Walker et al v. Deutsche Bank National Trust Company et al
ORDER: For the reasons set forth in the attached order, Defendants' Partial Motion to Dismiss Plaintiffs' Complaint (Doc. No. 20 ) is hereby GRANTED in part and DENIED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 3/24/17. (Rafferty, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------DENNIS WALKER and SALLY O’NEAL
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY LOAN TRUST 2005-11AR, and
WELLS FARGO BANK, N.A. d/b/a
AMERICA’S SERVICING COMPANY,
Civil No. 3:16-cv-697(AWT)
ORDER RE PARTIAL MOTION TO DISMISS
For the reasons set forth below, Defendants’ Partial Motion
to Dismiss Plaintiffs’ Complaint (Doc. No. 20) is hereby GRANTED
in part and DENIED in part.
The motion is being granted with
respect to Counts Five (but with leave to replead), Eight, Nine
(but with leave to replead), Ten, Eleven (except with respect to
any cause of action arising under 12 U.S.C. § 2605(b)), Twelve
(but with leave to replead), Thirteen, and Fourteen.
is being denied with respect to Counts Two, Four, Seven and any
remaining cause of action arising under 12 U.S.C. § 2506(b).
Counts Two and Four – Good Faith and Fair Dealing
“[E]very contract carries an implied duty requiring that
neither party do anything that will injure the right of the other
to receive the benefits of the agreement.”
New Haven, 129 Conn. App. 44, 51 (2011).
Rafalko v. Univ. of
“[T]o constitute a
breach of the [implied covenant of good faith and fair dealing],
the acts by which a defendant allegedly impedes the plaintiff’s
right to receive benefits that he or she reasonably expected to
receive under the contract must have been taken in bad faith.”
Caires v. JP Morgan Chase Bank, N.A., 880 F. Supp. 2d 288, 307-08
(D. Conn. 2012) (quotation marks omitted) (quoting Landry v.
Spitz, 102 Conn. App. 34, 42 (2007)).
“Bad faith means more than
mere negligence; it involves a dishonest purpose.”
De La Concha
of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433
Bad faith in general implies [either] actual or
constructive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty or
some contractual obligation, not prompted by an honest
mistake as to one’s rights or duties, but by some
interested or sinister motive.
Habetz v. Condon, 224 Conn. 231, 237 (1992) (emphasis added)
(quoting Funding Consultants, Inc. v. Aetna Casualty & Surety Co.,
187 Conn. 637, 644 (1982)).
“A plaintiff cannot state a claim for
breach of the implied covenant simply by alleging a breach of the
contract, in and of itself.”
TD Bank, N.A. v. J & M Holdings,
LLC, 143 Conn. App. 340, 349 (2013).
Here, the plaintiffs allege not only that the defendants
“failed” to honor the first modification and second modification
agreements, but also that the defendants “refused” to honor these
See Compl. Count Two ¶¶ 20(a), (b) and (c), 21, 24,
and Count Four ¶¶ 18(a), and 21.
Also, the facts alleged with
respect to the fraudulent misrepresentation claim support an
inference that the defendants’ refusal to honor the modification
agreements was designed to mislead or deceive, and that the
defendants operated with an interested or sinister motive in their
handling of the first modification and second modification
When these factual allegations are read together with
those under Count Two and Count Four, the plaintiffs have
adequately alleged bad faith.
Accordingly, the plaintiffs have sufficiently alleged a claim
for breach of the implied covenant of good faith and fair dealing
in both Count Two and Count Four, and the motion to dismiss is
being denied as to these counts.
Counts Five and Twelve – Fraudulent Misrepresentation and Fraud
“When a party pleads fraud, the alleged fraud must be pled
with the particularity required by Rule 9(b).”
Trefoil Park, LLC
v. Key Holdings, LLC, No. 3:14-CV-364 (VLB), 2015 WL 1138542, at
*5 (D. Conn. Mar. 13, 2015).
“Rule 9(b) provides that ‘[i]n
alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.’”
Circuit, therefore, a complaint based on fraudulent acts must ‘(1)
specify the statements that the plaintiff contends were
fraudulent, (2) identify the speaker, (3) state where and when the
statements were made, and (4) explain why the statements were
Id. (quoting Mills v. Polar Molecular Corp., 12
F.3d 1170, 1175 (2d Cir. 1993)).
While “[m]alice, intent,
knowledge and other conditions of a person’s mind may be alleged
generally,” as a safeguard to a defendant’s reputation, plaintiffs
“must allege facts that give rise to a strong inference of
Id. (quoting Parola v. Citibank (South
Dakota) N.A., 894 F. Supp. 2d 188, 200 (D. Conn. 2012)).
‘strong inference of fraud’ may be established by either alleging
facts to show that a defendant had both the motive and opportunity
to commit fraud, or facts that constitute strong circumstantial
evidence of conscious misbehavior or recklessness.’”
Parola, 894 F. Supp. 2d at 200)).
Here, the defendants argue that the complaint fails to
satisfy requirements two, three and four of the heightened
pleading standard as articulated in Mills.
The plaintiffs “have
pled that ‘authorized agents, representatives, and/or employees’
of the Defendants made the representations,” which they contend
“states with enough particularity that an authorized
individual(s)/representative(s) [sic] of the Defendants allegedly
made the representations.”
Pls.’ Mem. (Doc. No. 26) 15.
the plaintiffs correctly point out that courts have permitted
reference to a company’s agents to satisfy the requirement that
the speaker be identified, see Reynolds v. Lifewatch, Inc., 136 F.
Supp. 3d 503, 523-24 (S.D.N.Y. 2015), the court need not assess
whether such a reference is sufficient with respect to the speaker
here, because the plaintiffs fail to plead the time and place with
The plaintiffs also argue the Complaint “allege[s] that the
statements were made in writing or through the mediation program
and the dates the agreements were offered and accepted.”
The court disagrees.
The Complaint does not specify
that the statements were made in writing or through the mediation
program, and even if it did, any such specification would not be
sufficient to satisfy the requirement of particularity.
example, with respect to Count Five ¶¶ 28-30 of the Complaint, the
plaintiffs do not point to where such statements appear in the
first modification agreement, and the court is unable to locate
See First Modification Agreement, Compl. Ex. 1 (Doc. No.
Nor do the plaintiffs give any indication as to when during
the mediation program the statement may have been made, whether in
writing or orally, whether in person or by telephone.
allegations in ¶¶ 31-33 are similarly insufficient, although the
second modification agreement is not attached to the Complaint,
and thus the court did not review it.
In addition, the alleged representations by the defendants to
the plaintiffs “that the Plaintiffs had to be in default in order
to modify their loan,” Compl. Count Five ¶ 38(g), would have to
have been made prior to the plaintiffs’ default, so it is not
apparent how they would have occurred “through the mediation
program,” as the plaintiffs state.
For instance, the plaintiffs
allege: “Prior to the Plaintiffs defaulting upon the Note, the
Plaintiffs contacted the Defendant, Deutsche Bank[,] to request a
modification and at that time the Defendant advised the Plaintiffs
that it would not consider a request for modification unless the
subject loan was in default.”
Compl. Count Five ¶ 34.
more, even when viewed in the light most favorable to the
plaintiffs and drawing all reasonable inferences in their favor,
such a statement is insufficient to satisfy the third requirement
as to particularity.
The defendants also argue that the plaintiffs fail to explain
how the representations were fraudulent, and thus do not satisfy
the fourth requirement as to particularity.
The court agrees with
respect to any statements or allegations related to the
“Defendants[’] incorporation of erroneous figures in the First
Modification [A]greement without the knowledge of the Plaintiffs.”
Compl. Count Five ¶ 39(c).
The plaintiffs fail to specify which
figures were false and what made them false.
statements are insufficient to satisfy the fourth requirement as
Therefore, the motion is being granted with respect to Count
Five, but with leave to replead.
Because the plaintiffs plead no
additional facts in Count Twelve, but rather incorporate by
reference the allegedly fraudulent statements from Count Five, the
motion also is being granted with respect to Count Twelve, but
also with leave to replead.
Count Seven – CUTPA
“[T]o prevail on a CUTPA claim, the plaintiffs must prove
that (1) the defendant[s] engaged in unfair or deceptive acts or
practices in the conduct of any trade or commerce . . . and [the
plaintiffs suffered] ascertainable loss of money or property as a
result of the defendant[s’] acts or practices.”
Caires v. JP
Morgan Chase Bank, N.A., 880 F. Supp. 2d 288, 299 (D. Conn. 2012)
(quoting Neighborhood Builders, Inc. v. Town of Madison, 294 Conn.
651, 657 (2010)).
In determining whether a practice violates
CUTPA, Connecticut courts:
have adopted the criteria set out in the cigarette rule by
the federal trade commission for determining when a
practice is unfair: (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 – 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 businesspersons] . . . .
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. . . . Thus
a violation of CUTPA may be established by showing either
an actual deceptive practice . . . or a practice amounting
to a violation of public policy.
Harris v. Bradley Memorial Hosp. & Health Ctr, Inc., 296 Conn.
315, 350-51 (2010) (alterations in original) (quoting Ramirez v.
Health Net of the Northeast, Inc., 285 Conn. 1, 18-19)).
Here, the defendants argue that the plaintiffs fail to state
a CUTPA claim because they “fail to articulate how any of [their]
allegations constitute unfair or deceptive trade practices.”
Defs.’ Mem. (Doc. No. 21) 13.
The court disagrees.
plaintiffs point out, the Complaint alleges the defendants’
breaches of the first and second modification agreements; practice
of advising borrowers that default on their loan is necessary to
obtain a modification of the loan; renewal of the plaintiffs’
insurance policy without contractual authority or permission from
the plaintiffs; repeated asking for documents over a six-year
period, leading the plaintiffs to believe modification was on the
horizon; and bad faith use of the mediation program.
While “[a] simple breach of contract, even if
intentional, does not amount to a violation of [CUPTA, and] a
[claimant] must show substantial aggravating circumstances
attending the breach to recover,” Emlee Equip. Leasing Corp. v.
Waterbury Transmission, Inc., 41 Conn. Supp. 575, 580 (Conn.
Super. Ct. 1991) (third alteration in original), these allegations
are sufficient to plead substantial aggravating circumstances.
The defendants also argue that the plaintiffs “fail to show
how any of this alleged conduct causes ‘substantial’ injury to
Defs.’ Mem. 14.
However, substantial harm may be a
presumed result of a number of the acts alleged by the plaintiffs,
e.g., inducement of the plaintiffs to default on a loan as a
result of the defendants’ misrepresentations, bad faith practices
with regard to the loan modification agreements, inducement of the
plaintiffs to withdraw their counterclaims in the foreclosure
action, and wrongful renewal of the plaintiffs’ insurance policy,
which satisfies this requirement.
Therefore, the motion is being denied as to Count Seven.
Count Eight – Breach of Fiduciary Duty
With respect to the plaintiffs’ claim that the defendants, as
lenders, breached a fiduciary duty to the plaintiffs, as
It is axiomatic that a party cannot breach a fiduciary
duty to another party unless a fiduciary relationship
exists between them.
[A] fiduciary or confidential
relationship is characterized by a unique degree of trust
and confidence between the parties, one of whom has
superior knowledge, skill or expertise and is under a duty
to represent the interests of the other.
Sherwood v. Danbury Hosp., 278 Conn. 163, 195 (2006) (quoting
Biller Assocs. V. Peterken, 269 Conn. 716, 723 (2004)).
Here, the plaintiffs argue that Conn. Gen. Stat. § 36a-760a,
which provides that “[l]enders and mortgage brokers shall have a
duty of good faith with respect to the performance of any contract
with a borrower relative to a nonprime home loan,” creates a
fiduciary duty between the defendants and the plaintiffs.
However, a statutory duty of good faith and fair dealing does not
create a fiduciary duty, as the two are separate and distinct
See Friedman v. Liberty Mut. Ins. Co., No. FBT-9-
CV095029084S, 2010 WL 2365449, at *3 (Conn. super. Ct. May 6,
2010) (“Though there are implied duties of good faith and fair
dealing, the ordinary business dealing, whether a consumer
transaction or not, does not establish a fiduciary
relationship . . . .”).
The plaintiffs also argue that the defendants had a fiduciary
duty to the plaintiffs because “there [wa]s a justifiable trust
confided on one side and a resulting superiority and influence on
Pls.’ Mem. 23 (quoting Southbridge Assocs., LLC v.
Garofalo, 53 Conn. App. 11, 18 (1999).
As the defendants
correctly point out, however, “[g]enerally there exists no
fiduciary relationship merely by virtue of a borrower lender
relationship between a bank and its customer.”
Assocs., LLC, 53 Conn. App. at 19 (finding no fiduciary
relationship absent evidence the lender “intended to act with [the
borrower]’s interests in mind”).
After all, “[a] lender has the
right to further its own interest in a mortgage transaction and is
not under a duty to represent the customer’s interest.”
Because the plaintiffs plead no facts beyond the defendants
“assisting and advising” the plaintiffs during the loan
modification negotiation process, which is no different than
conduct one would typically expect in a borrower-lender
relationship, the plaintiffs fail to allege facts that would
establish the existence of a fiduciary duty.
Therefore, the plaintiffs fail to state a claim for breach of
a fiduciary duty, and the motion is being granted with respect to
Count Nine – Vexatious Litigation
“[A] claim for vexatious litigation requires a plaintiff to
allege that the previous lawsuit was initiated maliciously,
without probable cause, and terminated in the plaintiff’s favor.”
Blake v. Levy, 191 Conn. 257, 263 (1983).
A plaintiff need not
“prove a favorable termination either by pointing to an
adjudication on the merits in his favor or by showing
affirmatively that the circumstances of the termination indicated
his innocence or nonliability, so long as the proceeding has
terminated without consideration.”
DeLaurentis v. New Haven, 220
Conn. 225, 251 (1999) (emphasis added).
Here, the defendants argue the plaintiffs fail to allege that
the foreclosure action, which is the basis for this claim,
terminated in favor of the plaintiffs.
The facts alleged in Count
Nine and the paragraphs incorporated by reference thereunder
include no allegation that the foreclosure action terminated in
any fashion, much less in favor of the plaintiffs.
court takes judicial notice of the Tolling Agreement and the
withdrawal of the foreclosure action as reflected on the docket
for that case, each dated March 27, 2014.
and C (Doc. Nos. 21-1, 21-2, 21-3).
See Defs. Mem. Ex. A, B
The defendants argue that the Tolling Agreement reflects a
settlement agreement between the parties, and the subsequent
withdrawal of the foreclosure action is thus not a termination in
the plaintiffs’ favor and cannot support a claim for vexatious
The court disagrees.
A review of the Tolling
Agreement reveals that the consideration supporting the agreement
does not include a dismissal or withdrawal of the action.
it appears that the impending dismissal or withdrawal of the
action was a reason the parties entered into that agreement.
Tolling Agreement, Defs.’ Mem. Ex. B (“WHEREAS the parties have
agreed that the foreclosure action including a counterclaim will
be withdrawn and/or dismissed under the Court dormancy
By its terms, the consideration for the Tolling
Agreement is that “[a]ny and all statutory, contractual, and/or
equitable limitation periods” with respect to either parties’
claims against the other will be tolled, and that neither party
will assert against the other the defenses of expiration of any
periods of limitation, nor the doctrines of laches, waiver or
Therefore, it appears that the foreclosure action did
not terminate as a result of a compromise or settlement, but
rather terminated without consideration.
Accordingly, it appears that although they have not done so,
the plaintiffs can allege facts sufficient to state a claim for
Therefore, the motion is being granted with
respect to Count Nine, but with leave to replead.
Count Ten – Invasion of Privacy
The plaintiffs contend that the defendants’ conduct falls
within the first of the four categories of invasion of privacy
recognized by the Connecticut Supreme Court: unreasonable
intrusion upon the seclusion of another.
Amorossi, 284 Conn. 225, 234 (2007).
See Foncello v.
This tort has been defined
as the “intentional invasion upon the solitude or seclusion of
another or his private affairs or concerns . . . if the intrusion
would be highly offensive to a reasonable person.” Caro v.
Weintraub, 618 F.3d 94, 100 (2010) (quotation marks omitted).
Here, the plaintiffs allege the defendants repeatedly asked
about the plaintiffs’ financial information, repeatedly asked for
documents, induced the plaintiffs to default on their loan, and
breached both modification agreements.
None of this conduct, even
when viewed in the aggregate, amounts to a highly offensive
invasion upon the seclusion of the plaintiffs’ private affairs.
First, neither the breach of contract allegations nor those
related to the inducement of default can be categorized as an
invasion of the plaintiffs’ private affairs.
elected to do business with the defendants, and even if the
defendants’ conduct was improper or wrongful, such conduct does
not constitute an invasion of the plaintiffs’ privacy.
request for financial information and documents, even if made
repeatedly, is to be expected in the course a lender-borrower
When borrowers engage in negotiations with a
lender, they should expect they will be asked to provide detailed,
private financial information as a part of the process.
even if such conduct amounts to an invasion of the plaintiffs’
private affairs, under these circumstances, it would not be highly
offensive to a reasonable person.
Therefore, the motion is being granted with respect to Count
Count Eleven – Negligence
The plaintiffs combine multiple theories of negligence, based
on statutorily created duties under 12 U.S.C. § 2605(b) and Conn.
Gen. Stat. § 36a-760a, as well as the common law duty of care.
The defendants argue that the plaintiffs fail to state a claim
because the defendants owed no duty of care to the plaintiffs.
Each theory is addressed separately.
The plaintiffs allege that the defendants did not comply with
the notice requirements set forth in 12 U.S.C. § 2605(b), and in
so doing, caused the plaintiffs harm.
This statute creates a duty
owed by mortgage loan servicers to borrowers, and it also creates
a cause of action.
See 12 U.S.C. § 2605(b)(1) (“Each servicer of
any federally related mortgage loan shall notify the borrower in
writing of any assignment, sale, or transfer of the servicing of
the loan to any other person.”); § 2605(f) (“Whoever fails to
comply with any provisions of this section shall be liable to the
borrower for each such failure . . . .”).
While it is not a
negligence claim, the plaintiffs have sufficiently pled a
violation of this statute.
The plaintiffs also claim negligence based on the defendants’
alleged breach of the duty of good faith under Conn. Gen. Stat.
§ 36a-760a (cited by the plaintiffs as Conn. P.A. 08-176 § 22(b)).
This statute imposes a duty of good faith on lenders and mortgage
brokers, which constitutes a duty of fair dealing but does not
constitute a duty of care.
See J. Walter Thompson, U.S.A., Inc.
v. First BankAmericano, 518 F.3d 128, 137 (2d Cir. 2008) (“We also
hold that the standard of ‘good faith’ [in a different but
analogous context] under the U.C.C. is one that commands a ‘duty
of fair dealing’ and not a ‘duty of care.’”).
Thus, this statute
does not impose an independent duty of care on the defendants, and
the plaintiffs fail to state a claim insofar as they rely on the
duty created by Conn. Gen. Stat. § 36a-760a.
Finally, the plaintiffs claim negligence based on the
defendants owing them a duty of care under common law.
courts have found no Connecticut common law duty of care between a
lender and a borrower in this context.
See Blanco v. Bank of
America, N.A., No. HHDCV156060162s, 2016 WL 2729319 (Conn. Super.
Ct. Apr. 19, 2016) (finding no duty of care, after extensive
analysis and review of existing caselaw, owed by a lender or loan
servicer to a borrower); Devine v. Nationstar Mortgage, LLC, No.
CV166031849s, 2016 WL 7443995 (Conn. Super. Ct. Nov. 21, 2016)
(relying largely on the analysis from Blanco); Vaccaro v. U.S.
Bank N.A., No. CV146050373s, 2016 WL 8488123 (Conn. Super. Ct.
Nov. 8, 2016) (finding no common law duty nor private cause of
action against a lender for failure to comply with the foreclosure
Therefore, the motion is being denied with respect to any
claim arising under 12 U.S.C. § 2605(b), and granted with respect
to all other claims in Count Eleven.
Count Thirteen – Slander of Title
“A cause of action for slander of title consists of the
uttering or publication of a false statement derogatory to the
plaintiff’s title, with malice, causing special damages as a
result of diminished value of the . . . property in the eyes of
Gilbert v. Beaver Dam Ass’n of Stratford, Inc.,
85 Conn. App. 663, 672-73.
“Special damage has a technical
meaning when used in respect to pleading . . . . Special damages
are [those] which the law does not necessarily imply that the
plaintiff has sustained from the act complained of.”
Mortgage, LLC v. Tornheim, No. CV096001296, 2010 WL 1551332 (Mar.
With respect to the requirement that the defendants publish a
false statement derogatory to the plaintiffs’ title, the
plaintiffs allege that Deutsche Bank “falsely published in the
land records that Plaintiffs owed money on the lien,” but the
plaintiffs do not allege facts that show that that statement was
Rather, they allege only that the defendants were not able
to establish the amounts due on the loan.
With respect to the
requirement that the false statement be uttered or published with
malice, the plaintiffs allege no facts that would establish
malice, but rather merely that the foreclosure was wrongful and
that a lis pendens was filed reflecting the foreclosure status of
Finally, with respect to the requirement that the uttering or
publication of a false statement have caused special damages, the
plaintiffs merely allege that the clouded title “has resulted in
pecuniary loss for Plaintiffs.”
Compl. Count Thirteen ¶ 20.
plaintiffs argue that “[i]t is certainly plausible that pecuniary
damages were incurred,” and “[d]iscovery will flesh out the
evidence to further support” this claim.
Pls.’ Mem. 34-35.
However, any facts tending to show that the plaintiffs suffered
such special damages should come from information that is within
their control, and making such a conclusory allegation is not
sufficient to satisfy this requirement.
Therefore, the motion is being granted with respect to Count
Count Fourteen – Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional
distress, the plaintiff must plead facts showing:
(1) that the actor intended to inflict the emotional
distress, or that he knew or should have known that
emotional distress was a likely result of his conduct; (2)
that the conduct was extreme and outrageous; (3) that the
defendant’s conduct was the cause of the plaintiff’s
distress; and (4) that the emotional distress sustained by
the plaintiff was severe.
Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000).
defendant’s conduct satisfies the requirement that it be extreme
and outrageous is initially a question for the court to decide.
“Liability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Carrol v. Allstate Ins. Co., 262 Conn. 433, 443 (2003).
The plaintiffs allege or assert facts that state or could
state claims for breach of contract and acting in bad faith in
violation of the implied covenant of good faith and fair dealing,
engaging in unfair trade practices, engaging in vexatious
litigation, and violation of a statutory duty imposed upon
mortgage servicers under 12 U.S.C. 2605(b).
In Count Fourteen,
they then recite the facts or allegations that support these
claims, and in addition, allege that “[t]he actions described
herein constitute extreme and outrageous conduct in that the
actions offend public policy, are immoral, unethical, and
Compl. Count Fourteen, ¶ 46.
As recognized in
Parker v. Bank of Am., N.A., “[d]ealing with a large financial
institution can be enormously frustrating at times, and is
doubtless especially distressing if one’s home is at stake.”
11-1838, 2011 WL 6413615, at *13 (Super. Ct. Mass. Dec. 16, 2011).
Taking the plaintiffs’ factual allegations here as true, the
defendants’ conduct went beyond frustrating the borrower, and
included actions taken maliciously and in bad faith, as well as
actions that offend public policy and are immoral and unethical.
But although the plaintiffs allege in conclusory fashion that the
defendants engaged in conduct that was “intolerable,” they do not
identify any specific act or acts that constitute intolerable
The specific acts the plaintiffs do identify fall short
of constituting conduct that is utterly intolerable in a civilized
society, so such a conclusory assertion with respect to
intolerable conduct is not sufficient, and the plaintiffs have
failed to allege extreme and outrageous conduct.
v. Schenck, No. 3:14-CV-1704(MPS), WL 2016 777901, at *8 (D. Conn.
Feb. 29, 2016) (holding allegations that defendant waived gun in
plaintiff’s face, stated he did not care if plaintiff police
officer was safe while on duty and told plaintiff during a meeting
attended by numerous employees that plaintiff’s wife was having an
affair with the police captain, were sufficient to plead extreme
and outrageous conduct) and Schofield v. Magrey, 2015 WL 521418
(D. Conn. Feb. 9, 2015) (holding sufficiently outrageous police
officers’ conduct in entering plaintiff’s home, forcing him to
receive unwanted medical treatment, disregarding signs he was not
in medical distress, and using excessive force in furthering an
unlawful seizure), with Carrol, 262 Conn. 433, 439-445 (holding
insurance company’s conduct -- inaccurate determination that the
plaintiff committed arson based on an incomplete investigation and
racial animus, and numerous requests for information from the
plaintiff which bordered on harassment –- was not extreme and
The court notes that in a number of cases where the facts are
similar to those alleged here by the plaintiffs, courts have also
concluded that the plaintiff(s) fail to allege conduct that was
extreme and outrageous.
See Justo v. Indymac Bancorp, No. SACV
09-1116 JVS (AGRx), 2010 WL 623715 (C.D. Cal Feb. 19, 2010)
(lenders repeatedly promise plaintiffs qualification for loan
modification programs, plaintiffs repeatedly submit personal and
financial information, and lenders repeatedly fail to respond);
Echeverria v. BAC Home Loans Servicing, LP 900 F. Supp. 2d 1299
(M.D. Fla. (2012) (lenders tell mortgagors they pre-qualify for
loan modification, then deny their request to modify); Keane v.
Countrywide Home Loans, Inc., No. 10-10751, 2011 WL 870782 (D.
Mass. Mar. 11, 2011) (lender provides documents prepared in a
language mortgagor could not understand and does not verify her
self-reported income); Parker v. Bank of Am., N.A., No. 11-1838,
2011 WL 6413615 (Mass. Super. Dec. 16, 2011) (lender tells
mortgagor she cannot modify loan because she is not in default,
repeatedly loses her paperwork, requires her to submit and
resubmit documents, and promises to send paperwork that is never
The conduct alleged by the plaintiffs is no more
egregious than that alleged in any of the above cases, all of
which fell short of pleading extreme and outrageous conduct.
Therefore, the motion to dismiss is being granted with
respect to Count Fourteen.
It is so ordered.
Signed this 24th day of March, 2017, at Hartford, Connecticut.
____/s/ AWT __________________
Alvin W. Thompson
United States District Judge
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