Drena v. Bank of America, N.A.
Filing
46
ORDER granting in part and denying in part 39 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 12/27/2017. (Riegel, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL DRENA,
Plaintiff,
No. 3:15-cv-176 (VAB)
v.
BANK OF AMERICA, N.A.
Defendant.
RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
Michael Drena (“Plaintiff” or “Mr. Drena”), acting pro se, filed a seven-count Complaint
against his mortgagee, Bank of America, N.A. (“Defendant” or “Bank of America”) for allegedly
improperly (i) increasing his mortgage payments and (ii) delaying review of his applications for
modification of his home mortgage. Compl., ECF No. 1. The Court dismissed two of his
claims—a breach of the covenant of good faith and fair dealing claim and a claim under the Fair
Credit Reporting Act, 15 U.S.C. § 1681s-2(b). ECF No. 30.
Bank of America has moved for summary judgment on Mr. Drena’s remaining claims:
violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-110a
et seq. (count one); the Connecticut Creditor’s Collection Practices Act (“CCPA”), Conn. Gen.
Stat. § 36a-645 et seq. (count two); innocent misrepresentation (count three); negligent
misrepresentation (count four); and negligent infliction of emotional distress (count six). Mot.
Summ. J., ECF No. 39.
For the following reasons, Bank of America’s motion for summary judgment is
GRANTED in part and DENIED in part. The motion is granted as to the CCPA claim (count
two), the innocent misrepresentation claim (count three), the negligent misrepresentation claim
(count four), and the negligent infliction of emotional distress claim (count six), and denied as to
the CUTPA claim (count one).
I.
FACTUAL AND PROCEDURAL BACKGROUND
A.
The Mortgage
On February 6, 2008, Mr. Drena and his wife, Mrs. Janine Drena (the “Drenas”),
obtained a $260,000 home mortgage loan from Bank of America in exchange for a promissory
note in favor of Bank of America. Def.’s L.R. 56(a)(1) Stmt. (“SMF”) ¶ 1, ECF No. 39-35.1 To
secure the obligations under the promissory note, the Drenas executed a loan on the property at
84 Duncaster Road, in Bloomfield, Connecticut, in favor of Bank of America. Id. ¶ 2. The
monthly installments due on the loan were $1,476.26. Id. ¶ 5. Because Bank of America had
waived payments for an escrow account,2 the monthly installments did not include property
taxes, assessments, and insurance premiums.3 Id. ¶ 6. On February 29, 2008, the Drenas provided
1
On December 19, 2016, Bank of America served Mr. Drena with a Local Rule 56(b) Notice to Self-Represented
Litigants Regarding Summary Judgment. ECF No. 39-36. Bank of America represents that on January 9, 2017, Mr.
Drena informally sought an extension from Bank of America to file his opposition papers until January 20, 2017.
Without seeking a further enlargement of time to respond, Mr. Drena did not file his opposition papers until March
7, 2017. Bank of America argues that because Mr. Drena’s opposition was filed late by approximately 46 days, it
should be stricken in its entirety. Def.’s Reply Br. at 2 (citing D. Conn. L. R. 55(b)). The Court agrees.
Local Rule 56(b) provides that the party opposing summary judgment must file opposition papers within 21
days of the date of the motion and allows for three additional days under certain conditions. D. Conn. L. R. 55(b).
The Rule further provides that, if the litigant does not file papers consistent with the Federal and Local Rules of
Civil Procedure 56, “THE MOTION MAY BE GRANTED . . . IF THE MOTION SHOWS THAT THE MOVANT
IS ENTITLED TO JUDGMENT AS A MATTER OF LAW.” D. Conn. L. R. 56(b). Here, Mr. Drena was notified of
the consequences of failing to respond to the motion for summary judgment, and presumably with this knowledge,
sought an informal extension of time to file from Bank of America. The Court therefore decides this motion without
consideration of Mr. Drena’s untimely opposition. See D. Conn. L. R. 55(b); see also Watson v. Geithner, 355 F.
App’x 482, 483 (2d Cir. 2009) (finding no abuse of discretion in trial court’s decision to decline to consider a pro se
plaintiff’s untimely response to summary judgment).
2
The home mortgage contained a waiver of escrow provision. Under that provision, Bank of America could waive
and did waive the Drenas’ obligation to pay into an escrow account certain amounts for payments enumerated in the
home mortgage. Def.’s Br., Ex. B at 5–6, ECF No. 39-31. Bank of America had the right to revoke the waiver of
escrow at any time by providing the Drenas written notice. Id. at 6, 12.
3
The escrow items were “amounts due for: (a) taxes and assessments . . . (b) leasehold payments or ground rents . . .
(c) premiums for any and all insurance . . . and (d) Mortgage Insurance premiums.” Id. at 5.
2
Bank of America permission to automatically debit their checking account, beginning with the
installment due on April 1, 2008. Id. ¶ 9. Consistent with the Drenas’ instruction, Bank of
America began debiting the monthly installment due on April 1, 2008, and all monthly
installments thereafter, until October 2010. Id. ¶ 10. Bank of America has serviced the mortgage
loan since origination and continues to do so. Id. ¶ 4.
In 2009, Mr. Drena “suffered a substantial loss of income.” Def.’s Br., Ex. C at 3, ECF
No. 39-32. His business was reeling from an economic recession that contracted the business by
twenty percent. Id. His income was further limited by prospective alimony payments as a result
of his impending divorce from his wife. Id. at 3–4.
B.
Discussions Around Mortgage Modification
In November 2009, in light of his economic difficulties, Mr. Drena contacted Bank of
America to inquire about options to modify his home mortgage loan. Def.’s SMF at ¶ 14; see
also Def.’s Br., Ex. C at 5. In December 2009, Bank of America sent Mr. Drena a loan
modification application. Def.’s Br., Ex. C at 6. Upon receiving the application, Mr. Drena
reviewed it but “decided not to participate due to the fact that a[n] escrow account was being
added in.” Id. With declining business opportunities, newly imposed alimony payments, and the
seasonal nature of his work, Mr. Drena thought he could not support the additional payments that
an escrow would require. Id. He “did not sign any documents or send in any application.” Id.
After its December 2009 offer, Bank of America extended another opportunity to the
Drenas to modify their loan. In a letter dated January 14, 2010, Bank of America informed the
Drenas that their home mortgage loan potentially qualified for a four-month trial period plan
under the Home Affordable Modification Program (“HAMP”).4 Def.’s Br., Ex. A-3 at 2, ECF
4
The Home Affordable Modification Program (“HAMP”) was a part of the Making Home Affordable Program
(“MHAP”), a federal government initiative. HAMP was “designed to help home owners who [were] having
3
No. 39-5. Under HAMP, instead of making their existing mortgage payment, the Drenas would
pay a trial period mortgage payment of $1,859.99. Id. at 2. The trial period payment included
payments for escrow items, “including real estate taxes, insurances premiums, and other fees.”
Id. at 8. To confirm their eligibility for HAMP, Bank of America attached to its letter documents
for the Drenas to complete and return to Bank of America.5 The Drenas did not accept the offer.
Def.’s SMF ¶ 17.
On January 22, 2010, Bank of America claims to have completed an “escrow analysis”
on the Drenas’ loan and provided the results to the Drenas along with the monthly statement for
the February 2010 monthly instalment. Id. ¶ 18. Bank of America claims that the statement and
analysis put the Drenas on notice that, beginning with the March 10, 2010, installment, the
monthly amount due would increase to $2,332.21, $855.95 of which was for escrow payments.
Id.
Later that month, on January 29, 2010, Mr. Drena and Mrs. Drena divorced, and Mrs.
Drena subsequently transferred her interest in the home to Mr. Drena by quit claim deed on
March 15, 2010. Def.’s Br. Ex. D at 2–3, ECF No. 39-33; Def.’s Br. Ex. E at 2–3, ECF No. 3934.
On March 5, 2010, Mr. Drena called Bank of America after noticing overdraft charges on
his checking account. Def.’s Br. Ex. C at 7. Bank of America had charged his account for $830.
Id. Bank of America informed Mr. Drena that the MHAP required an $830 escrow fee. Id.; see
difficulty making their payments by modifying loans to a level that [were] affordable for borrowers.” Def.’s Br., Ex.
A-9 at 3, ECF No. 39-11. An eligible participant could enter into a three month trial period plan, and if the
participant successfully completed the trial, then the participant’s home mortgage loan would be permanently
modified. Id.
5
Bank of America requested: (i) “Signed Mortgage Servicer copies of the Home Affordable Modification Trial
Plan”; (ii) a “Hardship Affidavit completed and signed by” the Drenas; (iii) a “completed, signed and dated copy of
the most recent tax return for” the Drenas; (iv) the “Freddie Mac Form 1126” and (v) “[d]ocumentation to verify all
of the income of [the Drenas].” ECF No. 39-5 at 2.
4
also Def.’s SMF ¶ 24. But, according to Mr. Drena, he had never signed up to participate in the
MHAP. Def.’s Br. Ex. C at 7.
Around the same time, Mr. Drena went to the Bank of America branch in Bloomfield,
Connecticut, and spoke with the branch’s Vice President, Ms. Vera Lembrecht, concerning his
situation. Id. at 7–8. Ms. Lembrecht called Bank of America’s modification department, and the
modification team member explained that Mr. had been placed in HAMP upon his verbal
authorization. Id. at 8. Further, according to Mr. Drena, the Bank of America modification team
member explained that, if Mr. Drena failed to apply for the program, he could not reapply. Id.
Therefore, according to Mr. Drena, he executed the application and submitted the required
information to be considered for the program. Id.
About two weeks later, on March 20, 2010, Bank of America sent the Drenas a letter
informing them that Bank of America required additional information to verify whether they
could participate in HAMP. Def.’s Br. Ex. A-5 at 2, ECF No. 39-7. The letter instructed the
Drenas to send the requested information by March 30, 2010. Id.
The Drenas’ loan history statement includes transaction details on the Drenas’ mortgage,
beginning in February 2008 and ending in November 2016. Def.’s Br. Ex. A-2, ECF No. 39-4.
From April 1, 2008, through and including February 1, 2010, the report shows that the Drenas
made monthly payments of $1,476.27. Id. at 3‒4. The report also shows a $.00 escrow balance
and $.00 in late charges and the unapplied total.6 Id. For the March 1, 2010, payment, the report
showed a monthly payment of $2,332.21, and an escrow balance of $855.96. Id. at 4. Beginning
in April 2010, the escrow balance fluctuated, going as high as $22,888.26 in March 2014. Id. at
6
The Court notes that the February 2, 2010, entry shows an escrow balance of $.01. Def.’s Br. Ex. A-2 at 4.
5
4–7. Similarly, beginning in April 2010, unapplied totals fluctuated, reaching $7,270.25 in
March 2014, and late fees assessed against the account begin to accrue. Id. at 4‒8.
In a letter dated November 16, 2010, Bank of America sent the Drenas a notice of intent
to accelerate the mortgage. Def.’s Br. Ex. A-7 at 3–8, ECF No. 39-9. The notice provided that
the home mortgage loan was “in serious default because the required payments have not been
made.” Id. at 3. The letter explained that “[i]f the default is not cured on or before December 16,
2010, the mortgage payments will be accelerated with the full amount remaining accelerated
and becoming due and payable in full, and foreclosure proceeding will be initiated at that time.”
Id. The letter further stated that, if the Drenas were unable to cure the default, Bank of America
“want[ed] [them] to be aware of various options that may be available . . . to prevent foreclosure
sale of the property.” Id. Those options included:
Repayment Plan: It is possible that you may be eligible for some
form of payment assistance through [Bank of America]. [Bank of
America’s] basic plan requires that [Bank of America] receive, up
front, at least ½ of the amount necessary to bring the account current,
and that the balance of the overdue amount be paid, along with the
regular monthly payment, over a defined period of time. Other
repayment plans also are available.
Loan Modification: Or, it is possible that the regular monthly
payments can be lowered through a modification of the loan by
reducing the interest rate and then adding the delinquent payments
to the current loan balance. This foreclosure alternative, however, is
limited to certain loan types.
Sale of Your Property: Or, if you are willing to sell your home in
order to avoid foreclosure, it is possible that the sale of your home
can be approved through [Bank of America] even if your home is
worth less than what is owed on it.
Deed-In Lieu: Or, if your property is free from other liens or
encumbrances, and if the default is due to a serious financial
hardship which is beyond your control, you may be eligible to deed
your property directly to [Bank of America] and avoid the
foreclosure sale.
6
Id. at 4.
Less than one month after sending its notice of intent to accelerate, on December 10,
2010, Bank of America denied Mr. Drena’s request for a HAMP modification. Def.’s Br. Ex. A8 at 2, ECF No. 39-10. In that letter, Bank of America explained to the Drenas that it had
“reviewed [their] financial information to identify any additional modification options and
unfortunately, [the Drenas’] loan [was] not eligible for a modification.” Id. Bank of America
stated it “[knew] it was a difficult time for [the Drenas] and [it] want[ed] to help [them] avoid the
negative consequences of a foreclosure.” Id. To that end, Bank of America explained the “next
step to help [them] avoid foreclosure is a short sale or a deed in lieu of foreclosure.” Id. The
letter explained those options:
Short Sale: With this program, you agree to sell your home and the
proceeds of the sale are used to pay your mortgage debt, even if the
proceeds are less than the outstanding balance on you mortgage;
Deed in lieu of foreclosure: With this program, you transfer the title
of your home to [Bank of America] instead of paying your mortgage
debt, even if the value of the property is less than the outstanding
balance on your mortgage;
The Fannie Mae Deed-for-Lease program: With this program, you
agree to a deed in lieu of foreclosure and transfer the title of your
property to Fannie Mae instead of paying your mortgage debt, even
if the value of the property is less than the outstanding balance on
your mortgage. You then lease the property back from Fannie Mae
at a current rental rate.
Id.
The Drenas appealed the December 2010 decision. Def.’s Br., Ex. A ¶ 28, ECF No. 39-2.
On February 10, 2011, Bank of America informed the Drenas of its decision concerning their
appeal. Def’s Br., Ex. A-9 at 2, ECF No. 39-11. Bank of America explained that, based on the
HAMP guidelines, the Drenas were “not eligible for a loan modification based on the
7
information in [their] original application; therefore, [their] original application [had] been
closed.” Id. at 2. Bank of America advised the Drenas that because they indicated that their
financial information had changed, Bank of America invited them to reapply for the program by
sending a new application with the supporting documents by March 12, 2011. Id. Bank of
America sent another letter to the Drenas on February 28, 2011, explaining that they were not
eligible for the HAMP modification based on the information they had submitted but invited
them to reapply. Id. at 12.
On March 2, 2011, Mr. Drena submitted another HAMP modification request to Bank of
America. Def.’s Br., Ex. A-10, ECF No. 39-12. Bank of America responded on April 2, 2011,
indicating that Mr. Drena’s application was deficient because it did not contain all the required
information and therefore, it could not complete its eligibility review. Def.’s Br., Ex. A-11 at 2,
ECF No. 39-13. Bank of America requested the Drenas send the missing documents by May 2,
2011. Id. On May 4, 2011, Bank of America sent another letter to the Drenas stating that it was
still missing information from them necessary to conduct its review. Def.’s Br., Ex. A-12 at 2,
ECF No. 39-14. Bank of America gave the Drenas until May 19, 2011, to submit the missing
information. Id.
On June 4, 2011, Bank of America informed the Drenas that they were not eligible for a
HAMP modification because they had failed to provide it the requisite information. Def.’s Br.,
Ex. A-13 at 2–3, ECF No. 39-15. The letter also stated that Bank of America was reviewing the
Drenas’ financial information to determine whether they qualified for other options including (i)
“[a] different modification program;” (ii) “a forbearance program” that would allow them to
“receive lower payments or no payments for a limited number of months to either give [them]
time to resolve [their] financial difficulties or give [Bank of America] time to work together with
8
[him] on a more permanent solution;” (iii) “a short sale;” (iv) “[a] deed in lieu of foreclosure;”
(v) “[t]he Fannie Mae Deed-for-Lease program.” Id.
After the June 4 denial, and after Mr. Drena had submitted an additional HAMP
modification request, Def.’s Br., Ex. A-14, ECF No. 39-16, Bank of America informed the
Drenas that they had been approved for a trial period plan under the Fannie Mae Modification
program, Def.’s Br., A-15 at 2–3, ECF No. 39-17. The Drenas declined to participate in the
program but did submit an application for an additional HAMP modification. Def.’s Br., Ex. A ¶
36.
On April 6, 2012, Bank of America offered the Drenas a permanent loan modification.
Def.’s Br., A-17, ECF No. 39-19. The proposed modification reduced the Drenas’ home
mortgage loan’s interest, monthly installments, and capitalized delinquent interest and delinquent
escrow. Id. at 2–5. As with Bank of America’s other offers, the Drenas rejected the offer. Def.’s
Br., Ex. A ¶ 38. Instead, the Drenas submitted another HAMP modification request on May 15,
2012. Def.’s Br., Ex. A-18. Less than a month later, on June 13, 2012, Bank of America
informed the Drenas that their “mortgage [was] seriously delinquent.” Def.’s Br., Ex. A-19 at 2,
ECF No. 39-21. The letter stated that Bank of America “tried to contact [the Drenas] to discuss
foreclosure prevention options that [were] available, but time [was] running out.” Id. The letter
further provided that the Drenas had been approved to participate in a trial period plan to assist
the Drenas in making “affordable and sustainable mortgage payments.” Id. The Drenas declined
to participate in this program. Def.’s SMF ¶ 46.
Following a national settlement between Bank of America and U.S. Department of
Justice (“DOJ”), on March 22, 2013, Bank of America invited the Drenas to apply for another
modification program—the DOJ Modification Program. Def.’s Br., Ex. A-20 at 2, ECF No. 39-
9
22. The DOJ Modification program “included a principal forgiveness component in addition to
modified loan terms.” Def.’s L.R. SMF ¶ 50. Bank of America contacted the Drenas through
their attorney about the program multiple times in June 2013. Def.’s Br., Ex. A-22 at 2, 11, 20,
29, 38, ECF No. 39-24. Following those invitations, Mr. Drena submitted two additional HAMP
modification requests. Def.’s Br., Ex. A-21, ECF No. 39-23; Def.’s Br., Ex. A-27, ECF No. 3925. Bank of America then sent the Drenas two additional invitations to apply to the DOJ
Modification program. Def.’s Br., Ex. A-24 at 2–4, ECF No. 39-26; id. 5–6.
C.
MODIFICATION OF THE LOAN
In its September 30, 2013, letter, Bank of America “informed the [Drenas] that [their
home mortgage] loan qualified for a three month trial period plan under the DOJ Modification
Program with trial payments in the amount of $1,725.46 due by November 1, 2013, December 1,
2013, and January 1, 2014, and an estimated $66,070.63 in principal to be permanently
forgiven.” Def.’s SMF ¶ 54. The Drenas opted to participate in the trial period plan and timely
submitted three trial payments. Id. ¶ 55.
Following their successful completion of the trial period, on January 8, 2014, Bank of
America informed the Drenas that the home mortgage loan was eligible for permanent
modification under the DOJ modification program. Id. ¶ 56. Under this modification, $65,425.39
of the principal would be forgiven and the home mortgage loan would be reduced. Id. The
Drenas accepted the permanent modification offer and entered into a loan modification
agreement with Bank of America on January 21, 2014. Id. ¶ 57. Under that agreement the
“interest rate on the [home mortgage loan] was reduced to a fixed rate of 2% for years 1–5, 3%
for year 6, 4% for year 7, and 4.5% for years 8–25, and $65,425.39 in outstanding principal was
forgiven.” Id. ¶ 58. On December 6, 2014, Bank of America informed the Drenas that, under the
10
DOJ Modification program, the home mortgage loan qualified for an additional principal
reduction of $9,079.91. Id. ¶ 59.
II.
STANDARD OF REVIEW
Courts must grant summary judgment if 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 carries the burden of demonstrating that there is no genuine material dispute of fact by
citing to “particular parts of materials in the record.” See Fed. R. Civ. P. 56(c)(1)(A)‒(B);
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000). A dispute regarding a fact is
“genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party” and material if the substantive law governing the case identifies those facts as material.
Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v.
Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)); see also Bouboulis v. Transp. Workers
Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
In assessing a summary judgment motion, the Court must resolve all ambiguities and
draw all inferences from the record as a whole in favor of the non-moving party. Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010); see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Only when reasonable minds could not differ as
to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979,
982 (2d Cir. 1991); see also Cortes v. MTA New York City Transit, 802 F.3d 226, 230 (2d Cir.
2015) (“To survive summary judgment, the nonmovant must merely show that ‘reasonable
minds could differ as to the import of the evidence in the record.’”) (citation omitted).
11
Finally, pro se complaints “must be construed liberally and interpreted to raise the
strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(internal quotation marks omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010)
(discussing the “special solicitude” courts afford pro se litigants).
III.
DISCUSSION
A.
CONNECTICTUT UNFAIR TRADE PRACTICES ACT (Count One)
CUTPA prohibits the use of “unfair or deceptive acts or practices in the conduct of any
trade or commerce.” Conn. Gen. Stat. § 42-110b(a). The statute “provides a private cause of
action to [a]ny person who suffers any ascertainable loss of money or property, real or personal,
as a result of the use or employment of a [prohibited] method, act or practice.” Id. § 42-110g.
“A violation of CUTPA may be established by showing either an actual deceptive
practice . . . or a practice amounting to a violation of public policy.” Daddona v. Liberty Mobile
Home Sales, Inc., 550 A.2d 1061, 1066–67. (Conn. 1988); see also Ulbrich v. Groth, 78 A.3d 76,
100 (Conn. 2013) (quoting Harris v. Bradley Mem’l Hosp. & Health Ctr., Inc., 994 A.2d 153,
173 (Conn. 2010) (stating that a CUTPA claim may be based on either an “actual deceptive
practice” or an unfair practice—that is, a “practice amounting to a violation of public policy”));
Wilkins v. Yale University, 2011 WL 1087144, *4 (Conn. Super. Ct. 2011) (“A subset of unfair
practices, recognized by our Supreme Court, is deceptive practices.”). Because CUTPA is a
“remedial” statutory scheme, see Conn. Gen. Stat. § 42-110b(d), it “must be liberally construed
in favor of those whom the legislature intended to benefit.” Eder Bros. v. Wine Merchants of
Connecticut, Inc., 880 A.2d 138, 149 (Conn. 2005) (citing Fink v. Golenbock, 680 A.2d 1243,
1260 (Conn. 1996)).
12
A CUTPA claim requires the plaintiff show that “(1) the defendant engaged in unfair or
deceptive acts or practices in the conduct of any trade or commerce; and (2) [he] has suffered an
ascertainable loss of money or property as a result of the defendant’s acts or practices.” Artie’s
Auto Body, Inc. v. Hartford Fire Ins. Co., 947 A.2d 320, 329 (Conn. 2008) (internal quotation
marks and citations omitted).
Bank of America challenges whether Mr. Drena has submitted evidence to raise a
genuine issue of material fact as to whether its conduct was unfair under CUTPA. Specifically,
Bank of America contends that Mr. Drena’s two theories—(i) that it impermissibly added an
escrow payment to his home mortgage loan and (ii) that it was dilatory in reviewing his home
mortgage loan for modification—purporting to show Bank of America engaged in an unfair
practice are unsupported by the record. Def.’s Br. at 4–7.
1.
Unfair or Deceptive Practice
To determine whether conduct is unfair or deceptive, Connecticut courts apply the
“cigarette rule.” Ramirez v. Health Net of Northeast, Inc., 938 A.2d 576, 589 (Conn. 2008). That
rule asks:
(1) [w]hether the practice, without necessarily having been
previously considered unlawful, offends public policy as it has been
established by statutes, the common law, or otherwise-whether, in
other words, it is within at least the penumbra of some common law,
statutory, or other established concept of unfairness; (2) whether it
is immoral, unethical, oppressive, or unscrupulous; (3) whether it
causes substantial injury to consumers, competitors or other
businessmen.
Id. “All three criteria do not need to be satisfied to support a finding of unfairness. A practice
may be unfair because of the degree to which it meets one of the criteria or because to a lesser
extent, it meets all three.” Id. The issue of whether a business practice is unfair generally
13
presents “a question of fact.” DeMotses v. Leonard Schwartz Nissan, Inc., 578 A.2d 144, 146
(Conn. App. Ct. 1990).
Bank of America argues that Mr. Drena has failed to submit evidence to raise a genuine
issue of material fact as to whether it, under the terms of the mortgage agreement, impermissibly
revoked its waiver of escrow such that it would rise to the level of an unfair practice under
CUTPA. Although “a CUTPA claim cannot be based on only a breach of contract” absent
“aggravating circumstances,” Henderson v. Wells Fargo Bank, N.A., No. 3:13-cv-378 (JBA),
2017 WL 731780, at *7 (D. Conn. Feb. 21, 2017) (internal quotation marks omitted) (citing
Canaan Apothecary, LLC v. Salisbury Pharmacy Grp., LLC, No. 3:12-cv-1571 (VLB), 2014 WL
788944, at *8 (D. Conn. Feb. 25, 2014)), Bank of American mischaracterizes Mr. Drena’s
CUTPA claim.
At oral argument, Mr. Drena stated that he does not quarrel with Bank of America’s right
to revoke a waiver of escrow under the terms of the mortgage agreement. Instead, he argues that
Bank of America engaged in an unfair practice when, after inquiring in November 2009 about
loan modification options available to him, Mr. Drena specifically “decided not to participate
due to the fact that a[n] escrow account was being added in,” “did not sign any documents or
send in any application,” and therefore did not submit himself for consideration for a loan
modification, Bank of America nonetheless revoked its waiver as a condition of him applying.7
7
Bank of America seems to suggest that Mr. Drena, having testified in reference to his March 5, 2010, conversation
with a Bank of America representative: “I figured I’m already two months into a trial period, I might as well sign up,”
Def.’s Br., Ex. C at 22, that Mr. Drena has conceded that he had given authorization for Bank of America to consider
his loan for loss mitigation. See Def.’s SMF ¶ 14 (“On December 10, 2009, Plaintiff contacted [Bank of America] to
discuss his financial hardship and loss mitigation option, gave his verbal authorization to review the Loan for a
modification, and was told a loan modification application would be sent to him.” (citing Def.’s Br., Ex. C at 22)).
Construing inferences in Mr. Drena’s favor, as the party opposing summary judgment, Mr. Drena did nothing more
than recognize that, against his wishes and without notice, the escrow waiver had already been revoked, so he may as
well go forward with the loan modification application, which required that escrow payment be factored into his
monthly payment—payments he was already making.
14
Def.’s Br., Ex. C at 6. Then, when Mr. Drena spoke with Bank of America about the
unauthorized charge, Bank of America informed him that if he did not apply for the program, he
could not re-apply at a later date. Def.’s Br. Ex. C at 8. And only then did Mr. Drena execute the
application and submitted the required information to be considered for the program. Id.
At his deposition, Mr. Drena testified that it was only after reviewing his bank statement,
noticing a charge of $830, and contacting Bank of America on March 5, 2010, that he learned
Bank of America had charged his bank account for an escrow payment. Def.’s Br., Ex. C at 7.
Mr. Drena also testified that at no time before the call with Bank of America on March 5, 2010,
did Bank of America notify him that it had revoked the waiver of escrow consistent with the
terms of the home mortgage or enrolled him in HAMP, which required escrow. Def.’s Br., Ex. C
at 12.
According to Mr. Drena, although he had “never signed anything” and “never sent in any
documents” to participate in a Bank of America loan modification program, Bank of America
had enrolled him in HAMP. Id. at 7. Mr. Drena further testified that he had rejected two earlier
offers (in December 2009 and January 2010) by Bank of America to modify his home mortgage
loan conditioned on the addition of escrow payments. Id. at 6; Def.’s L.R. 56(a)(1) Stmt. at ¶¶
16-17. Indeed, Mr. Drena testified that he had expressly declined one of the offers “due to the
fact that a[n] escrow account [would be] added.” Def.’s Br., Ex. C at 6.
As a result, a reasonable juror could conclude that Bank of America engaged in an unfair
practice by unilaterally enrolling Mr. Drena—who had no notice, either as required under the
mortgage or otherwise, that Bank of America had revoked the waiver of escrow; had provided no
authorization or application to Bank of America before March 5, 2010; and had rejected two
other Bank of America loan modification offers that required escrow—in HAMP, debiting his
15
account for escrow payments, and then inducing him to agree to the terms of HAMP by
informing him that unless he submitted an application for enrollment, he could not reapply.8
Bank of America’s arguments to the contrary only confirm that there is a genuine issue of
material fact to be tried regarding Mr. Drena’s CUTPA claim. Bank of America argues it
provided written notice of the escrow payment to Mr. Drena and his wife, Def.’s Br. at 5, in the
form of a January 2010 escrow analysis on the mortgage showing that the Drenas’ monthly
installments would cumulatively increase to $2,332.21 in March 2010, which included an escrow
portion of $855.95. Def.’s SMF ¶ 21. Bank of America, however, has not provided evidence of
this analysis or evidence that the Drenas authorized participation in the program, other than the
affidavit of its employee, Lorena P. Diaz.
At oral argument, counsel for Bank of America conceded that no document confirming
the bank’s analysis or the authorization by the Drenas existed and that Ms. Diaz could not
confirm either the existence of the analysis or the Drenas’ authorization. In fact, Bank of
America admittedly cannot produce any communications with the Drenas before 2011. See Diaz
Aff. ¶ 5, Def.’s Br., Ex. A, ECF No. 39-2 (“[C]opies of monthly statements and escrow analyses
mailed to [the Drenas] prior to November 2011 are not available because correspondence sent by
[Bank of America] to its customers was not archived prior to November 1, 2011”). Mr. Drena,
however, testified that he did not authorize his participation in the program. Def.’s Br., Ex. C,
39-32 at 6–7, 12. Because he has disputed his authorization to participate in the program, a
genuine issue of material fact exists as to whether he was properly enrolled in the program, one
to be decided by a jury.
8
As Mr. Drena has raised a genuine issue of fact concerning whether Bank of America engaged in an unfair practice
by making unauthorized and unilateral debits from his account, the Court need not consider his second alternate
theory that Bank of America engaged in unfair conduct by failing to promptly modify his loan.
16
Second, Bank of America contends that, even after his March 5, 2010, call and after
deducting payments from his account for the escrow, Mr. Drena did not instruct Bank of
America to stop the automatic debiting of the increased escrow amounts. Def.’s Br. at 5. Because
Mr. Drena’s only viable CUTPA claim rests on Bank of America’s enrolling him in a program
without proper authorization, any legal argument premised on Mr. Drena’s failure to end his
participation in a program—and one he alleges that he did not sign up for—is beside the point.
In other words, that argument may affect Mr. Drena’s alleged damages, but it would not
undermine his claim for liability under CUTPA.
2.
Ascertainable Loss
There also is sufficient evidence in the record to allow a reasonable juror to find that the
alleged unfair practice was a substantial factor in the injury Mr. Drena alleges. “[T]o be entitled
to any relief under CUTPA, a plaintiff must first prove that he has suffered an ‘ascertainable
loss’ due to a CUTPA violation.” Collins v. Anthem Health Plans, Inc., 880 A.2d 106, 120
(Conn. 2005) (quoting Larobina v. Home Depot, USA, Inc., 821 A.2d 283, 288 (Conn. App. Ct.
2003). “For purposes of CUTPA, ‘[a]n ascertainable loss is a deprivation, detriment, [or] injury
that is capable of being discovered, observed or established.’” Larobina, 821 A.2d at 288
(quoting Serv. Rd. Corp. v. Quinn, 698 A.2d 258, 262 (Conn. 1997)). “[T]he words ‘any
ascertainable loss’ [however] . . . do not require a plaintiff to prove a specific amount of actual
damages in order to make out a prima facie case.” Id. at 288 (quoting Johnson Elec. Co. v. Salce
Contracting Assocs., Inc., 805 A.2d 735, 743 (Conn. App. Ct. 2002).
When a plaintiff, such as here, seeks money damages,
the language ‘as a result of’ in § 42–110g(a) requires a showing that
the prohibited act was the proximate cause of a harm to the plaintiff.
. . . [P]roximate cause is [a]n actual cause that is a substantial factor
in the resulting harm. . . . The question to be asked in ascertaining
17
whether proximate cause exists is whether the harm which occurred
was of the same general nature as the foreseeable risk created by the
defendant’s act.
Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 947 A.2d 320, 330 (Conn. 2008) (quotation
marks omitted) (quoting Abrahams v. Young & Rubicam, Inc., 692 A.2d 709, 712 (Conn. 1997)).
“Generally, under Connecticut law, causation is a question reserved for the trier of fact, unless ‘a
fair and reasonable person could reach only one conclusion’ that there was no causation.”
Langan v. Johnson & Johnson Consumer Companies, Inc., No. 3:13-CV-1470 (JAM), 2017 WL
985640, at *9 (D. Conn. Mar. 13, 2017) (citing Abrahams v. Young & Rubicam, Inc., 692 A.2d
709, 712 (Conn. 1997)).
There is evidence in the record to suggest that Mr. Drena’s alleged injury is “capable of
being discovered, observed or established.” Larobina, 821 A.2d at 288. The Drenas’ loan history
statement shows that the Drenas made monthly payments toward their mortgage in the amount of
$1,476.27, without an escrow balance or late charges from April 1, 2008, through February 1,
2010. Def.’s Br. Ex. A-2 at 3‒4, ECF No. 39-4. Beginning on March 1, 2010, around the same
time when Mr. Drena contacted Bank of America to inquire about the charges on his account, the
statement shows a monthly payment of $2,332.21, and an escrow balance of $855.96. Id. at 4.
Thereafter, late fees begin to accrue against the account and the escrow balance and unapplied
totals fluctuated from month to month. Id. at 4–8.
The increased charges create a genuine issue of material fact as to whether Mr. Drena
suffered an ascertainable loss. Cf. Quinn, 698 A.2d at 263–64 (recognizing that the “trier of fact
may draw reasonable and logical inferences from the facts proven,” and thus it was reasonable to
find plaintiff suffered ascertainable loss where defendant installed surveillance cameras on his
building that were visible to patrons entering exotic dance clubs owned by plaintiff, and
18
defendant’s actions “caused prospective patrons to refrain from entering the plaintiffs’
establishments”); id. at 265 (finding that “[a] loss of prospective customers constitutes a
‘deprivation, detriment [or] injury’ that is “capable of being discovered, observed or established”
(citation omitted)). Mr. Drena’s loan payment statement is sufficient at this stage—where the
Court must construe the facts in his favor—to deny summary judgment on this ground.
Bank of America seems to suggest that because Mr. Drena “rebuffed [Bank of
America’s] modification efforts . . . because he wanted a better deal,” the loss that Mr. Drena
suffered, if any, was due to Mr. Drena’s conduct. Def.’s Br. at 3. The Court disagrees. In
Larobina, the plaintiff received a written price quote for the cost of purchasing and installing
carpeting in his home. 821 A.2d at 285. Upon completion of the installation, plaintiff was
provided with a “revised quote” of a different amount than initially quoted. Id. at 286. The court
rejected the proposition that plaintiff could have simply taken back his $100 deposit and walked
away from the transaction rather than initiate a CUTPA claim. Id. at 290. The court reasoned:
Encouraging a claimant to walk away after a business has subjected
him to an unfair or deceptive act is not the aim of CUTPA. On the
contrary, CUTPA is aimed at eliminating or discouraging unfair
methods of competition and unfair or deceptive acts or practices. To
achieve that result, CUTPA seeks to create a climate in which
private litigants help to enforce the ban on unfair or deceptive trade
practices or acts. Encouraging claimants to walk away from unfair
or deceptive practices does not serve to help enforce the ban on
unfair trade practices and prevents CUTPA from achieving the
remedial effect which the legislature desired.
Id. (internal quotation marks and citations omitted). This reasoning applies with equal force here.
To require that Mr. Drena, who has alleged that Bank of America unfairly changed the terms of
his mortgage loan, accept the terms of the loan modification as offered, would “not serve to help
enforce the ban on unfair trade practices and prevents CUTPA from achieving the remedial
effect which the legislature desired.” Id.
19
For these reasons, Bank of America’s motion for summary judgment with respect to Mr.
Drena’s CUTPA claim is denied. See, e.g., Laura Laaman & Assocs., LLC v. Davis, No. 16-CV00594 (MPS), 2017 WL 5711393, at *10 (D. Conn. Nov. 27, 2017) (finding that whether
defendant did not violate CUPTA because her action were not deceptive, did not harm plaintiff,
and did not disclose proprietary information presented a genuine issue of material fact); Milso
Indus. Corp. v. Nazzaro, No. 3:08CV1026 AWT, 2012 WL 3778978, at *15 (D. Conn. Aug. 30,
2012) (finding that issues of material fact existed as to whether plaintiff’s business plan and
customer list were comprised of publically available information and as to whether defendant’s
conduct constituted unfair competition).
B.
CONNECTICUT CREDITOR’S COLLECTION PRACTICES ACT (Count
Two)
Bank of America contends that Mr. Drena has failed to show that its actions were
“abusive, harassing, fraudulent, deceptive or misleading,” Def.’s Br. at 8, as required to prove a
violation of the Connecticut Creditor’s Collection Practices Act.9 The Court agrees.
The CCPA provides a private right of action against a creditor for damages, Conn. Gen.
Stat. § 36a-648, for claims arising under Section 36a-646 of the Connecticut General Statutes.10
Weldon v. MTAG Servs., LLC, No. 3:16-cv-783 (JCH), 2017 WL 776648, at *19 n.19 (D. Conn.
Feb. 28, 2017). “The statute identifies not only who may bring an action, but the remedies
available to that person.” Dattilio v. HSBC Bank Nevada, N.A., No. CV116011573, 2012 WL
695458, at *2 (Conn. Super. Ct. Feb. 1, 2012). It provides:
A creditor . . . who uses any abusive, harassing, fraudulent,
deceptive or misleading representation, device or practice with
9
For purposes of this motion, Bank of America does not dispute that it is a “creditor” within the meaning of the
CCPA and that it “collected or attempted to collect a debt” within the meaning of the CCPA.
10
Section 36a-646 reads: “No creditor shall use any abusive, harassing, fraudulent, deceptive or misleading
representation, device or practice to collect or attempt to collect any debt.”
20
respect to any person to collect or attempt to collect a debt in
violation of section 36a-646 . . . or the regulations adopted pursuant
to section 36a-647 or 36a-809 shall be liable to such person [for]
damages . . . .
Conn. Gen. Stat. Ann. § 36a-648(a).
Regulations promulgated under the CCPA further provide that “[a] creditor shall not use
any fraudulent, deceptive or misleading representation, device or practice in connection with the
collection of any debt.” Conn. Agencies Reg. § 36a-647-6. “That regulation also provides a list
of illustrative examples of fraudulent and misleading conduct, such as falsely representing that
the creditor is bonded by a governmental entity, falsely implying that an individual is an
attorney, or representing that nonpayment may result in criminal prosecution.” Bank of New York
Mellon v. Worth, No. 3:13-CV-1489 (MPS), 2016 WL 1048742, at *10 (D. Conn. Mar. 14, 2016)
(citing Conn. Agencies Regs. §§ 36a-647-6(1)–(17)).
Mr. Drena alleges that “the means used and acts, practices and misrepresentations made
to the [Mr. Drena] in connection with [Bank of America]’s attempts to collect their debt were
abusive, deceptive and misleading.” Compl. ¶ 46, ECF No. 1. As discussed above, see infra
Section III.B.1, Mr. Drena has created a genuine issue of material fact and a reasonable jury
could infer that Bank of America enrolled him in a loan modification program without his
knowledge or authority in violation of CUTPA.
There is no evidence in the record, however, to suggest that Bank of America engaged in
“fraudulent, deceptive or misleading representation,” within the meaning of the CCPA, in the
enrollment of Mr. Drena in the loan modification program. Although Mr. Drena maintains he did
not agree to the enrollment, there are no records about what happened regarding his enrollment
from which a reasonable juror could infer that anyone at Bank of America did or said anything
fraudulent, deceptive, or misleading to Mr. Drena. See, e.g., Arias v. Gutman, Mintz, Baker &
21
Sonnenfeldt LLP, 875 F.3d 128, 136 (2d Cir. 2017) (discussing the contents of communications
in analyzing whether the communications were in violation of the Fair Debt Collection Practices
Act, a federal analog to the CCPA); Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 173 (2d
Cir. 2015) (same). For example, Mr. Drena has not offered evidence that would support an
allegation that Bank of America represented that it was “vouched for, bonded by or affiliated
with the United States,” Conn. Agencies Regs. § 36a-647-6 (1); that it “threat[ened] to take []
action that cannot legally be taken,” id. § 36a-647-6(6); or that it used “deceptive means to
collect or attempt to collect any debt,” id. § 36a-647-6(11). Indeed, Mr. Drena’s claim, one
properly plead under CUTPA, is fundamentally different from the more specific deceptive
practices that the CCPA seeks to address.
The issue here is how Bank of America revoked its waiver of escrow payments and
whether Bank of America has a practice of inducing customers to accept loan products they may
not want, the essence of Mr. Drena’s CUTPA claim, not whether Bank of America acted
fraudulently “to collect or attempt to collect [the underlying] debt.” Conn. Gen. Stat. § 36a-646.
Moreover, as discussed in more detail below, see infra Part III.C., the record demonstrates Bank
of America timely and properly reviewed the Drenas’ home mortgage loan for foreclosure
prevention options.
There is no genuine issue of disputed fact as to whether Banks of America’s conduct
violated the CCPA. Bank of America’s motion for summary judgment on this count therefore is
granted.
C.
INNOCENT MISREPRESENTATION (Count Three)
Mr. Drena also claims innocent misrepresentation. That claim is premised on the theory
that Bank of America misrepresented to him that his “loan would be timely and properly
22
reviewed for foreclosure prevention options” over a four year period. Compl. ¶ 50. An innocent
misrepresentation claim has the following elements: “(1) a representation of material fact (2)
made for the purpose of inducing [the plaintiff to act], (3) the representation is untrue, and (4)
there is justifiable reliance by the plaintiff on the representation by the defendant and (5)
damages.” Frimberger v. Anzellotti, 594 A.2d 1029, 1034 (Conn. 1991).
After drawing all reasonable inferences in Mr. Drena’s favor, he has failed to show that
there is a genuine factual dispute concerning whether Bank of America falsely represented that it
would timely and properly review the home mortgage loan for foreclosure prevention options.
Rather, the record demonstrates Bank of America timely and properly reviewed the home
mortgage loan for foreclosure prevention options by (i) reviewing Mr. Drena’s HAMP
modification requests, (ii) offering the Drenas trial period plans and a permanent loan
modification, and (iii) advising the Drenas of alternatives to foreclosure.
First, the record indicates that Bank of America promptly reviewed Mr. Drena’s HAMP
modification requests beginning with its consideration of Mr. Drena’s first HAMP modification
request on March 5, 2010. Def.’s Br., Ex. C at 8. Bank of America responded to that request two
weeks later in a letter dated March 20, 2010. Def.’s Br., Ex. A-5 at 2. The letter indicated that
Bank of America was “missing some required documents” Id. Accordingly, Bank of America
told the Drenas that it was “unable to finalize [their] Home Affordable Modification [request]
until [it] receive[d] . . . additional and/or correct and complete information” by March 30, 2010.
Id. There is no evidence in the record that Mr. Drena ever responded to that letter.
More than twelve weeks later, on June 27, 2010, Mr. Drena submitted another HAMP
modification request, Def.’s Br., Ex. A-6—a request Bank of America considered and denied.
Def.’s Br., Ex. A-8 at 2. The Drenas appealed that decision. Def.’s SMF ¶ 34. A mere two
23
months after its denial, in a letter dated February 10, 2011, Bank of America informed the
Drenas that it had considered their appeal and concluded that their home mortgage loan did not
meet the eligibility criteria for HAMP. Def.’s Br., Ex. A-9 at 2. The letter stated that the Drenas
could reapply. Id. Less than a month later, on March 2, 2011, Mr. Drena did. Def.’s Br., Ex. A10. A month later, in a letter to the Drenas dated April 2, 2011, Bank of America responded to
Mr. Drena’s request. Def.’s Br., Ex. A-11. In that letter, Bank of America—as it had in its
response letter to Mr. Drena’s first HAMP modification request—indicated that Bank of
America lacked the requisite information to verify the Drenas eligibility for HAMP and directed
the Drenas to submit the additional, requested information by May 2, 2011. Id. at 2. On May 4,
2011, Bank of America provided the Drenas until May 19, 2011, to submit the required
documents because some documents were still missing. Def.’s Br., Ex. A-12. On June 4, 2011,
presumably after the Drenas submitted the outstanding documents, Bank of America informed
the Drenas that the loan did not qualify for a HAMP modification. Def.’s Br., Ex. A-13 at 2.
Second, after the June 4, 2011 denial, over the next two years, the record shows that Bank
of America remained in communication with the Drenas concerning alternatives to foreclosure.11
Def.’s Br., Ex. A-15 (Nov. 2011); Ex. A-17 (Apr. 2012); Ex. A-19 (June 2012); Ex. A-20 (Mar.
2013); Ex. A-22 at 1 (May 2013), 11 (June 1, 2013), 20 (June 7, 2013), 29 (June 14, 2013), 38
(June 18, 2013); Ex. A-24 (July 2013); Ex. A-25 (Sept. 2013). For example, Bank of America
offered the Drenas an opportunity to permanently modify their home mortgage loan in April
2012. Def.’s Br., Ex. A-17. Under that offer, the interest rate on the home mortgage loan would
be reduced from 5.5% to 4.625%, monthly installments would decline from $1,476.06 to
11
The record indicates that Mr. Drena submitted four additional loan modification requests. Def.’s Br., Ex. A-14
(Aug. 2011); Ex. A-16 (Nov. 2011); Ex. A-18 (May 2012); Ex. A-21 (June 2013); Ex. A-23 (June 2013), ECF No.
39-25.
24
$1,251.91, and the proposed offer would capitalize $24,009.53 in delinquent interest and
delinquent escrow. Def.’s SMF ¶ 45. The Drenas, however, refused that offer. Id. ¶ 46. The
record also shows that Bank of America offered the Drenas opportunities to take a part of three
trial period plans that would modify their mortgage to lessen their financial burden. Def.’s Br.,
Ex. A-3; Ex. A-15; Ex. A-19. But, the Drenas did not accept any of those offers. Def.’s L.R.
56(a)(1) Stmt. ¶¶ 17, 43, 49.
Third, the record shows that Bank of America specifically advised the Drenas of several
alternative to foreclosure options. Def.’s Br., Ex. A-7; Ex. A-8. In a letter dated November 16,
2010, after advising the Drenas that the mortgage was in “serious default,” Bank of America
stated it “want[ed] [the Drenas] to be aware of various options that may be available . . . to
prevent foreclosure sale of the property.” Def.’s Br., Ex. A-7. Bank of America advised the
Drenas of four potential alternatives to foreclosure and encouraged the Drenas to contact Bank of
America if they were interested in pursuing any of those options. Id. at 4. Less than a month
later, on December 10, 2010, Bank of America sent another letter to the Drenas about
alternatives to foreclosure. Def.’s Br., Ex. A-8. This letter, like the November 2010 letter,
provided overviews of the alternatives and encouraged the Drenas to contact Bank of America
for more information. Id. Moreover, in a June 2011 letter, Bank of America advised the Drenas
that it was “currently reviewing [their] financial information to determine if there are other
options available to [them].” Def.’s Br., Ex. A-13.
Accordingly, because Mr. Drena has failed to raise a genuine issue of material fact as to
whether Bank of America falsely represented that his loan would be timely and properly
reviewed for foreclosure prevention options, Bank of America is entitled to summary judgment
on this claim. See Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002) (A “pro se
25
party’s bald assertions unsupported by evidence [] are insufficient to overcome a motion for
summary judgment.”); see also Mathis v. Eisner, No. CIV A 3:03CV771 (CFD), 2008 WL
4298330, at *3 (D. Conn. Sept. 17, 2008) (quoting Rodriguez).
D.
NEGLIGENT MISREPRESENTATION (Count 4)
The elements of a claim for negligent misrepresentation are: “(1) that a misrepresentation
of fact was made; (2) that the party making it knew or should have known that it was untrue; (3)
that the other party reasonably relied upon it; and (4) that the latter suffered pecuniary harm as a
result thereof.” United Rentals, Inc. v. Wagner, No. 3:07-CV-00519, 2008 WL 2167021, at *3
(D. Conn. May 22, 2008).
As with his innocent misrepresentation claim, Mr. Drena asserts that Bank of America
misrepresented that his loan would be timely and properly reviewed for foreclosure prevention
options. Compl. ¶ 54. He also claims that Bank of America used improper loan modification
criteria and made mathematical errors in assessing his financial status and unreasonably delayed
in processing his information. Comp. ¶ 24.
For the reasons discussed above, see infra Section III.B., the record does not support Mr.
Drena’s contention that Bank of America made misrepresentations concerning its review of his
loan for alternatives to foreclosure. Moreover, Mr. Drena points to no evidence in the record that
Bank of America used improper loan modification criteria or made mathematical errors in
assessing Mr. Drena’s financial status. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d
Cir. 2000) (“Unsupported allegations do not create a material issue of fact.”).
Accordingly, Bank of America’s motion for summary judgment on this count is granted.
26
E.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Count Six)
Mr. Drena alleges it was foreseeable that deducting unauthorized payments, ignoring his
repeated requests of a loan-modification, failing to process his loan modification applications,
and initiating a foreclosure would cause him emotional distress. Compl. ¶¶ 62–66. The Court
disagrees.
To prevail on a claim for negligent infliction of emotional distress, a plaintiff must show
that: “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional
distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough
that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the
plaintiff’s distress.” Carrol v. Allstate Ins. Co., 815 A.2d 119, 126 (Conn. 2003). “In negligent
infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the
precise ‘nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach
of duty might otherwise be found.’” Perodeau v. City of Hartford, 792 A.2d 752, 767 (Conn.
2002) (quoting Maloney v. Conroy, 545 A.2d 1059, 1062 (Conn. 1988)).
As set forth above, see supra Section III.B.3, the record does not support Mr. Drena’s
argument that Bank of America failed to timely review and properly process his loan
modification applications, much less that it ignored them in their entirety. Even if Mr. Drena had
shown that Bank of America was untimely in processing his loan modification applications, such
conduct does not suggest that Bank of America negligently caused Mr. Drena emotional distress.
“While [Bank of America] may have conducted a frustrating loan modification process,
particularly if it had an unsystematic process for requesting required documents . . . , this conduct
standing alone cannot create an unreasonable risk of causing severe illness or bodily harm . . . .”
27
Henderson v. Wells Fargo Bank, N.A., No. 3:13-cv-378 (JBA), 2017 WL 731780, at *8 (D.
Conn. Feb. 21, 2017).
The question then is whether the illness Mr. Drena alleges was a “foreseeable
consequence of particularly egregious conduct,” namely Bank of America’s actions or omissions
with regard to enrolling him in a loss mitigation program absent his knowledge or authorization.
Perodeau, 792 A.2d at 767. Although there is a genuine issue of fact concerning whether Bank
of America improperly debited funds from Mr. Drena’s account for escrow as a condition of a
loss mitigation program for which he had yet to submit an application for consideration, that
conduct alone does not suffice to show either that Bank of America created an unreasonable risk
of causing Mr. Drena emotional distress or that such emotional distress was foreseeable. See
Def.’s Br., Ex. C at 9.
There is nothing in the record to suggest that “a reasonable person would have suffered
emotional distress . . . that . . . might result in illness or bodily harm” because Bank of America
withdrew the waiver of escrow on the Drenas’ mortgage loan, a condition contemplated by the
Drenas’ mortgage agreement. Angiolillo v. Buckmiller, 927 A.2d 312, 321 (Conn. App. 2007)
(citing Perodeau, 792 A.2d at 768); cf. Nwachukwu v. Liberty Bank, 257 F. Supp. 3d 280, 300
(D. Conn. 2017) (finding that “[p]laintiff fail[ed] to assert facts sufficient to establish that
[defendant] Bank should have anticipated that closing [p]laintiff’s bank accounts would create in
their erstwhile depositor an emotional distress so severe that it might result in [p]laintiff suffering
illness or bodily harm,” although recognizing that plaintiff “felt irritation, coupled with the
anxiety and uncertainty” resulting from such closure); O’Neill v. Riversource Life Ins. Co., No.
3:10-cv-898 JCH, 2010 WL 3925988, at *2 (D. Conn. Sept. 29, 2010) (dismissing a claim where
28
the plaintiff failed to allege that an insurance company, in denying the plaintiff’s claim, “was
aware of any particular susceptibility on the part of plaintiff to experiencing emotional distress”).
The decision in Henderson v. Wells Fargo Bank, N.A. is instructive. No. 3:13-cv-378
(JBA), 2017 WL 731780 (D. Conn. Feb. 21, 2017). Fearing she could no longer afford her
monthly mortgage payments, the plaintiff contacted the bank to inquire about a loan
modification. Id. at *1. The bank advised her that it would review her for a HAMP loan
modification. Id. Plaintiff then defaulted on her loan and the bank initiated foreclosure
proceedings. Id. Plaintiff brought a claim of negligent infliction of emotional distress against the
bank. Id. The court found that “no reasonable jury could find that Defendant’s conduct [] created
an unreasonable risk of causing [p]laintiff emotional distress since it was entitled to prosecute its
foreclosure action, even though the foreclosure process itself is undoubtedly distressful for the
homeowner.” Id. at *8. Like in Henderson, Bank of America’s decision to revoke its wavier may
have been distressing to Mr. Drena, but no reasonable jury could find that Bank of America
created an unreasonable risk of causing Mr. Drena emotional distress because the mortgage
agreement contemplated that Bank of America was entitled revoke the waiver at its option.
Aside from his testimony, Mr. Drena has offered no evidence probative of whether a
reasonable person would have reacted as he did. Mr. Drena’s conclusory allegations are
insufficient to withstand summary judgment. See Weinstock, 224 F.3d at 41 (“Unsupported
allegations do not create a material issue of fact.”). Accordingly, Bank of America is entitled to
summary judgment on this count.
IV.
CONCLUSION
For the reasons set forth above, Bank of America’s motion for summary judgment is
GRANTED in part and DENIED in part. The CUTPA claim (count one) remains.
29
SO ORDERED this 27th day of December, 2017, at Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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