165, 000
promissory note ("Note") made payable to Long Beach
Mortgage Company. To secure his promise to pay his obligation
under the Note, Ciccotelli executed a Mortgage on the
Property on the same day. The Mortgage, which identifies Long
Beach Mortgage Company as the lender, was recorded in the
Norwich land records at Book 174, Pages 514-533. No
assignments of mortgage have been recorded.
about July 29, 2008, Ciccotelli filed suit against Washington
Mutual, Inc. in Vermont Superior Court. Washington Mutual had
serviced Ciccotelli's mortgage loan since origination,
and Ciccotelli alleged that it was liable for consumer fraud
and other wrongful acts. In October 2008, after JPMorgan
Chase & Co. ("Chase") acquired Washington Mutual,
Ciccotelli amended his state court complaint to include Chase
and the FDIC as defendants. The suit was later removed to
federal court, where Ciccotelli amended his complaint for a
second time. DBNTC was not a party to the 2008 action.
the 2008 lawsuit, Ciccotelli repeatedly requested that Chase
identify any other parties that had an interest in his
mortgage loan. Chase did not reveal any additional parties,
however, and instead represented to the court that it was the
holder of Ciccotelli's Note and Mortgage. On several
occasions during the pendency of the case, Chase presented
Ciccotelli with the original Note and Mortgage,
"purporting to rightfully hold and enforce those
documents on its own behalf." ECF No. 5 at 4. Chase did
not respond to Ciccotelli's requests to produce
documentation of an assignment from Long Beach Mortgage
Company to Chase.
settled the 2008 lawsuit in the end of May 2013. Immediately
thereafter, he received a letter from Select Portfolio
Servicing ("SPS") indicating that it was replacing
Chase as the servicer of his mortgage loan. The letter
further stated that SPS was acting "on behalf of
Deutsche Bank National Trust Co. As Trustee in trust for
registered Holders of Long Beach Mortgage Loan Trust 2006-WL2
Asset Backed Certificates, Series 2006-WL2." ECF No. 5
at 5. Prior to receiving the letter from SPS, Ciccotelli was
unaware that DBNTC was the holder of his Note and Mortgage.
2014, approximately fourteen months after settling the 2008
lawsuit, Ciccotelli filed the present action in Vermont
Superior Court. DBNTC removed the case to this Court in May
2015. As alleged in the Complaint, Ciccotelli's claims
largely stem from the assertion that there is no recorded
assignment documenting the transfer of interest in
Ciccotelli's mortgage loan from Long Beach Mortgage
Company to DBNTC. Because such a record does not exist,
Ciccotelli submits that Defendants have "incurably
damaged [the] chain of title to [his] Property, "
rendering the title to his property unmarketable. ECF No. 5
at 7. Specifically, the Complaint alleges six causes of
action (1) fraud related to the 2008 action under
Vermont's Consumer Fraud Act; (2) fraud related to the
collection of Ciccotelli's mortgage payments under
Vermont's Consumer Fraud Act; (3) conversion; (4)
embezzlement; (5) a request for a declaration of clear title;
and (6) a request to discharge the 2005 mortgage.
now moves to dismiss the Complaint in its entirety, and
Ciccotelli moves to amend. Motions related to an entry of
default and a request to seal are also pending.
DBNTC's Motion to Dismiss
seeks dismissal of the Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). In order to survive a Rule 12(b)(6)
motion to dismiss, "a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
omitted). A claim is facially plausible "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (internal
citation omitted). Determining whether a complaint states a
plausible claim for relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 679
(internal citation omitted).
in ruling on a Rule 12(b)(6) motion to dismiss, a district
court "must interpret the factual allegations of a
pro se complaint to raise the strongest arguments
that they suggest." Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013) (internal
quotation omitted). Here, however, Ciccotelli is an attorney
who has practiced real estate law for a number of years.
Consequently, he does not receive "the special
consideration which the courts customarily grant to pro
se parties." Harbulak v. Cnty. of Suffolk,
654 F.2d 194, 198 (2d Cir. 1981); see also Holtz
v. Rockefeller & Co., 258 F.3d 62, 82 n. 4 (2d Cir.
Fraud (Counts I & II)
first moves to dismiss Counts I and II of the Complaint,
which allege deceptive acts and practices under Vermont's
Consumer Fraud Act. Vermont's Consumer Fraud Act declares
unlawful "[u]nfair methods of competition in commerce,
and unfair or deceptive acts or practices in commerce."
9 V.S.A. § 2453(a). In order to establish that an act or
practice was deceptive within the meaning of the statute, a
plaintiff must show that "(1) the representation or
omission at issue was likely to mislead consumers; (2) the
consumer's interpretation of the representation was
reasonable under the circumstances; and (3) the misleading
representation was material in that it affected the
consumer's purchasing decision." Jordan v.
Nissan N. America, Inc., 853 A.2d 40, 43 (Vt. 2004)
(internal citations omitted). Courts are to apply an
objective, reasonable consumer, standard in assessing each of
the aforementioned elements. See id.
addition, Federal Rule of Civil Procedure 9(b) requires a
party to "state with particularity the circumstances
constituting fraud or mistake." To comply with that
mandate, a plaintiff must "(1) detail the statements (or
omissions) that the plaintiff contends are fraudulent, (2)
identify the speaker, (3) state where and when the statements
(or omissions) were made, and (4) explain why the statements
(or omissions) are fraudulent." Fin. Guar. Ins. Co.
v. Putnam Advisory Co., 783 F.3d 395, 403 (2d Cir. 2015)
(internal quotation omitted).
Fraud Related to the 2008 Lawsuit (Count I)
of the Complaint asserts that Defendants violated
Vermont's Consumer Fraud Act by "knowingly and
deliberately collud[ing] with [Chase] in its unfair and
deceptive representation that it possessed an interest in
Plaintiff's Mortgage or Note." ECF No. 5 at 6.
Ciccotelli states that on May 26, 2011, and on two occasions
thereafter, Chase showed him the original Note and Mortgage
to his property, and represented that it was the holder of
those legal documents. Because it was later revealed that
DBNTC holds ...