Bailey v. Interbay Funding, LLC et al

Filing 122

ORDER granting 106 Motion for Summary Judgment. The Clerk of Court is respectfully directed to close this case.Signed by Judge Victor A. Bolden on 1/21/2020. (Leon, Noel)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DAVID BAILEY,
Plaintiffs,
No. 3:17-cv-1457 (VAB)
v.
INTERBAY FUNDING, LLC, ET AL,
Defendants.

RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
David Bailey (“Plaintiff”) originally sued Interbay Funding, LLC, Bayview Loan
Servicing, LLC, and Bayview Asset Management, LLC (collectively, “Defendants”), along with
a third defendant subsequently dismissed from the case, on August 29, 2017.
Mr. Bailey’s claims arose out of the appraisal of a mixed-use property purchased in 2006
and the property’s later foreclosure in 2014. Although these claims were dismissed on April 4,
2018, Mr. Bailey was granted leave, “one more time,” to file an amended complaint. Mr. Bailey
filed a Fourth Amended Complaint on June 5, 2018, consisting of one fraud claim against
Defendants. The parties engaged in discovery, and Defendants filed a motion for summary
judgment on June 14, 2019.
For the following reasons, Defendants’ motion for summary judgment is GRANTED.

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I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Allegations1

In 2005, Kelly B. Moye owned the property at 607-611 Washington Avenue, New
Haven, CT (“the Property”). Defs.’ Statement of Material Fact ¶ 1-4, ECF No. 106-2 (June 14,
2019 (“Defs.’ SOMF”). At some point, Mr. Bailey learned through a family friend about the
possibility of purchasing the Property.2 Id. ¶ 1.
On or about May 26, 2005, Joseph Walters at W&A Mortgage Group retained Blue
Ribbon to conduct a valuation of the Property as part of its potential sale from Mr. Moye to Mr.
Bailey. Defs.’ SOMF Ex. 2, ECF No. 106-3 (Liberti Decl. ¶ 4-5); Defs.’ SOMF Ex. 2-1, ECF
No. 106-4 (Blue Ribbon Appraisals Invoice (May 26, 2005) (showing that Mr. Moye paid the
invoice for Commercial Appraisal of a Mixed Use Property at 609 Washington Avenue, New
Haven, CT, on June 1, 2005)).
On May 31, 2005, Mr. Liberti, the owner of Blue Ribbon, prepared an Appraisal Report
for the Property and estimated its market value as $295,000. Defs.’ SOMF Ex. 2-2, ECF No.
106-5 (Liberti Appraisal Report (May 31, 2005)). Id. The report reflects that Mr. Walters of the

The District of Connecticut’s Local Rule 56(a) requires that a non-moving party’s Statement of Material Facts in
Opposition to Summary Judgment “shall include . . . a response to each paragraph admitting or denying the fact
and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c).” D. Conn. L. Civ. R. 56(a)2(i).
Furthermore, “[e]ach denial . . . must be followed by a specific citation to (1) the affidavit of a witness competent to
testify as to the facts at trial, or (2) other evidence that would be admissible at trial.” Id. 56(a)3. “When a party fails
to appropriately deny material facts set forth in the movant’s Rule 56(a)(1) statement, those facts are deemed
admitted.” SEC v. Global Telecom Servs. L.L.C., 325 F. Supp. 2d 94, 109 (D. Conn. 2004).
1

Mr. Bailey did not submit a Local Rule 56(a)2 Statement of Fact, but rather submitted a Declaration responding to
Defendants’ Statement of Fact. Even if this Declaration were treated as a Local Rule 56(a)2 Statement of Material
Fact, it fails to comply with the Local Rules’ requirements and fails to cite record evidence. The Court therefore
deems the Defendant’s Local Rule 56(a)1 Statement to be admitted for purposes of this motion. The Court will not
rely, however, on Defendants’ assertions if they are unsupported by admissible evidence in the record.
2

Mr. Bailey stated during his deposition that he could not remember exactly when he learned about the possibility
of purchasing the Property, but that it could have been in 2005. Defs.’ SOMF Ex. 1, ECF No. 107 (Bailey Dep.
27:6-28:11).

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W&A Mortgage Group—the Lender—had requested the appraisal for the Borrower/Client
“Bailey.” Id.
“On November 3, 2005, Mr. Bailey first submitted a loan application to Interbay to
secure financing for the purchase of the Property from [Mr.] Moye.” Defs.’ SOMF ¶ 9; Defs.’
SOMF Ex. 4-A, ECF No. 106-8 (Loan Details & Memo)). At some later point, Mr. Bailey signed
a Real Estate Purchase and Sale Agreement to purchase the Property from Mr. Moye for
$285,000. Defs.’ SOMF Ex. 4-B, ECF No. 106-9 (Real Estate Purchase and Sale Agreement)
(“First Purchase and Sale Agreement”). By November 21, 2005, however, Mr. Bailey decided
not to purchase the Property and withdrew his loan application. Loan Details & Memo.
On January 5, 2006, Premier 1 Mortgage submitted a Uniform Residential Loan
Application (the “Second Loan Application”) to Interbay for the Property on behalf of David
Bailey, reflecting a purchase price of $285,000. Defs.’ SOMF Ex. 4-C, ECF No. 106-10
(Uniform Residential Loan App. (Jan. 5, 2006)). Mr. Bailey later signed a fee agreement, stating:
“I engaged Premier 1 Mortgage Company as my agent and broker for obtaining a loan
commitment” for the Property, and agreeing to pay Premier 1 Mortgage Company $5,265 for its
services. Defs.’ SOMF Ex. 5, ECF No. 106-23 (Fee Agreement (Feb. 23, 2006)). “As part of the
loan origination process, Interbay ordered an appraisal of the property.” Defs.’ Ex. 4, ECF No.
106-7 (Piedra Decl. on behalf of Interbay ¶ 9) (“Interbay Decl.”).
On January 10, 2006, Mr. Bailey signed a fee authorization form authorizing the credit
card of Sherry J. Bailey for payment of an upfront appraisal processing fee for the Property.
Defs.’ SOMF Ex. 4-E, ECF No. 106-12 (Upfront Appraisal Processing Fee Disclosure &
Payment Authorization).

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“On January 23, 2006, Mercury Real Estate Services (‘Mercury’) was engaged to
appraise the Property, which appraisal was completed on February 3, 2006.” Interbay Decl. ¶ 10.
Mercury appraised the property at $257,000. Id. ¶ 11. After the appraisal, Interbay “conducted an
internal review of the appraisal.” Id. ¶ 19; Defs.’ SOMF Ex. 4-G, ECF No. 106-15 (Internal
Interbay Appraisal Review Form (Feb. 8, 2006)). As part of the underwriting process, Interbay
reviewed and summarized the Mercury appraisal in a Real Estate Summary which was created
on February 21, 2006. Interbay Decl. ¶ 14; Defs.’ Ex. 4-H, ECF No. 106-15 (Real Estate Summ.
(Feb. 21, 2006)).
Interbay “did not review or rely upon any appraisal from Blue Ribbon Appraisals, LLC at
any time during the loan origination process relating to the Second Loan Application.” Interbay
Decl. ¶ 24.
On February 16, 2006, Mr. Bailey executed a statement: “I, David Bailey, do accept as
the final price for the property located at 609-611 Washington Avenue New Haven, CT 06511 at
$257,000. This is the appraised value of the property.” Defs.’ Ex. 4-I, ECF No. 106-16 (Feb. 16,
2006) (“Statement Accepting Appraised Value”).
On February 28, 2006, Mr. Bailey and Mr. Moye executed a new Real Estate Purchase
and Sale Agreement, wherein Mr. Bailey agreed to purchase the Property for $257,000. Defs.’
Ex. 4-J, ECF No. 106-17 (Real Estate Purchase and Sale Agreement Feb. 28, 2006) (“Second
Purchase and Sale Agreement”). The Agreement states that “Buyer represents that Buyer has
examined the property and is satisfied with the physical condition . . . . Neither Seller nor any
representative of the Seller or Buyer has made any representation or promise other than those
expressly stated herein which Buyer has relied upon in making this Agreement.” Id. ¶ 8.

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Mr. Bailey testified that he never requested nor viewed a copy of an appraisal before
applying for a loan to purchase the property. Bailey Dep. ¶¶ 35:21-36:4. 37:12-14; 57:24-59:24;
145:9-20.
On March 6, 2006, Mr. Bailey purchased the Property for $257,000, entering a mortgage
and security agreement with Interbay as the Lender. Defs.’ SOMF Ex. 4-N, ECF No. 106-21
(Open-End Mortgage Deed and Security Agreement (Mar. 6, 2006)) (“the Mortgage”). Mr.
Bailey signed a loan application and promissory note from Interbay to borrow $205,600. Defs.’
SOMF Ex. 4-K, ECF No. 106-18 (Uniform Residential Loan App. (Mar. 6, 2006)) (“Third Loan
Application”); Defs.’ SOMF Ex. 4-M, ECF No. 106-20 (Adjustable Rate Promissory Note (Mar.
6, 2006)) (“Promissory Note”). Under the terms of the Promissory Note, Mr. Bailey agreed to
make monthly payments of $2,284.00. Promissory Note.
On August 28, 2006, Interbay assigned the Mortgage to Bayview. Defs.’ Ex. 8-C, ECF
No. 106-30 (Assignment of Mortgage (Aug. 28, 2006)).
By September 24, 2008, Mr. Bailey had allegedly defaulted on the terms of the
Promissory Note. Defs.’ SOMF Ex. 8, ECF No. 106-27 (Trueba Decl. on behalf of Bayview ¶ 7)
(“Bayview Decl.”). To cure the default, Mr. Bailey entered into a Stipulation Agreement and
Loan Adjustment Agreement, which required an initial payment and several subsequent trial
payments. Defs.’ Ex. 8-D, ECF No. 106-31 (Stipulation Agreement (Sept. 24, 2008)) (“2008
Agreement”). Mr. Bailey made several payments, and on or about January 9, 2009, his loan was
permanently modified in accordance with the 2008 Agreement. Bayview Decl. ¶ 9-10.
On June 7, 2009, Mr. Bailey sent Bayview a hardship letter seeking another loan
modification, noting that the New Haven “department of zoning and permit office” had closed
four out of the six units in the building and required him to perform major upgrades to the

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building. Bayview Decl. ¶ 14; Defs.’ Ex. 8-E, ECF No. 106-32 (Hardship Letter (June 7, 2009))
(“2009 Hardship Letter”).
On October 19, 2010, Mr. Bailey sent Bayview another hardship letter requesting another
loan modification, stating that he “unknowingly inherited the poor conditions of this property,”
and that he “had to spend an excessive amount of [his] household savings on the rehab of this
property, to get the building up to state code.” Defs.’ Ex. 8-F, ECF No. 106-33 (Hardship Letter
(Oct. 19, 2010)) (“2010 Hardship Letter”).
On October 28, 2010, Mr. Bailey entered into another Stipulation Agreement and
Modification Agreement to cure another default on the Note and Mortgage. Bayview Decl. ¶ 24;
Defs.’ Ex. 8-G, ECF No. 106-34 (Stipulation Agreement (Oct. 28, 2010)) (“2010 Agreement”).
Under this Agreement, Mr. Bailey again agreed to make an initial down payment followed by
several trial payments. Bayview Decl. ¶ 25-26. Mr. Bailey made several payments, after which
his loan was permanently modified in accordance with the 2010 Agreement. Id. ¶ 26-27.
“On or around June 29, 2011, Bayview received a check for $43,011.24 from Western
World Insurance company as the result of an insurance claim submitted by [Mr. Bailey.]” Id. ¶
28. Mr. Bailey was working with a contractor to conduct roof repairs. Id. ¶ 29-30. “On December
13, 2011, Bayview’s inspector verified that the repairs to the Property were completed and the
remaining insurance proceeds were disbursed to [Mr. Bailey].” Id. ¶ 32.
On January 7, 2013, Mr. Bailey sent another hardship letter to Bayview requesting a loan
modification due to “the major down turn in our countries [sic] economy, loss of employment,
and all the new renovations I had to complete over the years.” Defs.’ Ex. 8-H, ECF No. 106-35
(Hardship Letter (Jan. 7, 2013)) (“2013 Hardship Letter”). Mr. Bailey had allegedly defaulted on
the Mortgage and Promissory Note. Bayview Decl. ¶ 33-34. To cure the default, Bayview

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offered another Stipulation Agreement and Loan Adjustment Agreement, which Mr. Bailey
signed on January 28, 2013. Id. ¶ 34; Defs.’ Ex. 8-I, ECF No. 106-36 (Stipulation Agreement
(Jan. 28, 2013)) (“2013 Agreement”).
On April 27, 2014, Mr. Bailey sent another hardship letter to Bayview requesting a loan
modification and reduction of his loan principal based on “loss of employment and all the
MAJOR renovational [sic] cost that we had to pay for and are currently paying for.” Defs.’
SOMF Ex. 3, ECF No. 106-6 at 18 (Hardship Letter (Apr. 27, 2014)) (“2014 Hardship Letter”).
Mr. Bailey wrote:
The [P]roperty was very old and in need of basically total rehab,
before we purchased it. Not to mention the fact that the Real Estate
Market Property Values have totally crashed in New Haven,
Connecticut! Case in point, the [P]roperty was recently appraised
and that appraisal came in at[] $95.000.00.
Id. On June 4, 2014, Mr. Bailey “asked a Bayview representative to reconsider his principal
reduction loan modification that was denied.” Bayview Decl. ¶ 37.
Mr. Bailey allegedly “spoke with Paul Petti, an asset manager at Bayview, multiple times
between June 2014 and May 2017 regarding possible loss mitigation options to resolve his
default on the [Promissory] Note and Mortgage.” Id. ¶ 38. Mr. Bailey and Mr. Petti had several
conversations between June 2014 and October 2014 discussing loss mitigation options, during
which Mr. Bailey stated that he had borne the cost of numerous repairs on the building. Id. ¶ 3944. Mr. Bailey also learned that “he had three previous [loan] modifications that he breached and
that his [new loan] application was likely going to be denied.” Id. ¶ 42. Mr. Bailey stated in
response that he had “bought a building and they told [him] in the appraisal that it was good to
go . . . and come to find out after all these years” that he had to make repairs to the building and
move some of the tenants to a hotel. Id.

7

On October 27, 2014, the Connecticut Superior Court entered a judgment of strict
foreclose against Mr. Bailey as to the Property, finding that Mr. Bailey owed a debt of
$254,187.09 plus fees. Defs.’ SOMF Ex. 7, ECF No. 106-26 (Order, Bayview Loan Serv. v.
Bailey, NNI-CV-146007566-S (Conn. Super. Ct. Oct. 27, 2014)) (“Foreclosure Judgment”).
B.

Procedural History

On August 29, 2017, David Bailey sued Interbay Funding, LLC (“Interbay”); Bayview
Loan Servicing, LLC, and Bayview Asset Management, LLC (collectively “Bayview”); and Blue
Ribbon Appraisals, LLC (“Blue Ribbon”). Compl., ECF No. 1 (Aug. 29, 2019). Mr. Bailey
alleged the violation of various federal and state statutes as well as that Defendants had engaged
in common law civil conspiracy. See Compl.
Over the next few months, Mr. Bailey moved to amend his Complaint, and Defendants
moved to dismiss, several times. See Mot. to Dismiss, ECF No. 23 (Oct. 30, 2017); Mot. to
Dismiss, ECF No. 24 (Oct. 30, 2017); Am. Compl., ECF No. 31 (Nov. 20, 2017) (adding a fraud
count); Second Am. Compl., ECF No. 33 (Nov. 21, 2017) (modifying factual allegations); Third
Am. Compl., ECF No. 42 (Dec. 4, 2017) (seeking to add factual allegations and an additional
fraud count); Mot. to Dismiss, ECF No. 44 (Dec. 7, 2017); Mot. to Dismiss, ECF No. 47 (Jan. 4,
2018); Fourth Mot. to Am./Correct, ECF No. 58 (Mar. 2, 2018) (seeking to add a count of breach
of oral contract); Fourth Mot. to Am./Correct, ECF No. 60 (Mar. 2, 2018).
On April 4, 2018, the Honorable Judge Janet C. Hall granted Defendants’ motion to
dismiss the Third Amended Complaint. Ruling on Mot. to Dismiss, ECF No. 64 (Hall, J.) (Apr.
4, 2018), available at 2018 WL 1660553. Judge Hall found that Mr. Bailey’s fraud and civil
conspiracy claims, and his CUTPA claim based on the appraisal, were barred by the statute of
limitations, id. at 8-11, 26-27; he had not alleged facts sufficient to meet the heightened pleading

8

standards required for equitable tolling of the statute of limitations for fraud claims, id. at 8-11;
he had failed to adequately plead “intentional misrepresentation” by Blue Ribbon, id. at 12; his
claim related to loan modification was barred by res judicata, id. at 21; and his fraud and CUTPA
claims were barred by litigation privilege to the extent they were based on “communications
made by counsel for Bayview Loan Servicing, LLC, in the course of the foreclosure litigation,”
id. at 27-30. Judge Hall also denied Mr. Bailey’s fourth motion to amend his complaint because
the request for relief is, in effect, a request that this court “review
and reject the judgment” of the Connecticut Superior Court in the
foreclosure action, because this court could not enforce the alleged
oral contract without vacating the foreclosure judgment. Therefore,
the Rooker-Feldman doctrine bars the court from granting the relief
[Mr.] Bailey seeks.
Id. at 31-32 (citing Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir.
2014)).
Judge Hall also noted that, “even construing the proposed breach of oral contract claim as
a claim for money damages, the proposed claim is barred by res judicata.” Id. at 32. Judge Hall,
however, granted Mr. Bailey permission to replead, “one more time,” the fraud and civil
conspiracy counts against Defendants, “if he can allege—with particularity—that [Defendants]
committed fraud with respect to the appraisal and fraudulently concealed their actions such that
the statute of limitations is tolled sufficiently.” Id. at 33. Judge Hall required further, with respect
to Blue Ribbon, that Mr. Bailey allege with particularity “that the appraisal contained
‘intentional misrepresentations.’” Id.
Judge Hall set a deadline of April 25, 2018, for Mr. Bailey to file amended pleadings. Set
Deadlines/Hearings (Apr. 4, 2018). Mr. Bailey subsequently requested and received two
extensions of time to file amended pleadings. See ECF Nos. 65-68 (Apr. 23, 2018 through May

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25, 2018). Judge Hall noted that Mr. Bailey’s second motion for extension of time “is reluctantly
granted,” and stated further:
In the future, counsel should be aware that the court intends to deny
any Motion to Extend filed by plaintiff’s counsel that fails to comply
with Local Rule 7(b) (inquire of/state opposing counsel’s position,
file any motion for extension at least 3 days before deadline expires).
Further, good cause is required to extend a deadline and the court
wonders what counsel did in this matter after his trial ended (April
27) and when he fell ill (~May 9).
Order, ECF No. 68 (Hall, J.) (May 25, 2018).
Nevertheless, Mr. Bailey filed a third motion for extension of time to replead. Third Mot.
for Extension of Time, ECF No. 69 (May 29, 2018). Judge Hall did not rule on that motion, but
on June 5, 2018, Mr. Bailey submitted a fourth amended complaint. Am. Compl., ECF No. 70
(June 5, 2018) (“Fourth Am. Compl.”). Judge Hall retroactively granted Mr. Bailey’s motion for
extension of time to replead. Order, ECF No. 71 (June 6, 2018).
Mr. Bailey’s Fourth Amended Complaint consisted of a single count of fraud against
Interbay and the Bayview Defendants. Fourth Am. Compl. He withdrew all claims against Blue
Ribbon. Id.
On July 2, 2018, the remaining Defendants filed an Answer with Affirmative Defenses
to the Fourth Amended Complaint. Answer, ECF No. 77 (July 2, 2018).
On October 1, 2018, Judge Hall entered a text entry onto the docket directing the parties
to file a joint 26(f) scheduling report within fourteen days. Not. to Counsel, ECF No. 78 (Oct. 1,
2018). Judge Hall noted that the court had denied a motion for extension of time to file the 26(f)
report on November 27, 2017,
Ten months have passed, the Motions to Dismiss were decided on
[April 4, 2018], and still a joint 26(f) Report has not been filed. . .
Given the age of this case and the motion practice thus far, the court

10

expects that discovery is well underway and proposed deadlines
should reflect as much.
Id.
On October 15, 2018, the parties filed a joint 26(f) report. Report of Rule 26(f) Planning
Meeting, ECF No. 79 (Oct. 15, 2018).
On October 18, 2018, Mr. Bailey filed a fifth motion to amend/correct his complaint.
Mot. for Leave to File Am. Compl., ECF No. 83 (Oct. 18, 2018). Mr. Bailey sought to add a
claim for breach of oral contract and promissory estoppel against Defendants, arguing that the
Fourth Amended Complaint already contained the factual allegations to support these claims, but
that “counsel inadvertently left” out the breach of oral contract claim, and that “[c]ounsel simply
needs to clarify the elements of those claims.” Id. Judge Hall denied Mr. Bailey’s motion to
amend during a scheduling conference held on October 24, 2018. Minute Entry, ECF No. 87
(Oct. 24, 2018). Judge Hall also noted that “the court does not expect to grant further
extensions.” Id.
On June 14, 2019, Defendants filed a motion for summary judgment. Mot. for Summ. J.,
ECF No. 106 (June 14, 2019). In support of their motion. Defendants submitted a memorandum
of law, Mem. in Supp. of Mot. for Summ. J., ECF No. 106-1 (June 14, 2019) (“Defs.’ Mem.”);
and a statement of material facts, Defs.’ SOMF.
On July 25, 2019, after requesting two extensions of time and being granted one, see ECF
Nos. 108-110; Mr. Bailey filed an objection to Defendants’ motion for summary judgment, Obj.,
ECF No. 111 (July 25, 2019) (“Pl.’s Obj.”). In support of his motion, Mr. Bailey attached two
identical “Declaration[s] of David Bailey.” Bailey Decl., ECF No. 111 at 7-22 (July 25, 2019).
On the same day, Judge Hall granted nunc pro tunc Mr. Bailey’s second motion for extension of
time. Order, ECF No. 112 (July 25, 2019).

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On August 2, 2019, Defendants filed a response to Mr. Bailey’s objection to the motion
for summary judgment. Resp. re Obj., ECF No. 113 (Aug. 2, 2019) (“Defs.’ Resp.”).
On September 5, 2019, the case was reassigned to this Court. Order of Transfer, ECF No.
114 (Sept. 5, 2019).
II.

STANDARD OF REVIEW
A motion for summary judgment will be granted if the record shows no genuine issue 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 initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving party may
defeat the motion by producing sufficient specific facts to establish that there is a genuine issue
of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Id. at 247–48. The moving party may satisfy this burden by
pointing out to the district court an absence of evidence to support the nonmoving party’s case.
See PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).
When a motion for summary judgment is supported by documentary evidence and sworn
affidavits and “demonstrates the absence of a genuine issue of material fact,” the nonmoving
party must do more than vaguely assert the existence of some unspecified disputed material facts
or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra
Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). The party opposing the
motion for summary judgment “must come forward with specific evidence demonstrating the
existence of a genuine dispute of material fact.” Id.; see also Atkinson v. Rinaldi, 3:15-cv-913

12

(DJS), 2016 WL 7234087, at *1 (D. Conn. Dec. 14, 2016) (holding nonmoving party must
present evidence that would allow reasonable jury to find in his favor to defeat motion for
summary judgment).
The court must view any inferences drawn from the facts in the light most favorable to
the party opposing the summary judgment motion. See Dufort v. City of New York, 874 F.3d 338,
343 (2d Cir. 2017). Conclusory allegations or denials will not be credited. See Brown v. Eli Lilly
& Co., 654 F.3d 347, 358 (2d Cir. 2011). After drawing all inferences in favor of the nonmoving party, if the court finds that no reasonable trier of fact could find in the non-movant’s
favor and the moving party is entitled to judgment as a matter of law, the court will grant the
summary judgment motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587–88 (1986).
III.

DISCUSSION
In Connecticut, fraud is subject to a three-year statute of limitations. Conn. Gen. Stat. §

52-577 (“No action founded upon a tort shall be brought but within three years from the date of
the act or omission complained of.”). Section 52-577 is a statute of repose, which means that the
applicable period for the statute of limitations begins on “the date of the act or omission
complained of, not the date when the plaintiff first discovers an injury.” Byrne v. Burke, 112
Conn. App. 262, 272 (2009); see Kidder v. Read, 150 Conn. App. 720, 726–27 (2014).
“[U]nder Connecticut law[,] fraudulent concealment for purposes of the tolling statute is
consistently treated as akin to other forms of fraud, with similar requirements of proof.”
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 422 (2d Cir. 1999)
(citing Puro v. Henry, 188 Conn. 301, 308 (1982) (observing, in a discussion of fraudulent
concealment, the general rule that “[f]raud is not to be presumed, but must be strictly proven.

13

The evidence must be clear, precise, and unequivocal”)). The plaintiff bears the burden of
proving fraudulent concealment for purposes of tolling the statute of limitations. UCF I Tr. 1 v.
Berkowitz, Trager & Trager, LLC, No. 3:17-CV-1325 (VAB), 2019 WL 1430105, at *7 (D.
Conn. Mar. 29, 2019) (“‘To establish that the [defendant] had fraudulently concealed the
existence of [her] cause of action and so had tolled the statute of limitations, the [plaintiff] had
the burden of proving that the [defendant was] aware of the facts necessary to establish this cause
of action . . . and that [he] had intentionally concealed those facts from the [plaintiff].’” (quoting
Connell v. Colwell, 214 Conn. 242, 250 (1990))).
To prove fraudulent concealment, a plaintiff must prove that the defendants were actually
aware of the facts necessary to establish the cause of action, and that they intentionally concealed
those facts from the plaintiff with the very purpose of delaying the plaintiff from filing an action.
Gibbons v. NER Holdings, Inc., 983 F. Supp. 310, 316 (D. Conn. 1997) (citing Bound Brook
Ass’n v. Norwalk, 198 Conn. 660, 665-66 (1986); Bartone v. Robert L. Day Co., Inc., 232 Conn.
527 (1995)).
Mr. Bailey claims that Defendants committed fraud by “induc[ing him] to purchase the
ruined building with a fake appraisal and to get a loan that Defendants knew would likely fail.”
Fourth Am. Compl. ¶ 59. He alleges that Defendants “used an old appraisal with a date of March
2005 . . . and edited the names and information about the purchaser and the bank to be [Mr.
Bailey] . . . thereby[] misleading [Mr. Bailey] and committing mortgage fraud by creating [a]
fake appraisal because the appraisal contained intentional misrepresentations.” Id. ¶ 16. Mr.
Bailey alleges that Defendants and their agents “acted in such a way so as to prevent [him] from
seeing and reviewing the appraisal before closing.” Id. ¶ 20-21. He also alleges that he relied on
Defendants’ representations about the appraisal when he purchased the Property. Id. ¶ 10-14.

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Defendants argue that because Mr. Bailey’s “claim is premised on the allegedly
erroneous appraisal and building inspection report” whose contents were communicated to Mr.
Bailey before or at the time of his closing on the Property on March 6, 2006, but he did not file
this lawsuit until August of 2017, his claim is barred by the statute of limitations on fraud. Defs.’
Mem. at 12.
Mr. Bailey argues that the statute of limitations may be tolled in this case because
Defendants concealed the allegedly fraudulent appraisal, which allegedly contained “the truth
about the original condition of [the P]roperty at the time of his purchase[],” with “the purpose of
de[la]ying the Plaintiff from commencing a lawsuit,” Fourth Am. Compl. ¶ 43.
Defendants argue that the Court should reject Mr. Bailey’s argument for tolling the
statute of limitations because he “simply cannot establish that there [w]as a fraud, let alone that
Defendants were aware of this fraud.” Defs.’ Reply at 6. They argue further that, even if Mr.
Bailey could show that there was a fraud of which Defendants were aware, he cannot show that
Defendants intentionally concealed any appraisal from him in an attempt to prevent a lawsuit. Id.
at 6-7. Finally, Defendants urge the Court to grant their motion for summary judgment because
of a “complete lack of any factual and/or legal support in” Mr. Bailey’s objection to the motion
for summary judgment. Id. at 1. “Despite having pursued this lawsuit for years, including
receiving more than a thousand pages of documents and deposition testimony, Plaintiff cannot
produce a scintilla of evidence to substantiate the allegations of the Complaint.” Id.
The Court agrees.
When a motion for summary judgment is supported by documentary evidence and sworn
affidavits and “demonstrates the absence of a genuine issue of material fact,” the nonmoving
party must do more than vaguely assert the existence of some unspecified disputed material facts

15

or “rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra
Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). A plaintiff “must present
concrete evidence from which a reasonable juror could return a verdict in [her] favor.” Alteri v.
Gen. Motors Corp., 919 F. Supp. 92, 94-95 (N.D.N.Y 1996), aff’d, 116 F.3d 465 (2d Cir. 1997)
(internal quotations omitted); see also Celotex Corp., 477 U.S. at 324 (holding that Rule 56(e)
“requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’”). “Where a statement is not supported by the
record, the Court either notes such or does not rely on the purported fact in its determination.”
Johnson v. Conn. Dep’t of Admin. Servs., 972 F. Supp. 2d 223, 229 (D. Conn. 2013), aff’d, 588
F. App’x 71 (2d Cir. 2015). Additionally, a district court is not obligated to “perform an
independent review of the record to find proof of a factual dispute. A district court is obligated
only to consider the materials cited to it by the parties.” Morales v. N.Y. State Dep’t of Labor,
530 Fed. App’x. 13, 14 (2d Cir. 2013) (internal quotation marks and citation omitted).
Mr. Bailey alleges repeatedly in his Fourth Amended Complaint and in his Declaration
that Defendants intentionally concealed an allegedly fraudulent appraisal with the purpose of
delaying his ability to file a lawsuit. See Fourth Am. Compl. ¶ 40, 42-43, 56, 60; Bailey Decl. ¶
70-80. Yet there is no record evidence to support these allegations. These unsubstantiated
allegations are insufficient to create a genuine issue of material fact as to whether Defendants
intentionally concealed an alleged fraud. See Prunier v. City of Watertown, 936 F.2d 677, 680
(2d Cir. 1991) (“To be sure, a jury may not base its verdict on mere speculation, surmise or
guesswork.”); Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (plaintiffs “may not rely on
mere speculation or conjecture as to the true nature of the facts to overcome” summary

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judgment (internal citation omitted)); Alteri, 919 F. Supp. and 94-95 (A plaintiff “must present
concrete evidence from which a reasonable juror could return a verdict in [her] favor.”), aff’d,
116 F.3d 465 (2d Cir. 1997) (internal quotations omitted).
On the record evidence—submitted entirely by Defendants—Mr. Bailey cannot establish
that Defendants had actual awareness of facts necessary to establish fraud or that they
intentionally concealed those facts with the purpose of delaying Mr. Bailey taking legal action.
Indeed, numerous documents show that Mr. Bailey took steps over the course of
several months towards purchasing the Property—including three loan applications, a fee
agreement for a broker, a fee authorization form for an appraisal, a statement accepting the
appraised value, and two purchase and sale agreements. See Loan Details & Memo; First
Purchase and Sale Agreement; Upfront Appraisal Processing Fee Disclosure & Payment
Authorization; Internal Interbay Appraisal Review Form; Statement Accepting Appraised
Value; Second Purchase and Sale Agreement; the Mortgage; Third Loan Application;
Promissory Note.3
And while Mr. Bailey argues that he requested but never received the appraisal,
Bayview declares that he did not, Bayview Decl. ¶ 39-45; and none of the Hardship Letters in
the record include a request for loan origination documentation or a copy of the original
appraisal, 2009 Hardship Letter; 2010 Hardship Letter; 2013 Hardship Letter; 2014 Hardship
Letter.

3

Mr. Bailey asserts, without any support, that the signatures on documents produced by Defendants are fraudulent.
See, e.g., Bailey Decl. ¶ 81 (“Many of the signatures on the documents produced by Defendants are not my
signatures. A blind person could see they are not my signatures.”). These unsupported assertions are unavailing,
particularly in light of Defendants’ expert testimony that the signatures are in fact Mr. Bailey’s. Defs.’ SOMF Ex. 61, ECF No. 106-25 (John Reznikoff Expert Report, Questioned Documents and Handwriting (Sept. 30, 2019)).

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A reasonable jury thus could not conclude that Mr. Bailey has met his burden of
showing that Defendants intentionally concealed an alleged fraud. Martinelli, 196 F.3d at 422
(quoting Puro, 188 Conn. at 308) (“Fraud is not to be presumed, but must be strictly proven.
The evidence must be clear, precise, and unequivocal.”). The statute of limitations therefore
bars Mr. Bailey’s fraud claim.
Accordingly, Defendants’ motion for summary judgment must be granted.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion for summary

judgment.
The Clerk of Court is respectfully directed to close this case.
SO ORDERED at Bridgeport, Connecticut, this 21st day of January, 2020.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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