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Eck v. Deutsche Bank Americas Holding Corp.

United States District Court, D. Vermont

September 30, 2019

JAN VAN ECK, Plaintiff,
v.
DEUTSCHE BANK AMERICAS HOLDING CORPORATION, DEUTSCHE BANK TRUST CORPORATION, DEUTSCHE BANK TRUST COMPANY AMERICAS, and DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendants.

          OPINION AND ORDER (DOC. 4)

          William K. Sessions III District Judge

         Defendant Deutsche Bank Americas Holding Corporation (“DBA”) moves to dismiss self-represented Plaintiff Jan Van Eck's Complaint under Federal Rule of Civil Procedure 12(b)(6).[1] (Doc. 4.) In December 2018, Plaintiff brought this diversity action seeking damages of $5, 400, 000 and injunctive relief for, among other claims, slander of title and theft by conversion of a note connected to a property in Weston, Connecticut. Plaintiff opposes the motion (Doc. 16) and DBA filed a reply (Doc. 17).

         Factual Background

         I. Allegations of the Complaint

          Plaintiff alleges that in 2005, Walter Reddy III, a non-party to this case, obtained a loan in the amount of $542, 400 to purchase a home. The loan was memorialized in a note and Mr. Reddy granted a mortgage to Lydian Private Bank to secure the loan with the home in Weston, Connecticut. Plaintiff asserts Lydian “negotiated the Note into the stream of commerce” and “ultimately” that he purchased it. (Doc. 1 ¶ 15.)

         Plaintiff alleges that in 2009 and 2013 mortgage assignments were recorded in the Town of Weston Land Records, eventually assigning the mortgage to “Morgan Stanley Mortgage Loan Trust 2005-10.” (Doc. 1 ¶¶ 21-22, 27.) Then, at some point “best known to Defendants, ” they “obtained an electronic copy of the Note.” (Id. ¶ 2.) Plaintiff alleges the purpose of the “Morgan Stanley Mortgage Loan Trust 2005-10” was:

to create a façade or ghost entity to claim collection rights to various loans where the provenance trail was obscured. The Bank Defendants, together and in concert with their various agents that hired themselves out for the purpose, then proceed to posture themselves as the rightful entities to collect on the Note or Notes to the exclusion of the proper parties.

(Id. ¶ 20.) In 2009, the Bank Defendants sued Reddy in Connecticut state court in docket number FST-cv-09-5010722-S “alleging a default in payments under the Note and demanding the taking of the Property by foreclosure.” (Id. ¶ 31.) Plaintiff further alleges the foreclosure action was dismissed on October 8, 2010.

         Based on these allegations, Plaintiff asserts five claims. Count 1 is a claim for slander of title because the “acts and practices of Defendants have alienated the free Title to the Property and interfered with the Title so as to impede Plaintiff's rights to the security of his Note.” (Id. ¶ 38.) He alleges the fair market value of the property is $600, 000. Count 2 is a claim for theft by conversion because Defendants have “converted the title to the . . . Property, which is security for Plaintiff's Note, to inure to their own benefit, and to the harm, losses and injuries of Plaintiff.” (Id. ¶ 43.) He asserts the “proper measure of damages is nine (9) times the value of the Property.” (Id. ¶ 46.) Count 3 is a claim for reformation of instruments against only Deutsche Bank National Trust Company (“DBNTC”). Plaintiff alleges DBNTC has no “monetary interest in the Reddy property” and he seeks reformation voiding the mortgage assignments and Certificate of Foreclosure. (Id. ¶ 49.) Count 4 is a claim for interference with financial advantage against all Defendants. Plaintiff alleges “the acts and practices of defendants . . . have effectively rendered the Note of Reddy valueless, as Reddy has been so harmed and crippled by Defendants' acts as to be unable to pay Plaintiff on the Note.” (Id. ¶ 57.) He seeks nine times the face value of the note.[2] Count 5 is a claim for negligence pled in the alternative to the intentional torts claimed. (Id. ¶ 61.)

         II. Connecticut Litigation

         To its motion to dismiss, DBA attaches the docket sheet from the Connecticut foreclosure action, the appellate docket sheet, and a copy of the order granting its motion to dismiss the appeal. (Docs. 4-2, 4-3, 4-4.) In evaluating a motion to dismiss, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court may take “judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation.” Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006). Finally, a court “may also look to public records, ” including docket sheets and case law, such as the Connecticut state court's dockets and decisions, in deciding a motion to dismiss. Taylor v. Vt. Dept. of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (noting “docket sheets are public records of which the court [may] take judicial notice”); see also Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998). Because Plaintiff references the Connecticut foreclosure action in his Complaint, and it is a matter of public record, the court takes judicial notice of it.

         In March 2009, DBNTC initiated a foreclosure action against Mr. Reddy in Connecticut Superior Court. (Doc. 4-2 at 2-3.) Mr. Reddy filed an answer and then an amended answer. As Plaintiff alleges, the docket sheet lists an entry for judgment of dismissal on October 8, 2010. A “motion to reargue/reconsider” followed on October 28, 2010. (Id. at 5.) Presumably, the September 26, 2011 Order granted the motion as the litigation continued, albeit with a period of inactivity from that date until DBNTC filed for summary judgment on July 3, 2014.

         In September 2014, the superior court granted summary judgment “with respect to liability only, ” finding “DBNTC has established, as a factual matter, that [Mr. Reddy] did enter into a contract and that [Mr. Reddy] is indebted to [DBNTC] as holder of the note.” Deutsche Bank Nat. Trust Co. v. Reddy, No. FSTCV095010722S, 2014 WL 5099379, at *4 (Conn. Super. Ct. Sept. 5, 2014). The state court later denied a motion to reargue/reconsider, stating DBNTC “established the essential elements for summary judgment in a foreclosure action-possession of the note and defendant's status as a defaulting borrower.” Id., 2015 WL 3652091, at *1 (Conn. Super. Ct. May 20, 2015) (citing Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 188 (2013)). The docket sheet further reveals an October 7, 2014 “motion for judgment-strict foreclosure” which was granted on April 11, 2016. (Doc. 4-2 at 5.)

         On May 5, 2016, Mr. Reddy moved to open the judgment, which was denied on May 9. On May 31, 2016, Mr. Reddy filed a notice of bankruptcy filing. Almost two years later, on March 26, 2018, the court lifted the stay of proceedings and entered a judgment of strict foreclosure. On April 13, 2018, Mr. Reddy appealed. (Id. at 9.) The appellate docket sheet reveals DBNTC filed a motion to dismiss the appeal on June 8, 2018, which was opposed on June 18, 2018, and granted on June 27, 2018. (Doc. 4-3 at 3.)

         Discussion

          I. Failure to Serve Defendants

         A review of the docket in this case reveals that, although the Complaint was filed on December 28, 2018, to date, no proofs of service have been filed. Federal Rule of Civil Procedure 4(m) states that “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). Rule 4(1)(1) requires proof of service be made to the Court. Accordingly, Plaintiff shall show good cause, on or before October 25, 2019, for his apparent failure to serve Deutsche Bank Trust Corporation, Deutsche Bank Trust Company ...


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