Malick et al v. JPMorgan Chase Bank, NA et al

Filing 67

ORDER GRANTING IN PART AND DENYING IN PART Defendant JPMC's 53 Motion for Summary Judgment and 61 Motion to Strike, and GRANTING Defendant Safeguard's 55 Motion for Summary Judgment. See attached memorandum of decision. Counts I, V, X, XI, and XV of the Second Amended Complaint remain, and Plaintiff S. Malick is hereby DISMISSED from this action. For the reasons stated in the attached memorandum, Defendant JPMC is granted leave to refile its motion for summary judgment, in orde r to address the issues discussed in pages 32 and 33 of the attached opinion, by 10/21/2015. Plaintiff A. Malick's response to any renewed motion for summary judgment is due by 11/4/2015. Signed by Judge Vanessa L. Bryant on 9/30/2015. (Nadler, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ABU HASHEM W.Q. MALICK
AND SHUJAAT Q. MALICK,
Plaintiffs,
v.

J.P. MORGAN CHASE BANK, N.A.
AND SAFEGUARD
PROPERTIES, LLC,
Defendants.

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CIVIL ACTION NO.
3:13-cv-00669 (VLB)
September 30, 2015

MEMORANDUM OF DECISION GRANTING AND DENYING, IN PART, DEFENDANT
J.P. MORGAN CHASE BANK, N.A.’S MOTION FOR SUMMARY JUDGMENT [Dkt.
#53] AND MOTION TO STRIKE [Dkt. #61] AND GRANTING DEFENDANT
SAFEGUARD PROPERTIES, LLC’S MOTION FOR SUMMARY JUDGMENT [Dkt.
#55]
Plaintiffs, Abu Hashem W.Q. Malick (“A. Malick”) and Shujatt Q. Malick (“S.
Malick”), bring federal constitutional and state law claims against Defendants,
J.P. Morgan Chase Bank, N.A. (“JPMC”) and Safeguard Properties, LLC
(“Safeguard”). Currently before the Court are the Defendants’ motions for
summary judgment. For the reasons that follow, Defendant Safeguard’s motion
is GRANTED in its entirety, and Defendant JPMC’s motion, as well as its motion
to strike, is GRANTED, in part, and DENIED, in part.

1

I.

Factual Background1
Plaintiff Abu Hashem W.Q. Malick (hereinafter “A. Malick”) is the owner and

current resident of the premises located at 4405 Black Rock Turnpike, Fairfield,
CT 06824-7832 (hereinafter “the Premises”). [Dkt. #58, Def. JPMC’s Rule 56(a)(1)
Statement at ¶ 1; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 1].
He acquired the Premises by a deed dated and recorded on January 8, 2007. [Dkt.
#58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 1; Dkt. #59, Pls.’ Rule 56(a)(2)
1

 To determine the undisputed facts in this case, the Court relies upon the parties’

Local Rule 56(a) Statements (to the extent they comply with the Federal Rules of
Civil Procedure and the Local Rules of this District) and the documentary
evidence referenced therein. The Court also considers the paragraphs
appearing under the heading “Disputed Issues of Material Fact” in each of
Plaintiffs’ Rule 56(a)(2) Statements, but only those paragraphs properly
supported by evidence in the record.
Although Plaintiffs are represented in this matter, the Court notes a number of
deficiencies in Plaintiffs’ filings, not the least of which is Plaintiffs’ failure to
submit an opposition brief to either of the pending motions for summary
judgment, just as Plaintiffs failed to oppose Defendant JPMC’s earlier motion to
dismiss. See [Dkt. #49]. In addition, the Court notes that, in many instances,
Plaintiffs’ Rule 56(a)(2) responses fail to specifically admit or deny allegations of
fact. See, e.g., [Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at ¶¶ 9,
18, 32, 35; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at ¶¶ 8,
13-14, 19, 23]. Moreover, a number of Plaintiffs’ denials and assertions of fact
are unaccompanied by citation to evidence in the record.
Where a party asserts a fact and the opposing party either fails to deny the
assertion or, in issuing a denial, the party does not cite to evidence disputing its
accuracy, the Court deems such fact admitted. See Local Rule 56(a)(1) (“All
material facts set forth in said statement will be deemed admitted unless
controverted by the statement required to be filed and served by the opposing
party in accordance with Local Rule 56(a)(2).”) (emphasis added); see also
Knight v. Hartford Police Dept., No. 3:04-cv-969 (PCD), 2006 WL 1438649, at *4
(D. Conn. May 22, 2006) (deeming as admitted certain statements of fact that the
opposing party failed to unambiguously deny and failed to offer a citation to
admissible evidence that would support a denial). Accordingly, the Court
GRANTS Defendant JPMC’s Motion to Strike insofar as it requests the Court to
apply Local Rule 56(a)(1) and accompanying case law in deciding the present
motions. See [Dkt. #61 at 3-5]. This motion is otherwise DENIED.
2

Statement as to JPMC’s Mot. at 1]. The Plaintiff, Shujaat Q. Malick (hereinafter “S.
Malick”) loaned his brother, A. Malick, $335,000 to purchase the premises. [Dkt.
#56-1, A. Malick Dep. 37:11-18, 39:13, Sept. 15, 2014]. There is no evidence in the
record that A. Malick gave S. Malick a mortgage to secure his purchase money
loan or that such a mortgage was recorded on the land records. On or about
June 30, 2007, A. Malick took out a home improvement loan from Washington
Mutual Savings Bank (“WAMU”) for $417,000, secured by a mortgage of the
Premises.2 [Id. at 37:12-38:1]. The record in this case is devoid of any
documentation representing or otherwise memorializing either loan or any
mortgage.
A. Malick used a portion of the bank loan to repay S. Malick approximately
$122,000 of the $335,000 he received to purchase the Premises. [Id. at 39:8-10].
He has not repaid the remainder of the loan, and S. Malick maintains that he
would still be owed the balance on the loan even if JPMC forecloses on the
Premises. [Dkt. #58-2, S. Malick Dep. 55:21-23, Sept. 15, 2014]. Accordingly,
there is no record evidence in this case that S. Malick has either an equitable or
legal interest in the Premises.3
2

WAMU went into receivership in August 2008, and Defendant JPMC appears to
have assumed the loan at issue here. However, neither party has included the
loan agreement and related documentation in the record before the Court.

3

S. Malick further testified that A. Malick “still owes” him $335,700 “plus
interest,” that on top of this loan was a subsequent loan for attorneys’ fees
which S. Malick was “consolidat[ing] with his existing debt,” the interest rate on
the loan was “8.9 or 9” percent, and that his interest in the Premises was
“[m]oney I guess.” [Dkt. #58-2, S. Malick Dep. 17:19-25, 18:8-16, 55:19-20]. In
addition, S. Malick affirmed that he never kept any personal property at the
Premises, did not live there at any point, and frequently referred to it as his
brother’s property. See [id. at 18:23-19:6, 20:1-2]. Finally, while in his
3

While the parties do not indicate how many payments, if any, A. Malick has
made on the WAMU mortgage loan, they agree that he has not made any
payments since August of 2008. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at
¶ 3; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 1]. Thus, by early
2009, JPMC commenced foreclosure proceedings against the Premises. [Dkt.
#57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 6; Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to Safeguard’s Mot. at 1].4
Shortly after JPMC commenced foreclosure proceedings, in November
2008, A. Malick was charged and arrested for violating the terms of his probation
and remained incarcerated from November 2008 through May 25, 2012, during
which no payments were made on the JPMC mortgage. [Dkt. #58, Def. JPMC’s
Rule 56(a)(1) Statement at ¶ 4; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s
Mot. at 1; Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 4; Dkt. #60, Pls.’
Rule 56(a)(2) Statement as to Safeguard’s Mot. at 1 ]. As a result of his
incarceration, A. Malick was away from the Premises for approximately three-anda-half years.
At the time A. Malick left the Premises, the house was in fine shape; it was
“freshly painted, no holes in the walls, no holes in the ceiling . . . everything was
working” and the kitchen contained “everything a kitchen usually has, [a]
deposition S. Malick vaguely referred to a written loan agreement with his
brother, no such agreement presently appears in the record, nor is there any
other evidence as to the existence of a written note or loan agreement, or a
mortgage. [Id. at 18:3-4].
4

Citing deposition testimony, Plaintiffs contend that the foreclosure proceedings
were dismissed in June, 2014. [Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to
JPMC’s Mot. at 16, ¶ 26]. 
4

refrigerator, dishwasher. . . .” [Dkt. #56-1, A. Malick Dep., 64:10-15]. The
Premises also contained many of A. Malick’s personal belongings, including
furniture, kitchenware, various professional, gardening, and other equipment, and
a suitcase containing his deceased son’s belongings and personal relics. [Id. at
78:19-22, 79:18-80:3; Dkt. #59-1 Ex. A to Pls.’ Rule 56(a)(2) Statement as to
JPMC’s Mot. at SLFS000235-40].
While A. Malick was in prison, S. Malick initially checked on the Premises
once or twice a week. [Dkt. #56-2, S. Malick Dep. 12:23-25, Sept. 15, 2014].5 The
Premises were unoccupied during the three-and-a-half years A Malick was
incarcerated. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 6; Dkt. #59, Pls.’
Rule 56(a)(2) Statement as to JPMC’s Mot. at 1]. When he visited, S. Malick
inspected the outside of the property, but typically did not enter the house. [Dkt.
#56-2, S. Malick Dep. at 12:19-24, 20:13-17]. S. Malick did not pay utility bills or
otherwise determine if the house was heated. [Dkt. #58, Def. JPMC’s Rule 56(a)(1)
Statement at ¶ 20; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 1].
As a result, within a few months of A. Malick’s incarceration, the house was
without electricity and remained in this state until he was released in May 2012.
[Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 22; Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at 1]. In addition, S. Malick performed virtually no
maintenance work on the property. He never mowed the lawn, cleaned up leaves,
shoveled snow, or winterized the Premises. [Dkt. #58, Def. JPMC’s Rule 56(a)(1)
5

However, S. Malick admitted that significant periods of time did go by between
visits, such as when he was traveling internationally from December 2010
through March 2011. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 28; Dkt.
#59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 1].
5

Statement at ¶¶ 19, 26; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at
1, 2, ¶ 26]. When the windows on the property were broken, S. Malick did not
repair or cover them. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 23; Dkt.
#59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 2, ¶ 23].6 He also allowed
several months to elapse between visits inside the Premises. See [Dkt. #58, Def.
JPMC’s Rule 56(a)(1) Statement at ¶ 27; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as
to JPMC’s Mot. at 1].
By March 2011, S. Malick had ceased regular inspections of the Premises,
having only sporadically inspected the exterior for nearly two-and-a-half years,
during which period it had been abandoned and become uninhabitable. [Dkt. #582, S. Malick Dep. at 45:19-21; 55:24-56:6, 57:19-58:9]. On March 11, 2011, S.
Malick visited the Premises for the first time in approximately three months. [Dkt.
#57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 8; Dkt. #60, Pls.’ Rule 56(a)(2)
Statement as to Safeguard’s Mot. at 2, ¶ 8]. During this visit, S. Malick observed
through a window that objects in the house had been moved. [Id.]. S. Malick did
not enter the house, and fearing that a break-in had occurred, he called the
Fairfield Police Department. [Id.]. However, S. Malick left before the police
arrived. [Id.].
6

The only evidence Plaintiffs offer regarding S. Malick’s efforts to maintain the
property are two discrete instances, back in 2009, when he “turned off a valve to
stop [a] leak” from a burst pipe, and another time, when he “clean[ed] up the
kitchen and remove[d] food” from A. Malick’s refrigerator. [Dkt. #59, Pls.’ Rule
56(a)(2) Statement as to JPMC’s Mot. at 7, ¶ 2 (citing deposition testimony); see
also id. at 2, ¶ 14 (“[S. Malick] did provide some maintenance by cleaning up the
premises and removing food from the refrigerator and had turned off a water
valve . . . .”)].

6

S. Malick returned to the Premises two weeks later, on March 25, 2011.
[Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 9; Dkt. #60, Pls.’ Rule
56(a)(2) Statement as to Safeguard’s Mot. at 1]. Upon observing two broken
windows, that furniture had once again been moved, and, for the first time, that
the locks on the front door had been changed, S. Malick again called the Fairfield
police. [Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶¶ 9-10; Dkt. #60,
Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at 1; Dkt. #56-2, S. Malick
Dep. 28:12-20].7 The police arrived, inspected the home, interviewed S. Malick,
and prepared an incident report. [Dkt. #56-5, Ex. D to Def. Safeguard’s Memo. in
Supp. of Mot. for Summ. J. at 2]. According to the report, S. Malick informed the
police that “the house has severe interior damage due to a water pipe bursting
two years ago.” [Id.]. S. Malick also allegedly told police that he had “not
physically been in the house in over two years,” and he did not know if “anything
of value [wa]s missing from the residence.” [Id.]. The police officer who
inspected the property further noted that “the residence appeared to be
[un]inhabitable due to severe water damage made on the interior sheet rock.
Also, there were two rear windows located on the west side of the property that
were damaged due to possible forced entry. Both the exterior and interior of the
property w[ere] in very poor condition.” [Id.].
While he was at the home on March 25, 2011, S. Malick saw a sign posted
on the front of the house. [Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶
7

The locks appear to have been changed in December 2010, when Defendant
JPMC’s property manager winterized the property. [Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at 10, ¶ 11; Dkt. #59-1, Ex. A to Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at SLF000233-34].
7

8; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at 1]. The sign
stated: “THIS PROPERTY IS MANAGED BY CHASE,” and provided telephone
numbers for both JPMC and “LPS Field Services” in the event “maintenance is
needed” or “IN CASE OF EMERGENCY.” [Id.; Dkt. #56-4, Ex. C to Def.
Safeguard’s Memo. in Supp. of Mot. for Summ. J. at 3]. During their inspection,
the Fairfield police also noticed this sign, called the phone number listed on it,
and “confirmed that Chase Bank (LPS) is managing the [Premises].” [Dkt. #56-5,
Ex. D to Def. Safeguard’s Memo. in Supp. of Mot. for Summ. J. at 2].
LPS Field Services, LLC, now known as ServiceLink Field Services, LLC
(“LPS”), like Defendant Safeguard, is in the business of inspecting, maintaining
and overseeing homes in foreclosure or default on behalf of lenders. [Dkt. #56-7,
Meyer Aff. at ¶ 11; Dkt. #56-11, Ex. D to Meyer Aff. at ¶ 3]. The evidence submitted
by both parties indicates that from roughly July 29, 2009, around the same time S.
Malick ceased regular inspections of the Premises, LPS managed the Premises
on behalf of Defendant JPMC and continued to manage them through early July
2012. See [Dkt. #58-3, Ex. C to Def. JPMC’s Rule 56(a)(1) Statement at SP00006875; Dkt. #59-1, Exs. A through H to Pls.’ Rule 56(A)(2) Statement as to JPMC’s
Mot.; Dkt. #56-7, Meyer Aff. at ¶¶ 6, 12; Dkt. #56-8, Ex. A to Meyer Aff. at 1]. LPS
increased the frequency and extent of its management after November 29, 2010,
when it concluded that the Premises were unoccupied. See [Dkt. #59-1, Ex. A to
Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at SLFS000134; Dkt. #56-7, Meyer
Aff. at ¶ 12].

8

From December 2010 through June 2012, LPS inspected the home at least
once (and often multiple times) every month, taking extensive photos of the
interior and exterior of the Premises, and preparing detailed reports regarding the
presence of occupants and personal items, whether the property was adequately
secured upon arrival, the condition of the exterior and interior of the home,
including the presence of appliances and damage to rooms, floors, and plumbing,
whether or not the home was receiving utilities, and maintenance needs, such as
winterizing, debris removal, changing locks, replacement of glass, and lawn
maintenance. See [Dkt. #58-3, Ex. C to Def. JPMC’s Rule 56(a)(1) Statement at
SP000068-75; Dkt. #58-5, Ex. E to Def. JPMC’s Rule 56(a)(1) Statement at
SLFS000398-400; Dkt. #59, Exs. A-G to Pls.’ Rule 56(A)(2) as to JPMC’s Mot. at
SLFS000133-36, SLFS000141-42, SLFS000145-56, SLFS000159-60, SLFS000175,
SLFS000177, SLFS000233-55, SLFS000321-24, SLFS 326-29, SLFS000464-65,
SLFS000468]. LPS hired contractors to perform maintenance tasks, such as
winterizing the home, changing the locks, and for lawn care. See [Dkt. #59, Exs.
A-D to Pls.’ Rule 56(A)(2) as to JPMC’s Mot. at SLFS000233-34, SLFS000624-29,
SLFS000630, SLFS000632; Dkt. #58-3, Ex. C to Def. JPMC’s Rule 56(a)(1)
Statement at SP000068-75].
Defendant Safeguard is a “separate and distinct” entity from LPS, and “was
not, and is not now, affiliated with, or associated with LPS.” [Dkt. #56-7, Meyer
Aff. at ¶ 11]. Accordingly, prior to July 2012, Defendant Safeguard did not

9

perform any work at the Premises, nor did any of its employees, contractors, or
agents visit the Premises. [Id. at ¶ 8].8
Following the March 25, 2011 incident, S. Malick changed the locks on the
Premises, but did not repair the broken windows, or do anything else to secure it
or make it appear occupied. [Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement
at ¶ 11; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at 1].
Approximately two weeks later, on April 9, 2011, the Fairfield Police returned to
the home, after receiving a call from A. Malick’s neighbor. See [Dkt. #60, Pls.’
Rule 56(a)(2) Statement as to Safeguard’s Mot. at 5, ¶ 5; Dkt. #58-4, S. Malick. Dep.
Vol. II 44:15-19]. Upon arrival, the police found “the left garage door of the
8

While Plaintiffs repeatedly deny that “Safeguard had no involvement in [the]
protection of the Premises prior to July 2012,” “LPS has no connection to
Safeguard,” and “Safeguard is not affiliated with or associated with LPS,”
Plaintiffs do not cite to any evidence in support of these assertions. [Dkt. #60,
Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at 2-3, ¶¶ 13-14, 18-20]. At
most, Plaintiffs cite generally to Defendant Safeguard’s 80-page Rule 26(a)(1)
disclosure for the proposition that Safeguard’s records “did not contain any
differentiation for records prior to July, 2012 or indicate that they had come
from an independent and separate entity.” [Id. at 7, ¶ 10]. According to
Plaintiffs, this supports A. Malick’s “belief that [Safeguard] had been
responsible for maintaining property security throughout th[e] entire period.”
[Id.]. Upon review, Plaintiffs appear to be referring to the final seven pages of
the disclosure, which contain a timeline of inspections performed on the
property from July 29, 2009 through June 27, 2012. See [Dkt. #58-3, Ex. C to Def.
JPMC’s Rule 56(a)(1) Statement at SP000068-75]. However, Plaintiffs’
conclusion is incorrect. In addition to referring to LPS throughout, the final
entry of the timeline plainly states: “7/30/12 Transferred to Safeguard
Properties[.] Property has been reported as Occupied.” [Id. at SP000075
(emphasis added)]. Indeed, as the Meyer Affidavit submitted by Defendant
Safeguard makes clear, this timeline contains “historical information
concerning LPS’s service on the Premises” that Safeguard received from JPMC.
[Dkt. #56-7, Meyer Aff. at ¶ 13]. Plaintiffs offer no evidence to rebut this
contention, and thus, have not proffered any evidence that Defendant Safeguard
had any involvement in the management or maintenance of the Premises prior
to July 2012.
10

detached garage was wide open,” there were “no signs of foul play,” and “the
house was in deplorable condition and appeared to be uninhabited.” [Dkt. #58-4,
S. Malick. Dep. Vol. II 44:24-45:2]. The police further noted that the “rear door” to
the Premises was “unsecured,” and upon inspecting the interior of the Premises,
the police concluded that “someone may have been frequenting the residence for
short stays.” [Id. at 45:3-6]. There is no evidence to suggest that S. Malick
secured either of the doors, nor is there any evidence that S. Malick contacted
LPS or JPMC to inform them of the condition and vulnerability of the Premises.
See [Dkt. #58-2, S. Malick Dep. 25:22-26:2].
On or around April 20, 2011, LPS conducted an interior and exterior
inspection of the home. [Dkt. #56-6, Ex. E to Def. Safeguard’s Memo. in Supp. of
Mot. for Summ. J. at SLFS000145]. The inspection report identified three items in
the home that were “not secure,” the front door, back door, and a window. [Id. at
SLFS000145-46]. The report further noted that “someone has been inside” and
that they “broke locksets–took fridge, dishwasher, beds, dressers.” [Id. at
SLFS000148]. The inspector further noted “broken windows/locks” and
concluded that the house was “not secure against intruders.” [Id.].9 Inspectors
also did not find any personal property on the Premises. [Id. at SLFS000145].
They did, however, note the presence of a stove, range, water tank, and furnace.
9

Plaintiffs appear to dispute the accuracy of this report in light of a summary
inspection report which states “No Damage” next to the “Inspection” dated
“4/20/2011.” [Dkt. #56-6, Ex. E. Def. Safeguard’s Memo. in Supp. of Mot. for
Summ. J. at SLF000399; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s
Mot. at 6, ¶ 58]. However, the report does note that the house was “Unsecure.”
[Dkt. #56-6, Ex. E. Def. Safeguard’s Memo. in Supp. of Mot. for Summ. J. at
SLF000399].
11

[Id. at SLFS000147]. During this visit, LPS inspectors changed the locks on the
home, placed “[b]oard/screens” on the Premises, but did not repair any glass.
[Id. at SLFS000146].
On May 15, 2011, LPS inspectors returned to the Premises. See [Dkt. #59-1,
Ex. E to Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at SLFS000252-55, SLFS
000464-65]. The photos taken during this visit display extensive damage to the
Premises, including exposed wiring and plumbing and large amounts of debris
strewn about the house. [Id. at SLFS000253-54]. However, some appliances and
fixtures, including an oven and sink in the kitchen, and a toilet and sink in a
bathroom, are visible. [Id. at SLFS000253-54]. Upon departure, inspectors
deemed the Premises secure. [Id. at SLFS000252]. Later that month, on May 31,
2011, LPS conducted another inspection. See [id. at SLFS000149]. LPS
estimated that the Premises had sustained “$10,000” in damages, found that it
was vacant and secure, and that there was no personal property on site. [Id.].
The next two months, June and July 2011, LPS visited the Premises several
times. [Dkt. #56-6, Ex. E. to Def. Safeguard’s Memo. in Supp. of Mot. for Summ. J.
at SLF000399]. On June 6, 2011, an inspection noted damage due to owner
neglect, but found the house secure. [Dkt. #59-1, Ex. E to Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at SLFS000150]. During this visit, LPS inspectors
replaced broken glass, cut the grass, and placed boards or screens on the
Premises. [Id.]. They did not, however, change the locks. [Id.].
Three days later, on June 9, 2011, LPS employees undertook preservation
measures and estimated that the Premises had suffered approximately

12

“$14[,]000” in damages to its interior due, at least in part, to vandalism. [Ex. E.
Def. Safeguard’s Memo. in Supp. of Mot. for Summ. J. at SLF000399]. They also
noted that copper and baseboard were missing. [Id.]. On June 22, 2011, LPS
inspectors returned, noted damage to the gutters and windows of the Premises
and estimated damages totaling $15,000. [Dkt. #59-1, Ex. F to Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at SLFS000152]. It does not appear that LPS
undertook any additional maintenance or securing of the Premises during this
inspection. [Id.]. On July 2, 2011, LPS performed another inspection. [Id.]. The
inspection report concluded that the Premises had “been ransacked, all
appliances stolen, piping stolen, holes in walls and ceiling.” [Id. at SLFS000155].
Accordingly, the parties appear to agree that the damage to the Premises
and theft of A. Malick’s personal property at issue in this case occurred no later
than July 2011. See [Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at
10, ¶ 11 (“The records produced by Safeguard indicated that . . . [s]ignificant
damages were noted in inspections in June and July, 2011.”].10 Defendant JPMC
contends, and Plaintiffs do not deny, that during the period of A. Malick’s
incarceration, numerous individuals were aware of the nature and extent of his
absence from the Premises, including friends, relatives, members of his religious
community, and law enforcement. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement
at ¶ 32; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 3, ¶ 32]. The
Premises are located close to the Merritt Parkway, a major route through the state
of Connecticut, and on Route 59, a major route that runs through Easton,
10

Plaintiffs do not challenge the accuracy of the June and July 2011 inspection
reports, but instead affirmatively rely upon them. See, e.g., [Dkt. #59, Pls.’ Rule
56(a)(2) Statement as to JPMC’s Mot. at 12, ¶ 17].
13

Connecticut. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 29; Dkt. #59, Pls.’
Rule 56(a)(2) Statement as to JPMC’s Mot. at 1]. The Premises are also within
walking distance, approximately four or five houses away, from a motel. [Dkt.
#58, Def. JPMC’s Rule 56(a)(1) Statement at ¶¶ 30-31; Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at 1].
During the period of May through August 2011, the same time the extensive
damage and theft was discovered, LPS reviewed several bids, totaling $19,145, to
perform work on the Premises. [Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to
JPMC’s Mot. at 13, ¶ 20; Dkt. #59-1, Ex. I to Pls.’ Rule 56(a)(2) Statement as to
JPMC’s Mot. at SLFS00049-50, SLFS000053-59, SLFS000061-63, SLFS000067,
SLFS000069]. By this point, Defendant JPMC had already spent approximately
$3,065.75, in addition to its fee arrangement with LPS, on services to maintain the
Premises. [Dkt. #59-1, Ex. E to Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at
SLFS000464]. The most expensive entries on each of these bids were for
removing internal debris and property and installing copper piping. [Dkt. #59-1,
Ex. I to Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at SLFS00049-50,
SLFS000053-59, SLFS000061-63, SLFS000067, SLFS000069]. The bids were
ultimately cancelled with multiple notations that the work was “not required.”
[Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 13, ¶ 20].
On October 20, 2011, S. Malick returned to the Premises and called the
police when he noticed that the back door and two windows were open. [Dkt.
#57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 15; Dkt. #60, Pls.’ Rule 56(a)(2)
Statement as to Safeguard’s Mot. at 1; Dkt. #58, Def. JPMC’s Rule 56(a)(1)

14

Statement at ¶ 35; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 3, ¶
35].11 On the back door, S. Malick noticed a lockbox. [Dkt. #58-2, S. Malick Dep.
55:6-18]. He entered the home with the police through the open back door, and
the parties first discovered the extent of the damage to the home itself and the
theft of appliances, fixtures, and A. Malick’s personal property, which the parties
agree occurred three to four months earlier, in June or July 2011. [Dkt. #57, Def.
Safeguard’s Rule 56(a)(1) Statement at ¶ 15; Dkt. #60, Pls.’ Rule 56(a)(2) Statement
as to Safeguard’s Mot. at 1; Dkt. #56-2, S. Malick Dep. 31:3-8].
After surveying the damage, S. Malick locked the door and left the
Premises. [Dkt. #58-2, S. Malick Dep. 33:18-23]. He did not change the locks at
that time or at any time in the future. [Id. at 33:22-34:2]. To access the interior of
the home, S. Malick (and A. Malick upon his return) used an open window. [Id. at
34:3-6].
A. Malick was released from prison on May 25, 2012, and returned to the
Premises. [Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 17; Dkt. #60
Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at 1, 11, ¶ 21]. Upon his
return, A. Malick found that the locks had been changed, but his brother, S.
Malick, entered the property through an open window and then opened the front
door, allowing A. Malick to enter the home. See [Dkt. #56-1, A. Malick Dep. 72:19]. That same day, A. Malick had the locks put on by LPS changed. [Id. at 72:2311

S. Malick did not attempt to enter the home between the March 25, 2011 and
October 20, 2011 visits. See [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at
¶¶ 34-35; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 3, ¶¶ 34-35
(describing March 25, 2011 visit and stating that “[f]ollowing this incident, [S.
Malick] . . . returned in approximately October of 2011”)]. Nor did he check to
see if the locks had been changed a second time. See [Dkt. #56-2, S. Malick
Dep. 29:20-23].
15

73:5]. The locks remained in Plaintiffs’ control thereafter. Upon entering the
home, A. Malick discovered it was uninhabitable and that a suitcase containing
the clothes and personal effects of his deceased son had been taken from the
Premises. [Id.].
On or around July 10, 2012, Defendant Safeguard received its first order to
inspect the Premises. [Dkt. #56-7 Meyer Aff. at ¶ 6; Dkt. #56-8, Ex. A to Meyer Aff.
at SP000052]. On July 30, 2012, Safeguard conducted its first inspection. [Dkt.
#57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 19; Dkt. #56-8, Ex. A to Meyer
Aff. at 1; Dkt. #56-9, Ex. B to Meyer Aff. at SP000001]. After speaking with a
neighbor, the Safeguard inspector determined that “the property is seasonally
vacant” but at that time, it was “occupied.” [Dkt. #56-9, Ex. B to Meyer Aff. at
SP000001]. A few weeks later, on August 19, 2012, Safeguard performed another
inspection. [Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at 1112, ¶ 23; Dkt. #56-9, Ex. B to Meyer Aff. at SP000004-5]. During the inspection,
Safeguard placed a sticker on the front door of the Premises which stated that the
property was found to be “vacant/abandoned.” [Dkt. #57, Def. Safeguard’s Rule
56(a)(1) Statement at ¶ 21; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to
Safeguard’s Mot. at 11-12, ¶¶ 21, 23; Dkt. #56-12, Ex. G to Def. Safeguard’s Memo.
in Supp. of Mot. for Summ. J. at 2]. The sticker also included a Safeguard phone
number to call in the event the property was not vacant. [Id.].
The following day, August 20, 2012, A. Malick called the Safeguard phone
number and advised Safeguard that he was occupying the premises. [Dkt. #57,
Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 21; Dkt. #60, Pls.’ Rule 56(a)(2)

16

Statement as to Safeguard’s Mot. at 11-12, ¶ 23]. Nine days later, on August 29,
2012, A. Malick sent a formal letter to Safeguard, reiterating this fact. See [Dkt.
#56-9, Ex. B to Meyer Aff. at SP000010-11]. Between July 30, 2012 and March 9,
2013, Safeguard conducted eight additional inspections of the exterior of the
home. [Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 19; Dkt. #60, Pls.’
Rule 56(a)(2) Statement as to Safeguard’s Mot. at 3, ¶ 19]. Each time, Safeguard’s
contractor reported that the Premises were occupied. [Id.]. On April 11, 2013,
Safeguard again determined that the Premises were vacant. [Id.]. Prior to this
date, Safeguard did not attempt to access the interior of the Premises. [Id.].
On two occasions almost a year later, June 9 and June 23, 2013, A. Malick
was contacted by Safeguard contractors. [Dkt. #57, Def. Safeguard’s Rule
56(a)(1) Statement at ¶ 22; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to
Safeguard’s Mot. at 11, ¶ 22; Dkt. #56-9, Ex. B to Meyer Aff. at SP000033,
SP000042]. The first time, on June 9, 2011, the Safeguard inspector came to the
Premises, informed A. Malick that he planned to inspect the Premises, and A.
Malick reported that they were occupied and ordered him to leave, which he did.
[Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶¶ 22-23; Dkt. #60, Pls.’ Rule
56(a)(2) Statement as to Safeguard’s Mot. at 11, ¶ 22]. Later that month, on June
23, 2013, two Safeguard employees returned to the Premises with tools and
stated that they had come to change the locks because they had understood the
Premises were vacant. [Dkt. #57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶
23; Dkt. #56-1, A. Malick Dep. 71:1-4]. A. Malick informed them that he lived there,
ordered them off the Premises, and they left without changing the locks. [Dkt.

17

#57, Def. Safeguard’s Rule 56(a)(1) Statement at ¶ 23; Dkt. #56-1, A. Malick Dep.
71:4-8]. On a third occasion, Safeguard employees placed another vacancy
sticker on the Premises when A. Malick was away. [Dkt. #58, Def. JPMC’s Rule
56(a)(1) Statement at ¶ 52; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s
Mot. at 5, ¶ 52; Dkt. #56-1, A. Malick Dep. 119:12-13]. A. Malick claims that these
three occurrences left him “emotionally distraught” because he could not be
certain that these events would not occur again or that he would retain control of
the Premises if he left it for any length of time. [Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at 5, ¶ 52]. However, Plaintiffs do not contend that
the Safeguard employees damaged their real or personal property during any of
these inspections, or that they ever succeeded in changing the locks. In addition,
A. Malick engaged in international travel on three occasions after he had
confronted the Safeguard employees. [Dkt. #58, Def. JPMC’s Rule 56(a)(1)
Statement at ¶ 53; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 5, ¶
53].
II.

Legal Standard
Summary judgment should be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.

18

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted). In addition, determinations of the weight to accord
evidence or assessments of the credibility of witnesses are improper on a motion
for summary judgment, as such are within the sole province of the jury. Hayes v.
New York City Dep’t of Corr., 84 F. 3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv-481
(MRK), 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (citing and quoting
Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. State of
Connecticut, No. 3:09cv1341 (VLB), 2011 WL 4396704 at *6 (D. Conn. Sept. 21,
2011). Where there is no evidence upon which a jury could properly proceed to
find a verdict for the party producing it and upon whom the onus of proof is
imposed, such as where the evidence offered consists of conclusory assertions

19

without further support in the record, summary judgment may lie. Fincher v.
Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
III.

Analysis

A.

Without a Legal or Equitable Interest in the Premises S. Malick Lacks
Standing to Pursue His Claims
In its memorandum of decision on Defendant JPMC’s motion to dismiss,

the Court noted that, while sufficient to avoid dismissal, the allegations
surrounding “S. Malick’s interest in the Premises [are], at best murky.” [Dkt. #66
at 9 n. 3]. At the close of discovery, it is clear that S. Malick never received any
title to the Premises.
According to his testimony, the loan he provided his brother, A. Malick,
was not secured with a mortgage or other interest in the Premises, but instead,
with a promise of repayment. Specifically, S. Malick testified that (i) even if the
bank were to take the Premises, A. Malick would still owe him the balance on the
loan, (ii) on top of this loan was a subsequent loan for attorneys’ fees which S.
Malick was “consolidat[ing] with his existing debt,” (iii) the interest rate on the
combined loan was “8.9 or 9” percent, and (iv) his interest in the Premises was
“[m]oney I guess.” [Dkt. #58-2, S. Malick Dep. 17:19-25, 18:8-16, 55:19-23]. That
the Premises were an asset A. Malick could (and did) use as a vehicle for
repayment of the loan does not mean that S. Malick received an interest in them.
Indeed, aside from a stray veiled reference to a contract with his brother, there is
no evidence of any enforceable loan agreement between the brothers, and the
fact that S. Malick could not definitively state the interest rate on the loan(s)
strongly suggests that there is no written note. See [id. at 18:14-16].
20

In addition, S. Malick affirmed that he never kept any personal property at
the Premises, did not live there at any point, and he frequently referred to them as
belonging solely to his brother. See [id. at 18:23-19:6, 20:1-2].
Based on these undisputed facts, it cannot be said that the damage to the
Premises caused S. Malick to suffer an injury-in-fact sufficient to create Article III
standing; that is, an injury that is “distinct and palpable,” but rather, he suffered
at most “ ‘abstract’ or ‘conjectural’ or ‘hypothetical’” harm. Jaghory v. New York
State Dep’t of Educ., 131 F.3d 326, 330 (2d Cir. 1997) (citations and quotation
omitted).
Accordingly, all claims brought on behalf of Plaintiff S. Malick are
DISMISSED.
B.

All Claims Against Defendant Safeguard Must Be Dismissed As Safeguard
Did Not Become Involved in the Premises Until After the Injuries to
Plaintiffs’ Real and Personal Property
As an initial matter, the undisputed evidence establishes that Defendant

Safeguard first became involved in the management of the Premises in July 2012.
See [Dkt. #56-7 Meyer Aff. at ¶ 6; Dkt. #56-8, Ex. A to Meyer Aff. at SP000052]. It is
also undisputed that the damage to the Premises and the theft of A. Malick’s
personal property occurred over a year earlier. See [Dkt. #56-5, Ex. D to Def.
Safeguard’s Memo. in Supp. of Mot. for Summ. J. at 2 (March 25, 2011 police
report stating that “the residence appeared to be [un]inhabitable due to severe
water damage” and recording statements from S. Malick that the “severe interior
damage” was “due to a water pipe bursting two years ago”); Dkt. #56-6, Ex. E to
Def. Safeguard’s Memo. in Supp. of Mot. for Summ. J. at SLFS000148 (April 20,

21

2011 inspection report by LPS noting that “someone has been inside” and that
they “took fridge, dishwasher, beds, dressers”); id. at SLFS00155 (July 2, 2011
LPS report finding that the Premises had “been ransacked, all appliances stolen,
piping stolen, holes in walls and ceiling”); Dkt. #57, Def. Safeguard’s Rule 56(a)(1)
Statement at ¶ 15; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at
1 (On October 20, 2011 S. Malick checked on the Premises and discovered
appliances, fixtures, and A. Malick’s personal effects had been stolen)].
Accordingly, Defendant Safeguard cannot be liable for any of this property
damage or theft, and any claims against Safeguard premised on such damage
must be dismissed. See [Dkt. #48 Am. Compl. at ¶¶ 35 (conversion claim based
on “harm to the real and personal property of [A. Malick] and to the economic
interest of [S. Malick]”), 38 (negligence claim based on “damage, waste, theft and
loss” of “the property and its valuable contents”), 40 (statutory theft or receipt of
stolen “personal property . . . of the Plaintiff [A. Malick]”), 42 (infliction of
emotional distress through loss of suitcase containing belongings of A. Malick’s
deceased son), 45 (alleging “vandalism and the destruction of property at the
Premises”)].
The only conduct applicable to Safeguard post-dates Plaintiff A. Malick’s
return to the Premises in May 2012. Thereafter, the parties agree that on three
occasions, Safeguard employees came to the Premises despite having been
previously informed that A. Malick was occupying it. [Dkt. #57, Def. Safeguard’s
Rule 56(a)(1) Statement at ¶ 22; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to
Safeguard’s Mot. at 11, ¶ 22; Dkt. #56-9, Ex. B to Meyer Aff. at SP000033,

22

SP000042; Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 52; Dkt. #59, Pls.’
Rule 56(a)(2) Statement as to JPMC’s Mot. at 5, ¶ 52; Dkt. #56-1, A. Malick Dep.
119:12-13]. On one occasion, A. Malick was not at the Premises, and on the other
two, the Safeguard employees left without incident when he identified himself as
the occupant of the Premises and ordered them off the property. [Dkt. #57, Def.
Safeguard’s Rule 56(a)(1) Statement at ¶¶ 22-23; Dkt. #60, Pls.’ Rule 56(a)(2)
Statement as to Safeguard’s Mot. at 11, ¶ 22; Dkt. #58, Def. JPMC’s Rule 56(a)(1)
Statement at ¶ 52; Dkt. #59 Pls. Rule 56(a)(2) Statement as to JPMC’s Mot. at 5, ¶
52; Dkt. #56-1, A. Malick Dep. 70:22-71:22, 119:12-13]. As a result of these
encounters, A. Malick claims that he suffered emotional distress. [Dkt. #59, Pls.’
Rule 56(a)(2) Statement as to JPMC’s Mot. at 5, ¶ 52].
Under these facts, Plaintiffs’ remaining claims against Defendant
Safeguard fail as a matter of law. For instance, Plaintiffs’ CUTPA claim must fail
because Plaintiffs cannot show that Defendant Safeguard caused Plaintiffs to
suffer an ascertainable loss. See Di Teresi v. Stamford Health Sys., Inc., 149
Conn. App. 502, 512, 88 A.3d 1280, 1285 (Conn. App. 2014) (concluding that a
“claim of emotional distress does not constitute an ascertainable loss of money
or property for purposes of CUTPA”).
Plaintiffs’ entry and detainer claim similarly fails because the Safeguard
employees did not use force to enter the Premises, did not hold or detain the
Premises, did not cause damage to any real or personal property upon entry, and
did not require Plaintiffs to cause damage to the Premises or commit a breach of

23

the peace in order to regain possession of the Premises. See Conn. Gen. Stat. §
47a-43(a)(1)-(4).
Finally, Plaintiffs’ trespass claim must be dismissed for two reasons. First,
they have not shown that the Safeguard employees’ intrusions affected their
possessory interests in the Premises. Abington Ltd. P’ship v. Talcott Mountain
Sci. Ctr. for Student Involvement, Inc., 43 Conn. Supp. 424 (Conn. Super. Ct. 1994)
(dismissing trespass claim based on defendant’s use of a power line easement to
supply electricity where plaintiff failed to show “that the passage of the electricity
affect[ed] its possessory interest”). Second, they have not put forth any evidence
that these intrusions caused direct injury to the Premises. Rovaldi v.
Courtemanche, No. 3:04-cv-1722 (MRK), 2005 WL 3455131, at *3 (D. Conn. Dec. 16,
2005) (granting summary judgment on trespass claim where plaintiff failed to
“demonstrate that the property trespassed upon suffered ‘direct injury’”)
(citations omitted).
Having been unable to raise any triable issues of fact on any of their
causes of action, Plaintiffs’ Complaint is DISMISSED as to Defendant Safeguard.
B.

Plaintiffs Fail to Raise a Triable Issue of Material Fact in Support of Counts
III, IV, VI, and XIII of the Second Amended Complaint
The undisputed record in this case forecloses each of these claims against

Defendant JPMC.
1. Plaintiffs’ Claim of Forcible Entry and Detainer Fails
Count III of Plaintiffs’ Second Amended Complaint brings a forcible entry
and detainer claim, pursuant to Conn. Gen. Stat. § 47a-43, but fails to identify

24

under which of the four statutory bases this claim is brought. See [Dkt. #48,
Second Am. Compl. at ¶ 36]. Pursuant to this statute:
When any person (1) makes forcible entry into any land, tenement or
dwelling unit and with a strong hand detains the same or (2) having
made a peaceable entry, without the consent of the actual
possessor, holds and detains the same with force and strong hand
or (3) enters into any land, tenement or dwelling unit and causes
damage to the premises or damage to or removal of or detention of
the personal property of the possessor, or (4) when the party put out
of possession would be required to cause damage to the premises or
commit a breach of the peace in order to regain possession, the
party thus ejected, held out of possession, or suffering damage may
exhibit his complaint to any judge of the Superior Court.
Conn. Gen. Stat. § 47a-43(a)(1)-(4).
Plaintiffs’ claim is rooted in LPS’ changing of the locks on the property and
Defendant JPMC’s other efforts to manage the Premises. See [Dkt. #48, Second
Am. Compl. at ¶¶ 34-36]. However, Defendant JPMC is entitled to summary
judgment.
First, and alone sufficient to preclude such a claim, is that neither Plaintiff
was in actual possession of the Premises at the time LPS changed the locks. See
Quinto v. Boccanfusco, 139 Conn. App. 129, 134, 54 A.3d 1069, 1073 (Conn. App.
2012) (“A plaintiff suing under the forcible entry and detainer statute must prove
his actual possession of the land or property from which he claims to have been
dispossessed.”) (quotation and citation omitted) (emphasis in original). A.
Malick was in prison and away from the Premises until May 25, 2012, and thus did
not have actual possession of the Premises when the locks were changed. [Dkt.
#58, Def. JPMC’s Rule 56(a)(1) Statement at ¶ 4; Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at 1; Dkt. #57, Def. Safeguard’s Rule 56(a)(1)

25

Statement at ¶ 4; Dkt. #60, Pls.’ Rule 56(a)(2) Statement as to Safeguard’s Mot. at
1 ]. That A. Malick held equitable title to the home does not establish actual
possession for the purposes of the forcible entry and detainer statute. See
Wilcox v. Ferraina, 100 Conn. App. 541, 551-52, 920 A.2d 316, 323-24 (Conn. App.
2007) (“[A]ctual possession, rather than right to possession, must remain the
ultimate inquiry”); see also Sullivan v. Delisa, 101 Conn. App. 605, 611, 923 A.2d
760, 766 (Conn. App. 2007) (“[T]he statute designedly excludes the examination
and decision of the question of title.”) (quoting Bliss v. Bange, 6 Conn. 78, 80
(Conn. 1826)). In addition, that the changed locks initially denied A. Malick entry
to the Premises upon his return on May 25, 2012 does not alter this conclusion,
because actual possession is determined as of the time LPS employees entered
the Premises. See [Dkt. #56-1, A. Malick Dep. 72:1-9, 72:23-73:5]; Balf Co. v.
Exxon Corp., 682 F. Supp. 735, 738 (D. Conn. 1988) (dismissing forcible entry and
detainer claim upon concluding that “[p]laintiffs cannot legally be deemed to
have been in actual possession of the real property at the time of defendant’s
entry”) (emphasis added).
S. Malick lacked actual possession because he did not “exercise[] the
dominion and control that owners of like property usually exercise.” Quinto, 139
Conn. App. at 134, 54 A.3d at 1073. S. Malick performed virtually no maintenance
work on the home, other than stopping by periodically to inspect the exterior and
entering the home, at most, once every few months. [Dkt. #56-2, S. Malick Dep. at
12:19-24, 20:13-17]. He did not pay utility bills or otherwise determine if the
house was heated, which caused the home to be without electricity and heat for a

26

period of years. [Dkt. #58, Def. JPMC’s Rule 56(a)(1) Statement at ¶¶ 20, 22; Dkt.
#59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 1]. He never mowed the
lawn, cleaned up leaves, shoveled snow, or winterized the Premises. [Dkt. #58,
Def. JPMC’s Rule 56(a)(1) Statement at ¶¶ 19, 26; Dkt. #59, Pls.’ Rule 56(a)(2)
Statement as to JPMC’s Mot. at 1, 2, ¶ 26]. When the windows on the property
were broken, S. Malick did not repair or cover them. [Dkt. #58, Def. JPMC’s Rule
56(a)(1) Statement at ¶ 23; Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s
Mot. at 2, ¶ 23]. As a result, S. Malick allowed the home to fall into total disrepair,
as evidenced by the severe internal damage caused by a burst pipe, and the
photos taken by LPS, which displayed exposed wiring and plumbing, damage to
the exterior and interior of the Premises, and large amounts of debris strewn
about the house. [Dkt. #56-5, Ex. D to Def. Safeguard’s Memo. in Supp. of Mot. for
Summ. J. at 2; Dkt. #59-1, Ex. E to Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot.
at SLFS000252-55, SLFS 000464-65]]. Collectively, the damage and neglect S.
Malick permitted is inconsistent with “indicia of the exercise of dominion and
control sufficient for . . . a finding of actual possession.” Quinto, 139 Conn. App.
at 135, 54 A.3d at 1073 (affirming trial court’s dismissal of entry and detainer
claim where court found “claims of actual possession to be not credible
considering the deplorable condition of the premises” which included the
presence of “debris, useless equipment, broken furniture and junk automobiles”).
Second, neither the changing of the locks on the property nor the placing
of notices on the Premises stating that JPMC and LPS were managing the
property satisfies the force or strong hand requirement under the first two prongs

27

of the forcible entry and detainer statute. See Conn. Gen. Stat. § 47a-43(a)(1)-(2);
Cohen v. Tziolis, No. CV 116020149S, 2012 WL 695498, at *16 (Conn. Super. Ct.
Feb. 9, 2012) (“To make a detainer forcible or one with a strong hand, a plaintiff
must prove that the detainer was accomplished by some circumstance of actual
or threatened violence calculated to intimidate the plaintiff and to deter him from
asserting or maintaining his rights.”) (citing Hartford Realization Co. v. Travelers
Ins. Co., 117 Conn. 218, 225 167 A. 728, 730-31 (Conn. 1933)); Halley v. Village
Park Realty Co., No. CV 010451467S, 2001 WL 1744693, at *3 (Conn. Super. Ct.
Dec. 31, 2001) (noting that a “threat[] to have [plaintiff] arrested if he returned and
changing the locks . . . may not be sufficient to support claims under § 47a43(a)(1) and (2) . . . .”). Here, Plaintiffs raise no “actual or threatened violence” on
the parts of either Defendant JPMC or LPS, nor do they show any efforts by either
of these parties to intimidate or deter Plaintiffs from asserting their rights to enter
the Premises. At no time did either JPMC or LPS refuse a request from Plaintiffs
to enter the Premises or to remove or not put on new locks. Indeed, nothing in
the record indicates that, prior to May 25, 2012, LPS or JPMC even knew that
either Plaintiff sought access to the Premises, as Plaintiffs did not attempt to
communicate with either entity. See [Dkt. #58-2, S. Malick Dep. 25:22-26:2].12
Accordingly, summary judgment is GRANTED as to Count III, and this
Count is hereby DISMISSED.
12

The Court further notes, but does not rely on the fact, that Plaintiffs’ forcible
entry and detainer claim is time-barred, as LPS changed the locks for the final
time in 2011 and the Complaint was filed on May 10, 2013. See [Dkt. #1];
Karantonis v. Town of East Hartford, 71 Conn. App. 859, 864-65, 804 A.2d 861,
864-65 (Conn. App. 2002) (holding that six-month statute of limitations begins
to run when defendant last changes the locks).
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2. Plaintiffs’ Civil Trespass Claim Fails
Count IV of the Second Amended Complaint brings a claim for civil
trespass. See [Dkt. #48, Second Am. Compl. at ¶ 37]. To make out a claim for
civil trespass, Plaintiffs must show: (1) ownership or possessory interest in the
Premises, (2) invasion, intrusion or entry by the Defendant affecting their
exclusive possessory interest, (3) done intentionally, and (4) causing direct
injury. See Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237, 258
(Conn. 2007). “A trespass on real estate is the doing of a direct injury to property
by force.” Lake Garda Imp. Ass’n v. Battistoni, 160 Conn. 503, 516-17, 280 A.2d
877, 883-84 (Conn. 1971) (emphasis added).
Here, even assuming Plaintiffs’ version of the events, LPS’s intrusion,
invasion, or entry onto the Premises did not directly cause the injuries Plaintiffs
advance. At most, Plaintiffs contend that LPS’s management of the Premises
negligently permitted damage and theft that was caused by some other party at
some later point. [Dkt. #59, Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at 3,
¶¶ 35-36; 4, ¶¶ 43, 47; 5, ¶ 54]. Absent direct injury to the Premises from the
trespass itself, Plaintiffs’ claim fails. See Atuahene v. City of Hartford, 491 F.
Supp. 2d 278, 282 (D. Conn. 2007) (granting summary judgment on trespass claim
where the damages claimed did “not arise from any trespass” but from
subsequent “seizure and sale of various fixtures and items of personal property
from [the premises]”); Ru-Jack Dev. v. Philson, Inc., No. CV 990153848S, 2004 WL
17301715, at *4 (Conn. Super. Ct. Jul. 7, 2004) (dismissing trespass claim where

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the trespass, in the form of debris allegedly placed on plaintiff’s property by
defendant, did not cause direct injury).
Further, there are no facts creating a genuine dispute that any invasion on
the part of LPS or JPMC affected the Malicks’ possessory interest. First, as
stated above, there is no evidence that S. Malick had a possessory or other
interest in the Premises. Second, A. Malick was not residing at or exercising a
possessory interest in the Premises during the period LPS managed the
Premises. Third, and most persuasively, the Premises were unoccupied, had no
utilities, had burst water pipes and broken windows, had untended grounds, was
not being maintained, and thus, appeared for all intents and purposes to have
abandoned by both A. Malick and S. Malick.
Accordingly, summary judgment is GRANTED as to Count IV, and this
Count is hereby DISMISSED.
4. Plaintiffs’ Civil Theft Claim Fails
Count VI of the Second Amended Complaint alleges that Defendant JPMC
committed civil theft in one of two ways: Defendant JPMC “knowingly seized
personal property without lawful authority” or it “knowingly received and
concealed stolen property of the Plaintiff [A. Malick].” [Dkt. #48, Second Am.
Compl. at ¶ 39].
To establish a claim of civil theft, Plaintiffs must prove “the same . . .
elements required to prove larceny.” Sullivan, 101 Conn. App. 605, 619-20, 923
A.2d 760, 771 (Conn. App. 2007). “A person commits larceny when, with intent to
deprive another of property or to appropriate the same to himself or a third

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person, he wrongfully take, obtains or withholds such property from an owner . . .
it must be shown that (1) there was an intent to do the act complained of, (2) the
act was done wrongfully, and (3) the act was committed against the owner.” Id. at
620 (citation and quotations omitted). Plaintiffs’ claim of civil theft fails for at
least two reasons.
First, the record is devoid of any evidence that Defendant JPMC ever took
or came into possession of A. Malick’s personal belongings. Plaintiffs do not
allege, nor does the evidence indicate, that any employees of JPMC ever visited
the Premises. There is no evidence indicating that employees of LPS took any of
Plaintiff’s personal property, let alone, that they turned over any property they
took to JPMC. Accordingly, the record does not support either of Plaintiffs’ civil
theft theories.
Second, while LPS did change the locks on the Premises, which could have
had the effect of withholding from Plaintiffs A. Malick’s personal property, there is
nothing in the record to suggest, nor do Plaintiffs appear to presently contend,
that LPS changed the locks “with intent to deprive [A. Malick] of his . . . property.”
Torres v. Kershner, Nos. CV 0540007041S, CV 085023624S, 2010 WL 5573744, at
*13 (Conn. Super. Ct. Dec. 13, 2010) (stating that to prove larceny it must be
shown that “the defendant acted with the subjective desire or knowledge that his
actions constituted stealing”) (quoting State v. Varszegi, 33 Conn. App. 368, 37273, 635 A.2d 816, 818 (Conn. App. 1993)). As property manager, and upon
determining that the Premises themselves were unsecure, LPS clearly changed
the locks for the purpose of protecting it from further damage and loss.

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Accordingly, summary judgment is GRANTED as to Count VI, and this
Count is hereby DISMISSED.
5.

Plaintiffs’ Negligent Hiring Claim Fails

Count XIII seeks to hold Defendant JPMC liable for “the actions of
Defendant Safeguard with respect to any damages to the Premises or the
personal property of Plaintiff [A. Malick]” due to JPMC’s knowledge of
Safeguard’s “previous illegal activities.” [Dkt. #48, Second Am. Compl. at ¶ 46].
As the Court has already explained, all of Plaintiffs’ claims against Safeguard,
including negligence, have been dismissed, since Safeguard did not commence
its management of the Premises until after the damage to Plaintiffs’ real and
personal property had already occurred. See supra at 21-24. Accordingly,
summary judgment is GRANTED as to Count XIII, and this Count is hereby
DISMISSED.
D.

Absent the Parties’ Mortgage Documents the Court is Unable to Resolve
the Remaining Claims And Accordingly Denies Defendant JPMC’s Motion
for Summary Judgment
With respect to Counts I (conversion), V (negligence), X (Connecticut

Creditors’ Collection Practices Act), XI (negligence), and XV (CUTPA), the factual
record is not sufficiently developed to permit this Court to assess these claims
because the underlying mortgage documents appear to have been inadvertently
omitted, or they are otherwise unavailable. Absent these documents, the Court is
unable to assess the following issues: (i) Plaintiff A. Malick’s and Defendant
JPMC’s contractual rights and duties, (ii) the standard of care owed, (iii) whether
or not that standard of care was breached, (iv) whether that breach actually and

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proximately caused the damages Plaintiffs allege, (v) whether LPS’s entrances
onto the Premises were authorized, and (vi) whether and when Defendant JPMC
had a right to possess the Premises.
In light of these deficiencies, the Court GRANTS Defendant JPMC leave to
refile its motion for summary judgment as to these claims, and ORDERS
Defendant JPMC to include in its filing the underlying mortgage documents, if
they are available, and if they are not, an affidavit explaining why they are not.
Defendant JPMC is further ORDERED to address each of the above issues in its
renewed motion.
IV.

Conclusion
For the foregoing reasons, the Court GRANTS Defendant Safeguard’s

Motion for Summary Judgment in its entirety. The Court GRANTS in part and
DENIES in part Defendant JPMC’s Motion for Summary Judgment and its Motion
to Strike. Defendant JPMC is given leave to refile its summary judgment brief as
to the remaining counts within 21 days of the date of this Order. Plaintiff shall file
his Opposition 14 days thereafter. Finally, the Court DISMISSES S. Malick as a
plaintiff in this action for lack of standing.
IT IS SO ORDERED, ADJUDGED AND DECREED, this 30th day of
September 2015, Hartford, Connecticut.
_________/s/______________
Vanessa L. Bryant,
United States District Judge

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